Karnataka High Court
Swamy vs State Of Karnataka on 29 March, 2022
Bench: B.Veerappa, S Rachaiah
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No. 1947/2017
C/W
CRIMINAL APPEAL No. 621/2018
CRIMINAL APPEAL No. 1947/2017
BETWEEN:
SWAMY
S/O LATE RANGAIAH
AGED ABOUT 28 YEARS,
R/AT THUMBENAHALLI,
KAILANCHA HOBLI,
RAMANAGAR - 562 160.
... APPELLANT
(BY SRI MOHAMMED PASHA C., ADVOCATE)
AND:
STATE OF KARNATAKA,
BY RAMANAGARA RURAL POLICE STATION
RAMANAGARA DISTRICT,
2
REP. BY IS SPP, HIGH COURT CAMPUS,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 20.09.2017 AND SENTENCE DATED
21.09.2017 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN S.C.NO.123/2011 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302 READ WITH 34 OF IPC.
THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND PAY FINE OF RS.10,000/-, IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER
SIMPLE IMPRESONMENT FOR 6 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC. THE
APPELLANT/ACCUSED NO.1 IS PRAYS THAT HE BE ACQUITTED.
CRIMINAL APPEAL No. 621/2018
BETWEEN:
KRISHNA,
S/O LATE RANGAIAH,
AGED ABOUT 32 YEARS,
R/AT THUMBENAHALLI,
KAILANCHA HOBLI,
RAMANAGAR - 562 160.
... APPELLANT
3
(BY SRI MOHAMMED PASHA C., ADVOCATE)
AND:
STATE OF KARNATAKA,
BY RAMANAGARA RURAL POLICE STATION,
RAMANAGARA DISTRICT,
REPRESENTED BY SPP,
HIGH COURT CAMPUS,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 20.09.2017 AND SENTENCE DATED
21.09.2017 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN S.C.NO.123/2011 -
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302 READ WITH 34 OF IPC.
THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND PAY FINE OF RS.10,000/-, IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER
SIMPLE IMPRESONMENT FOR 6 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC. THE
APPELLANT/ACCUSED NO.2 PRAYS THAT HE BE ACQUITTED.
THESE APPEALS COMING ON FOR HEARING, THIS DAY,
B. VEERAPPA J, DELIVERED THE FOLLOWING:-
4
JUDGMENT
The accused No.1 / appellant in Criminal Appeal
No.1947/2017 is the husband of the deceased, accused No.2 /
appellant in Criminal Appeal No.621/2018 is the brother-in-law
of the deceased and brother of accused No.1 who is a physically
challenged person and cannot walk, and accused No.3 is the wife
of accused No.2, against whom split up chargesheet was filed.
2. Accused Nos.1 and 2 filed the present criminal
appeals against the impugned judgment of conviction dated
20.09.2017 and order of sentence dated 21.09.2017 passed in
S.C.No.123/2011 on the file of the I Additional District and
Sessions Judge, Ramanagara, convicting the accused Nos.1 and
2 for the offence punishable under section 302 read with section
34 of IPC and sentencing them to undergo life imprisonment and
pay fine of `10,000/- each, in default, to further undergo simple
imprisonment for six months.
3. It is the case of the prosecution that, based on the
statement of the victim Smt.Savitha dated 24.08.2010 at about
12.30 p.m., the jurisdictional police treated the victim statement
as complaint and registered Crime No.241/2010 under the
provisions of section 498A, 307 read with section 34 of IPC,
further on 07.10.2010 at about 09.00 a.m., PW.2 - father of the
deceased gave a statement before the jurisdictional police that
his daughter, who was burnt and hospitalized, has died on
06.10.2010 at about 7.30 p.m. Hence, section 307 IPC was
changed to section 302 IPC.
4. It is the case of the prosecution that the accused
No.1 married Savitha and by telling that she is barren and not
having any children, harassing her both physically and mentally.
On 22.08.2010 at about 8.00 p.m., the accused Nos.1 to 3
abused the deceased for not having any children, when deceased
asked why they are scolding them, accused No.1 - husband
pulled her hair and assaulted her with hands. Accused Nos.2
and 3 abused her in filthy language and accused No.1 said that
she has to be killed and went away from the house. Thereafter,
accused Nos.2 and 3 poured kerosene on her and accused No.2
lit the fire. On hearing the screams of deceased Savitha,
neighbours rushed to the spot and extinguished the fire. Her
mother-in-law admitted the deceased to Ramanagara
Government Hospital for treatment. Thereafter, on reference,
she was sent to Victoria Hospital, Bengaluru. Her statement was
recorded on 24.08.2010 at 12.30 p.m. She was discharged from
the hospital on 19.09.2010, subsequently, she died on
06.10.2010 at about 7.30 p.m. Thereafter, her father PW.2 has
lodged one more complaint Ex.P2 on 07.10.2010 at about 09.00
a.m., and based on the said complaint, the provision of section
307 of IPC was converted into section 302 of IPC by the
jurisdictional police. After investigation, the jurisdictional police
filed the chargesheet under the provisions of sections 498A and
302 read with section 34 of IPC.
5. After the matter was committed to the learned
Sessions Judge, learned Sessions Judge secured the presence of
the accused persons and framed common charges against the
accused Nos.1 to 3 under the provisions of sections 498A, 302
read with sections 34 of IPC and read over and explained to the
accused persons in the language known to them. Accused
pleaded not guilty and claimed to be tried.
6. In order to prove the case of the prosecution, the
prosecution examined, in all, 15 witnesses as P.W.1 to P.W.15,
produced material documents as Ex.P.1 to Ex.P.12 and material
objects M.O.1 and M.O.2. After completion of the evidence of
prosecution witnesses, the statements of the accused persons,
as contemplated under Section 313 of Cr.P.C., were recorded.
The accused persons denied the incriminating evidence adduced
by the prosecution witnesses, but not adduced any defence
evidence.
7. Based on the aforesaid pleadings, learned Sessions
Judge framed two points for consideration, which read as
under:-
(1) Whether the prosecution proves beyond
reasonable doubt that, the accused No.1 was living
with Savitha and gave her physical and mental
harassment by saying that she is barren and
thereby committed an offence punishable under
section 498A read with section 34 of IPC?
(2) Whether the prosecution proves beyond
reasonable doubt that, on 22.08.2010 at about 8
night the accused persons with common intention,
when Savitha was in the house, picked up quarrel
with her and set fire by pouring kerosene on her
and caused burning injuries, and she died on
06.10.2010 by your negligence and thereby
committed an offence punishable under section 302
read with section 34 of IPC?
8. Considering both the oral and documentary evidence
on record, learned Sessions Judge answered point No.1 in the
negative and point No.2 in the affirmative, holding that the
prosecution failed to prove, beyond reasonable doubt, that
accused No.1 was living with Savitha and gave her physical and
mental harassment by saying that she is barren and thereby
committed an offence under the provisions of section 498A read
with section 34 of IPC and further held that the prosecution has
proved beyond reasonable doubt that on 22.08.2010 at about
8.00 p.m., the accused persons with common intention, when
Savitha was in the house, picked up quarrel with her and set fire
by pouring kerosene on her and caused burn injuries and she
died on 06.10.2010, thereby committed an offence punishable
under section 302 read with section 34 of IPC. Accordingly,
learned Sessions Judge, by the impugned judgment of conviction
dated 20.09.2017 and order of sentence dated 21.09.2017,
convicted the accused Nos.1 and 2 for the offences under the
provisions of section 302 read with section 34 of IPC for life
imprisonment with fine of Rs.10,000/- each, with default
sentence of simple imprisonment for six months. Accused Nos.1
and 2 were acquitted for the offence punishable under section
498A read with section 34 of IPC. Hence, the present appeals
are filed by the accused Nos.1 and 2.
The State has not filed appeal against the acquittal of
accused Nos.1 and 2 for the offence punishable under section
498A read with section 34 of IPC.
9. We have heard learned counsel for the parties.
10. Sri.Mohammed Pasha.C., learned counsel for the
appellants / accused Nos. 1 and 2 mainly contended that the
impugned judgment of conviction convicting accused Nos.1 and
2 for the offence punishable under section 302 of IPC with fine of
Rs.10,000/- is erroneous, contrary to the material on record,
cannot be sustained and liable to be set-aside. He would further
contend that though the incident occurred on 22.08.2010 in the
house of accused No.1, the members of the deceased family
have not lodged any complaint against accused for more than
two days and there was a delay in filing the complaint, thereby it
is fatal to the case of the prosecution. He would further contend
that the dying declaration / statement of the deceased was
recorded only on 24.10.2010 as per Ex.P17 and she was
discharged on 19.09.2010 and thereafter, she was residing in
matrimonial home and she died on 06.10.2010, thereby the
prosecution has not proved any case beyond reasonable doubt.
He would further contend that there are no eyewitnesses to the
incident. PW.1 and PW.5 who are neighbours, who doused the
fire, not supported the case of the prosecution. In all, presence
of accused Nos.1 to 3 on the date of the incident was disclosed.
Accused No.1 being the husband of the deceased, shifted the
injured to Ramanagara Hospital, thereafter shifted the deceased
to Victoria Hospital, Bengaluru for further treatment, as spoken
to by PW.1.
11. He would further contend that the Doctor / PW.10
stated that the injured has not deposed anything about the
accused persons. He would further contend that accused Nos.1
and deceased stayed separately and not with the accused Nos.2
and 3. There is no material to show that Accused No.1 was
instigated to marry another woman as the deceased had no
children. He would further contend that Ex.P8 - MLC Register
depicts history of incident of burns and she was shifted from
Ramanagara hospital to Victoria Hospital. Admittedly, mother-
in-law, who was the material witness and who took the deceased
to the hospital, was not examined by the prosecution and after
discharge, the deceased went to her matrimonial home and
resided along with accused No.1 and mother-in-law. The said
aspect of the matter was not considered by the learned Sessions
Judge and thereby, erroneously convicted the accused. He
would further contend that the impugned judgment acquitting
accused Nos.1 and 2 under the provisions of section 498A of IPC
has reached finality as the State has not filed an appeal.
Thereby he sought to allow the appeals.
12. Per contra, Sri.Vijayakumar Majage, learned Addl.
SPP while justifying the impugned judgment of conviction and
order of sentence, contended that though there was delay in
recording the statement of the victim on 24.08.2010, though
incident had occurred on 22.08.2010, the fact remains that they
were struggling to save the life of the deceased rather than
lodging the complaint. He would further contend that the
statement of deceased Savitha which subsequently considered
as dying declaration clearly depicts that accused No.1 and
deceased Savitha were living together and accused Nos.2 and 3
were residing separately on the date of the incident when the
accused No.1 had abused the deceased for not having any
children as she was barren. Same was supported by accused
Nos.2 and 3 who also blamed the deceased, thereafter, they
quarreled for sometime, accused No.1 / husband went away.
Thereafter, PW.2 and PW.3 poured kerosene and accused No.2
lit fire thereby, the prosecution has proved beyond reasonable
doubt about the involvement of the accused. He would further
contend that though the accused was acquitted under the
provisions of section 498A read with section 34 of IPC, the fact
remains that accused persons were given life imprisonment,
thereby the State has not filed any appeal. Therefore, he sought
to dismiss the appeals.
13. In view of the aforesaid rival contentions urged by
the learned counsel for the parties, the point that would arise for
our consideration is,
Whether the Trial Court is justified in
convicting the accused Nos.1 and 2 for the
offence punishable under section 302 of IPC and
whether the accused Nos.1 and 2 made out a
case to interfere with the same in the peculiar
facts and circumstances of the case?
14. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material on record, including the original
record carefully.
15. This court being the appellate court, in order to re-
appreciate the entire material, both oral and documentary on
record, it is relevant to consider the evidence of prosecution
witnesses and material documents relied upon:-
a) PW.1 - Chandramma - deposes that she
knows accused Nos.1 and 2 from her mother's
place. She has seen the deceased Savitha,
wife of accused No.1. They had no issues out
of the marriage. On the date of the incident,
she was present in her parents' house. She
deposes that she does not know how the
deceased died and she has not seen who set
the fire to her by pouring kerosene on her.
She further deposes that she did not go to the
hospital to see the dead body and she has not
given any statement to police about having
seen the incident, thereby, PW.1 was treated
as hostile.
b) PW.2 - Narasimhappa, who is the father of the
deceased, deposes that his daughter Savitha
was given in marriage to accused No.1 -
Swamy and she was residing with her
husband, as husband and wife, along with
accused Nos.2 and mother in Tumbenahalli. At
the time of wedding, he gave Savitha gold
earrings, jumaki, ring and clothes. He gave
one gold ring and dower of Rs.10,000/- to
accused No.1 and performed the wedding, at
his cost, at Kengal and they lived happily for
six months. Later, his daughter told him that
her husband's family want further dower of
Rs.10,000/- for family problems, for which he
refused. Later he visited his daughter in
Victoria Hospital and she told that father-in-law
had poured kerosene and set fire. At that
time, no body was present in the house. She
intimated the said fact to police as well as
medical officer. She was an inpatient in the
hospital for one month. Later hospital people
wanted her to change place and hence, he
brought her to village where she died after
three days. He gave his statement to the
police. Ex.P2 is the complaint. Further he
deposes that he gave statement to police at
the time of inquest and he does not know the
contents written in Ex.P2 - complaint and
contents of inquest, thereby PW.2 was treated
as hostile and he was cross-examined.
In the cross-examination, he states that
the deceased was brought back from the
Hospital to Thumbenahalli. The accused
persons and Channajamma did not get the
deceased proper treatment and hence she died
on 06.10.2010. Later he lodged Ex.P2
complaint, thereby supported the case of the
prosecution.
c) PW.3 - Vinod Murthy, younger brother of the
deceased, deposed that, two years prior to the
death of the deceased, marriage of accused
No.1 and deceased was performed in Kengal,
at the cost his father and she was residing in
the matrimonial home along with her husband,
A2, wife of A2 and mother-in-law. Later, he
came to know that his sister had no issues and
hence, they were torturing her. He does not
know anything about the details of torturing.
He further admitted in cross-examination
that it is true that in Thumbenahalli only his
sister and her mother-in-law were present.
Later they did not secure her any treatment.
He further admitted that it is not correct to
suggest that A2 was residing with his family
members separately and never bothered the
deceased. Witness volunteered that it is they
who looked after her treatment expenses and
neither husband nor others visited her.
d) PW.4 -Smt.Meenakshamma, mother of the
deceased, deposed about the marriage
between accused No.1 and deceased. She
further deposes that her daughter died about
2½ years after her marriage. Her daughter was
in the matrimonial home and she told them
during the first year of marriage that her in-
laws were taking good care, later, she stated
that they were ill-treating, harassing her and
demanding further dower and also having no
issues. PW.4 deposed that she had instructed
her daughter to adjust and live in the
matrimonial home. After knowing the incident,
they went to Victoria Hospital. Her daughter
was fully burnt. On enquiry from the
daughter, she told her that both the accused
persons before the court and Channajamma
set fire, though she opposed. She was in the
hospital around one month and later Doctor
advised her to change the place. She has
further deposed that the police took her to the
place of incident when her daughter was in the
hospital and there they conducted panchanama
(Ex.P3) to which she affixed LTM. Witness
identifies M.O.1 and M.O.2. She has supported
the case of the prosecution. Nothing has been
elicited in the cross-examination to disbelieve
her evidence as stated in the examination-in-
chief.
e) PW.5 - Thammaiah is from the same village
where accused persons and deceased were
residing and he knows them as they were
residing in abutting houses. He has deposed
that he knows that, while pouring kerosene to
stove, fire broke out around four years ago, at
about 7 p.m. and at that time, he was inside
his house and went to the spot and saw
general public running there and deceased
Savitha burning, who was shifted to the
hospital by her mother-in-law. Accused
persons were not present in the house. He
further admitted that he did not attempt to
extinguish the fire. They took her to Victoria
Hospital, Bengaluru. He further deposed that
deceased had told him, after coming from the
hospital, that stove burst happened and fire
was caught. Partly supported the case of the
prosecution.
f) PW.6 - Puttaswamaiah and PW.7 -
Krishnappa, panch witnesses to Ex.P5 -
inquest mahazar, have been treated as partly
hostile.
g) PW.8 - Govindaiah, is stated to be eyewitness,
but has not supported the case of the
prosecution.
h) PW.9 - Dr.Raju MMS, who deposed that on
22.08.2010 at 9.45 p.m., Smt.Savitha, 25
years, was brought through 108 ambulance
accompanied by her husband Swamy, with the
history of accidental burns on 22.08.2010 in
their house and immediately, he intimated the
same to the police through memo - Ex.P7 and
referred the patient to Victoria Hospital,
Bengaluru, after providing first aid. The Doctor
was not cross-examined.
i) PW.10 - Dr.G.R.Siddeswar who deposed that
when he was working in Casualty as Casualty
Medical Officer in Victoria Hospital, Bengaluru,
the District Hospital had referred one victim
Savitha with the history of burn injuries to
Victoria Hospital for higher treatment. On
23.08.2010, at about 12.45 a.m., she was
brought to Victoria Hospital and he recorded
the details in MLC register and then referred
the injured to Specialist, Burn Ward. In the
MLC register, the victim Savitha gave history in
the nature of accidental burns while pouring
kerosene into the lamp and she got fire and
sustained burn injuries. She was brought to
the hospital by her husband Swamy. MLC
register issued by the Medical Officer is marked
as Ex.P8. PW.10 is also not cross-examined,
except deposing that burn injuries could
happen in case of an incident of stove burst,
which is not the case of the prosecution.
j) PW.11 - Sowmya, elder sister of the deceased,
has deposed that she knows the accused
persons before the court. By the time of death
of her sister, two years of marriage had been
completed after her marriage. After the
marriage, deceased was residing with her
husband in matrimonial home. Both accused
persons were harassing her sister by stating
that she was barren and has no children.
Accused No.2 used to ask her to come. When
her sister was sleeping, both accused persons
poured kerosene through window and set fire,
thereby deceased intimated her that her
co-sister and her husband had poured
kerosene and set fire when she was sleeping.
Supported the case of the prosecution.
k) PW.12 - Vinod Bhat, PSI, has deposed that he
was working as PSI from 04.03.2009 to
30.06.2011 and conducted partial investigation
and handed over the investigation to CPI.
Supported the case of the prosecution.
l) PW.13 - H.N.Dharmendra, Dy.S.P., Madhugiri,
who deposed that from 23.03.2008 to
07.07.2011, he was working as Circle
Inspector of Police. He received the case file
on 20.10.2010 from C.W.24 after taking
charge and continued investigation. He visited
the spot and deputed police personnel to
secure the presence of the accused. After
completion of investigation, filed chargesheet.
m) PW.14 - Usha, Senior Specialist, Ramanagara
District Hospital, has deposed that on
07.10.2010, with regard to Ramanagara Rural
Police Station Crime No.241/2010 for the
offences under sections 498A, 302 read with
34 of IPC, she has conducted postmortem of
the deceased Savitha, on the request made by
the police, from 1.30 p.m. to 3.30 p.m.
Ex.P12 is the postmortem report. Supported
the case of the prosecution.
n) PW.15 - D.B.Natesh, has deposed that he has
worked as Tahsildar of Ramanagara Taluk from
05.09.2009 to 12.05.2011. He has deposed
that on 07.10.2010, he has conducted
panchanama on the request made by the
police and submitted Inquest Report as per
Ex.P5.
Based on the aforesaid material, learned Sessions Judge
proceeded to convict accused Nos.1 and 2 under the provisions
of section 302 read with section 34 of IPC.
16. It is not in dispute that the unfortunate incident
occurred on 22.8.2010 and the statement of the injured was
recorded on 24.8.2010 i.e., after two days from the date of the
incident. The statement of the injured Savitha was recorded on
24.8.2010 at 12.30 p.m. as per Ex.P17 while she was taking
treatment in the hospital. Based on the said statement, Crime
No.241/2010 was registered initially under the provisions of
Sections 498A and 307 r/w 34 of IPC. Admittedly, she was
discharged from the hospital on 19.9.2010 and started residing
in her matrimonial home with her husband and mother-in-law.
Hence, it is pertinent to mention that if at all the accused have
committed the act on deceased as alleged by the prosecution,
then definitely deceased never opted to stay in her matrimonial
home with the accused after her discharge from the hospital. It
is also not the case of any of the prosecution witnesses including
PW.2 (father of the deceased), PW.3 (brother of the deceased)
and PW.3 (mother of the deceased) that due to the unfortunate
incident, they did not want to send the deceased again to the
matrimonial home. It is clear that the deceased having suffered
burn injuries and having made statement on 24.8.2010, after
discharge from the hospital on 19.9.2010, she resided in the
matrimonial home along with her husband (Accused No.1) and
mother-in-law till 6.10.2010 i.e., about more than 15 days.
17. In the present case, the victim Savitha died on
6.10.2010. Thereafter, her father (PW.2) has lodged complaint
as per Ex.P2 on 7.10.2010 at about 9.00 a.m. and based on the
said complaint, the provision of Section 307 of IPC was
converted into one under Section 302 of IPC by the jurisdictional
Police.
18. In the alleged dying declaration as well as in the
complaint, the allegation against the Accused No.1 (husband of
the deceased) is that he scolded the deceased and went away.
It is the case of the prosecution that Accused Nos.2 and 3
abused the deceased in filthy language that she is barren and
not having any children and poured kerosene on her and
Accused No.2 set fire to the deceased. But, there are no eye
witnesses to the incident, which occurred on the unfortunate
day. Very strangely, Ex.P8 - MLC register issued by the doctor
(PW.9) clearly depicts the history of accidental burns. The
doctor (PW.9) deposed before the Court that the deceased was
shifted by her husband to Ramanagara Government Hospital and
thereafter, she was shifted to Victoria hospital, Bangalore.
Unfortunately, the prosecution has not cross-examined the
doctor - PW.9.
19. It is not in dispute that fire incident occurred on
22.8.2010 and the statement of the injured was recorded on
24.8.2010 and she was discharged from the hospital on
19.9.2010. She was all along residing in the matrimonial home
with her husband (Accused No.1) and mother-in-law.
Admittedly, the mother-in-law of the deceased, who is the
material witness to the case of the prosecution has not been
examined and it is fatal to the case of the prosecution.
20. The prosecution has not explained the delay of two
days in registering the case inasmuch as the incident occurred
on 22.8.2010 at 8.00 p.m. and the victim statement (Ex.P17)
was recorded on 24.8.2010 at 12.30 p.m. and the scribe of
Ex.P17 viz., H.C. No.373 has not been examined.
21. It is an undisputed fact that the learned Sessions
Judge considering the entire material on record though common
charge was framed against accused persons under the provisions
of Sections 498A and 302 r/w 34 of IC, the learned Sessions
Judge proceeded to acquit the accused Nos.1 and 2 under the
provisions of Section 498A r/w 34 of IPC. Admittedly, the State
has not filed any appeal against the said acquittal.
22. It is also not in dispute that there are no eye
witnesses to the incident. PWs.1 and 5, who are neighbours and
who doused the fire, have not supported the case of the
prosecution nor stated the presence of Accused Nos.1 and 2 on
the date of the incident.
23. It is not in dispute that Accused No.1 - husband
shifted the injured to Ramanagara Government Hospital and
thereafter to Victoria hospital, Bangalore. The doctor (PW.10)
specifically stated on oath that on 23.8.2010 he was working in
Casualty as Casualty Medical Officer in Victoria hospital,
Bangalore. The District Hospital referred the victim - Savitha
with the history of burn injuries. At about 12.45 a.m., she was
brought to the Victoria hospital and he recorded the details in
the MLC register and then referred the injured to the Specialist,
Burns Ward. The MLC register depicts the history of accidental
burns. The certified copy of the MLC register is at Ex.P8. In
the cross-examination, the doctor (PW.10) admitted that it is
true that the burn injuries could happen in the case of an
incident of stove burst. He has not whispered anything about
the statement of the victim/dying declaration (Ex.P17) recorded
on 24.8.2010. Further, the doctor who endorsed on the
statement of the victim (Ex.P17) to the effect that the patient is
fit to give statement, has not been examined. The victim was
discharged from the hospital on 19.9.2010 and after the
discharge, she went to the matrimonial home and was residing
along with her husband and mother-in-law till she died on
6.10.2010. The Post-mortem report - Ex.P12 issued by the
doctor (PW.14) depicts that the cause of death is due to
septicemia as a result of burns.
24. In view of the above, the very statement of the
victim (Ex.P17), which is subsequently treated as dying
declaration, is suspicious and doubtful. It is not the case of the
prosecution that the husband poured kerosene on the victim. As
per the statement of the victim, the husband scolded the
deceased and went away and it is Accused Nos.2 and 3, who
poured kerosene and Accused No.2 set fire. There are no eye
witnesses to the incident. The statement of the victim/dying
declaration is not corroborated by any independent evidence.
Ex.P8 - MLC register issued by the doctor during the course of
official business clearly depicts the history of accidental burns.
The victim was shifted by Accused No.1/husband to the Victoria
hospital. The doctor (PW.9), who issued the MLC, has not been
cross-examined. Considering the entire oral and documentary
evidence on record, we are of the considered opinion that the
case of the prosecution is suspicious and the learned Sessions
Judge has not considered the material aspects in the proper
perspective, thereby proceeded to erroneously convict Accused
Nos.1 and 2 based on Ex.P17 alone in the absence of any other
corroborative evidence and the same cannot be sustained.
25. Admittedly, no material is placed against Accused
No.1 - husband of the deceased. Except the statement of the
deceased against Accused No.2 and 3, there is no other material.
The said statement cannot be believed in view of Ex.P8 - MLC
register coupled with the evidence of the doctors (PWs.9 and
10). Admittedly, the doctor who issued the Endorsement on
Ex.P17 (statement of the deceased) to the effect that the
patient is fit to give statement, has not been examined. The
author of Ex.P17 also not examined. In view of the above
serious circumstances, the case of the prosecution is doubtful.
26. It is well settled that a dying declaration could be the
sole basis of conviction even without corroboration, if it inspires
confidence of the court. 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. 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. When
the eyewitnesses affirm that the deceased was not in a fit and
conscious state to make the statement, the medical opinion
cannot prevail.
27. Admittedly in the present case, though the incident
occurred on 22.8.2010, the victim's statement was recorded on
24.8.2010 i.e., after two days and the delay has not been
properly explained. Apart from that, the doctor who endorsed
on Ex.P17 to the effect that the patient is fit to give statement,
has not been examined. In the present case, material witnesses
were not examined and the evidence of the doctors (PWs.9 and
10) and the material document - Ex.P8 (MLC) has not been
considered in the proper perspective. Moreover, Accused No.2
(brother-in-law of the deceased and brother of Accused No.1)
was physically challenged person and cannot walk much. In the
circumstances, it is unsafe to rely and convict the accused based
on suspicious statement of the victim/dying declaration. The
learned Sessions Judge proceeded to convict Accused Nos.1 and
2 mainly on the basis of Ex.P17, ignoring the other
circumstances and the material documents.
28. It is well settled that there is no embargo on the
Appellate Court reviewing the evidence upon which an order of
conviction is based. The golden thread which runs through the
web of administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused should be
adopted. The paramount consideration of the Court is to ensure
that miscarriage of justice is prevented. A miscarriage of justice
which may arise from acquittal of the guilty is no less than from
the conviction of an innocent. The learned Sessions Judge has
ignored number of reasonable doubts which legitimately arose
on the evidence led by the prosecution and its conduct in
suppressing the vital documents and witnesses clearly indicate
that the prosecution has not proved the guilt of the accused
persons beyond reasonable doubt. The non-explanation of the
time gap between the date of the incident and date of
registering the complaint and non-production of the material
documents and not cross-examining the doctor, clearly prove
that the prosecution case is doubtful. The said aspect of the
matter has not at all been considered by the learned Sessions
Judge while convicting the Accused Nos.1 and 2.
29. For the reasons stated above, the point raised in the
present criminal appeal is answered in the negative holding that
the trial Court is not justified in convicting Accused Nos.1 and 2
for the offence punishable under the provisions of section 302 of
IPC and sentencing them to undergo imprisonment for life with
fine and default clause. The Accused Nos.1 and 2 have made
out a case to interfere with the impugned judgment of conviction
and order of sentence passed by the trial Court.
30. In view of the above, we pass the following:
ORDER
i) Criminal Appeal No.1947/2017 filed by
appellant/Accused No.1 and Criminal Appeal
No.621/2018 filed by appellant/Accused No.2, are
hereby allowed.
ii) The impugned judgment of conviction and order of
sentence dated 20/21-09-2017 made in S.C.
No.123/2011 on the file of the I Addl. District &
Sessions Judge, Ramanagara, convicting the
appellants/Accused Nos.1 and 2 for the offence
punishable under Section 302 r/w 34 of IPC and
sentencing them to undergo imprisonment for life and
to pay fine of Rs.10,000/- with default clause, is hereby
set aside.
iii) The appellants/Accused Nos.1 and 2 are hereby
acquitted for the offence punishable under Section 302
r/w 34 of IPC.
iv) The bail bond, if any executed by appellant/Accused
No.1 in Criminal Appeal No.1947/2017 shall stand
cancelled.
v) The concerned jail authorities are directed to release
appellant/Accused No.2 - Krishna in Criminal Appeal
No.621/2018 forthwith, if he is not required in any
other case.
Sd/-
JUDGE
Sd/-
JUDGE
Bss/Gss
