Karnataka High Court
Smt Shanthi vs State By on 17 November, 2017
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 17th DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.309 OF 2012
BETWEEN:
1. Smt.Shanthi
W/o.Babu, aged about 26 years,
Residing at No-110,
House of Chimmaiah,
Venkatappa Lane,
Annasandra Palya,
Bangalore.
2.Smt. Shakuntala
W/o.Arunachalam,
Aged about 66 years,
R/at No.11, 1st Cross,
Cauveramma Lane,
Annasandra Palya,
Bangalore. ... APPELLANTS
(By Sri.P. Nehru, Advocate)
AND:
State by
HAL Police Station. ... RESPONDENT
(BY Sri.Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the judgment of conviction dated
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16.01.2012 passed by the XXXII Additional City Civil and
Sessions Judge, for CBI Cases, Bengaluru, in S.C.No.940 of
2008 convicting the appellants/accused for the offence
punishable under Section 302 read with Section 34 of IPC.
This criminal appeal coming on for hearing this day,
RAVI MALIMATH J., delivered the following:
JUDGMENT
The case of the prosecution is that on 23.4.2008 the deceased after finishing his work as a driver of a tractor came home consuming liquor on the way. At about 7.30 p.m. when he was sleeping, accused No.1 and her mother accused No.2, poured kerosene on him and lit him on fire. He came running out of the house and fell in front of the house of One Mehboob Pasha. At about 4.00 a.m. C.W.23, the Police Inspector, HAL Police Station, who was on night rounds saw him lying in front of the house of Mehboob Pasha. He took him to the hospital. At the hospital P.W.14 recorded the complaint given by the deceased which has been marked as Ex.P12. In terms of Ex.P12 a case was registered against the accused for the offence punishable under Section 307 read with Section 34 of IPC. Thereafter, the Taluka Magistrate-P.W.16 was summoned to the hospital to record the statement of the deceased. The statement was recorded at about 5.45 p.m. on 3 the same day. Thereafter, the deceased succumbed to the burn injuries on 26.4.2008 at about 7.30 p.m. The statement recorded by the Tahsildar is marked as Ex.P16. After investigation, the charge sheet was filed against the accused for the offence punishable under Section 302 read with Section 34 of IPC.
2. In order to prove its case, the prosecution examined twenty witnesses and marked seventeen exhibits along with four material objects. The statement of the accused was recorded under Section 313 Cr.P.C. He pleaded not guilty and claimed to be tried. By the impugned judgment both the accused were convicted for the offence punishable under Section 302 and sentenced to life imprisonment along with a fine of Rs.5,000/- each and in default of payment of fine to undergo simple imprisonment for six months. Aggrieved by the same, both the accused have filed the instant appeal.
3. Sri. P. Nehru, learned counsel appearing for the appellants contended that the trial Court committed an error in convicting the accused. That the prosecution has failed to establish its case beyond all reasonable doubt. There are 4 discrepancies in the statements given by the accused in terms of Ex.P12 and the dying declaration in terms of Ex.P16. That there was no motive to commit the offence. That except P.Ws.3, 9, 10, 14 and 16 and the formal witnesses, rest of the witnesses have turned hostile. Therefore, the case of the prosecution cannot be accepted.
4. On the other hand, the learned SPP disputes the same. He contends that the prosecution has established its case beyond all reasonable doubt. That there is no error committed by the trial Court in appreciating the evidence of P.Ws.12 and 16. That the deceased having furnished the dying declaration, the same has been rightly accepted by the trial Court. There are no infirmities nor any doubt arises with regard to the commission of the offence. Hence, he pleads that the appeal be dismissed.
5. Heard learned counsels and examined the records.
6. The witnesses who are relevant to consider the case of the prosecution is firstly P.W.3. He is working as a member of the Karnataka Human Rights Council. He has stated that on 23.4.2008, he received a phone call from his 5 car driver that his brother is burnt and admitted to Victoria Hospital and he is undergoing treatment. Therefore, he went to Victoria Hospital. He has not seen anybody there nor spoke with the injured. That he had not given any statement to the police to the said effect. In the cross-examination, he has denied the suggestion that he met the deceased and found burn injuries on him. He has denied the suggestion that he has given his statement before the police. Nothing else has been elicited in his cross-examination. He has further admitted in his cross-examination that he is deposing falsely only at the instance of the accused.
7. P.W.9 claims to have known the deceased. He has stated that the deceased was his nephew being the son of his younger brother. That he does not know the first and second accused. That on 23.4.2008 at about 9.30 or 10.00 p.m. while he was in his house, he received a telephone call that the deceased was admitted to the hospital. Therefore, he went there. He has seen the burn injuries on the deceased. The deceased told him that A-1 and A-2 had poured kerosene on him and set him on fire in his house. That the incident occurred in the night and that the incident occurred due to a 6 quarrel between the deceased and A-1. That the deceased succumbed to his injuries on 26.4.2008. That he has not seen A-1 and A-2 and therefore, cannot say whether they are the wife and mother-in-law of the deceased.
This witness has not been cross-examined.
8.(a) P.W.10 is the President of the Human Rights of the said area. She has stated in her examination-in-chief that on 23.4.2008 her car driver, namely the elder brother of the deceased, informed her over phone that his younger brother was set on fire by A-1 and A-2 in his house. That the deceased was admitted to Victoria Hospital. On the next day she went to Victoria Hospital and saw that the deceased had sustained 75% burn injuries. The deceased told her that when he returned home under the influence of alcohol, A-1 and A-2 poured kerosene and lit him on fire. That on 26.4.2008, the deceased succumbed to the injuries. That she has seen both the accused and came to know that they set fire to the deceased after pouring kerosene.
(b) In the cross-examination, it is elicited that at about 4.35 a.m. she visited the deceased in the hospital. She has denied the suggestion that in her presence the police 7 enquired with the deceased. That she does not know what statement was given to the police. It is herein that the learned counsel for the accused contends that the witness does not know what statement is given by the accused and therefore her evidence cannot be accepted. We are unable to accept the contention. What are the contents of the statement given by the deceased are necessarily beyond the knowledge of the witness. The witness has only stated with regard to she visiting the hospital and noticing 75% burn injuries on the deceased. That the deceased told her that A-1 and A-2 had poured kerosene and burnt him. Therefore, relevancy of the ignorance of the statement made by the deceased to the police is of no significance.
9.(a) P.W.14 was working as PSI at HAL Police Station, Bengaluru. He has stated that on 24.4.2008 at about 4.00 a.m. when he was on patrolling duty he received information from the police station that one person is admitted in Victoria Hospital on account of burn injuries. He went to the police station and after securing the staff, went to the Victoria Hospital. He found that the deceased was admitted to hospital due to burn injuries. He enquired with the doctor 8 whether the deceased was in a position to speak. The doctor told him that he could speak. Therefore, in the presence of the doctor he recorded the statement of the deceased and the same was marked as Ex.P12. However, the deceased was not in a position to put his signature or thumb impression. The witness put his signature on Ex.P12, which is marked as Ex.P12(a). The doctor also affixed his signature as Ex.P12(b). The doctor who has endorsed Ex.P12 has stated that the deceased was in a position to give his statement, which is marked as Ex.P12(c). The doctor also affixed his signature on the endorsement, which is marked as Ex.P12(d). That the witness returned to the police station and registered the case based on Ex.P12, prepared FIR as per Ex.P13 and sent it to the ACMM. The signature of the witness is marked as Ex.P13(a). On the same day, he went to the spot and drew the spot mahazar as per Ex.P3 in the presence of panch witnesses, and the signature of the witness is marked as Ex.P3(d). From the spot, he seized M.Os.1 to 4, which were sealed. He took the seized articles to the P.F. and took permission of ACMM for its retention. The P.F. is marked as Ex.P14. On 27.4.2008 at about 1.00 a.m. he received information from the Victoria Hospital regarding the death of 9 the deceased. On the basis of the same, he prepared the second FIR and sent it to the Court, which is marked as Ex.P16. He recorded the statement of the further witnesses.
(b) In the cross-examination, he has denied the suggestion that the deceased was under the influence of alcohol when he was admitted to the hospital. He admits to the suggestion that he did not take the thumb impression or signature of the deceased. He reiterates that the deceased was having burn injuries, therefore, he was unable to affix his signature or thumb impression. He has denied the suggestion that Ex.P12 was incorporated when the deceased was in a position to put his signature. He admits to the suggestion that he did not call the social worker while recording the statement of the deceased. Nothing else has been elicited in his cross-examination to disbelieve the witness.
10.(a) P.W.16 was working as the Special Tahsildar of K.R. Pura. He has stated that when he was the Executive Magistrate, he was requested by the HAL Police Station to visit Victoria Hospital to record the dying declaration of the deceased. That he reached the hospital at 5.40 p.m. He met the doctor who took him to the deceased. The deceased had 10 sustained severe burn injuries. However, he was in a position to talk. On enquiry, the doctor stated that he was in a position to give his statement. In view of the same, he enquired with the deceased and dictated the statement to the HAL Police Constable-Gangaraju in terms of Ex.P16.
(b) In the cross-examination, it is elicited that he was satisfied about the mental capacity of the deceased to give his statement. He denied the suggestion that it is not true that the doctor had endorsed after recording the statement. He has denied the suggestion that Ex.P16 was created.
11. Based on these evidence, the trial Court was of the view that the prosecution has established its case beyond all reasonable doubt. The trial Court did not find any infirmity in the statement made by the deceased in terms of Ex.P12 as well as his dying declaration in terms of Ex.P16. By considering the evidence of P.Ws.3, 9 and 10, the trial Court was satisfied that it was accused Nos.1 and 2 who committed the offence on the deceased.
12. On reconsidering the entire evidence and appreciating the material on record, we are of the view that 11 there is no error committed by the trial Court which calls for any interference. The first contention urged by the appellants' counsel is that the so called dying declaration cannot be believed, since it contains improvements. The facts would indicate that accused No.1 was not the wife of the deceased. However, they were living together for quite some time. They even had a son born out of their relationship. Eventhough they were not married, they were living together as husband and wife. Accused No.2 is the mother of Accused No.1. She was living near by the house of the accused No.1 and deceased. On the date of the incident, the deceased finished his work, consumed alcohol on the way and came home. When he went to sleep at about 7.30 p.m. the accused Nos.1 and 2 poured kerosene and lit him on fire. He immediately ran out of the house and fell near the house of one Mehaboob Pasha. These are the contents of the complaint. In the dying declaration recorded in terms of Ex.P16 he has by and large narrated the same facts. It is herein contended by the learned counsel for the appellants, that in Ex.P12 the deceased has only stated that A-1 and A-2 poured kerosene and lit fire to him. However, in the dying declaration in terms of Ex.P16 he has stated that after A-1 12 and A-2 poured kerosene on him they said "go and die". Therefore, it is an improvement. Hence, Exs.P16 and P12 cannot be accepted by the Court. We are unable to accept such a contention. The only premise which is being advanced is on the words that A-1 and A-2 stated that "go and die". We are of the view that such a statement would really have no significance on the case of the prosecution. The evidence would indicate that on the date of the incident, it was A-1 and A-2 alone who poured kerosene and lit him on fire. This part of the evidence runs consistent in Exs.P12 and P16. Merely because he did not narrate that A-1 and A-2 asked him to "go and die" in Ex.P12, that itself would not shake the case of the prosecution with regard to the incident of both the accused pouring kerosene on the deceased. Hence, the dying declaration calls for acceptance.
13. The second contention is that there is absence of motive. It is pleaded that there was no reason for the accused to commit such an offence. They belong to a lower stratum of society. That the deceased was the only earning member and therefore there was no reason for them to do away with his life. We are unable to accept the absence of motive in this 13 case. There is a dying declaration of the deceased. There are eye witnesses. The initial complaint was also furnished by the deceased. He is the man who has seen the incident being committed on him. Therefore, the question of absence of motive fades into insignificance due to the existence of eye witnesses. Even otherwise, the material would indicate that there was an altercation with regard to serving food to the deceased. That would constitute a ground for committing the said offence. Further more is the conduct of the accused Nos.1 and 2. When the deceased for whatever reason left the house in the night and fell in front of the house of Mehaboob Pasha, accused Nos.1 and 2 did not do anything to save him. Even for the sake of arguments, even if no incident had occurred, even then when the bread earner of the family goes out of the house and is found fallen in front of a neighbour's house, precious little is done by both the accused. Normally, the conduct of a woman who is living as a man's wife and has even begotten a child, does not do anything to either save or help this particular man, the conduct of the accused become suspicious. We find the conduct of the accused to be very doubtful. The conduct of the accused clearly fits into the case of the prosecution of the offences committed by both the 14 accused. Hence, on all these grounds, we hold that there is substantial motive for commission of the offence.
14. No other contentions were advanced by the learned counsel for the appellants.
15. Having considered the material evidence on record we do not find any error in the impugned order. We do not find any perversity in the appreciation of the evidence by the trial Court. The findings recorded by the trial Court are just and appropriate. On a re-consideration of the evidence and material on record, we arrive at the very conclusion arrived at by the trial Court. We find no grounds to interfere with the well considered order of the trial Court.
16. Consequently, the appeal being devoid of merit, is dismissed. The judgment of conviction dated 16.01.2012 passed by the XXXII Additional City Civil and Sessions Judge for CBI cases, Bengaluru, in S.C.No.940 of 2008 is confirmed. The bail bonds of the accused are cancelled. The sureties are discharged. The accused shall be taken into custody forthwith to serve out the remaining part of their sentence. They are 15 entitled for a set off in terms of Section 428 of the Cr.P.C. for the period of detention undergone by them in this case.
Sd/- Sd/-
JUDGE JUDGE
*alb/-.