The appellant being the accused in S.C.No. 110 of 2009
2. Brief facts of the case are that, the accused had
incident i.e. during 2007. It is the contention of the prosecution
her and treated her with cruelty. Not being able to face the
of which she sustained burn injuries. Initially she was taken to
Wenlock Hospital, Mangalore where she breathed her lost. It is
Exhibit P10 was recorded. On the basis of the same, the FIR
498-A of IPC. The investigation was undertaken. But however,
injuries sustained. The inquest panchanama and other
3. The Magistrate took cognizance of the offence. The
and he claims to be tried. The prosecution has examined PWs.1
in support of its contention. The accused had denied all the
lead any evidence in support of his defence. The Trial Court,
above. Being aggrieved by the same, the accused is before this
4. Heard Sri.Leeladhar H.P., learned counsel for the
appellant and Sri. Harish Ganapathy, learned HCGP for the
respondent-State. Perused the materials on record including
5. In view of the rival contentions urged by learned
"Whether the appellant has made out any
grounds to interfere with the impugned judgment
of conviction and order of sentence passed by the
Trial Court?"
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My answer to the above point is in the 'affirmative' for
the following:
REASONS
6. It is the contention of the prosecution that the
accused being the husband, used to suspect the fidelity of his
wife-the deceased and used to ill-treat her. As a result, on
27.03.2009, the deceased not being able to tolerate the said
cruelty, poured kerosene on her and set ablaze. She was
shifted to various hospitals as stated above and finally she
breathed her lost on 04.04.2009 while being treated in the
Wenlock hospital, Mangalore.
7. The material document relied on by the prosecution is
Exhibit P10. The first information that was recorded on
30.03.2009 and the FIR came to be registered on 31.03.2009.
It is pertinent to note that the incident had occurred on
27.03.2009. PW6 and 9 are the brothers of the deceased. PW7
is the brother-in-law. None of them have filed the first
information till 31.03.2009. There is no explanation for the
same. Strangely, even when the injured was admitted in the
Government Hospital at Balehonnuru for the first time,
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thereafter to the District Hospital at Chikmagalur, no intimation
was issued to the police.
8. PW.15 is the doctor, who conducted post mortem
examination and has deposed before the Court regarding
Exhibits P8 and 9 issued by him. Exhibit P8 is the Post Mortem
report. According to this document, the body of a young adult
female was completely covered with hospital bandages all over
the body, except over the face, external genitalia and both
foot. The death was due to delayed complications of burn
injuries sustained. Exhibit P9 is the diagrammatic
representation of injuries in autopsy. As per this document, the
entire portion of the body except the face in the front portion,
and the head and left shoulder portion on the back, the entire
remaining portion is burnt and covered with bondage, that
means to say both the palms and all the fingers were burnt. In
this background, we have to consider Exhibit P10 - the first
information which was later treated as the Dying Declaration.
9. As per the case as made out by the prosecution, the
deceased was in a position to give her statement on
30.03.2009 even though she sustained such burn injuries all
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over the body on 27.03.2009 and was being shifted from one
hospital to another. As per Exhibit P10, the victim has stated
that, her husband was ill-treating her both physically and
mentally as he was suspecting her fidelity. Therefore, she
poured kerosene and set ablaze. Even though the accused was
very much present in the house, he had not tried to save her
until the fire caught all over the body. It was only thereafter he
poured water and shifted her to the hospital. It is on the basis
of this statement of the deceased, the FIR came to be
registered. If the prosecution is successful in proving Exhibit
P10, the accused is liable for punishment. But on the other
hand, if the prosecution is not successful in proving Exhibit P10,
it has to be concluded that the prosecution has failed to prove
the guilt of the accused beyond reasonable doubt.
10. PW16 is the Head Constable who is said to have
recorded Ex.P10 on 30.03.2009. According to him, he has not
obtained the written permission from RMO to record the
statement of the injured, nor he had taken the fitness
certificate from the duty doctor. He states that orally he has
taken such permission. It is his further contention that PW18 is
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the Casualty Medical Officer on duty and in his presence, the
statement as per Exhibit P10 was recorded. Even PW18 do not
endorse on Exhibit P10 regarding the health condition or the
fitness of the deceased to give this statement. During the cross
examination of PW18, he states that he had not recorded
anything in the case sheet regarding recording of the statement
of the injured. He states that the doctor who was on duty had
recorded the said fact in the case sheet. The case sheet is not
produced before the Court by the prosecution. When PW18
states that the doctor who was on duty recorded the fact of
recording the statement of the injured in the case sheet
presupposes that PW18 was not the duty doctor as on that
date.
11. It is pertinent to note that PW18 states in his
evidence that he was not the casualty officer, but he was only a
P.G. student working under the doctor. It is also pertinent to
note that PW18 has signed on the first page of Exhibit P10 in
the margin endorsing that it was recorded before him. There
was sufficient space on the second page on conclusion of the
statement and PW18 could have signed at the end of the
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statement endorsing the condition and fitness of the injured
and that the statement was recorded in his presence. But there
is absolutely no explanation as to why he had endorsed in the
margin on the first page.
12. There are many over-writings, interpolations in
Exhibit P10. PW.16 who is said to have recorded the statement
has stated that generally he used to counter sign such
insertions, interpolations, over writings etc. But why no such
counter signatures at relevant portions of Exhibit P10 is not
explained.
13. According to PW16 and PW18, they have obtained
the left thumb impression of the injured over the statement
Exhibit P10. As per the left thumb impression found on Exhibit
P10, even the ridgelines in the thumb impression could be seen
to the naked eye. When I again referred to Exhibits P8 and 9,
the post mortem examination and the diagrammatic
representation of injuries in autopsy, they suggest that the
entire portion of the body except a portion of the face and head
and a little portion on the left shoulder, on the back, were burnt
and there was bandage all over the body, even when the dead
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body was brought for post mortem examination. Nobody had
explained as to how such an injured could affix her left thumb
impression on Exhibit P10.
14. Interestingly, PW.18, in his evidence has stated that
Ceftriaxone and Metrogyl injections were administered to the
injured while treating her. According to the learned counsel for
the appellant, these injections were administered to prevent
infections and to subside the pain which will have the effect of
dizziness, confusion, abnormality in the brain and loss of
consciousness. He has produced some literature in that regard.
When the incident had occurred on 27.03.2009, initially she
was shifted to Balehonnuru Government Hospital and thereafter
to the Government Hospital at Chikmagaluru, and again
admitted her to Father Muller's Hospital Mangalore. When the
injured had sustained injuries all over her body, including the
palm and fingers, it is hard to believe that she was in a sound
state of mind or fit to give statement as per Exhibit P10.
Affixture of the left thumb impression on Exhibit P10 further
creates a doubt in the mind of the Court. When such serious
doubt arose regarding the genuineness of Exhibit P10, it is the
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duty of the prosecution to eliminate the same with reasonable
explanation. No such efforts seems to have been made by the
prosecution. When Exhibit P10 is not acceptable as there are
serious doubts, the foundation for registering the FIR falls to
the ground.
15. PW1 is the daughter of the deceased aged 6 years.
She states that while cooking, the kerosene lamp fell on her
mother, as a result of which, she sustained burn injuries. This
witness was treated hostile. PWs.2 to 5 being the neighbours
have also turned hostile and not supported the case of the
prosecution. PW6 is the brother of the deceased, who deposed
that he was present in the hospital when the Dying Declaration
was recorded. But it is pertinent to note that he is the inquest
mahazar witness to exhibit P7. His statement was recorded by
the police during the inquest. In such statement, he never
states that the statement of the injured was recorded by the
police on the previous day. Even in his statement under Section
161 of Cr.PC, the witness had never stated that the statement
of the injured was recorded by the police. Under such
circumstances, his contention that he was present in the
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hospital when the statement as per Exhibit P10 was recorded
cannot be believed.
16. PW7 is the brother-in-law of the deceased and PW9
is the other brother of the deceased. Their evidence are not
helpful to the prosecution to bring home the guilt of the
accused for the above said offences. PWs.8, 13 and 14 are the
other inquest mahazar witnesses to Exhibit P7. PWs.10 to 12
are the spot mahazar witnesses to Exhibit P6. None of these
witnesses have supported the case of the prosecution. PW17 is
the Investigating Officer who filed the charge sheet. PW19 is
the head constable who registered the FIR and PW.20 is the
ASI who conducted the inquest mahazar.
17. From the materials on record, it cannot be said that
the prosecution is successful in proving the guilt of the accused
beyond reasonable doubt. Even though the learned HCGP has
contended that the accused had taken a defence that the
kerosene lamp had fallen on the deceased, which resulted in
burn injuries, but he has not proved the same, cannot be
accepted as it is the first principles of criminal jurisprudence
that the burden always lies on the prosecution to prove the
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guilt of the accused beyond reasonable doubt. It is only when
the prosecution is successful in proving the guilt, the onus
shifts on the accused to prove his defence, if any. Moreover
PW.1-the daughter of the deceased has spoke supporting the
defence taken by the accused. Here in this case, the
prosecution has miserably failed to prove the case, and even
probabilising its contention and hence I am of the opinion that
the accused is entitled for acquittal.
18. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court. It
proceeded to convict the accused solely on the basis of Exhibit
P10 and accepted the oral evidence of PW6, 16 and 18. In view
of the discussions held above, I am of the opinion that Exhibit
P10, and the evidence of PWs.6, 16 and 18 cannot be the basis
to convict the accused. Under such circumstances, I am of the
opinion that the impugned judgment of conviction and the
order of sentence passed by the Trial Court is liable to be set
aside and the accused is entitled for acquittal. Accordingly, I
answer the above point is in the affirmative and I proceed to
pass the following:
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ORDER
i. The appeal is allowed.
ii. The impugned judgment of conviction and order of
sentence dated 16.08.2013 passed in Sessions
Case No.110/2009 by the learned I Additional
Sessions Judge at Chikmagalur, is hereby set
aside.
iii. Consequently, the accused is acquitted for the
offences punishable under Sections 498-A and
306 of IPC.
iv. His bail bond and that of his sureties shall stands
cancelled.
v. Fine amount deposited, if any, is ordered to be
refunded to the accused.
Registry to send back the original records along with copy
of this judgment to the Trial Court, for information and
necessary action.
Sd/-
(M G UMA)
JUDGE
MKM
