Karnataka High Court
The State Of Karnataka vs Bernad Monthero on 9 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1086 of 2016
C/W CRL.A No. 1093 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
CRIMINAL APPEAL NO. 1086 OF 2016
C/W
CRIMINAL APPEAL NO. 1093 OF 2016
BETWEEN:
1. THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
PUTTUR RURAL CIRCLE,
UPPINANGADY, D.K.,
(UPPINANGADY P.S.)
REPT. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANALORE - 574201.
Digitally signed by
...APPELLANT (COMMON)
GAVRIBIDANUR
SUBRAMANYA (BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
GUPTA SREENATH
Location: High AND:
Court of Karnataka
1. BERNAD MONTHERO,
S/O LATE GABRIEL MOTHERO,
AGE: 48 YEARS,
R/O KAPINA BAGILU HOUSE,
KOWKRADY VILLAGE,
PUTTUR TALUK-574201.
...RESPONDENT (COMMON)
(BY SRI. MAHESH Y.L., AS AMICUS CURIAE)
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CRL.A No. 1086 of 2016
C/W CRL.A No. 1093 of 2016
CRIMINAL APPEAL No.1086/2016 IS FILED UNDER
SECTION 377 OF CR.P.C PRAYING TO MODFIY THE JUDGMENT
AND ORDER DATED 8.12.2015 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING
AT PUTTUR, D.K., IN S.C.NO.152/2013 IN AWARDING MEAGER
SENTENCE TO THE ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 304 PART II of IPC.
CRIMINAL APPEAL No.1093/2016 IS FILED UNDER
SECTION 378(1) & (3) OF CR.P.C PRAYING TO SET ASIDE THE
JUDGEMENT DATED 8.12.2015 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING
AT PUTTUR, D.K., IN S.C.NO.152/2013, INSOFAR AS
ACQUITTING THE ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC AND TO CONVICT AND SENTENCE
THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
These criminal appeals are filed by the State against the common judgment of conviction and order of sentence dated 8/16-12-2015 made in Sessions Case No.152/2013 on the file of the V Addl. District & Sessions Judge D.K. Mangaluru, sitting at Puttur D.K. convicting the respondent/accused for the offence punishable under Section 304 Part II of IPC and sentencing him to undergo rigorous imprisonment for 3 years and ½ month for the said offence.
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2. Criminal Appeal No.1093/2016 is filed by the State for setting aside the impugned judgment insofar as acquitting the respondent/accused for the offence punishable under Section 302 of IPC and to convict him for the said offence.
3. Criminal Appeal No.1086/2016 is filed by the State for modifying the impugned judgment and order passed by the trial Court and to impose maximum sentence for the offence punishable under Section 304 Part II of IPC.
4. It is the case of the prosecution that as per the statement of the deceased/Ex.P25 that the accused and the deceased were husband and wife and out of their wedlock, they have six children viz. PWs.3, 4, 7, 10 and two others. On 6.7.2013, at about 9.30 p.m., the accused had consumed alcohol and had brought pork to the home and instructed the deceased to prepare dish immediately. She told him that she had kept water for heating for bath and by the time water gets heated up, she would cut the meat and thereafter would prepare dish. On hearing this, the accused became angry and stating that if not able to prepare food early, it is better to kill her, took kerosene can, which was in the kitchen and poured -4- CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 kerosene on her body and lit the fire. The dress (nighty) worn by the deceased was caught fire and burnt. When she raised hue and cry, her daughter/Seema and son/Relson came and put water on her body. Then the deceased escaped from her husband and went to house of neighbour by name Lawrence and they secured one ambulance and sent the deceased for treatment to the Government Hospital, Puttur along with the children. On the basis of the statement of the deceased as per Ex.P25, the jurisdictional Police registered the Crime No.111/2013 on 7.7.2013 for the offences punishable under Sections 307 and 326 of IPC.
5. On 8.7.2013 PW.22/ASI had conducted spot mahazar in the house of the accused as per Ex.P3 and seized plastic can/MO.5, match box/MO.6, green colour cloth piece/MO.2, sickle/MO.1, blood stained mud/MO.4, natural mud/MO.3 and burnt nighty/MO.7. He has also prepared sketch as per Ex.P4 and also taken photos (Ex.P5 to P8) and videograph/Ex.P26 of the spot. He recorded the statements of the witnesses i.e., PWs.3,4,6,7 & 8 and CW.3 so also the voluntary statement of the accused and thereafter handed over the investigation to PW.25. On 12.7.2013, he has received -5- CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 intimation/Ex.P28 about the death of the deceased on 11.7.2013 at 10.45 p.m. Accordingly, he has given requisition to the Court to insert the offence under Section 302 of IPC. Then, PW.22/ASI handed over the case to PW.25/CPI for further investigation. The Police after conducting detailed investigation has filed the charge sheet against the accused for the offence punishable under Section 302 of IPC.
6. On receipt of the charge sheet by the jurisdictional Magistrate, the case was committed to the Sessions Court. The accused was in judicial custody. The learned Sessions Judge framed the charge for the offence punishable under Section 302 of IPC and read over and explained to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
7. In order to prove the guilt of the accused, the prosecution examined in all 25 witnesses and got marked Ex.P1 to P39 and Mos.1 to 7.
8. After completion of evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under the provisions of Section 313 of the Code -6- CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 of Criminal Procedure. The accused denied all the incriminating circumstances made against him in the evidence of the prosecution witnesses, but did not lead any defence evidence nor produced any documents.
9. Based on the material on record, the learned Sessions Judge has formulated following points for consideration:
1. Whether the prosecution is able to prove death of Smt. Roselyn Lobo is homicidal?
2. Whether the prosecution is able to prove that there was motive against the accused for the commission of alleged offence?
3. Whether the prosecution is able to prove beyond all reasonable doubt that on 6.7.2013 at about 9-30 p.m., in the dwelling house belongs to father of accused bearing No.1/26 situated at Kapinabagilu of Kowkrady Village, Puttur Taluk, the accused brought pork (pig meat) and his wife Roselyn Lobo not prepared dish, due to which he grew -7- CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 angry and with an intention to kill her, cut on the middle of head with sickle by causing bleeding injury and thereafter, spilled kerosene on her body and set ablaze and as a result she sustained grievous burning injuries i.e., skin charred on her forehead, face, neck, chest, above the stomach, abdomen, both limbs and while taking treatment in Father Muller's Hospital, Mangaluru, died on 11.7.2013 at about 10-45 p.m.?
4. Whether the prosecution is able to prove offence against the accused U/Sec. 302 of IPC?
10. Considering both the oral and documentary evidence on record, the learned Sessions Judge has answered the 1st point in the affirmative holding that the prosecution proved beyond reasonable doubt that the death of the deceased Roselym Lobo is homicidal and the 2nd point in the negative holding that the prosecution has failed to prove the motive against the accused. The learned Sessions Judge -8- CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 answered the 3rd point in the affirmative holding that the prosecution proved beyond reasonable doubt that on 6.7.2013 at about 9-30 p.m., in the dwelling house belonging to father of accused bearing No.1/26 situated at Kapinabagilu of Kowkrady Village, Puttur Taluk, the accused brought pork (pig meat) and his wife Roselyn Lobo not prepared dish, due to which he became angry and with an intention to kill her, cut on the middle of head with sickle by causing bleeding injury and thereafter, spilled kerosene on her body and set ablaze and as a result she sustained grievous burning injuries and while taking treatment in the hospital, died on 11.7.2013. Thereby, the trial Court come to the conclusion that the accused committed the offence punishable under Section 304 Part II of IPC and not under Section 302 of IPC. Hence these two criminal appeals filed by the State.
11. The respondent/accused has not filed any appeal against the impugned judgment of conviction and order of sentence passed by the trial Court convicting and sentencing him for the offence punishable under Section 304 Part II of IPC.
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12. We have heard the learned counsel for the parties to the lis.
13. Sri Vijaykumar Majage, learned Addl. SPP contended in Criminal Appeal No.1093/2016 that the impugned judgment acquitting the respondent/accused for the offence punishable under Section 302 IPC, is contrary to law, facts and evidence on record and the same requires to be set aside and the accused is liable to be convicted for the offence punishable under Section 302 of IPC. He would further contend that the finding of the trial Court that there was no motive for committing the murder by the accused is not just and proper. The learned Sessions Judge has totally misread the whole evidence adduced on behalf of the prosecution and on wrong assumption came to a wrong conclusion and acquitted the accused for the offence punishable under Section 302 of IPC when he is involved in the homicidal death of his wife. Therefore, he sought to set aside the impugned judgment insofar as acquitting the respondent/accused for the offence punishable under Section 302 of IPC and to convict the respondent/accused for the said offence.
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14. Learned Addl. SPP in Criminal Appeal No.1086/2016 contended that the sentence imposed by the trial Court for the offence punishable under Section 304 Part II of IPC is inadequate and contrary to the material on record and cannot be sustained. The learned Sessions Judge has ignored the material on record and the statement of the prosecution witnesses, who have categorically deposed before the Court that on the date of the incident, the accused used MO.1/sickle and assaulted the deceased and thereafter poured kerosene and set fire to the deceased so also the statements of the deceased as per Ex.P21 and Ex.P25, which were recorded in presence of the doctor when the deceased was in conscious state of mind. The learned Sessions Judge failed to appreciate in the proper perspective the fact that after the death of the deceased as per Section 32 of the Evidence Act, the statement of the deceased become dying declaration, which clearly depict that the accused with an intention to commit the murder of the deceased has assaulted on her and hence there was a motive for committing the murder. He further contended that the learned Sessions Judge has recorded the erroneous finding that there was no motive for committing murder of the
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 accused, ignoring the evidence of PWs.3,4,6,7 and 10 and also Ex.P21 and Ex.P25, which clearly depict that the deceased used to come to the house everyday influenced by the alcohol and he was picking up quarrel with the deceased, thereby there was motive for the murder. He would further contend that the trial Court has failed to consider the fact that inadequate sentence would do more harm to the justice system which undermine the public confidence. He also contended that the punishment should be strictly proportionate to the nature and magnitude of the offence. Therefore, the sentence imposed by the learned Sessions Judge for the offence punishable under Section 304 Part II of IPC is meager and maximum sentence to the accused would meet the ends of justice. Therefore, he sought to modify the sentence imposed by the trial Court for the offence punishable under Section 304 Part II of IPC.
15. Per contra, Sri Mahesh, learned amicus curiae on behalf of the respondent/accused while justifying the impugned judgment of conviction and order sentence convicting the accused for the offence punishable under Section 304 Part II of IPC and sentencing him to under imprisonment for 3 year ½
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 month, has contended that the learned Sessions Judge has rightly recorded a finding that the respondent/accused is innocent of the offence punishable under Section 302 of IPC. He would further contend that though PWs.3 and 4 are the eye witnesses, they turned hostile to the case of the prosecution. He would further contend that Ex.P25/statement made by the deceased before PW.22 does not depict that the deceased was in a sound state of mind while giving her statement and in the absence of the same, the prosecution registering the case relying on the said statement is not just and proper. The learned Sessions Judge ought to have acquitted the accused granting benefit of doubt. He would further contend that there is inconsistency in the averments made in Ex.P25 and the statement made on oath before the Court and the evidence of PWs.3 and 4, who are eye witnesses and cannot be relied upon. Further statement of the deceased depicts that the accused used MO.1 and assaulted the deceased. But there is no mention of assault with MO.1 in Ex.P25, the statement made at the first instance. Therefore, there is inconsistency in the case of the prosecution. The State has not made out any case for conviction of the accused for the offence punishable
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 under Section 302 of IPC or further enhancement of sentence for the offence punishable under Section 304 Part II of IPC. Lastly he would contend that the punishment imposed by the learned Sessions Judge is already undergone by the respondent/accused. Therefore, he sought to dismiss both the appeals.
16. In support of his contentions, learned counsel for the accused relied upon the dictum of the Hon'ble Supreme Court in the case of Ramkaran and others -vs- State of Rajasthan reported in 1994 Supp (3) SCC 322, wherein the Hon'ble Supreme Court while considering the provisions of Section 304 Part II and Section 149 of IPC has awarded imprisonment for 3 years.
17. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these criminal appeals are:
i) Whether the State in Criminal Appeal No.1086/2016 has made out a case for enhancement of sentence of 3 years and ½ month imposed by the trial Court in respect of the respondent/accused for the offence
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punishable under Section 304 Part II of IPC in the facts and circumstances of the case?
ii) Whether the State in Criminal Appeal
No.1093/2016 has made out a case to
interfere with the impugned judgment
passed by the trial Court insofar as
acquitting the respondent/accused for the offence punishable under Section 302 of IPC in the facts and circumstances of the case ?
18. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
19. On the basis of the statement made by the victim/ Roselyn Lobo on 7.7.2013 at Father Muller's Hospital, Mangaluru as per Ex.P25, the jurisdictional Police registered the case in Crime No.111/2013 for the offences punishable under Sections 307 and 326 of IPC. According to her statement, on 6.7.2013, at about 9.30 p.m., the accused had consumed alcohol and had brought the pork to home and instructed the deceased to prepare dish immediately. She
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 told him that she had kept water for heating for bath and by the time water gets heated up, she would cut the meat and thereafter would prepare dish. On hearing this, the accused became angry and stating that if not able to prepare food early, it is better to kill her, took kerosene can, which was in the kitchen and poured kerosene on her body and lit the fire. The dress (nighty) worn by the deceased was caught fire and burnt. When she raised hue and cry, her daughter/Seema and son/Relson came and put water on her body. Then the deceased escaped from her husband and went to the house of neighbour by name Lawrence and they secured one ambulance and sent the deceased for treatment to the Government Hospital, Puttur along with the children.
20. Ex.P21 is the further statement of the victim recorded on 8.7.2013, wherein she stated that on 6.7.2013, the accused became angry on the ground that she did not prepare pork dish immediately and assaulted her with MO.1/sickle and thereafter took kerosene can and poured kerosene on her and lit the fire. Ultimately she died in the hospital, thereby the crime registered under Sections 307 and 326 of IPC was converted into one under Section 302 of IPC.
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21. This Court being the appellate Court in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
i) PW.1/Dr. Varun Pai has deposed that he has been working as Assistant Professor in the Department of Forensic Medicine at Father Muller's Hospital since three years prior to his evidence. He deposed that on 12.7.2013, Woman Police Constable No.918 had brought dead body of the deceased/Roselyn Lobo, aged 40 years in Crime No.111/2013 of Uppinangady Police Station with a request to conduct post-mortem examination. Accordingly, he conducted the post-mortem examination on the dead body of the deceased from 1.40 p.m. to 2.45 p.m. He further deposed that the said lady was admitted to their hospital on 7.7.2013 and expired on 11.7.2013 at 10.45 p.m. On examination of the dead body, rigor mortis was present all over the body. Foul smell was emanating from the body and eyebrows and eye lashes have been cut. He
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deposed that the deceased sustained 4 external injuries and all the injuries were ante-mortem in nature and 5 to 10 days old. He opined that the death was due to septicemia consequent upon 40 to 45% burns sustained and issued the Post- mortem reprot/Ex.P1. In the cross-examination, he admitted that by using sickle if assaulted, it may cause corresponding injury and there was no corresponding injury on the skull of the deceased. He admitted that by assaulting the head with the sickle, injury Nos.2 and 3 cannot be caused. He admitted that injury Nos.2 and 3 mentioned in Ex.P1 can be caused if fell on the ground by force. He further admitted that it cannot be distinguished as to whether the burn injuries caused due to accidental catching of fire or by setting ablaze. He further admitted that if a person suddenly catches fire and run with a shock or hurriedly run, she can fell on the floor and injuries 2 to 4 can be caused. He further admitted that if a person suffering from diabetes or any other disease, the chance of
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 septicemia is more. In the cross-examination, nothing worth is elicited to discredit his testimony. He supported the case of the prosecution.
ii) PW.2/Dr. Nusrath Banu has deposed that she has been working as Senior Specialist in the District Wenlock Hospital, Mangaluru for the last 7 years. She further deposed that on 6.7.2013 at 11.50 p.m., he examined the victim/Roselyn Lobo, who was admitted with the history of assault and homicidal burns by her husband on 6.7.2013 at 7.00 p.m. at her residence. Patient was referred from General Hospital, Puttur to District Wenlock Hospital, Mangaluru. On 28.9.2013, the Circle Inspector of Police of Puttur Rural Circle by showing sickle sought his opinion. Accordingly, he issued the certificate by mentioning wounds and his opinion after examining the sickle. The injury found on the body of Smt. Roselyn was incised wound of scalp measuring 1.5 cm. x 0.2 cm, bone deep over the left side of the head, parietal region and can be caused by weapon produced before
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 him. He deposed that the deceased had 70% superficial burns over the face, neck, chest, abdomen and part of lower limbs. The said injuries were homicidal burns and Ex.P2 is the certificate issued by him. 70% burn injuries mentioned in Ex.P2 might be caused if the said ablaze is by pouring kerosene. In his cross-examination, nothing worth is elicited to discredit his testimony. He supported the case of the prosecution.
iii) PW.3/Seema is the daughter of the deceased and the accused. She deposed that PW.7 is her sister, PW.4 is her brother and PW.10 is her elder brother. Her father/accused was doing carpentory job and he was taking care of all the children and her mother died on 6.7.2013 at about 8 p.m. due to fire incident. Her father went to the job in the morning and came back in the night on that day. She has not seen when her father alleged to have assaulted her mother with MO.1. She deposed that at the first instance, her mother was taken to Puttur Government Hospital in an ambulance. In the
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 cross-examination, she denied the suggestion that she has given statement before the Police that her father everyday used to come to home under the influence of alcohol and give trouble to her mother. She further denied the suggestion that she has stated before the Police as per Ex.P9 that on that day, her mother did not prepare pork dish immediately, as a result of which her father became angry and with an intention to kill her assaulted with sickle and poured kerosene and lit fire causing burn injuries and hence her mother died. She turned hostile to the case of the prosecution.
iv) PW.4/Master Relson deposed on par with PW.3. He has turned hostile to the case of the prosecution.
v) PW.5/Dr. Veena P.S., ENT Specialist, Government Hospital, Puttur deposed that on 6.7.2013 at 10.20 p.m. she examined the victim - Roselyn Loboa, who came along with Children - Kum Seema and Master Relson. The deceased came with the history of assault by her husband and also that her husband
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 sprinkled kerosene on her and lit fire and caused burn injuries. On examination, she found certain burn injuries and estimated more than 90% burns. She issued the wound certificate as per Ex.P13. She deposed that if assaulted with MO.1, injury No.1 as mentioned in Ex.P13/wound certificate can be caused. In the cross-examination, she denied that there is possibility of causing injury No.1 if a person fell on any burnt objects. She admitted that as per the medical jurisprudence, it should cause corresponding injury if any person assaulted by such weapon. It is true that if any accidental injury caused no such corresponding injury can be caused. She admitted that she has not noticed nor mentioned any fracture of teeth or contusion injury. She also admitted that she has not mentioned age of the injury in Ex.P13. She admitted that if any person sustains more than 90% of burns, he will not be in a conscious position. She admitted that in Ex.P13, she has not mentioned that patient was in a position to speak. She
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 volunteers that she has mentioned that patient was conscious and therefore, she did not mention that the patient was in a position to speak. She deposed that the patient remained in their hospital for half an hour. As per the reference of MLC book, he has issued Ex.P13. She also admitted that in case of accidental catching of fire, injury No.2 can be caused. She denied that as per the police report, he has prepared Ex.P13. She supported the case of the prosecution.
vi) PW.6/Smt. Lucy Stella is neighbour to the family of the deceased and accused. She deposed that accused used to drink daily and assault his wife and children. She also deposed that the deceased did not prepare pork dish to the accused immediately on the relevant day, due to which the accused became angry and assaulted the deceased with sickle and thereafter took kerosene can and poured kerosene on her and lit fire. She supported the case of the prosecution.
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vii) PW.7/Kum. Reshma, who is the daughter of the accused and the deceased has deposed that PW.3/Kum. Seema is her sister and PW.4 and CW.7 are his brothers. She deposed that in July-2013, her sister/Kum. Seema called her over phone and informed that her mother caught fire when she was preparing food in the kitchen. She has taken her mother from Wenlock hospital to Father Muller's hospital and her mother suffered burn injuries on face and other parts of the body. Her mother was in the Father Muller's hospital for six days and thereafter she died. She further deposed that there was cordial relationship between her father and mother (deceased) and she is not aware of the quarrel between the accused and the deceased in respect of preparation of mutton dish and accused assaulting the deceased with sickle and pouring kerosene on the deceased and litting fire. In the cross-examination, she admitted that on the relevant day at 7.30 p.m. when she went to Wenlock hospital, the deceased was not in
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 conscious state of mind and in the said condition, she has taken the deceased to Father Muller's hospital and in Father Muller's hospital also the deceased was not in conscious state of mind. She turned hostile to the case of the prosecution.
viii) PW.8/Ramesh, who was working in a chicken and pork shop has deposed that he knows the accused and the accused used to take pork from their shop. In the cross-examination, he denied that on 6.7.2013 at about 9 p.m., the accused has taken pork from his shop. He has also stated that he came to know that there was quarrel in the house of the accused in respect of preparation of pork dish and in anger, the accused poured kerosene and lit fire to the deceased. He turned hostile to the case of the prosecution.
ix) PW.9/Vergies, who is witness to the spot mahzar/Ex.P3 and sketch/Ex.P4 has deposed that he is not aware of their contents. He turned hostile to the case of the prosecution.
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x) PW.10/Melvyn Ranjith is the son of the accused and the deceased. He deposed that accused and the deceased have six children out of their wedlock. He has identified the dead body of her mother in Father Muller's hospital. He deposed that he is not aware as to how her mother caught fire. He is also not aware of the accused assaulting the deceased with the sickle and pouring kerosene and litting fire to her. He turned hostile to the case of the prosecution.
xi) PW.11/Suresh Poojary, who is the witness to the inquest panchanama/Ex.P17, has deposed that he is not aware of recording of the inquest panchanama in respect of death of the deceased. He turned hostile to the case of the prosecution.
xii) PW.12/Naveen Rao, who is also witness to the inquest mahazar/Ex.P17, has deposed that he is not aware of recording of the inquest panchanama in respect of death of the deceased. He turned hostile to the case of the prosecution.
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xiii) PW.13/Harish Shetty, who is also the witness to the inquest mahazar/Ex.P17 has deposed that he is not aware of recording of the inquest panchanama in respect of death of the deceased. He turned hostile to the case of the prosecution.
xiv) PW.14/Urban Joseph deposed that he does not know the accused and the deceased and he knows only PWs.10 and 13. He has seen PW.10 taking the deceased in an ambulance, but he is not aware as to how the deceased died and about the injuries sustained by the deceased. The Police taken his signature on the blank paper and he has not made any statement before the Police. He turned hostile to the case of the prosecution.
xv) PW.15/Dr. Geethalaxmi is the FSL Officer, who deposed that on the requisition made by the Police in Crime No.111/2013 on 31.7.2013, she examined four items and the seal was intact. She issued the FSL report as per Ex.P18 and serology report as per
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Ex.P19. She supported the case of the
prosecution.
xvi) PW.16/Dr. Aravind L. Rao, Assistant Professor, Father Muller Hospital, Mangalore has deposed that on 7.7.2013 the deceased was brought to their hospital on the ground that there was a quarrel between the husband and wife (accused and the deceased) and in the quarrel the accused poured kerosene on the deceased and lit fire and she was admitted to the Burns Ward of the hospital. He further deposed that on 8.7.2013 the Police came and enquired the injured and taken her further statement as per Ex.P21 in his presence and at that time, the injured was in conscious state of mind. He deposed that in Ex.P21, the deceased has stated that on the relevant day when her husband brought mutton, she could not prepare dish early and because of this, her husband became angry and assaulted her with sickle and poured kerosene and lit fire to her. In the cross-examination, he admitted that the injured was in serious condition.
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 It is true that if the injured is in a serious condition, he will kept in ICU. He further stated that on 8.7.2013 at the first instance, the statement of the injured was not taken in his presence. She also admitted in the cross-examination that she does not remember the starting and ending time of recording of the statement of the deceased. He admitted that he has not given any endorsement that the deceased was in a fit state of mind at the time of recording his statement and infact there was no impediment to make any endorsement on Ex.P21. He further admitted that in Ex.P22, he has stated that the deceased was not in a position to speak from 9.7.2013 to 11.7.2013 with Police or others. He further stated that Tramadol injection was given to the injured and it is true that on taking the said injection, there are chances of person becoming semi conscious. He supported the case of the prosecution.
xvii) PW.17/Mr. Devaraj, who was the Secretary of the Gram Panchayath at the relevant point of time has
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 deposed that on the requisition made by the jurisdictional Police, he has prepared the certificate in respect of the building where the incident happened as per Ex.P23. He has not been cross-
examined. He supported the case of the
prosecution.
xviii) PW.18/Lolakshi, who is the Woman Police
Constable deposed that on 12.7.2013, she has taken the dead body of the deceased to Father Muller's Hospital for post-mortem examination and after the post-mortem examination, she has given the dead body to Miss.Reshma/daughter of the deceased and obtained receipt for the same. Accordingly, she has given the report to the Investigating Officer. She supported the case of the prosecution.
xix) PW.19/Mr. Sachin, who is the Police Constable of Uppinangady Police Station has deposed that on 31.7.2013, he has carried the articles viz., yellow coloured plastic can, match box and half burnt
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 nighty for the chemical examination to the FSL and obtained receipt and produced the same before the Investigating officer. Accordingly, he has given a statement on 7.9.2013. He has not been cross-
examined. He supported the case of the
prosecution.
xx) PW.20/Robert Galbavo, who is the coolie, has
deposed that he knows both the accused and the deceased and their daughter/PW.3. He deposed that about 2 years prior to his examination, the Police had come to the house of the accused to enquire about the incident and at that time, himself, PW.3 and PW.9 were there and the Police seized certain articles from the place of incident as per Ex.P3. He identified his signature at Ex.P3(c). He supported the case of the prosecution.
xxi) PW. 21/Mohan, P.C. No.867 has deposed that he carried the FIR alongwith the complaint to the house of the Magistrate and certain articles to the FSL. He supported the case of the prosecution.
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 xxii) PW.22/Dayananda C.H., ASI has deposed that he has recorded the statement of the injured as per Ex.P25. He deposed that after he received the information that the injured was in ICU of the hospital, he went to Father Muller's hospital and enquired orally with Dr. Aravind L. Rao as to whether the statement can be taken from the deceased and the doctor agreed for the same. When he went to the ICU, the deceased was in a position to give the statement. After enquiry, he orally recorded the statement of the deceased, who deposed on par with her complaint. He recorded the statement of the deceased as per Ex.P25 and his signature is at Ex.P25(a). On the basis of the statement of the deceased as per Ex.P25, he registered the Crime No.111/2013 for the offences punishable under Sections 307 and 326 of IPC and Ex.P24 is the FIR and his signature is at Ex.P24(a). He prepared the spot mahazar, recorded the statements of the witnesses and seized Mo.5. Ex.P3 is the spot mahazar, Ex.P4 is the sketch and
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 Ex.P5 to Ex.P7 are the photos. He identified the photos and recovered Mos.1 to 7. He also recorded the further statement on 8.7.2013 as per Ex.P21. He deposed that e.mail received with regard to death of the deceased on 11.7.2013 as per Ex.P29. Accordingly, he requested the jurisdictional Court as per Ex.P27 to alter the offence to one under Section 302 of IPC and Ex.P27(a) is his signature. He supported the case of the prosecution.
xxiii) P.W.23 - Dr. Shashikala, Lady Medical Officer at Community Health Centre, Uppinangadi, has deposed that she has been working there for more than 10 years. On 8.7.2013, the Head Constable No.1882 and Police constable 390 brought the accused for examination on 6.7.2013 at about 9.30 a.m. with an history that the accused had thrown the kerosene and lit fire and thereby, he had sustained injury. Accordingly, she has issued the wound certificate marked as Ex.P.30 stating that the Bernad Monthero was brought to the hospital alleging history of accidental burn injury while
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 putting kerosene on his wife and lighting the fire on her on 6.7.2013 around 9.30 p.m. and the injuries were simple in nature and her signature was marked as Ex.P.30(A) .
xxiv) P.W.24 - Sri Shivaprasad, an Executive Engineer, P.W.D., Belthangadi has deposed that on the request of the Circle Inspector of Uppinangadi on 27.7.2013, he visited the spot and prepared the sketch marked as Ex.P.31 and his signature is marked as Ex.P.31(a) and supported the case of the prosecution.
xxv) P.W.25 - Sri Suresh Kumar P., who was working as Circle Inspector of Puttur Rural Police Station since September, 2012 to September 2014 has deposed that he took charge of investigation of Crime No.111/2013 from P.W.19 and continued the investigation. Thereafter, he called P.Ws.11 and 13 and conducted inquest mahazar in the mortuary and accordingly, issued inquest panchanama as per Ex.P.17 and recorded the statements of P.Ws.3, 4,
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 6, 7 and other prosecution witnesses. After completion of the investigation, he filed the charge sheet against the accused.
Based on the aforesaid pleadings, the learned Sessions Judge proceeded to convict the accused for the offence punishable under Section 304 Part-II of IPC and sentenced him to undergo rigorous imprisonment for 3 ½ years.
22. On careful perusal of the material on record, it clearly depicts that there is no dispute that the accused and deceased Smt. Roselyn Lobo were husband and wife and out of their wedlock, they had six children - P.Ws.3, 4, 5, 7, 10 and two others. The son and daughters examined on behalf of the prosecution have turned hostile. It is the specific case of the prosecution that on 6.7.2013 at about 9.30 p.m. when the accused came to the house with the influence of alcohol along with pork (pig meat) and asked his wife to prepare the dish, she told him that she had kept water for heating and in the meantime, she would cut the meat and thereafter, she would prepare the dish. Hence, the accused asked her to prepare the dish early as per the statement made by the deceased herself
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 and Ex.P.25 - the complaint and as she did not respond, he got enraged and with an intention to kill her, cut on the middle of the head with sickle by causing bleeding injury and thereafter, spilled kerosene on her body, took the match box, lit the fire and set her ablaze. Prior to the incident, the accused and the deceased were living happily having six children, and as there was no antecedent of assault or quarrel between the accused and the deceased, and it is not the case of the prosecution that the accused was habitually quarrelling with the deceased, the unfortunate incident has happened only when the accused had brought the pork and asked his wife to prepare the dish, she did not refuse, but only answered that she had already kept the water for heating and in the meantime, she would cut the meat into pieces. Again when the accused requested her to prepare the dish early, she did not respond and thereby he lost his self control and began to assault her with M.O.1 sickle and later threw kerosene on her and lit the fire. Thereby, it clearly depicts that since the accused was in crave of pork dish under the influence of alcohol, the unfortunate incident has happened in presence of P.Ws.3 and 4. Though P.Ws.3 and 4 have turned hostile, P.W.3 has deposed that on the date of the
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 incident, her father had gone to work in the morning and had come to the house only in the night and there was no quarrel between her father and mother (accused and deceased). During investigation, the statement of injured/deceased was recorded by P.W.22, the ASI in the hospital which is marked as Ex.P.25 but no medical opinion is produced for having recorded the statement after consulting the doctor about the capacity and capability of the injured/deceased to make statement and also that of the state of mind of the victim and according to the prosecution the said statement was exclusively recorded by P.W.22 in presence of the doctor. Though the original record shows that Ex.P.25 was recorded by P.W.22- Dayananda C.H., before the doctor, C.V. Aravinda L. Rao, Assistant Professor, Department of Plastic Surgery, Father Muller Hospital, Mangalore, he has deposed that he has not issued any endorsement/fitness certificate with regard to state of mind of the deceased as contemplated under the provisions of Section 32 of the Indian Evidence Act. While recording the statement of the victim, it is mandatory to ensure that victim/deceased is in a fit mental condition to give the statement which has to decided as per the medical opinion. After the death of the
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 victim, the said statement becomes dying declaration. In Ex.P.25, the statement made by the victim seems to become dying declaration, but there is no endorsement. Thereby on that basis, the accused was convicted. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Jayamma and Another -vs- State of Karnataka reported in 2021 (6) SCC 213 wherein at paragraphs-14 to 17 it is held as under:
"14. Before we advert to the actual admissibility and credibility of the dying declaration (Ext. P-5), it will be beneficial to brace ourselves of the case law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments.
14.2. In Chacko v. State of Kerala [Chacko v. State of Kerala, (2003) 1 SCC 112, paras 3 and 4 : 2003 SCC (Cri) 246] , this Court
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016
15. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the deceased admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 found reliable, it can certainly form the basis for conviction.
16. We may also take note of the decision of this Court in Surinder Kumar [Surinder Kumar v. State of Haryana, (2011) 10 SCC 173, paras 25, 26 and 28 : (2012) 1 SCC (Cri) 230] . In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could put a thumb impression on the purported dying declaration when she had suffered 95-97% burn injuries. Thereafter, it was noted that "at the time of recording the statement of the deceased ... no endorsement of the doctor was made about her position to make such statement", and only after the recording of the statement did the doctor state that the patient was conscious while answering the questions, and was "fit to give statement".
This Court lastly noticed that before the alleged dying declaration was recorded, the victim in the course of her treatment had been administered Fortwin and Pethidine injections, and therefore she could not have possessed normal alertness. It was hence
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 held that although there is neither a rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.
17. Consistent with the cited principles, this Court refused to uphold the conviction in Sampat Babso Kale v. State of Maharashtra [Sampat Babso Kale v. State of Maharashtra, (2019) 4 SCC 739, paras 14 and 16 : (2019) 2 SCC (Cri) 345] . The dying declaration in that case was made by a victim who had suffered 98% burn injuries, and the statement was recorded after the victim was injected with painkillers. This Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that: (SCC p. 744, para 14)
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016
"14. ... the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."
(emphasis supplied)"
23. It is also not in dispute that the evidence of some of the prosecution witnesses especially P.W.3 in her cross- examination has deposed that at the time of unfortunate incident, she had been to the house of her neighbour - George and when she was returning home, she heard screaming of her mother, who was alone in the house. So she came and tried to extinguish the fire by pouring water which was in the drum. Thereafter, the ambulance came the instance of the husband of P.W.6 and at that time, her mother was not conscious. It is her further version that her mother was also under the influence of alcohol and her father used to advise her mother not to have drinks. She has further deposed that she has not seen her father throwing kerosene on her mother/victim or lighting fire. Further Ex.P.21 - the statement of the deceased discloses that first her husband tried to assault her with sickle and thereafter,
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 threw kerosene on her and lit the fire, which is in consistency with the further statement of the deceased Ex.P.21 and the dying declaration Ex.P.25.
24. As per the version of P.W.5 - Dr. Veena Kumari P.S., who examined the deceased on 6.7.2013, the deceased was brought by her children Kum. Seema/P.W.3 and Master Relson/P.W.4 with an history of assault and setting her ablaze after spilling kerosene on their mother/deceased by their father at their residence. She found incised wound over left side of scalp in parietal region and burns over the face, neck, chest, abdomen, upper limb, part of lower limb, anterior aspect, posterior aspect, back and genital region, estimation of more than 90% of burns. In her cross-examination, she has admitted that she has not mentioned the age of the patient in Ex.P.13 as the victim was not in a position to speak and further that if any person sustains more than 90% of burn injuries, he/she will not be in a conscious position. She further volunteered to say that as she had mentioned that the patient was conscious, she has not mentioned that the patient was in a position to speak. Ex.P.13 depicts that the deceased was brought to the hospital by her daughter and son with an history
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 of assault on her husband at her residence and burn injuries over her body including face, after spilling of kerosene on her and had given her opinion that the injuries were grievous in nature.
25. It is the evidence of P.W.6 - Smt. Lucy Stella, wife of the Lawrence, a neighbour of the deceased and accused that on the unfortunate day of the incident about 9.30 p.m. the deceased came to her house with burn injuries and on enquiry, she told that her husband had brought a pork mutton and asked her prepare it early, but in turn she told him that she had kept water for heating and by that time, she would cut the mutton into pieces, but the accused threw kerosene on her and lit the fire. She has supported the case of the prosecution and nothing has been elicited in her cross-examination to disbelieve her evidence.
26. Though the version of Dr. Aravind L. Rao, Assistant Professor of Father Muller Hospital, Mangaluru is that when the victim was brought to the hospital on 8.7.2013, she was conscious and police recorded her further statement in his presence. The mental state of the injured was good and was
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 able to speak. On enquiry she disclosed the entire incident which her husband had done. He has admitted in his cross- examination that if the victim was in a serious condition, normally she would be put in the Intensive Care Unit. He has admitted that while recording the statement of the patient, in- charge doctor has to take permission from his superior officer, but his superior officer had not informed him about giving permission in writing. He also admits that without his knowledge, no statement of the injured was recorded on 8.7.2013, but the prosecution witnesses have deposed that statement of the injured was recorded in his presence. He further admits that he has written that the 'victim was not in a position to speak from 9.7.2013 to 11.7.2013 with police and others' because of the fact that normally the police would state she was also put in ventilation. He denies the suggestion that in order to support the police, he has given the such statement that the victim was not in a state to speak.
27. It has to be noted that Ex.P.22 is the certificate issued by the doctor Aravind L. Rao, Plastic Surgeon of Father Muller Medical College Hospital, Mangalore certifying that Mrs. Rosline Lobo with IP No.460529, was admitted in theirs Burns
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 Intensive Care Unit on 7.7.2013 and expired on 11.7.2013 and he could say that the wounds over her body were due to kerosene burns and she was not in a state to speak from 9.7.2013 to 11.7.2013 with police or others which proves that the case was registered by the police on the basis of the victim statement on 7.7.2013 and subsequently, she has died in the hospital.
28. When the prosecution has taken a specific case that on the unfortunate day of the incident i.e., on 6.7.2013, the husband of the deceased was in the house and the same is spoken to by P.W.23 and the wound certificate Ex.P.13 depicts that the victim had sustained injuries due to alleged assault by her husband-accused at her residence with hand and burn injuries over her body including face after spillage of kerosene on her and setting her ablaze, which are grievous in nature. The accused in his statement of the accused under Section 313 of the Code of Criminal Procedure, has neither whispered nor offered any explanation as to what happened to his wife and even before the Court, the accused except narrating the alleged incident nothing has been elicited and as such, in the absence
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 of any explanation, an adverse inference has to be drawn against the accused.
29. It is also not in dispute that P.Ws. 3, 4, 7 to 14 have turned hostile and only remaining prosecution witnesses i.e., P.Ws.1, 2, 5, 6, 15 to 22 have supported the case of the prosecution. The fact remains that on the unfortunate day of the incident i.e., 6.7.2013 the accused was in the house along with P.Ws.3, 4 and the deceased/his wife as per the testimony of the deceased marked as Exs.P.13 and 21. The prosecution witnesses P.Ws.3 and 4 though have turned hostile, but their testimony corroborates with the evidence of P.W.23 and Ex.P.30 the wound certificate.
30. The conviction of the accused under the provisions of Section 304-Part II of IPC., by the learned Sessions Judge is mainly on the ground that as the facts and circumstances of the case did not warrant imposition of maximum sentence and there were no grounds for showing any leniency, weighing the sentence in the background of the case, keeping in view that the elder daughter was aged 24 years, another daughter about 19 years and they were in the verge of marriage, one son -
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 Melvyn Ranjith was handicapped, three are minor children and the last son is aged 6 years and there was no one to look after them, has come to the conclusion that the accused has not committed the murder of the deceased, and it does not attract the provisions of Section 302 of IPC, but the material on record clearly depicts that when the accused had brought the pork on the day of the incident and asked his wife/the deceased to prepare the dish to which she told him that she had kept water for heating and in the meantime, she would cut the meat into pieces and thereafter, would prepare the dish, in turn, the accused asked the deceased to prepare the dish early, but as the deceased did not reply/respond, the accused lost his self control and at the first instance attacked her with M.O.1 - sickle and thereafter, threw kerosene on her which was in a plastic can - M.O.5 lying in the kitchen and with the help of a matchbox (M.O.6), lit the fire and set her ablaze. The said offence falls under the provisions of Exception-I, but not under Exception-4 of Section 300 of IPC., as held by the learned Sessions Judge.
31. Exception I to Section 300 of the Indian Penal Code, which reads as under:
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"Section 300- Murder:
xxx xxx xxx Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
32. In the present case, when the accused under the influence of alcohol came to the house with pork mutton and asked his wife/the deceased to prepare the dish, the deceased told that she had kept water for heating and in the meantime, she would cut the meat into pieces and thereafter, would prepare the dish. Again when the accused asked her to prepare the dish early, she did not respond, so he lost self control and suddenly took the can lying in the kitchen, threw the kerosene on the deceased and with the help of a match box, lit the fire and set her ablaze. Admittedly, there was no quarrel or fight between the husband and wife and the
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 unfortunate incident happened while the accused lost his self control but not in the heat of passion while quarreling. The said aspect has not been considered by the learned Sessions Judge while convicting the accused under the provisions of Section 304 Part-II of IPC.
33. Though the learned Additional SPP strongly contended that the learned Sessions Judge erred in holding that this case falls under Section 304 Part-II of IPC and not under Section 302 IPC., as stated supra, initially the accused assaulted the deceased with M.O.1 and later threw kerosene, lit the fire and set her ablaze and is a clear case of murder and therefore, the learned Sessions Judge ought to have convicted the accused under the provisions of Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life. The said contention cannot be accepted since the said offence attracts the provisions of Section 300 of IPC which defines murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 person and the bodily injury intended to be inflicted, is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Then only the provisions of Section 302 attracts, but in the present case as already stated supra, the accused and the deceased have all along led a happy married life and out of their wedlock, six children were born and on the unfortunate day of the incident when the accused under the influence of alcohol brought a pork and asked his wife/the deceased to prepare the pork dish, in turn, she told him that she had kept water for heating and in the meanwhile, she would cut the meat into pieces and thereafter, would prepare the pork dish. Again for the second time, when the accused requested her to prepare the dish early, she did not respond and thereby, he lost his self control, took a can lying in the kitchen, threw the kerosene on her, lit the fire with the help of a matchbox and set her ablaze. The said offence occurred in a spur of moment while the accused lost his self control as he
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 was under the influence of alcohol and was crave for pork dish as his wife did not respond for the second time. As such, he was suddenly provoked and committed the aforesaid offence, which aspect has not been considered by the learned Sessions Judge, while convicting the accused for the offence punishable under Section 304 Part-II of IPC. As such, the State in Criminal Appeal No.1086/2016 has proved its case for further enhancement of sentence.
34. Though the material evidence on record both oral and documentary clearly depicts that the death of the deceased was homicidal in nature, none of the witnesses including relatives and children of the accused and deceased have supported the case of the prosecution, but have turned hostile. Even the prosecution has not established its case that there was a quarrel between the accused and the deceased; there were prior antecedents before the unfortunate incident, and the prosecution witnesses especially the children of the deceased, who have deposed before the Court that earlier there was no quarrel between the accused and deceased, and their father/accused used to take care of the family and their relationship was very cordial. It seems to be that the accused
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 under the influence of alcohol has lost his self control when the deceased did not prepare the pork dish at the earliest and thereby, the prosecution has not made out any ground to convict the accused for the offence punishable under the provisions of Section 302 of IPC. On that ground, the State has not made out any ground for enhancement of sentence under the provisions of Section 302 of IPC and the learned Sessions Judge was justified in not convicting the accused for the offence punishable under the provisions of Section 302 of IPC., but committed an error in convicting the accused for an offence punishable under the provisions of Section 304 Pat II of IPC in view of the fact that the material evidence on record clearly depicts that the accused is liable to be convicted under the provisions of Section 304 Part I of IPC and not either under Section 302 or 304 Part II of IPC.
35. It is also not in dispute that the accused and the deceased had six children out of their wedlock i.e., three female children and three male children. 1st daughter, aged about 24 years, 2nd son, aged 23 years, 3rd daughter, aged 19 years, 4th daughter, aged 14 years, 5th son, aged 10 years and 6th son, aged 6 years. Among, six children, one son, namely,
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 Melvin Ranjith, met with an accident, lost his right hand and became dependent. Responsibility fell on the accused to perform the marriage of the daughter and to give education to children, including maintaining them.
36. The unfortunate incident happened when the accused lost self control. Taking into consideration the mitigating circumstances, though the prosecution has made out a case to convict the accused under Section 304 Part-I of IPC, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 straitjacket formula for sentencing is available, but the requirement of taking a holistic view of the matter cannot be forgotten.
37. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of while considering the provisions of Section 304 of IPC, which provides commission for an offence, culpable homicide under Section 299 of the IPC.
38. In the facts and circumstances of the present case, this Court is of the opinion that the accused ought to be convicted for the offence punishable under the provisions of Section 304 Part-I of IPC as he had the intention of causing bodily injury or bodily harm as the deceased suffered the
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 likelihood of the result of the act. Thereby, in the facts and circumstances of the present case, conviction recorded by the learned Sessions Judge under Section 304 Part - II is altered to Section 304 Part - I of IPC and sentence is requires to be modified.
39. For the reasons stated above, State in Crl. A. No.1086/2016 has made out a case for enhancement of sentence modifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge under Section 304 Part - II of the IPC and the accused is liable to be convicted for the offence under Section 304 Part - I of the IPC imposing punishment of five years with fine of Rs.10,000/- and in default, accused to undergo further sentence for a period of one year.
40. State in Crl.A. No.1093/2016 has not made out any case to interfere with the impugned judgment and order of sentence, acquitting the accused for the offence punishable under the provisions of Section 302 of the IPC.
41. In view of the above, we pass the following:
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 ORDER i. Crl. A. No.1086/2016 filed by the State is allowed in part.
ii. The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused to undergo rigorous imprisonment for 3½ years under Section 304 Part-II of the IPC is modified. iii. The accused convicted and the sentence is enhanced and the accused to undergo rigorous imprisonment for a period of five years with a fine of Rs.10,000/- under Section 304 Part-I of the IPC and in default, the accused to undergo further period of one year.
iv. Learned Sessions Judge is directed to secure the presence of the accused to undergo remaining period of sentence imposed by this Court within a period of one month from the date of receipt of certified copy of the order.
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CRL.A No. 1086 of 2016 C/W CRL.A No. 1093 of 2016 v. The accused is entitled for setoff under the provisions of Section 428 of Cr.P.C.
vi. Crl. A. No.1093/2016 filed by the State is hereby
dismissed as devoid of any merits. The
impugned judgment and order of acquittal of the accused for the offence punishable under Section of 302 of the IPC is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE
Page Nos. 1 to 33 ... gss
34 to 55 ... Nsu
55 to end ... mbm