Karnataka High Court
The State Of Karnataka vs Sandeep S/O Shankreppa T on 6 October, 2023
Bench: Mohammad Nawaz, Rajesh Rai K
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CRL.A No. 200049 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200049 OF 2016 (378)
BETWEEN:
THE STATE OF KARNATAKA
THROUGH THE WADI P.S.,
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
KALABURAGI.
...APPELLANT
Digitally signed by (BY SRI. SIDDALING P. PATIL, ADDL. SPP)
KHAJAAMEEN L
MALAGHAN
Location: HIGH
COURT OF
KARNATAKA
AND:
SANDEEP S/O SHANKREPPA T.,
AGE:31 YEARS, OCC: POLICE CONSTABLE NO.856
OF WADI POLICE STATION
TQ:CHITTAPUR, DIST:GULBARGA
R/O. SAKREBAILU, TQ. & DIST.SHIVAMOGGA.
...RESPONDENT
(BY SRI. BABURAO MANGANE AND
SRI. ASHOK B. MULAGE, ADVOCTES)
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CRL.A No. 200049 of 2016
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (b) OF THE CR.P.C., PRAYING TO A) GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER DATED:
30.11.2015 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS/SPECIAL JUDGE, KALABURAGI, IN
SPL.C.NO.21/2013 THEREBY, ACQUITTING THE
ACCUSED/RESPONDENT FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 376, 417, 306 OF IPC AND SECTIONS
3(1)(xi), 3(2)(v), 3(2)(vii) OF SCHEDULED CASTES AND
SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989
B) SET ASIDE THE JUDGMENT AND ORDER DATED:30.11.2015
PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS/SPECIAL JUDGE, KALABURAGI, IN
SPL.C.NO.21/2013 IN SO FAR AS ACQUITTING ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 376, 417, 306
OF IPC SECTIONS 3(1)(xi) 3(2)(v), 3(2)(vii) OF SCHEDULED
CASTES AND SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT, 1989 AND C) CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 376, 417, 306 OF IPC AND SECTIONS 3 (1)
(xi), 3 (2) (v) AND 3 (2) (vii) OF SCHEDULED CASTES AND
SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT,
1989.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING:
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CRL.A No. 200049 of 2016
JUDGMENT
This appeal is preferred by the State against the
judgment and order dated 30.11.2015 passed by the V
Additional District and Sessions/Special Judge, at Kalaburagi in
Special Case No.21/2013, whereby the learned Sessions Judge
has acquitted the respondent/accused of the offence
punishable under Sections 376, 417 and 306 of IPC and
Sections 3 (1) (xi), 3 (2) (v) and 3 (2) (vii) of the SC/ST (POA)
Act, 1989.
02. Case of the prosecution is that the accused, on the
pretext of marriage, committed sexual intercourse with the
deceased, belonging to Scheduled Caste, on several times and
later refused to marry her and instigated her to commit
suicide, due to which, she poured kerosene on herself and set
ablaze on 07.12.2012 at about 10.00 a.m. in Wadi Police
Quarters and succumbed to the burn injuries at about 01.20
a.m. on 08.12.2012 while undergoing treatment.
03. The learned Sessions Judge, vide impugned
judgment, acquitted the accused of the charged offences
answering the points raised in the Negative.
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04. We have heard the learned Additional State Public
Prosecutor for the appellant/State and the learned counsel for
respondent/accused.
05. The incident took place on 07.12.2012 at about
10.00 a.m. in the police quarters, Wadi. The law was set
into motion on the basis of the statement of the victim
herself, marked as Ex.P15. Immediately after the
incident, the victim was shifted to Basaveshwar Hospital,
Kalaburagi. PW23, PSI of Chittapur police station on
receiving the information, visited the hospital at about
12.45 p.m. on 07.12.2012 and after confirming from the
doctor/PW-21, regarding the condition of the victim,
recorded her statement as per Ex.P15. On the basis of
the said statement, initially a case was registered against
the respondent / accused and three others by name Raju
Naik, Santosh and Shivaji. On registration of the case, a
copy of the FIR-Ex.P16 was transmitted to the
jurisdictional Court.
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06. In Ex.P15, it is stated that the victim is working
as WPC-1587 at Wadi Police Station and accused Sandeep
is also working as a police constable in the said police
station. In the year 2009 he committed rape on the victim
and thereafter, he committed rape on her 4-5 times, on
the pretext of marriage. On 07.12.2012 at about 9.00
a.m. the victim called Sandeep over phone, but he
disconnected the call. Again when she was in her house
in Shahabad, he called her over phone and told her to
take transfer to some other place. He told her that Raju
Naik, Santosh and others have told him not to marry her
and refused to marry her and disconnected the call.
Therefore, she decided to commit suicide either by
pouring kerosene on herself or by hanging and with that
intention, she came to her room. At that time, Sandeep
gave her the key telling her to die. Therefore, she poured
kerosene on herself to commit suicide. It is further stated
that her uncle Shivaji and others are responsible for the
incident.
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07. From the above statement of the victim,
marked as Ex.P15, it can be gathered that both the victim
as well as the accused were working as police constables
at Wadi Police Station. It is alleged that in the year
2009, accused committed rape on the victim and
thereafter on the pretext of marriage, he committed rape
on her 4 to 5 times. On 07.12.2012 at about 9.00 a.m.,
when the victim made a phone call to the accused from
her house in Shahabad, he disconnected the call and then
again called her and refused to marry her. It is stated
that one Raju Naik, Santosh and others have told him not
to marry her. Hence, she returned to her quarters in Wadi
and at that time the accused, who was present there,
instigated her to commit suicide, hence, she poured
kerosene on herself and lit fire.
08. PW7 was working as ASI at Wadi Police
Station, during the relevant time. He was present at the
police quarters at the time of incident. He has deposed
that at about 10.25 a.m. on 07.12.2012 he heard some
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screaming sound and therefore, he went to the quarters
and saw the victim engulfed in flame. He has stated that
a police constable by name Dattatreya (PW8) and
Sandeep (accused) were trying to put off the fire by
pouring water. Further, the victim was completely burnt
and even the accused had also sustained burn injuries to
his both hands. Thereafter, they secured an Ambulance
and shifted both the accused as well as the victim to
Basaveshwara Hospital, Kalaburagi along with PW9 and
PW13.
09. PW7 has further stated that by the time he
went to the hospital, CPI Kalagi Veeresha and PSI-
Sanjeev Kumar (PW23) were already present and they
were recording the statement of the victim in the
presence of the doctor, which was video recorded.
Thereafter, the PSI handed over the statement to him,
telling that the victim will be shifted to a higher hospital in
Miraj. He then returned to the police station along with
the statement of the victim and registered a case. He has
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further stated that the accused was shifted from
Basaveshwar Hospital to Kalaburagi for treatment.
10. PW8 has deposed on par with PW7. He has also
stated that when he went to the spot, accused and PW7
were trying to put off the fire. The body of the victim was
burnt and even the accused had sustained burn injuries to
his hands and chest. Thereafter, they secured an
Ambulance and sent both the accused and the victim to
the hospital.
11. Apart from PW7 and PW8, the prosecution has
examined PWs.9, 10, 12, 13, 15 to 17, 19 and 22 who are
other police constables working at Wadi. The evidence of
these witnesses would reveal that the victim poured
kerosene and set fire to herself on 07.12.2012 at about
10.20 a.m. and in the said incident even the accused also
sustained burn injuries and he was also admitted to the
hospital. Further, their evidence would reveal that the
accused tried to save the victim by putting off the fire.
These witnesses have been treated hostile by the
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prosecution. However, none of the said witnesses have
stated that there was an intimacy between the accused
and the deceased and the accused had promised the
deceased that he will marry her.
12. PW-10 has deposed that when they went to the
hospital, PSI Chittapur (PW-23) was recording the statement
of the victim, in the presence of the doctor and PC -
Dattatreya (PW-8) and himself video recorded.
13. The prosecution has got examined PW3 and
PW4, parents of the deceased, PW5 and PW6, sisters of
the deceased and PW14, brother of the deceased.
Admittedly, the said witnesses were not present at the
spot when the incident took place.
14. PW-3 and PW-4 have deposed that on coming
to know about the incident, they waited near Wadi cross
and when the ambulance came, they got into the
ambulance and saw their daughter with burn injuries.
When they enquired, she informed them that in the year
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2009 the accused committed rape on her and then
promised that he will marry her and thereafter till 2012,
with a promise of marriage, he raped her about 4 to 5
times. They have further stated that the victim informed
them that the accused refused to marry her saying she
belong to a lower caste and then abetted her to commit
suicide. Further, he told her that her own people like
Santosh alias Chandu, Shivaji Nayak, Raju Nayak have
told him not to marry her. Hence, she decided not to live
and poured kerosene on herself and lit fire.
15. PW-5 and PW-6 namely the sisters of the
deceased have deposed that after coming to know about
the incident, they went to the hospital and at that time
the deceased informed them on enquiry that the accused
with a promise of marriage committed rape on her 4 to 5
times and then refused to marry her saying that she
belong to a lower caste.
16. PW-32 is the brother of the deceased. He has
stated that, on receiving the information regarding the
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incident, he went to the hospital, but by then, the
deceased was no more. He has deposed that, the
accused with a false promise of marriage, committed rape
on his sister and therefore she committed suicide.
However, he is a hearsay witness. In the cross-
examination conducted by the defence, he has admitted
that his uncle by name Raju Naik had told his sister not to
marry the accused since he was already married and
having a child. He has further admitted that since his
uncle had advised his sister, she had misunderstood his
advise.
17. PW-14, brother of the deceased, on the other
hand, has not stated about the victim disclosing about the
cause for the incident. On the other hand, he has stated
that, on coming to know about the incident, he went to
Basaveshwar Hospital, wherein the doctor referred the
victim to a higher hospital at Miraj, since she had suffered
burn injuries to an extent of 95% and therefore, they
shifted the victim to Miraj Hospital, Maharashtra in an
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ambulance. The victim died at about 1.30 a.m. on
08.12.2012.
18. A careful perusal of the evidence of PW-14
clearly shows that he was also informed about the victim
suffering burn injuries and that she was shifted to
Basaveshwar Hospital, Kalaburagi. Immediately he went
to Basaveshwar Hospital and at that time the doctors
informed them that the victim should be given treatment
at a higher hospital since she had suffered 95% burn
injuries. In view of the said evidence of PW-14, brother
of the deceased, the evidence of PW-3 to PW-6 that when
they enquired with the deceased, she disclosed about the
incident does not inspire confidence of the Court. It is
relevant to see that in Ex.P-15 there is no mention that
the deceased had made any statement regarding accused
refusing to marry her on the ground that she belongs to a
lower caste, whereas PW-3 to PW-6 have deposed that
the deceased have informed them that the accused
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refused to marry her even on the ground that she belongs
to lower caste.
19. As per Ex.P-15, the accused committed rape on
the victim in the year 2009 and thereafter on the pretext
of marriage, raped the victim 4 to 5 times. The incident
took place on 07.12.2012. Except Ex.P-15 i.e., the
statement of the victim, there is no material to show that
there was any rape committed by the accused against the
victim in the year 2009 and subsequently 4 to 5 times
thereafter. As per Ex.P-62 - postmortem report, the
deceased had sustained 95% burn injuries. The deceased
had succumbed to the injuries on the intervening night of
7/8.12.2012.
20. PW-23 who recorded Ex.P-15 has stated that
the doctor - PW-21 certified that the deceased was in a fit
condition to give her statement. PW-21 in her chief-
examination has stated that when she examined the
victim, she was found to have sustained 95% to 98%
superficial to deep burns. She has issued the medical
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certificate - Ex.P-52. She has further stated that she has
endorsed on the letter Ex.P-53 that the patient is in a fit
condition to give the statement. However, in the cross-
examination, she has admitted that it is the duty of the
admitting doctor to record the general condition of the
patient and she has not mentioned in Ex.P-52 the general
condition of the victim including whether she was in a
position to speak or not. She has further admitted that
she has not mentioned in Ex.P-52 regarding the degree of
deep burns and the portion of body on which deep burns
were found and she do not know the degrees of deep
burns. Further, if a patient is suffering from neurogenic
shock, until and unless the patient is brought out of the
shock, she will not be in a position of mental fit condition
to give statement. She has further admitted that in
Exs.P-52 and P-53, she has not mentioned the base and
features to support her opinion that the patient was in a
condition to give the statement and not mentioned in
Ex.P-15(b) about the commencement of recording of the
statement and concluding time of the statement. She has
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admitted that at the time of video recording, the relatives
of the victim were also present and they were directing
the victim to give the statement as dictated by them.
Further, on that day while recording the statement, the
mental condition of the victim was not completely
conscious or well oriented and while recording the
statement, intermittently she has left the place of
recording for sometime. She has also admitted that the
general condition and mental condition of the patient was
deteriorating continuously and hence, she could not have
been in a position to understand the questions put to her
and reply given by her.
21. From the evidence of PW-14, brother of the
deceased, it is clear that when the victim was admitted at
Basaveshwar Hospital, Kalaburagi, because of her
condition, the doctor advised her to be immediately
shifted to Miraj Hospital, Maharashtra. In the light of the
said evidence and also the answers listed in the cross-
examination of the doctor-PW-21, it is difficult to believe
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that the victim was in a fit condition to give statement as
per Ex.P-15. PW-21 has categorically admitted that at the
time of video recording, the relatives of the victim were
very much present and they were directing the victim to
give the statement as dictated by them. Hence, it cannot
be said that Ex.P-15 is the statement of the deceased
which could be accepted as her dying declaration.
22. It is also relevant to appreciate the evidence of
PW-31, the Head Constable working at Miraj Town Police
Station. He has stated that a letter was sent to him for
recording the dying declaration of the patient and
therefore, on 08.12.2012, he requested the Special
Magistrate to record her statement by writing a letter.
However, when the Magistrate (PW-33) enquired with the
doctor, he was informed by the doctor that the victim is
not in a position to give her statement.
23. PW-33 is the Special Tahasildar. He has
deposed that on 08.12.2012 he was informed about the
admission of the patient at Miraj Wanless Hospital with a
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request to record her dying declaration but when he went
to record the dying declaration, the patient was not in a
position to talk and in this regard he has given his opinion
as per Ex.P47 saying that patient is "semi conscious
drowsy condition and not in a state to give valid
statement.
24. Though charges were framed against the
accused under the provisions of Scheduled Caste and
Scheduled Tribes (POA) Act, admittedly it is not the case
of the prosecution that only on the ground that the
deceased belong to scheduled caste, the offence was
committed. The prosecution though established by
marking Ex.P57 through Tahsildar-PW.25 regarding the
caste of the victim, however it is not established that the
offence was committed by the accused only on the ground
that the victim belong to scheduled caste.
25. Learned Addl. SPP has contended that the
accused has committed rape on the victim on a false
pretext of marriage and then refused to marry her, due to
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which she has committed suicide and therefore, the said
conduct of the accused amounts to instigation and
abetment, within the definition of Section 107 of the IPC.
26. It is the duty of the prosecution to establish that
the accused has abetted the commission of suicide. For the
purpose of determining the act of the accused, it is necessary
to see, that his act must fall in any of the ingredients under
Section 107 of the IPC and therefore, it is necessary to prove
that the accused has instigated the person to commit suicide
or must have engaged with one or more person in any
conspiracy or he must intentionally aid by any act or illegal
omission, for the suicide by the deceased.
27. In the case on hand, as per Ex.P15 at the
instigation of three other persons named in the FIR, accused
refused to marry the deceased. While filing the charge sheet,
names of those three persons have been dropped. Further, the
material on record would clearly reveal that the accused was
seen attempting to save the deceased by putting off the fire
and in the process he also sustained burn injuries. PW.11 is
the medical officer who treated the accused. He has stated
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that the accused has sustained "superficial to deep burns over
Bilateral forearm and Superficial burns over face - 40 to 45%".
He has issued the wound certificate-Ex.P27. Hence, it cannot
be said that there was any intention on the part of the accused
or that he has intentionally aided or abetted the deceased to
commit suicide. There is no material available on record to
establish that the accused had been continuously torturing or
harassing the deceased or he committed rape on the false
pretext of marriage. There is no material or evidence available
that the deceased faced persistent cruelty or harassment from
the accused.
28. This is an appeal against the judgment and order of
acquittal passed by the trial Court. It is well settled that, in a
case of acquittal, there is double presumption in favour of the
accused. The accused having secured his acquittal, the
presumption of his innocence is further reinforced. Further, if
two reasonable conclusions are possible, on the basis of the
evidence on record, the appellate Court should not disturb the
finding of the acquittal recorded by the trial Court.
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29. In view of the above settled legal position and
having reappreciated the material on record, we are of the
considered view that the findings of acquittal, as recorded by
the learned trial Court needs no interference. Accordingly, we
proceed to pass the following;
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KJJ/SMP/SWK/MSR.
