Karnataka High Court
Sri. Shashikant Balappa Jadhav vs The State on 20 March, 2013
Author: H S Kempanna
Bench: H S Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 20 T H DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE B.V.PINTO
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.2694/2011
BETWEEN:
1. SRI. SHASHIKANT BALAPPA JADHAV,
AGED ABOUT 25 YEARS,
OCC: BUSINESS,
R/O. NIDASOSHI, TQ. HUKKERI,
DIST. BELGAUM.
2. SMT. INDUBAI BALAPPA JADHAV,
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD,
R/O NIDASOSHI, TQ. HUKKERI,
DIST. BELGAUM. ... APPELLANTS
(BY SRI.S.B.DEYANNAVAR, ADVOCATE)
AND:
THE STATE
THROUGH CPI HUKKERI,
REP. BY SPP,
CIRCUIT BENCH, DHARWAD. ... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP)
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THIS CRIMINAL APPEAL IS FILED U/S
374(2) OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGEMENT & ORDER DATED 28.03.2011 FOR
THE OFFENCES P/U/S 302 R/W 34 OF IPC
PASSED BY THE FAST TRACK COURT, HUKKERI,
IN S.C.NO.192/2010 AND ACQUIT THE
APPELLANTS.
THIS CRIMINAL APPEAL COMING ON FOR
FINAL HEARING THIS DAY, H.S.KEMPANNA, J.,
DELIVERED THE FOLLOWING:
J U D G M E N T
The appellants/accused have preferred this appeal challenging the legality and correctness of the judgment and order dated 28.03.2011 passed in S.C.No.192/2010 by the Additional Sessions Judge and Presiding Officer, Fast Track Court, Hukkeri, convicting them for the offence under Section 302 r/w Sec. 34 of IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default to undergo rigorous imprisonment for three years. -3-
2. The brief facts of the case are as under:-
Appellants/accused were tried on the charge for the offence under Section 302 r/w Sec. 34 of IPC. It is alleged that on 28.03.2010, at about 1.00 p.m., in the house of the accused situated at Nidasoshi village in furtherance of their common intention had committed murder of the deceased by setting fire to her after dousing with kerosene and thereby, have committed the aforementioned offence.
3. It is the case of the prosecution, the deceased Sujatha is the daughter of PW.2, who is a resident of Nidasoshi village. They belong to Lingayath Community. Accused also hail from Nidasoshi village and they belong to Maratha community.
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4. It is the case of the prosecution, accused No.1 and the deceased had fallen in love with each other when they were classmates, as such they were moving together and meeting frequently-clandestinely.
5. It is further the case of the prosecution, about two days prior to the date of occurrence, which took place on 28.03.2010, the deceased and accused No.1 were found together in pursuance of their love affair at Nidasoshi Matt and they were caught red handed by the people of Nidasoshi village. Since, the accused and the deceased belong to different caste, a panchayath was convened, which comprised of well-wishers of the deceased and the accused and in the said panchayath, it was settled that their marriage should be performed on 29.03.2010. Such being the position, it is the case of the prosecution, on -5- 27.03.2010, accused No.1 called the deceased to his house on phone. In response to the same, the deceased came to his house and stayed in his house along with his mother on that day i.e. 27.03.2010.
6. It is further the case of the prosecution, next day i.e. on the morning of 28.03.2010, since it was Sunday and being a holiday, accused No.2 i.e, mother of accused No.1 directed the deceased to prepare non-vegetarian food. The deceased expressed her inability to prepare the non- vegetarian food, as she hailed from a different community than that of the accused. Thereafter, the deceased after attending to other house hold work, went and slept in a room in the house of the accused. At about 1.00 p.m. or 1.30 p.m., accused being enraged of the deceased having not obliged to prepare the non-vegetarian food, -6- set fire to the deceased after dousing with kerosene. It is the case of the prosecution, accused No.2 doused the deceased with kerosene and accused No.1 set fire to her. After the deceased was set fire, she came running out of the house of the accused with flames. On seeing the same, PW.9- a neighbour of the accused came near the house of the accused and put off the fire by pouring water on the deceased. Thereafter, the deceased was removed to Sankeshwar Government Hospital by PW.2- father of the deceased, PW.7 and another person. At Sankeshwara Government Hospital initially, the deceased was treated by PW.14, the medical Officer. PW.14-Medical Officer, thereafter, informed Sankeshwar Police of the deceased having been brought to the hospital with burn injuries. The said information was received by PW.19-PSI, who immediately came to the -7- Sankeshwar Government Hospital accompanied by PW.13- Head Constable - 302. On reaching the hospital, he gave a requisition to PW.14 as per Ex.P.24 stating whether the deceased is in a fit condition to give her statement or not. In response to the same, PW.14 made an endorsement on Ex.P.24 as per Ex.P24(b) stating that the deceased is in a fit condition to give her statement. Thereafter, PW.19 got the statement of the deceased Sujatha recorded through PW.13- Head Constable, who had accompanied him to the hospital as per Ex.P.23 in the presence of Medical Officer-PW.14. Thereafter, PW.19 returned to the police station and on the basis of Ex.P.23, he registered a case in Crime No.94/2010 initially for the offence under Section 307 r/w Sec.34 of IPC against the accused and issued FIR as per Ex.P.36 to the Jurisdictional Magistrate. Further, it is the case -8- of the prosecution, the deceased Sujatha, who had sustained severe burn injuries was forwarded to the Government hospital at Belgaum for better treatment. There she was first treated by PW.5-Medical Officer. In the meantime, it is the case of the prosecution, PW.19 proceeded to the scene of the occurrence and there he drew up the spot panchanama as per Ex.P.21 in the presence of pancha PW.10 and another. At the time of Ex.P.21, PW.19 seized MOs.1 to 5 thereunder. After completion of Ex.P.21, he drew up rough sketch of the scene of occurrence as per Ex.P.37. Thereafter, he recorded the statements of PWs.3, 4 and 6 to 9. He also sent a requisition through CW.25 to the Taluka Executive Magistrate to record the statement of the deceased at Belgaum hospital. In response to the same, PW.20 on 29.03.2010, at about 6.15 p.m, proceeded to Belgaum -9- hospital and there he recorded the dying declaration of the deceased, which is at Ex.P.45 in the presence of the Medical Officer, who was treating the deceased. (Note: The said Medical officer is not examined in this case). Thereafter, PW.19-PSI arrested accused No.2 on 28.03.2010 at about 7.45 p.m., and on completion of her arrest formalities, got her remanded to judicial custody. Continuing the investigation, on 30.03.2010 he arrested accused No.1 and on completion of his arrest formalities, also got him remanded to judicial custody. Thereafter, it is the case of the prosecution, the deceased Sujatha, who was undergoing treatment in the Government Hospital at Belgaum expired on 04.04.2010 at about 6.50 p.m. An intimation to that effect was sent to PW.19-PSI, who on receipt of the same prepared an additional report adding Section 302 of IPC to the case registered earlier,
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forwarded the same to the jurisdictional Magistrate. Thereafter, he handed over the further investigation of the case to PW.17-CPI. PW.17 on taking over the investigation on 04.04.2010 proceeded to the Government hospital at Belgaum and there he held inquest over the body of the deceased and drew up inquest panchanama as per Ex.P1 in the presence of panchas, PW.1 and others. At that time, he also got the photographs of the deceased body taken which are at Exs.P.2, P.11. Apart from the same, he also recorded the statements of the blood relatives of the deceased. After completing Ex.P.1, he got the body subjected to postmortem examination by issuing a requisition, in pursuance of which, PW.16-Medical Officer conducted autopsy over the body of the deceased and issued PM report as per Ex.P.27. PW.17, thereafter continuing the investigation recorded
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further statements of PWs.3, 4 and 6 to 9 and thereafter recorded the statement of the witnesses examined on behalf of the prosecution other than the witnesses adverted to above and also cited in the charge sheet. He also forwarded all the seized articles in the case for subjecting to chemical examination to Forensic Science Laboratory. Thereafter, on receipt of the relevant documents from the concerned authority, on completion of the investigation, submitted final report against the accused before the jurisdictional Magistrate, who in turn, committed the case of the accused to the Court of Sessions, which on receipt of the records, secured the presence of the accused, framed charges against them as aforesaid, to which they pleaded not guilty, but claimed to be tried.
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7. The prosecution in support of its case in all examined PWs.1 to 20 and got marked Exs.P.1 to P.45 and MOs.1 to 8. The accused during the course of examination of the prosecution witnesses got marked Exs.D.1 to D.3.
8. After closure of the prosecution evidence, the accused denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses in their examination under Section 313 of Cr.P.C. They also submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
9. The learned trial Judge on consideration of the entire evidence and documents placed on record came to the conclusion that the prosecution has established the charge leveled against the accused and accordingly, by the
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impugned judgment and order convicted and sentenced them as aforestated.
10. The appellants/accused being aggrieved by the judgment and order of conviction and sentence are in appeal before this Court.
11. The learned counsel appearing for the appellants assailing the impugned judgment and order contended that the alleged dying declarations namely Ex.P.23 and Ex.P.45 of the deceased being in conflict with each other, no reliance can be placed on the same. He further contended that two dying declarations of the deceased are also not corroborated by any independent quarters. According to him, the accused have been falsely implicated in this case, in view of the suspicion that is there in recording Ex.P.23 and Ex.P45. He further submitted, since panchas for the mahazar have
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turned hostile and as the scene of occurrence has not been proved having taken place in the house of the accused, the prosecution has failed to establish the charge leveled against the accused. Despite the same, the learned trial Judge without appreciating the same in its right perspective has committed an error in coming to the conclusion that the prosecution has proved the charge leveled against them, which finding is contrary to the evidence on record, hence, it be set aside and the accused be acquitted of the charge leveled against them.
12. Per contra, Sri.V.M.Banakar, learned Addl.SPP supporting the impugned Judgment and order contended that, Exs.P.23 and P.45 are two dying declarations of the deceased-Sujatha. Among them, Ex.P.23 has been recorded by PW.19 in the presence of PW.14-Medical officer,
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who had treated the deceased at the first instance at Sankeshwar Government Hospital, within about 1 to 1 ½ hours after the occurrence. The dying declaration of the deceased clearly discloses that it was the accused, who had set fire to her after dousing with kerosene in their house on the date of occurrence at about 1.00 or 1.30 p.m. It is further fortified from the evidence of PW.2 - the father of the deceased, which reveals after he came to the scene of occurrence he immediately shifted the deceased to the hospital along with neighbours who had came near the house of the accused, which comprised of PW.9, who put off the fire by pouring water on her body. In view of the evidence of PWs.2 and 3 coupled with the dying declarations Exs.P.23 and P.45, as there is nothing on record to discard the same, the trial Judge has committed no error in coming to the conclusion that the prosecution
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has proved the case against the accused and the said finding having been based on the facts and evidence on record, does not suffer from any infirmity calling for interference, hence, it be dismissed.
13. Taking the rival contentions, the evidence and the documents on record, the points that arise for our consideration are:
i) Whether the prosecution has
established that the deceased
Sujatha has died an homicidal death on account of sustaining burn injuries?
ii) If so, whether the prosecution has
established that the accused are
responsible for the homicidal death of the deceased?
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iii) Whether the impugned judgment and order of the trial Court calls for any interference?
14. Re-point No.1:-
PW.16 is the Medical Officer, who has conducted autopsy over the body of the deceased He in his evidence has stated that on 04.04.2010, he conducted autopsy over the body of the deceased. At the time of his examination, whole body revealed superficial deep burns, sparing in patches over the face both hands, both legs below knee and lower abdomen. Thus, the body surface had been burnt about 80 to 85% with superficial deep burns. Burnt areas were yellowish green in colour and foul smelling was emanating at the said places.
He has further stated, on dissection of the body all the internal organs were intact, expect the genital organs, which had sustained burn
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injuries. He has further stated that, he is of the opinion that the death of the deceased is due to Septicemia as a result of 80 to 85% superficial deep burn injuries sustained by the deceased. He has issued postmortem report as per Ex.P.27. This evidence of PW.16 is corroborated from the evidence of PW.17, the Investigating Officer, who has held the inquest over the body of the deceased and had drawn up the inquest panchanama as per Ex.P.1. The evidence of PW.17 reveals that, at the time of Ex.P.1, he noticed the burn injuries on the body of the deceased as reflected in the postmortem report- Ex.P.27. This is further fortified from the evidence of PWs.2 and 3, who have stated that the deceased had sustained burn injuries.
The deceased having sustained the burn injuries and having died due to the same is not
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seriously challenged in their cross-examination. Further the deceased having died on account of sustaining burn injuries is also not disputed before us. Therefore, having regard to the evidence adverted to above, we are of the clear view that the deceased has died on account of sustaining burn injuries on her person. Therefore, the prosecution has established that the deceased has died an homicidal death.
15. Re-point No.2:
The prosecution in order to connect the accused with the homicidal death of the deceased has relied upon the two dying declarations of the deceased Exs.P.23 and 45, which have been recorded at Sankeshwar Government Hospital and at Belgaum Government Hospital by PW.19- PSI, at the first instance in the presence of PW.14-the Medical Officer and PW.20- Taluka
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Executive Magistrate in the presence of the Medical Officer of Belgaum hospital, who is not examined in this case. Apart from the same, they have also relied upon the evidence of PW.2- the father of the deceased, PW.3- relative of the deceased and also PW.4- another relative of the deceased. Further the prosecution have also relied upon the testimony of the Investigating Officer in the case. It the case of the prosecution that the deceased Sujatha was in love with accused No.1 when they were classmates. They were frequently meeting clandestinely. About two days prior to the occurrence, they were found together at Nidososhi Matt in pursuance of their love affair by the villagers of Nidososhi. Thereafter, at the intervention of well-wishers of both the accused and the deceased in a panchayth as they hailed from different communities namely the deceased from
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Lingayath Community and the accused from Maratha Community, it was settled to perform the marriage of the deceased with accused No.1 on 29.03.2010. Such being the position on 27.03.2010, the accused No.1 called the deceased on phone and requested her to come to his house. In response to the same, the deceased came to the house of accused at Nidasoshi Village and stayed in their house on that day.
Next day morning i.e. on 28.03.2010 since it was Sunday and it being a holiday, accused No.2 directed the deceased to prepare non-vegetarian food, to which the deceased expressed her inability to prepare the same. At that juncture, according to the prosecution, accused became annoyed with the stand taken by the deceased and thereafter, the deceased attended to the house hold work and went and slept in a room. Thereafter, at about 1.00 or 1.30 p.m., the
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accused doused the deceased with kerosene and set fire to her, due to which she sustained burn injuries and succumbed to the same while undergoing the treatment on 04.04.2010 at Government hospital, Belgaum, which we have adverted to above.
16. According to the prosecution, after the deceased was set fire, she came running with flames outside the house of the accused. On seeing the same, PW.9- neighbour and others came near her and put off the fire by pouring water. In the meantime, PWs.2 and 3 i.e, the father and the relatives of the deceased came near the house of the accused. Thereafter, they removed the deceased Sujatha to the Sankeshwar Government Hospital along with PW.7. At Sankeshwar Government hospital, PW.14 examined the deceased and intimated the same
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to Sankeshwar police station. The said intimation was received by PW.19-PSI who immediately came to Sankeshwar Government Hospital accompanied by PW.13- Head Constable. The evidence of PWs.13, 19 and 14 in this connection is consistent and cogent. The evidence of PWs.2 and 3 though they are the father and relative of the deceased is consistent insofar as they taking the deceased to Sankeshwar Government Hospital after putting off the fire. The evidence on record reveals the occurrence has taken place at about 1.00 p.m. or 1.30 p.m., in the house of the accused and the deceased has been removed to Sankeshwar Government Hospital at about 2.00 or 2.30 p.m., where she has been examined by PW.14- Medical officer, who has testified to that effect. Ex.P.23 is the dying declaration of the deceased which has been got recorded by PW.19 through PW.13 in the presence of Medical
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Officer-PW.14, after getting an endorsement from PW.14 as per Ex.P.24(b) stating that the deceased was in a fit condition to give her statement.
17. The attack that was made insofar as Ex.P.23 is that the scribe has not affixed his signature. Further, in Ex.P.23, the signature of the deceased was taken, whereas in the dying declaration Ex.P.45, recorded on the next day by the Taluka Executive Magistrate, the LTM of the deceased was taken. We do not find any defect in taking the signature or LTM of the deceased and merely because the scribe has not affixed his signature, in view of the evidence of PWs.14 and 19, who have consistently stated in their evidence that Ex.P.23 was recorded in the hospital, despite the scribe not affixing his signature, who is none other than the Head
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Constable, who had accompanied PW.19, it does not take away the effect of Ex.P.23. The dying declaration of the deceased-Ex.P.23, Ex.P.24(b)- the endorsement made by PW.14, the Medical Officer before whom Ex.P.23 is recorded, which we have perused goes to show that the deceased was in a fit condition to give her statement. Further the evidence of PW.14 also goes to show that at the time the deceased was brought to the hospital, she was conscious.
18. On perusal of Ex.P.23, it goes to show that the deceased was in love with the accused and on that day, i.e, on 28.03.2010 at about 1.00 or 1.30 p.m., accused set fire to her after dousing with kerosene and she subsequently died. It specifically reveals accused No.2 doused her with kerosene and accused No.1 set fire to her with a match stick. This Ex.P.23 is
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corroborated by the testimonies of PWs.14 and 19 and further fortified by the evidence of PWs.2 and 3, who are none other than the father and relative of the deceased. The evidence of PWs.2 and 3 merely because, they are closely related to the deceased cannot be brushed aside on the ground of partisan and interested witnesses. The only caution to be placed is their evidence before acceptance will have to be subjected to a close scrutiny. In view of the contents of Ex.P.23, which has been recorded at the earliest point of time, in the presence of the Medical Officer, we do not find any reason to discard the testimonies of PWs.2 and 3. Apart from the same, for the very same reason, we also do not find any reason to discard the evidence of PW.19, who has got recorded Ex.P.23 at Sankeshwar Government Hospital within about 1 to 1 ½ hours of the occurrence. Ex.P.45 is another dying declaration
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which has been recorded by PW.20-Taluka Executive Magistrate at Government Hospital, Belgaum on 29.03.2010 at about 6.00 p.m.
19. The attack in respect of Ex.P.45 is; it reveals the occurrence took place on 27.3.2010 whereas, the occurrence has taken place on 28.3.2010. Therefore, both Exs.P.23 and P.45 cannot be relied upon. We do not find any merit in the said contention of the learned counsel for the reason even if Ex.P.45 is excluded Ex.P.23- the earliest dying declaration of the deceased, which has been recorded at Sankeshwar Government Hospital within about 1 to 1 ½ hours after the occurrence. The same has been recorded after PW.14 has given an endorsement to the effect that the deceased was in fit condition to give statement and it has been got recorded in the presence of PW.14 by PW.19. It is
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stated that truth stems on the lips of the dying man. As Ex.P.23 is the earliest statement of the deceased, which has been recorded within an hour or 1 ½ hour of the occurrence, we do not find any reason to discard the same. It is also settled position of law that conviction can be based solely on the basis of dying declaration, if it inspires confidence in the mind of the Court. In view of what we have adverted to above and as Ex.P.23 is the true statement of the deceased recorded at the earliest point of time, which clearly goes to show that it was A.2 who doused the deceased with kerosene and A.1 who has set fire to her, which has resulted in her death, we find no reason to discard the same. The same, in our view, is also corroborated from other independent quarters. Merely because, panchas for the mahazar have turned hostile, that does not take away the effect of the evidence of the
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prosecution witnesses, two dying declarations and the testimonies of the investigating officer to disbelieve the case of the prosecution. Accordingly, we do not find any merit in this appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KSR