Karnataka High Court
Sharanappa S/O Hanamappa ... vs State Of Karnataka on 10 August, 2023
Bench: Sreenivas Harish Kumar, Ramachandra D. Huddar
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CRL.A No. 100050 of 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100050 OF 2019 (C-)
BETWEEN:
1. SHARANAPPA S/O HANAMAPPA HULYAPUR
AGE: 45 YEARS, OCC: LABOUR,
R/O: CHIKKAKODAGALLI L.T.,
NO.2, HUNGUND TALUK,
DIST: BAGALKOTE.
...APPELLANT
(BY SRI. SHAIKH SAOUD, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ILAKAL RURAL POLICE STATION,
Digitally signed
by SAMREEN
AYUB
REPRESENTED BY:
DESHNUR
SAMREEN
AYUB
Location: High
Court of
THE STATE PUBLIC PROSECUTOR,
Karnataka,
DESHNUR Dharwad
Date:
2023.08.16
HIGH CURT OF KARNATAKA,
10:44:30
+0530 DHARWAD.
...RESPONDENT
(BY SRI.M.B.GUNDAWADE, ADDL SPP.)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS AND THE JUDGMENT
AND ORDER OF CONVICTION AND ORDER OF SENTENCE
DATED 20.11.2018 & 22.11.2018 RESPECTIVELY PASSED BY
THE PRL. DIST. & SESSIONS JUDGE, BAGALKOT IN
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CRL.A No. 100050 of 2019
S.C.NO.80/2015 AT ANNEXURE-A BE SET ASIDE AND THE
ACCUSED/APPELLANT BE ACQUITTED FOR THE OFFENCES
P/U/S 302 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, SREENIVAS HARISH KUMAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal by the accused assails his conviction for
the offence under Section 302 IPC.
2. The prosecution case is that on 09.04.2015
around 10 a.m., the accused came to his hut in a drunken
condition and picked up quarrel with his wife taking
objection for not inviting him to the marriage of the
daughter of his wife's brother. In the course of quarrel, he
poured kerosene and set her ablaze. The wife died in the
hospital at 2 a.m. on 11.04.2015. Based on a statement
said to have been given by the deceased, FIR was
registered and investigation led to filing of the charge-
sheet for the offence under Section 498-A and Section 302
IPC.
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3. Assessing the evidence of 21 witnesses i.e.,
PWs-1 to 21, the documents as per Ex.P.1 to Ex.P.31 and
material object M.O.1, the trial Court found that the
prosecution was not able to establish its case for the
offence under Section 498-A IPC, but however held the
accused guilty of the offence under Section 302 IPC and
sentenced him to life imprisonment and fine. Hence, this
appeal by the accused.
4. We have heard the arguments of Shri Shaikh
Saoud, learned counsel for the appellant and
Shri M.B.Gundawade, learned Addl. State Public
Prosecutor for the State.
5. It is the argument of Shri Shaikh Saoud that
there are no eye-witnesses to the incident; the trial Court
ought not to have placed reliance on two statements said
to have been given by the deceased as per Exs.P.15 and
17. The deceased sustained burn injuries to the extent of
85% and for that reason it was doubtful that she was in a
position to give statements which the prosecution has
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relied upon. Referring to the evidence of PW-12, the
Taluka Executive Magistrate, he argues that his deposition
clearly discloses that certain blanks found in Ex.P.14 were
filled up by the case worker, working in the office of
Tahsildar and even Ex.P.15, the so-called dying
declaration appears to have been not taken down by
PW-12. As PW-12 has clearly admitted in the cross-
examination that the question at serial No.7 is left blank, it
can very well be said that Ex.P.15 is not a dying
declaration and therefore, the trial Court should not have
placed reliance on it. Then referring to the evidence given
by PW-21, his argument is that it cannot be construed as a
dying declaration because it appears that the said
statement was taken soon after the deceased was brought
to the hospital. She survived for two more days and
therefore, it was not a statement given in contemplation of
death. He also refers to the evidence given by PWs-4 and
9 to point out certain discrepancies in the prosecution
case. Particularly, referring to evidence of PW-4, he
submits that when the hut caught fire, the accused was
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not there and therefore, it is highly impossible to believe
that the deceased was set on fire by the accused. In
support of his argument, he places reliance on the
judgment of Hon'ble Supreme Court in Criminal Appeal
No.2043/2023 [arising out of S.L.P. (Criminal)
No.9289/2019) decided on 20.07.2023], and prays for
allowing the appeal and acquit the accused.
6. Shri M.B.Gundawade, learned Addl. State Public
Prosecutor argues that the trial Court has rightly
appreciated the evidence to record conviction for the
offence under Section 302 IPC. Though there are no eye-
witnesses to the incident, the said two statements given
by the deceased as per Exs.P.15 and 17 are sufficient
enough to hold that the accused did set fire to his wife.
For a silly reason, he picked up quarrel with his wife and in
the course of quarrel, if he went to the extent of pouring
kerosene and setting fire, it shows his clear intention to kill
his wife. Then referring to the evidence given by PW-9, he
points out that one suggestion given to the witness itself is
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sufficient enough to draw an inference that the accused
was very much present in the hut. The suggestion given
was that the accused was very much present in the house
for looking after the children, that means the accused was
in the house at the time when the deceased caught fire.
This suggestion takes away the whole argument of Shri
Shaikh Saoud that accused did not set fire to his wife.
Therefore, it is his argument that appreciation of evidence
in entirety leads to a conclusion to draw an inference that
the accused is not innocent of the charge framed against
him and hence, appeal deserves to be dismissed.
7. We have considered the points of arguments
and perused the entire records.
8. Our findings are, the background for the
incident is said to be a quarrel between the accused and
his wife for the reason that the brother of the deceased did
not invite the accused for the marriage of his daughter.
The time of incident is shown as around 10 a.m. on
09.04.2015. Though, PW-4 is projected as an eye-
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witness, actually he cannot be said to be an eye-witness
for the incident and all that can be inferred from his cross-
examination by the Public Prosecutor is that he just heard
a quarrel going on between the accused and his wife and
saw the accused dragging her inside the hut. Sometime
later, he saw the accused coming out of the hut and
running away. Therefore, PW-4 is not an eye-witness.
But, however, in the examination-in-chief, he has stated
that he saw the deceased coming towards his house
having caught fire.
9. PW-9, the son of the accused and deceased, is
not an eye-witness and he just came to know about the
incident around 1 p.m. from one Shashikumar Lamani,
who had made a call to him. Therefore, there remains two
statements of the deceased as per Ex.P.15 and Ex.P.17.
Ex.P.17 was the first statement said to have been given by
the deceased and recorded by PW-21, who was the PSI of
the police station.
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10. If we peruse the evidence of PW-21, we find
that after going to hospital, he enquired the doctor to
ascertain whether the deceased was in a fit condition to
give statement and only after the doctor certified to that
effect, he recorded the statement of the deceased as per
Ex.P.17 and based on it he registered the FIR. The
defence has not been able to discredit the evidence of
PW-21.
11. Then, on the next day i.e., on 10.04.2015, on
the request of the PSI, the Taluka Executive Magistrate
i.e., PW-12 went to hospital and obtained statement of the
deceased as per Ex.P.15. His evidence discloses that only
after the doctor certified about the fitness of the deceased
to make a statement, he recorded her statement. The
evidence given by PWs-12 and 21 would get fortified by
the evidence given by two doctors examined as PWs-14
and 17. PW-14 has clearly stated that when the PSI asked
him whether the deceased was in a condition to make a
statement, he said that she was fit enough to give the
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statement and therefore, the PSI recorded her statement
in his presence. PW-17 has also deposed that only after
he certified about the fitness of the deceased, the Taluka
Executive Magistrate obtained statement from the
deceased as per Ex.P.15. Just because in Ex.P.15, a
column is left blank, we cannot disbelieve the evidence of
Taluka Executive Magistrate and Ex.P.15. Column No.7
pertains to identification of the assailant and it is true that
nothing is written in that column. But, we make it clear
that the deceased was not supposed to give any answer
with regard to identification because the accused was none
other than her husband and question of identification did
not arise at all. Therefore, with this much of evidence, we
can certainly come to a conclusion that the death of
deceased was homicidal at the instance of the accused.
To this extent, we do not find infirmity in the findings of
the trial Court.
12. However, we are of the opinion that this is not a
case where conviction for the offence under Section 302
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IPC could have been recorded. If we again give a glance
as to how the incident broke out, it is clearly forthcoming
that accused became furiated when he came to know that
he had not been invited by the brother of his wife to the
marriage of the latter's daughter. This led to a quarrel
between husband and wife and he got provoked. During
the quarrel, he resorted to pouring kerosene on his wife
and setting her ablaze. Certainly pouring kerosene and
setting a person on fire falls within 'Fourthly' of Section
300 of IPC as at that time, the accused might not be
having any intention to kill, but certainly he had
knowledge of the consequences of his act. To a situation
of this type, Exception 4 to Section 300 IPC can be
applied. Exception 4 clearly states that culpable homicide
is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue advantage or
acted in a cruel or unusual manner. In the case on hand,
we do not find evidence to draw an inference as to
accused having premeditated to kill his wife or taking
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undue advantage or acting in a cruel manner. Whatever
happened was in a sudden quarrel between husband and
wife and it was in a heat of quarrel and anger. Accused is a
rustic villager and illiterate who cannot be expected to be
having refined behaviour; rudeness is a common
behavioural pattern of such kind of a person. Therefore,
applying Exception 4 to Section 300 IPC, we can certainly
say that the accused can be held guilty of the offence under
Section 304 Part II of IPC instead of Section 302 of IPC.
13. The judgment of the Hon'ble Supreme Court
cited by Shri Shaikh Saoud has discussed the
circumstances where the offence can be brought down
from Section 304 Part I to Section 304 Part II of IPC, and
we do not think it is of any assistance to the facts before
us.
14. Since we have found the accused guilt of the
offence under Section 304 Part II of IPC, the accused is to
be sentenced for that offence. At this stage, Shri Shaikh
Saoud submits that the accused has 7 children and only
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one daughter has been married and 6 others are yet to be
married. There is nobody to look after the children.
Though some of them have attained majority and still as a
father, the accused has to discharge his duties and
therefore, he may be sentenced to imprisonment for the
period already spent by him in the jail.
15. We find that the accused has spent 4 years 1
month and 20 days in the jail. Section 304 Part II IPC
prescribes punishment for imprisonment which may
extend to 10 years, or fine, or both. In the facts and
circumstances, we deem it proper to sentence him for the
period he has already spent in the jail. We sentence him
accordingly and set off the period of imprisonment he has
spent in the jail to the period of sentence we have
imposed on him.
16. The accused is directed to pay fine of
Rs.10,000/- instead of Rs.25,000/- as imposed by the trial
Court. Sum of Rs.10,000/- shall be defrayed towards
prosecution expenses. In default to pay the fine amount,
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the accused shall undergo simple imprisonment for a
period of 6 months.
17. The appeal thus partly succeeds and the
judgment of the Principal District and Sessions Judge,
Bagalkot, in S.C.No.80/2015 dated 20.11.2018 stands
modified to that extent.
Sd/-
JUDGE
Sd/-
JUDGE
JM
