Karnataka High Court
Ninganna vs State By Nanjangud Rural Police on 8 April, 2024
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CRL.A No. 1229 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1229 OF 2019
BETWEEN:
1. Ninganna
s/o Late Somappa,
Aged about 47 years,
Muddahalli Village,
Nanjanagud Taluk,
Mysuru - 571 302
2. Nagamma,
W/o Ninganna,
Aged about 42 years,
Digitally signed
by SRIDEVI S Muddahalli Village,
Location: HIGH Nanjanagud Taluk,
COURT OF Mysuru - 571 302
KARNATAKA
3. M.N.Prasada @ Parasi
S/o Ninganna,
Aged about 23 years,
Muddahalli Village,
Nanjanagud Taluk,
Mysuru - 571 302
...Appellants
(BY Sri. B.V. Pinto, Advocate for Sri. C.N. Raju, Advocate)
AND:
State by Nanjangud Rural Police,
Mysore, represented by SPP,
High Court of Karnataka at
Bangalore - 560 001
...Respondent
(By Sri: Vijaykumar Majage, SPP - II)
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CRL.A No. 1229 of 2019
This Criminal Appeal is filed u/s.374(2) of Cr.P.C praying to
set aside the judgment of conviction and order of sentence dated
05.04.2019 passed by the VII Additional Sessions Judge, Mysuru, in
S.C.No.105/2017 - convicting the appellant/accused Nos.1 to 3 for
the offence p/u/s 302 r/w 34 of IPC.
This Criminal Appeal coming on for final hearing this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The accused 1 to 3 who faced trial in S.C.105/2017
on the file of VII Additional Sessions Judge, Mysuru, for
the offence under section 302 read with section 34 of IPC
and have stood sentenced to life imprisonment and fine of
Rs.15,000/- each, have preferred this appeal.
2. The incident that led to accused being prosecuted
took place on 04.01.2016 around 5.30 p.m. The
prosecution case is that Manjula, the wife of PW1, was
suspected of having an affair with accused No.3, the son of
accused 1 and 2. Accused 1 and 2 brought this to the
notice of PW1 and asked him to advise his wife to
discontinue the relationship with their son. Accused 1 and
2 appears to have quarreled with Manjula also. In this
background all the three accused asked Manjula to come
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to their house and when she went there, she was set on
fire by the accused by pouring kerosene on her body.
Manjula sustained 90 to 95% burn injuries. She died in
the hospital on 11.01.2016.
3. The trial court found that the evidence brought on
record by the prosecution proved the prosecution case
beyond reasonable doubt. In spite of hostile evidence
given by the eye witnesses, the trial court found that the
circumstances pointed to the involvement of the accused
and thus convicted and sentenced them.
4. We have heard the argument of Sri B.V.Pinto,
learned advocate who argued on behalf of Sri C.N.Raju,
learned advocate for the appellants and Sri Vijaykumar
Majage, learned SPP-II, for the State.
5. It was the argument of Sri B.V.Pinto that the trial
court has erred in holding the accused guilty of the offence
under section 302 of IPC despite the fact that none of the
eye witnesses supported the prosecution. PW1 was not an
eye witness. Though the prosecution failed to prove its
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case, the trial court proceeded to hold that defence failed
to establish its case and drew adverse inference against
the accused for not giving explanation when they were
examined under section 313 of Cr.P.C. There was nothing
to explain by the accused in as much as no incriminating
evidence was brought on record. It is the clear evidence of
the doctor that the deceased was not able to speak. For
this reason her dying declaration was not obtained.
History was given by somebody else. In Ex.P14 five
names are written, but the doctor encircled all the five
names and put a 'x' mark. The doctor has not given
explanation for this. In a situation like this there was no
scope for recording conviction. The impugned judgment is
indicative of total non-application of mind by the trial
court. In this view, the appeal deserves to be allowed and
the accused, acquitted.
6. Sri Vijaykumar Majage highlighted the points that
the prosecution was able to bring on record the reason for
eye witnesses turning hostile. A panchayat had taken
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place in the village and the accused agreed for paying
money to PW1 and providing education to his son. This
was the reason for hostility of the witnesses. It was not a
case of suicide. The incident occurred in the house of the
accused. Ex.P14 contains the history that the deceased
was set ablaze by the accused. The accused should have
explained as to how death of a person not belonging to
their family took place in their house. In this view, if they
did not offer any explanation, the only inference to be
drawn is that they killed the deceased. Appeal is therefore
devoid of merits and it is to be dismissed.
7. Now if we assess the entire evidence what we
notice is - PW1, the husband of deceased Manjula, was not
an eye witness. He has stated that one Madhu met him at
6.00 p.m and took him to the house of the accused where
he saw his wife lying having sustained burn injuries. He
found his wife not being able to speak. She was taken to
Nanjangudu Hospital. He has stated that his left thumb
impression was taken in the police station on a complaint.
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Since he did not speak with regard to suspected illicit
relationship between his wife and accused No.3, he was
treated hostile partly and questioned by the public
prosecutor. Even then he did not speak in favour of the
prosecution and denied the suggestion that he suppressed
the truth because of assurance given by the accused to
look after the entire expenses of his son.
8. PW2, PW3 and PW4 are said to be the eye
witnesses, but they did not support. The prosecution
sought to prove from them that on 04.01.2016 they heard
a yelling sound from the house of the accused and as they
went to that place, saw the third accused holding the
deceased, second accused pouring kerosene and the first
accused lighting fire. Then they rushed to her rescue.
These witnesses did not establish this aspect and in their
cross-examination by the public prosecutor they also
refuted the suggestion about a panchayat or a settlement
to the effect that the accused should look after the entire
educational expenses of the son of the deceased.
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9. PW5 and PW6 are not the eye witnesses, what the
prosecution tried to prove from them was that they heard
shouting coming from the house of the accused and when
they immediately rushed to that place they saw the body
of the deceased completely burnt. When they enquired
one Rajamma-CW10, they came to know that the accused
set fire to the deceased suspecting the illicit relationship of
the deceased with accused No.3. But they did not
establish this aspect and just stated in the examination-in-
chief that they saw the deceased being shifted to the
hospital.
10. It was PW11-Dr.Vijaya Narasimha who examined
the deceased first when she was taken to the hospital. He
has stated that Nanjundaswamy, the brother-in-law of the
deceased brought her to the hospital. He observed 90%
burns all over the body. Then he sent MLC to the police
station as per Ex.P14. The learned Judge of the trial court
put court questions to this witness to ascertain the reason
for putting cross mark after rounding of the names of
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Nagamma, Ninganna, Parashi, Naveen and Nagendra.
Doctor's answer is that he cannot remember the reason for
putting cross mark.
11. PW7 is Nanjundaswamy whose name is
mentioned by PW11 as the one who brought the deceased
to the hospital. But the evidence of PW7 shows that he did
not secure ambulance and he did not take the deceased to
the hospital. Of course the evidence of investigating officer
implicates the accused.
12. Now if the evidence is assessed, the eye
witnesses have not at all supported the prosecution case.
PW1 being the husband of the deceased also does not
inculpate the accused and all that he has stated is when he
went to the house of the accused he saw his wife having
sustained burn injuries. The public prosecutor made a vain
attempt to discredit the witnesses by giving a suggestion
to them that they had been won over by the accused by
giving an assurance that they would look after all the
educational expenses of the son of the deceased and PW1.
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In effect none of the prosecution witnesses has supported.
There remains the evidence of PW11-the doctor who
examined the deceased when she was brought to the
hospital. The prosecution case itself is that deceased was
not able to speak. According to PW11, the history was
given by PW7, but the latter has not supported. Moreover
in Ex.P14 five names are written and all these names are
encircled and a cross mark is put. PW11 is unable to give
any explanation for this. This being the situation there is
no evidence staring at the accused.
13. The trial court has held that the accused should
have given explanation to the incriminating materials
brought on record against them. It is wondering as to
what kind of incriminating materials are there on record to
be explained by the accused. If section 313 statements of
the accused are perused, the trial court has framed
questions based on the evidence given by PW1, PW5, PW8,
PW13 and PW14. It is already held that PW1 and PW5
have not supported. PW13 has stated that when he was
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PSI of Nanjangudu Police Station he received first
information and sent a requisition to the Tahsildar to
record dying declaration, and conducted mahazar to seize
certain articles. Question No.1 relates to registration of
FIR. Mere registration of FIR does not result in conviction.
The incriminating materials must appear in the substantive
evidence brought before the court. In regard to the
evidence of PW13 if the accused took a denial stand, no
adverse inference can be drawn against them. The
testimonies of the doctors are not incriminating, they have
only spoken with regard to conducting of post mortem
report and condition of the patient at the time of admission
to the hospital. The trial court has placed reliance on
many a case law on the concept of statement under
section 313 of Cr.P.C, but it has failed to grasp the real
object of section 313 of Cr.P.C. Though it observes that
the prosecution witnesses have not supported, it has
proceeded to hold that the defence ought to have proved
its case which is against the principles of criminal
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jurisprudence. It appears that the trial court has morally
convicted the accused in the absence of legal proof.
14. Therefore from the above discussion we find that
the impugned judgment cannot be sustained. Hence, the
appeal is allowed. The impugned judgment dated
05.04.2019 passed by the VII Additional Sessions Judge,
Mysuru, in S.C.105/2017 is set aside and the accused are
acquitted of the offences charged against them. Accused 1
and 3 shall be set at liberty forthwith if they are not
required in any other case. The bail bonds of accused
No.2 shall stand cancelled.
Sd/-
JUDGE
Sd/-
JUDGE
CKL
