Karnataka High Court
State Of Karnataka, vs Venkatesh Naik S/O Umla Naik on 8 October, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08 T H DAY OF OCTOBER, 2020
PRESENT
THE HON 'BLE MR. JUSTICE N . K. SUDHINDRARAO
AN D
THE HON 'BLE MR.JUSTICE RAVI V. HOSMAN I
CRL.A.N O.100193/2017
BETWEEN :
STATE OF KARNATAKA REPRESENTED
B Y THE POLICE SUB- INSPECT OR,
B RUCEPET POL ICE STAT ION, B ALLARI
THROUGH THE ADDL. STATE PUBLIC PROSECUT OR,
ADVOCATE GENER AL OFFICE,
HIGH COU RT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(B Y SRI V.M.B ANAKAR, ADDL.S.P.P.)
AN D :
VENKATESH NAIK S/ O UMLA NAIK,
AGE : 26 YEARS, OCC: AU TO DRIVER,
R/O D.C.COLONY, ANDRAL, B ALLARI.
... RESPONDENT
(B Y SRI PRAVEEN TARIKAR, ADVOCAT E FOR SRI
GANGADHAR J.M., ADVOCATE.)
THIS CR IMINAL APPEAL IS FILED UN DER SECTION
378( 1) & (3) OF THE CODE OF CRIMINAL PROCEDU RE
TO GRANT LEAVE TO APPEAL A GAIN ST THE JU DGMENT
AND ORDER OF A CQU ITTAL DATED 15. 12.2016 PASSED
B Y THE LEARNED II ADDL. DISTR ICT AND SESSION S
JU DGE B ALLARI IN SESS IONS CAS E NO.48/ 20 14, TO
SET ASIDE THE J U DGMENT AND ORDER OF ACQUITTAL
DATED 15. 12.2016 PASS ED B Y THE LEARNED II ADDL.
DISTR ICT AND SESS IONS JU DGE, B ALLAR I IN
2
SESSIONS CASE NO.48/ 2014 A ND CONVICT THE
RESPONDENT/ACCUSED FOR T HE OFFENCES
PU NISHAB LE UNDER SECTIONS 302 OF IPC, IN THE
INTEREST OF JU STICE AND EQUIT Y.
THIS A PPEAL COMING ON FOR F INAL HEARING
THIS DAY, N. K. SUDHINDRARAO, J., DELIVERED TH E
FOLL OWING:
: JUDGMENT :
This appeal is directed against the judgment rendered by the learned II Addl. Sessions Judge at Ballari on 15 t h December, 2016 in Sessions Case No.48/2014, wherein the accused was acquitted for the offence punishable under Section 302 of Indian Penal Code (for short "IPC").
2. The substance of the case against the accused as could be seen from the certified copy of the judgment is that, on 21.02.2014 at about 11.00 p.m. in the house of complainant Smt.Vani Bai, D.C.Colony, Andral Village, within the jurisdiction of Brucepet Police Station, Ballari there occurred a incident, wherein the complainant had quarreled with her husband/ 3 accused due to illicit relation of the accused with another lady, because of which, the accused got enraged and decided to murder Smt.Vani Bai and poured kerosene on her body and set her ablaze, because of which, she sustained severe burn injuries and on 22.02.2014 at 11.00 p.m., she succumbed to the burn injuries at VIMS Hospital, Ballari, thereby accused committed murder punishable under Section 302 of IPC.
3. The learned Trial Judge heard the accused before framing the charge and found grounds to frame charge for the offence punishable under Section 302 of IPC, which was framed and read over. The accused denied and pleaded not guilty claimed to be tried.
4. In order to establish the case against the accused, the prosecution has examined 20 witnesses as follows:
PW.1-Eranna, PW.2-Nagaraj, PW.3-Maruthi, 4 PW.4-Anjeneyalu, PW.5-Shobha @ Pampa, PW.6-Shivaramegouda, PW.7-V.Parashuram, PW.8-M.S.Udaykiran Rao, PW.9-Venkatesh Naik, PW.10-Yashodamma, PW.11-Ghousepeer, PW.12-Bhudevi, PW.13-Devi Bai, PW.14-Krishna Nayaka, PW.15-J.Venkateshwarulu, A.E., PW.16-Dr.Dharma Reddy, PW.17-Pramod(Tahasildar), PW.18-Dr.Yogiraj, PW.19-Malatesha(CPI) and PW.20-Niranjana.B(PSI) The prosecution has got marked 23 documentary evidences :
Ex.P.1: Spot Panchanaman Ex.P.2: Inquest report. Exs.P.3 to P10: Statements of PW.4 to 7 and PW.11 to 14 Ex.P.11: Sketch.
Exs.P.12 & 13: Requisitions. Ex.P.14: Dying declaration. Ex.P.15: Dying declaration cover. Ex.P.16: Letter.
Ex.P.17: Notice.
Ex.P.18: P.M.Report. Ex.P.19: FSL Report. Ex.P.20: Statement of deceased Vani Bai. Ex.P.21: FIR Exs.P.22 & 23 : Requisitions.
Exs.D.1 to 3 : The portions of the statement of PW.9 marked as defence evidence 5 The material objects are marked as MOs.1 to 4 as follows:
MO.1: Plastic Can. MO.2: Pieces of Saree. MO.3: Bangle Pieces. MO.4: Match box with sticks.
5. The offence charged against the accused is punishable under Section 302 of IPC. It is incumbent on the part of the prosecution that, it has to establish the death of complainant Smt.Vani Bai at 11.00 p.m. on 22.02.2014 at Andral village was homicide and not natural. The learned Trial Judge concluded the trial and held the death was not homicidal.
6. The next would be, as to whether the homicide death of the complainant Smt.Vani Bai was done by the accused.
7. In this connection, the witnesses are examined from PWs.1 to 20. Out of them PWs.1 and 2-mahazar witnesses, PWs.3 and 12-inquest mahazar witnesses, PWs.4 to 7-neighboring 6 persons who accompanied the complainant, namely PW.4-Anjeneyalu, PW.5-Shoba @ Pampa, PW.6-Shivaramegouda PW.7-V.Parashuram and PW.10-Yashodamma, in principle have turned hostile. Further PW.13-Devi Bai, who is mother of the victim also has turned hostile.
8. PW.8- M.S.Udaykiran Rao is the inquest mahazar witness, PW.15-J.Venkateshwarulu, Assistant Engineer in PWD who drawn the spot sketch, PW.16-Dr.Dharma Reddy, the doctor who was gave a statement before the police as she was capable to give statement, PW.17-Pramod is the Taluka Executive Magistrate, who recorded the statement of the complainant, PW.18- Dr.Yogiraj is one who was conducted the postmortem, PW.19-Malatesha, Investigating Officer, PW.20-Niranjan.B., PSI, who is person who recorded the complaint.
9. Sri V.M.Banakar, learned Additional State Public Prosecutor would submit that it is a 7 determined act by the accused, who got enraged when his wife questioned his immoral acts of affairs with other lady, he poured kerosene over her in the house and set her ablaze and thus committed the ghostly act of inflicting injuries to ensure that she dies and she did.
10. He would further submit that, the statement given by the victim Smt.Vani Bai to the police and the Taluka Executive Magistrate, confirms the brutal act of the accused. The hostility of mahazar witnesses and even the mother of the complainant have no impact on the guilt of the accused.
11. Sri Praveen Tarikar, learned counsel for the accused would submit that the accused never involved in the act as alleged by the complainant for the offence as charged against him.
12. He would further submit that the learned Trial Judge comprehensively covers the 8 evidence of all the witnesses and after properly appreciating the evidence before him, has rightly acquitted the accused.
13. On perusal of complaint, statement recorded by the Taluka Executive Magistrate, inquest Mahazar and the postmortem report at Ex.P.18, the Trial Court held that the cause of death is due to hypovolumic shock, as a result of burn injuries. In these circumstances, there is no hesitation to hold that, death of Smt.Vani Bai was a homicide and not a natural one.
14. There is no separate finding by learned Trial Judge as to the nature of death however we conclude that it is a homicide.
15. The evidence of the hostile witnesses stated above, does not call for further discussion on their testimony. The first witness is PW.9- Venkatesh Naik. He is the father of the victim. He speaks about the death of his daughter due to 9 burn injuries. Marriage was performed between the accused and the complainant four years prior to the date of examination of this witness, i.e., on 27.01.2016. Through their wedlock, they begot one male child and a female child. They were not living happily. The accused was not earning to meet the basic requirements of the house. Her daughter used to tell about her misery. He also advised the accused. Though he assured of mending his ways, but he did not. Two years back, he heard the information from one Patel about the incident that the accused lit fire on the complainant. He went Andral village and he came to know that she was in OPD of VIMS Hospital and enquired her, she was suffering from complete burn injuries. On enquiry he came to know that the accused set her ablaze in their house by locking the door. She was alive for one day and died on Saturday. According to him, accused set her ablaze.
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16. Insofar as the evidence of PW.9 is concerned who is the father of the victim, though he tells that he heard regarding the cause of death from the complainant but his version is not precise and specific. During examination, it is elicited from him that, he does not know whether police have enquired his daughter and recorded statement. He has not stated before the Police that he had gone to Hospital at about 11.00 p.m. He does not know who took his daughter to VIMS Hospital, Ballari and he does not know whether the neighbors took her. He came to know about the incident from one Patel and there after by Srinivas Naik, who are not examined. The police have not recorded his statement and also of his wife and hence he has not stated before the police in this connection.
17. Totally the version of this witness appears to be vague and ambiguous. He also speaks regarding transfer of property from the 11 side of the accused to the extent of one and half acres of land to the children of accused and the victim. However, it is a matter that happened subsequent to the incident and it does not assume significance in the disposal of the case.
18. The next witness is PW.14-Krishna Nayaka, who is an auto driver. He is the brother of the victim. Two years back, he received information that, his sister sustained burn injuries and he went to their house. Meanwhile, ambulance came and he shifted his sister to VIMS Hospital and he stated that his sister had unconscious and unable to speak. He tells that, when he went to the house of his sister, she had sustained serious burn injuries and was sent in ambulance and she was unable to speak. He would have been the best witness in the circumstance to hear from his sister regarding inflicting of injuries. His hostility makes 12 substantial difference and creates a gap in the case of prosecution.
19. The next witness PW.13-Devi Bai mother of the victim has turned hostile and does not support to the case of the prosecution.
20. Dr.Dharma Reddy is the doctor, who is examined as PW.16. On 22.02.2014, the APMC Yard police requested him to examine the victim Smt.Vani Bai regarding her competency to give statement. At 10.25 a.m., he examined and found that the victim was capable to give statement before the police and the said requisition is marked at Ex.P.12 and his endorsement is marked as Ex.P.12(a). The blood pressure of the victim was 70/120, the Police recorded the statement and she told that, her husband set her ablaze pouring kerosene and there was quarrel between her and the accused. On 22.02.2014, the Tahasildar came at 3.45 p.m. and recorded the statement of victim. He further deposes that 13 the Tahasildar gave a requisition to him and he examined the injured and found that she was capable of giving statement and the statement was written and it is marked as Ex.P.13. When the Tahasildar recorded the statement, this witness, Tahasildar and victim were present. The victim told before the Tahasildar that she sustained injuries because of her husband poured kerosene and set her ablaze after quarrel. He denies the suggestion made against his version. He admits that endorsement Ex.P.13 given by the Tahasildar, it was received by Laxmi. He admits that, the conscious and good state of mind are two different entities. He admits that examination and findings in respect of state of mind of victim is not at all forthcoming in Ex.P.12. He volunteers that he made observation in Ex.P.12 and Ex.P.13 in respect of mental condition of the victim. He has not given statement before the Police or before the Tahasildar.
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21. The complaint is recorded at 11.00 a.m., on 22.02.2014 in the hospital by PSI who is examined as PW.20. The complainant was admitted to Hospital on the previous day at about 12.30 a.m. Thus there is a gap of ten and half hours from the time of admission and recording the statement. It is quite surprise, at the same time no details are forthcoming regarding the medicine administered to her from 12.30 a.m., up to 11.00 a.m. nearly ten and half hours. It is a lapse considering the nature of statement and the effect of certain medicine including sedative drugs, there is no explanation.
22. Next aspect is there is no explanation, why the doctor who admitted her at 12.30 a.m. on 21.02.2014 never bothered to inform the police at the same time and if he had informed why the police had not come to record statement. Why her statement did not come into existence. 15
23. Further it is again crucial that one Anjeneyalu PW.4 is stated to have accompanied the victim in the hospital when she had sustained serious burn injuries, which is stated to be to the extent of 90%. He would have heard the very first version of Smt.Vani Bai. He is examined as PW.4. But he turns hostile and not supported the case of prosecution and nor said that Smt.Vani Bai has whispered anything regarding the injuries. The name of Anjeneyalu is also mentioned in the statement of the victim stated to have been recorded by the Executive Magistrate-PW.17.
24. Another material factor that intervene herein is that, the evidence of brother of the victim who is examined as PW.14-Krishna Nayaka. He has gone on record by saying that as soon as the moment he heard about incident, he rushed to the house of his sister. Meanwhile ambulance came and he shifted his sister to VIMS 16 Hospital, Ballari in the said ambulance. His sister was unconscious and unable to speak. He has not enquired her, even she also had not disclosed anything. He turns hostile to the prosecution and he does not whisper. It is necessary to mention that, he is the sibling to the victim who is supposed to have all passions and affections towards her. But he said that she was unconscious and did not whispered or he enquired. It throws serious doubt against the case of the prosecution. Another probability is that, as to whether she recovered in the hospital and she was fit to give statement in the morning. But that is not the case as pleaded by the prosecution nor the materials adduced to the said effect.
25. PW.20-Niranjana.B (PSI) who had recorded the statement of the victim after getting intimation from the VIMS Hospital regarding sustaining burn injuries by the victim and he 17 gave requisition to doctor to know whether she was in a position to give statement regarding the injuries. The doctor has given opinion. Ex.P.12 is the requisition given by the police regarding the state of mind and Ex.P.12(a) is the endorsement and signature of the Dr.Dharma Reddy regarding consciousness of the injured.
26. It is necessary to mention that, if the police had found that the statement of the complainant-Victim was free from defect, where was the necessity to go for one more statement through the Executive Magistrate. This aspect also, poses a question on the manner of recording the statement. The statement stated to have been recorded by the magistrate is marked as Ex.P.14 in question and answer form at 3.45 p.m. There is no explanation for recording second statement.
27. PW.20-Niranjana B. (PSI) who has stated that he has received MLC intimation from 18 VIMS hospital, where Smt.Vani Bai was admitted has not produced the same. The same witness requests the police in the afternoon i.e., after three hours perhaps he was not sure of the statement recorded by him.
28. Thus, it is not the question of lapse in the procedure or the official acts of doctor or the police but its impact, it is not that magnifying mistake committed by them. The question is, because of the acts and omissions on the part of the police and the doctor, there is no intimation regarding why the information was not given to doctors in the night itself being act to the fact, it is a government hospital. Further no explanation regarding the treatment or the effect of such medical treatment. Why PW.20 was not confident on himself. In the whole lot of circumstances, the evidence of Anjeneyalu-PW.4 and his statement regarding unconsciousness of victim non intimation by the doctors to the police in the 19 night, recording of two dying declarations, hostility of mother of the victim among the other aspects take away the case from the prosecution besides, establishing serious suspect on the prosecution.
29. Insofar as the Executive Magistrate is concerned, he is examined as PW.17. His evidence is that, he received a requisition from PW.20 to record the statement. Regard being had to the fact that, PW.20 himself has recorded the statement in the morning at about 11.30 a.m. The statement recorded by the Executive Magistrate is in questions and answers form, wherein the questions are in printed form and answers are recorded in hand written. This statement does not appear natural in the light of circumstances stated above, the Ex.P.14 stated to have been recorded by PW.17, it loses reliability.
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30. In the circumstances, we do not find any infirmity, irregularities and miscarriage of justice in the judgment passed by the Trial Judge. It deserves to be confirmed and appeal is liable to be dismissed and accordingly dismissed.
SD/-
JUDGE SD/-
JUDGE EM