Karnataka High Court
Gangawwa @ Gangamma W/O Timmayya Kunur vs The State Of Karnataka on 7 September, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF SEPTEMBER, 2017
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.3577/2011
BETWEEN:
Gangawwa @ Gangamma
W/o Timmayya Kunur,
Age 45 years, Occ. Household
R/o Indira Nagar,
Wadi, Tq. Chittapur,
Dist. Gulbarga.
... Appellant
(By Sri Jambayya Swamy Hiremath Advocate)
AND:
The State of Karnataka,
Represented by the Public Prosecutor,
High Court of Karnataka
Circuit Bench, Gulbarga.
... Respondent
(By Sri Prakash Yeli, Addl. S.P.P)
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This criminal appeal is filed under Section 374(2) of
Criminal Procedure Code, praying to set aside the
judgment under which the appellant/accused was
convicted in Sc.No.194/2010 for the offence punishable
under Section 302 of Indian Penal Code and was sentenced
to undergo rigorous imprisonment for life and to pay a fine
of Rs.1,000/- in default, she shall undergo simple
imprisonment for three months for the offence punishable
under Section 302 of Indian Penal Code.
This appeal coming on for final hearing this day,
N.K.SUDHINDRARAO J, delivered the following:
JUDGMENT
The appeal is directed against judgment passed by the learned III Addl. Sessions Judge, Gulbarga in Sessions Case No.194/2010, for the offence punishable under Section 302 of the Indian Penal Code wherein the accused was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default of payment of fine to undergo simple imprisonment for 03 (three) months.
2. The accused is in judicial custody.
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3. The facts unfurled in the case are that, originally a case was registered against appellant/accused for the offence punishable under Section 307 of Indian Penal Code, on the strength of the statement of Thimmaiah S/o Yellappa Kunur, on 30.04.2010, later who succumbed to the injuries, aged 45 years and the accused Gangawwa @ Gangamma is his wife and through their wedlock, they begot three children by name Bheemaiah, aged 20 years, Indira, aged 16 years and Nikil, aged 7 years. His wife was addicted to alcohol and used to quarrel with the complainant very often and for the previous 15 days to the incident, she was raising objection every for personal matters and attributed him of being addicted to alcohol
4. On 29.04.2010 at about 9.00 p.m. she raised quarrel. Children Bheemaiah and daughter Indira had gone to the house of one Thimmaiah for sleep.
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5. On 30.04.2010 at about 3.30 a.m., the complainant was sleeping in a room along with his last son Nikil and Gangamma again entered into their room slowly to ensure that no noise causes complainant to get awakened and thereafter secured the oil that was in the container of kerosene lamp (chimney) poured it in a plastic bag, lit fire to it and thereafter threw it on the private organ of the complainant, because of which, his clothes (dothi), thighs and private organs got burnt and she had ran away from the spot. Hearing the screaming sound of the complainant-Timmayya, his mother, wife of his brother
- Shanthamma and neighbors came inside the room and extinguished the fire. Thereafter, his son and daughter came there and his son and mother shifted him to Govt. hospital, Chirttapur in 108 ambulance for treatment and thereafter he was shifted to Government Hospital, Gulbarga.
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6. Thus, basing on the statement given by complainant - husband of accused, the case was registered in Crime No.76/2010 under Section 307 of Indian Penal Code. However, the complainant died on 08.05.2010 at 9.00 a.m.
7. Cause of death recorded by the doctor is due to cardio respiratory arrest as a result of septicemia secondaries to 35% to 38% infected deep burn injuries due to burn injuries cause soft tissue infected causing septicemia that lead cardio respiratory arrest.
8. Thus, the Section 307 of Indian Penal Code came to be replaced by Section 302 of Indian Penal Code. Therefore, charge was framed by the learned trial judge for the offence punishable under Section 302 of Indian Penal Code.
9. In order to prove its case, the prosecution has examined P.Ws.1 to 17 including the children i.e., son 6 Bheemaiah and daughter Indira and his parents and got marked documents Ex.P.1 to Ex.P.12 and M.O.Nos.1 to 7. Bhimmaiah is cited as C.W.2.
10. The accused was examined under Section 313 of Criminal Procedure Code and denied the incriminating circumstances appearing against him and there is no defence evidence.
11. Since the offence charged against the accused is punishable under Section 302 of Indian Penal Code, it is incumbent on the part of the prosecution to prove that the death of deceased occurred on 08.05.2010 at 9.00 a.m. was a homicidal and not a natural one. In this connection the first document is inquest mahazar - Ex.P.3 and thereafter the post mortem examination report of deceased - Ex.P.6. The death has occurred due to cardio respiratory arrest as a result of septicemia secondary to 35% to 38% infected deep burns.
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12. It is necessary to know and mention the external injuries shown in the post mortem report :-
"Deep burns present over the lower part of the abdomen and back, both the thighs at the anterior and posterior part, external genitalia and fingers of left hand.
All the burnt areas are covered with seropuruleat material with sloughing at places. Margins of the burnt areas are congested and hyperemia.
About 35% to 38% infected deep burns."
13. The evidence of the doctor, post mortem report and inquest report suggest that, there cannot be a fact except that the death of the accused is homicidal and not a natural one.
14. P.W.1 Bheemaiah, 20 years, who was cited as C.W.2 and was examined on 26.10.2010 and he explained the relationship and says that his mother was quarreling 8 with his father Thimmaiah and on the date of incident at about 3.00 a.m., there was a galata in the house and his mother coming out and he went inside the room and his father was screaming due to burn injuries and he also narrates about the mahazar conducted by the police and seizure of M.O.Nos.1 to 7 and in this connection he admits that his father was getting an epilepsy and he denies the suggestion. He deposes that his mother had a definite intention of murdering her husband and he also narrates the similar allegation made by his father Thimmaiah.
15. P.W.2 Indira is the daughter studying in 9th standard, aged 17 years, she narrates the relationship of the accused and deceased. She also deposes that her mother was addicted to alcohol and was quarreling with his father and on the date of incident she saw her mother - Gangamma (accused) coming out of the house and on entering inside, she found her father was screaming with 9 burn injuries and the further version is similar to the version of P.W.1.
16. P.W.3 -Sabawwa is the mother of Thimmaiah. She is circumstantial witness and she deposes that she was in the house and after hearing the voice of Thimmaiah
- her son she entered into room and saw from the waist to knees of his son was burnt and he was struggling and screaming. Her daughter-in law Gangawwa was addicted to alcohol and immediately she finds that the act was done by the accused by causing injuries. Regarding being had to the fact that when she goes inside in response to the screaming she finds her son struggling with the injuries.
17. P.W.4 - Shanthamma, age; 31 years is the co- sister of the accused. She also deposes in the similar version as circumstantial witness and says that after screaming voice, finds her brother-in-law had sustained burnt injuries from waist to knees.
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18. P.W.5 - Yallappa is a relative and he tells about the relationship and the circumstance of accused coming out of the house at the wee hours and consequently the screaming voice by the deceased Thimmaiah. Further he says that he has given statement before the police.
19. P.W.6 - Raja Patel is the Executive Magistrate who speaks for having recorded the statement of deceased as per Ex.P.1, which is considered dying declaration (Ex.P.1), last statement given by deceased Thimmaiah prior to his death wherein Thimmaiah is said to have stated that the injuries were inflicted by his wife and subsequently, Thimmaiah succumbed to the injuries.
20. P.W.7 - Ramesh is a witness to the inquest mahazar - Ex.P.3. P.W.8 - Mallikarjun is the witness to the spot mahazar and also seizure of M.O.Nos.1 to 6. P.W.9 - Sidram is witness to the seizure mahazar for recovery of clothes on the dead body of Thimmaiah.
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21. P.W.10 - Dr.Syeda Tahasin Fatima, who has conducted post mortem examination and has observed the external injuries stated above. She confirms the death of Thimmaiah due to cardio respiratory arrest as a result of septicemia, secondaries to 35% to 38% infected deep burns and time since death to post mortem examination was 4 to 8 hours.
22. P.W.11 - Sridhar is an Engineer who prepared the sketch of offence. P.W.12 - Shankargouda, CPI who deposes regarding the formalities conducted by him from the day of taking over the investigation till filing of final report claiming that the accused in this case has committed the murder of her husband Thimmaiah on 30.04.2010 in the house by pouring kerosene oil to a plastic bag lit fire to it and threw on the private organ, thigh and the connected portion of the body, because of which Thimmaiah sustained 35% to 38% of burn injuries. 12
23. Regard being had to the fact that subsequently Thimmaiah died because of "cardio respiratory arrest as a result of septicemia secondary to 35% to 38% of infected deep burn injuries". No doubt the injuries were inflected on him at the peak hours at about 03.30 a.m. and the complaint/statement was recorded in the hospital after getting the medico legal case. Thus, the injured who succumbed to injuries is the complainant, but he is dead. The case was registered for the offence punishable under Section 307 of Indian Penal Code, subsequently, under the changed circumstances wherein the deceased Thimmaiah breathed last on 08.05.2010, it came to be converted for the offence punishable under Section 302 of Indian Penal Code.
24. The complaint is at Ex.P.10 (statement) and the dying declaration is at Ex.P.1, it is necessary to make a mention that the complaint is also the statement given by Thimmaiah and he says that the person who inflected the 13 injuries to him is his wife the accused and it was recorded by the Assistant Sub-Inspector. Statement, now dying declaration was recorded by the Executive Magistrate in his evidence has gone on record by saying that on the dying declaration i.e., 30.04.2010, after recording the statement, he put in an envelope, sealed it and carried it and he was holding its custody. He deposes before the court and it was opened for the first time in the court. Thus, the contents of dying declaration were not within the knowledge of the witnesses nor the Investigating Officer nor even the court till the Executive Magistrate gave his deposition and further the sealed cover do not bear the official seal of the Executive Magistrate - Raja Patel.
25. The spot mahzar Ex.P.4 and recovery mahazar i.e., M.O.Nos.1 to 6 were recovered from the accused and the evidence of all witnesses P.Ws-1, 2, 4 and 5, confirmed that the injuries to Thimmaiah were inflected in the house and they were burn injuries and he was admitted to 14 hospital and he breathed last because of the aggravation of the injuries on 08.05.2010.
26. But the fact of the matter is whether does it amounts to an offence punishable under Section 302 of Indian Penal Code.
27. The learned counsel Sri Jambayya Swamy Hiremath appearing for the appellant/accused would submit that the entire prosecution papers right from complaint Ex.P.10, dying declaration Ex.P.1, evidence of the son, daughter and mother of deceased reflect that accused was charged for the reasons best known to the deceased and his blood relatives including mother and son and would submit that no circumstances even to presume the commission of any offence by the accused.
28. Per contra, learned Addl. State Public Prosecutor would submit that the conduct of the accused has been placed on record, spoken by all the witnesses 15 and thus she was not a worthy home maker, also was addicted to alcohol and according to the complaint, she was in the house on that day more particularly at the time of sustaining injuries by the Thimmaiah.
29. If she was a duty bound homemaker she would have been the first person to extinguish the fire to prevent her husband from succumbing to burn injury. Learned Addl. State Public Prosecutor would submit that she had only one intention to see that her husband is dead.
30. The complaint is lodged by way of statement by the deceased Thimmaiah, having seen his wife taking the children outside the room, collecting kerosene oil from the chimney put it in a plastic bag, lit fire and threw it on him. Further he tells before the witness P.W.3 - Sabawwa, that his wife has inflected injuries, his mother and son took him to hospital and after the arrival of Assistant Sub Inspector. Thimmaiah at the verge of breath gave statement against his wife. But no doubt the truth is seen 16 on the tongue of a person who is about to die and he is presumed not lying, he was able to talk whether he apprehended death or not ultimately he died that too one burn injuries being aggravated by septicemia and there is no material evidence to show that he was given a proper medical treatment in the meanwhile allowed the burn injures by 35% to 38% of infected deep burns, which caused cardio respiratory arrest. Under such circumstances, the evidence of Executive Magistrate, his entire version regarding recording of statement appears straight jacket as he is responsible gazetted officer, an executive head of the taluk, he states that said have recorded the statement on that day i.e., on 30.04.2010 and sealed it in a cover, then carried with him right from the date of death i.e., 08.05.2010, till he gave his oral evidence on 27.10.2010 and he was the custodian of the said document an envelop which does not bear even a seal in his official capacity nor the crime number on it, it is a redemptory number with the movement.
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31. The Executive Magistrate was not justified in carrying the sealed envelop on the date of its recording and bringing it back only on the date of his oral evidence, as he has not kept the Investigating Officer in know of the contents of statement of Thimmaiah. This act of the Executive Magistrate tells that he was both ignorant and irresponsible of his duty as well.
32. In so far as the evidence of sister-in law, mother and brother of the deceased Timmaiah are concerned, witnesses are not eye witnesses, however, truth is not necessarily to be a byproduct of eye witness. The attendant circumstances can by and large can be better than eye witnesses. The presence of accused and the deceased in the room at 3.30 a.m. and in the hospital status of Thimmaiah is explained, he was struggling and screaming with pain and fire on him was extinguished by others.
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33. The circumstance is clear that time was early morning 3.30 a.m. Thimmaiah was on the bed kerosene was present in the plastic bag and in the hand of the accused stated by the injured. The children were taken out of the room by the accused. Thimmaiah had no grouse against his children. He was abreast of the fact that of the future of the children meanwhile the accused moves out of the house in the said wee hours. P.W.3 Sabawwa has stated that she had have seen the accused leaving room on the date of incident.
34. If the appellant/accused was so sincere or honest to her husband, when her husband was shouting and screaming with burn injuries she could have saved him and she in her wisdom does not explain later when mother, brother, sister-in-law, son and daughter say that they were awakened and concentrating on Thimmaiah. But his wife the accused chooses to walkway from the house. 19
35. Thus, go out of the scene In the circumstances, the point is that the statement recorded by Executive Magistrate also gets maligned by his unconventional handling of the same. The statement recorded by the Investigating officer becomes a complaint. However, the statement recorded by the Executive Magistrate also in the same terms but it was not made available to Investigating Officer.
36. The injuries were inflicted at about 3.00 to 4.00 a.m. on 30.04.2010 at Indira Nagar, Wadi. The deceased was admitted to hospital and he was in a talking condition even after sustaining 35% to 38% of deep burn injuries, he has given statement before the police and before the Executive Magistrate and died due to burn injuries effecting aggravated on him. Thus, under the statement recorded by Police Sub Inspector i.e., Ex.P.10 and the one recorded by the Executive Magistrate i.e., Ex.P.1. There is no any difference.
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37. In the given circumstances, one aspect is clear. Nowhere accused Gangawwa & Gangamma can say or claim that she was not in the house and not present in the room and she was not anger over her husband and her responsibility at least respecting or staying in the house more particularly when her husband struggling with burn injuries and it happened between 3.00 a.m 4.00 a.m. No doubt the Investigating Officer though seized the clothes has not chosen to send it for Forensic Science Laboratory for chemical examination to ascertain and confirm whether clothes M.O.Nos.1 o 6 contains the contents of kerosene inflammable or any inflammable substance.
38. The death of Thimmaiah occurred on 08.05.2010 is a homicide; it is due to burn injuries inflicted There were both the probabilities of surviving or dying when the kerosene oil collected from chimney was put to plastic bag that was lit and thrown by the accused on her husband.
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39. To sum up the points that once established are
1. The statement of Thimmaiah does not bear exaggeration and that he complained of the attack by his wife the accused.
2. Injuries when suffered by him might not of fatal ones. However, there is no evidence as to the quality, range and the liable emolument for treatment
3. Thus, not only the accused, even to the ordinary prudence would tell that at the time of inflecting the injuries were not to in the nature of causing definite mood.
Thus, the death of Thimmaiah caused due to aggravation of the injuries inflected were of the kind of causing murder. But may be due to adequate or appropriate medical care and attentions. The said injuries turned to the killer injuries. Thus the offence committed by the accused is proved beyond reasonable doubt but not the one under Section 302 of Indian Penal Code, instead of Section 326 of Indian Penal Code.
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40. Thus, in the circumstances, definition of 302 and 326 of Indian Penal Code is as follows;- 302 - Punishment for murder : -
Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
326 - Voluntarily causing grievous hurt by dangerous weapons or means -
Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a terms which 23 may extended to ten years, and shall also be liable to fine.
41. Thus, the act of Gangawwa caused inflicting burn injuries were capable of causing death or even capable of homicidal not amount to murder. Thus, the death of Thimmaiah does not fall within the meaning of section 300 of Indian Penal Code and falls within the meaning section 299 of Indian Penal Code culpable homicide not amounts to murder.
42. In the circumstances, causing grievous injury is punishable under Section 326 of Indian Penal Code and it is defined under Section 320 of Indian Penal Code. The nature of injuries inflicted on the deceased at the time of death clearly speak that the injuries were not normal and there cannot be held that burn injuries may not cause death.
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43. In so far as Eighth Clause of Section 320 of Indian Penal code, any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
44. In this case, there is no question of suffering pain or keeping the injured out of ordinary 20 days or more than that, for the very reason that he breathed last on the incident i.e., within the period of just then 9 days. However, the injuries were not of such kind when inflicted to cause the death by way of neither murder nor the person who inflicted injuries had intention to cause the murder. More particularly, the relatives and mother have entered, he was taken to hospital, in the circumstances do not suggest that accused ran away on 30.05.2010, who had inflicted burn injuries on her husband more particularly when he was on the bed, secured the oil that was in the container of kerosene lamp (chimney) poured it 25 in a plastic bag, lit fire to it and thereafter throw it on the private organ of the complainant and inflicted injuries and those injuries are not simple in nature endangering the life squarely falling within the definition of Section 320 of Indian Penal Code in Eighth Clause, which is punishable under Section 326 of Indian Penal Code.
45. The definition of Section 320 of Indian Penal Code is as follows ;-
320. Grievous hurt - The following kinds of hurt only are designated as "grievous" :-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either
ear,
Fourthly - Privation of any member or joint.
Fifthly. - Destruction or permanent impairing of the
powers of any member or joint.
Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which
causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
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46. Thus, the accused was arrested on 01.05.2010 and she has not come from the judicial custody till today. Thus, the offence punishable under Section 326 of Indian penal Code is punishable with imprisonment for life or with imprisonment of either description for a term which may extended to ten years and shall also be liable to fine. In the circumstances, though the offence fall under Section 326 of Indian penal Code. The learned counsel for the appellant/accused submits that she was fond of her husband.
47. Thus, we find that imprisonment for the period the judicial custody underwent by the accused be treated as the imprisonment and thus we find that the learned Sessions Judge, Gulbarga has erred in concluding that death of deceased occurred on 08.05.2010 at about 9.00 a.m. was a murder. On the other hand, the circumstantial material and the evidence established that it is an offence punishable under Section 326 of Indian Penal Code. In so 27 far as the fine amount of Rs.1,000/- imposed by the learned District Judge, Gulbarga, is treated as fine amount. He further submits that she has no criminal background and never unfounded murder of her husband. In the result, we proceed to pass the following :-
ORDER Criminal Appeal is partly allowed. The appellant/accused is acquitted of the offence punishable under Section 302 of Indian Penal Code. The sentence of rigorous imprisonment for life passed by the learned III Addl. Sessions Judge at Gulbarga in S.C.No.194/2010 on the accused who is the appellant herein is set aside.
The appellant/accused is convicted for the offence punishable under Section 326 of Indian Penal Code.
The appellant/accused in this case has been in judicial custody since 01.05.2010, that comes to 07 28 (seven) years and 04 (four) months, is considered as the sufficient period of imprisonment and she is given set off and the fine imposed by the learned III Addl. Sessions Judge, at Gulbarga is treated as the fine for this lesser offence punishable under Section 326 of Indian Penal Code for which the appellant/accused is convicted under this appeal.
Registry is hereby directed to send the operative portion of the judgment to the concerned Jail Authorities to release the appellant/accused forthwith, if she is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE sn