Karnataka High Court
Dyamappa Shetveppa Bajantri vs The State Of Karnataka on 6 February, 2017
Equivalent citations: 2017 (2) AKR 185
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2937/2012
Between:
Sri Dyamappa Shetveppa Bajantri,
Age: 30 Years, Occupation: Agriculture,
Resident of Hirebudnur, Taluk: Saundatti,
District: Belgaum. ... Appellant
(By Shri.T.M.Nadaf, Advocate)
And:
The State of Karnataka,
By Saundatti Police Station,
Represented by Additional State Public Prosecutor,
High Court Of Karnataka,
Circuit Bench, Dharwad . ... Respondent
(By Shri.V.M.Banakar, Additional State Public Prosecutor)
This criminal appeal is filed under Section 374(2) of Code of
Criminal Procedure seeking to set aside the judgement of
conviction and order of sentence dated 17.08.2012 and 24.08.2012
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respectively, passed by the Presiding Officer, Fast Track Court,
Saundatti, in Sessions Case No.396/2010.
This appeal coming on for hearing, this day, Anand
Byrareddy J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.
2. The appellant seeks to question his conviction for offences punishable under Sections 344, 302, 201 and 506 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). He has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.30,000/- and in default to pay fine amount, the accused shall undergo rigorous imprisonment for five years for the offence punishable under Section 302 of the I.P.C. and further rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default to pay the fine amount, the accused shall undergo rigorous imprisonment for a further period of six months for the offence punishable under Section 344 of the I.P.C. and also to rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default to pay the fine :3: amount, the accused shall undergo rigorous imprisonment for the further period of six months for the offence punishable under Section 201 of the I.P.C. and similarly to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- and in default to pay the fine amount, the accused shall undergo imprisonment for a period of three months for the offence punishable under Section 506 of the I.P.C. The total fine amount was to be paid to the extent of 80% to the mother of the deceased, complainant by name Yashoda as compensation. It is this which is sought to be challenged in the present case.
3. It transpires that the complainant's daughter Yellavva was given in marriage. However, she had been deserted by her husband and she had returned to her matrimonial home and was residing with her mother. It transpires the niece of the complainant was given in marriage to PW-5 and they were residing at Hirebudnur. It transpires that Yellavva was visiting them on occasion and on one particular occasion she had visited them and stayed with them for several months. Accused No.1 who was married to accused No.2 was the immediate neighbour of Jayashree and he lived opposite :4: their house. It transpires that accused No.1 had seduced Yellavva. It transpires accused No.1 and Yellavva developed a mutual friendship which had developed into a serious affair and it transpires that this came to the knowledge of the complainant and she had immediately directed Yellavva to come back to Goa and it then transpires that it is in this fashion that accused No.1 and Yellavva were separated. Further, the grandmother of Yellavva is said to have fallen seriously ill and was admitted to hospital. At that point of time, Yellavva was taking care of her grandmother at the hospital. It is alleged that accused No.1 came to know about the situation and had visited Yellavva at the hospital in Goa and enticed Yellavva to join him and had brought her back to Hirebudnur and she started to live along with accused No.1 and his wife at Hirebudnur. This had come to the knowledge of the complainant only after sometime and on learning that Yellavva was staying with accused No.1 and accused No.2, had immediately come to Hirebudnur and demanded that she should immediately return along with her to Goa, which she had refused to do and insisted that she would continue to live with accused No.1. In this regard, a :5: Panchayath was called for of the village elders who had advised accused No.1 to send away Yellavva with her mother but however he insisted that he would also marry Yellavva though he was already a married man and had not divorced accused No.2 and assured the elders as well as Yashoda, the complainant that he would enter into a registered marriage with Yellavva. Though Yashoda had reluctantly gone away, Yellavva had continued to live with accused No.1. But, even after some lapse of time, since the issue of marriage was not settled, PW-5 who was concerned with the welfare of Yellavva had visited accused No.1 and demanded to know as to why the marriage was being delayed at which accused No.1 is said to have abused him and threatened him that he would cause serious harm if he interfered with his personal affairs and he had driven him way.
4. Thereafter, on 12.08.2010, the complainant is said to have received a telephonic message that on 28.07.2010 at about 7 p.m., when Yellavva had demanded that there be no further delay in performing the marriage and that it should be done immediately, accused No.1 and accused No.2 in order to get rid of her demands :6: which had become a nuisance had poured kerosene on Yellavva and set fire to her and thereafter they had not even chosen either to admit her to a hospital or report the incident to the police but had kept her at home without providing any medical treatment and that she had ultimately succumbed to the burn injuries on 12.08.2010. Immediately, on getting the information of the death of Yellavva, the complainant had rushed to Hirebudnur and had reported the matter to the police. It is thereafter that accused No.1 and accused No.2 had been arrested and charge-sheeted for the offences punishable as aforesaid and further proceedings having been taken, they stood trial for the offences punishable as aforesaid and having pleaded not guilty and having claimed to be tried, the prosecution had examined 21 witnesses and got marked Exhibits P.1 to P.39 as also got marked Material Objects 1 to 7. The Court below thereafter had framed the following points for consideration:
1) Whether the prosecution proves beyond all reasonable doubts that on 28.07.2010 at 1900 hours at H No 120/A belonging to the accused in Janata Plot Hirebudnur village in Saundatti taluka in prosecution of their common intention, poured kerosene oil on the body of Yallawwa and set fire and burnt her and not gave :7: medical aid as a result, Yallawwa died there by the accused committed the murder which is the offence punishable u/s 302 r/w sec 34 of IPC?
2) Whether the prosecution proves beyond all reasonable doubts that the accused Nos 1 and 2 on the alleged date time and place tried to destroy the evidence of the said murder by cleaning the walls and surface in side the house of accused and there by committed an offence punishable u/s 201 r/w sec 34 of IPC?
3) Whether the prosecution proves beyond all reasonable doubts that the accused Nos 1 and 2 on the alleged date time and place after having burnt the deceased Yellavva on 28.7.10 by pouring on her kerosene oil and setting fire further confined the deceased in the house without providing medical aid till 12.08.2010 and there by committed an offence punishable u/s 344 r/w sec 34 of IPC?
4) Whether the prosecution proves beyond all reasonable doubts that the accused Nos 1 and 2 on the alleged date time and place further the accused threatened to the CW 7 and 8 by stating not to interfere in their family matters and there by committed an offence punishable u/s 506 r/w sec 34 of IPC?
5) What order?
The Court below had answered points 1 to 4 partly in the affirmative with regard to accused No.1 only and had convicted :8: him in terms as aforesaid. It is that which is under challenge in the present appeal.
5. Shri T.M.Nadaf, the learned counsel for the appellant would point out that there is no eyewitness to the incident. The allegation of the prosecution that accused No.1 and accused No.2 together had poured kerosene on the deceased and had set her ablaze, on account of which she had suffered 60% burn injuries and thereafter had succumbed to the injuries without the incident being reported to the police or the deceased being provided any medical treatment, is an allegation which is not established by the evidence of any of the witnesses. It is pointed out that there is no eyewitness to the incident. PW-13 was cited as an eyewitness, but the Court has disbelieved his evidence as he had turned hostile and therefore, his evidence was discarded. In the absence of which the Court did not have the benefit of any other eyewitness account of the manner in which the incident had occurred. It is for this reason that the Court proceeds on the footing that in an incident such as this, there could be no eyewitness expected as the incident has taken place within the four walls of the house of the accused and hence, it is the :9: circumstantial evidence which would have to be relied upon to trace the case of the prosecution and therefore, has proceeded to hold that there was evidence of accused No.1 having brought Yellavva to his home and she residing along with him over a period of time though he was a married man and his legally wedded wife was also living in the same home. It is also held by the Court below that there was a demand by Yellavva that the accused No.1 should marry her at least by way of a registered marriage and since that demand was not met and since Yellavva was insisting that the promise should be kept, she had been burnt alive by accused No.1 and accused No.2, is sought to be established on surmises and on the basis of the evidence which could at best be termed as hearsay. The Court below having placed reliance on the evidence of PWs-1, 5, 7 and 8, it is pointed out that could not sustain the charges framed against the accused.
6. In so far as evidence of PW-1 is concerned, it is pointed out that PW-1 was the mother of the deceased and the complainant. She has candidly admitted that Yellavva had gone over to Hirebudnur about one and half a month prior to the incident as her : 10 : niece Jayashree had undergone surgery and that she required the assistance of a female companion and that the house of accused No.1 was opposite the house of Jayashree. The complainant claims that Yellavva had fallen in love with accused No.1 and that they had learnt about the developing affair and had immediately brought back Yellavva. The further statements that the complainant's mother had fallen ill at Goa and she had been admitted to hospital and when Yellavva was staying with the grandmother at the hospital attending to her on a long term basis during her illness, accused No.1 had without the complainant's knowledge approached Yellavva at the hospital and had brought her to Hirebudnur without the knowledge of anyone and he had kept her in his matrimonial home along with his wife.
7. It is noticed that Yellavva having been brought to the house of the accused No.1 which was to the knowledge of Jayashree who was the immediate neighbourer and inspite of which the complainant having allowed Yellavva to live with accused No.1, it is only thereafter that the complaint having been filed after the death of Yellavva which would clearly demonstrate that there was : 11 : nothing amiss as regards the animosity or motive on the part of the accused to murder Yellavva if she had willingly joined him in his home and that she had lived for several days in harmony with accused No.1, it is difficult to presume that he had in a fit of anger poured kerosene and set her on fire. The learned counsel therefore would submit that Jayashree who was a witness who could have corroborated the evidence of complainant has turned hostile and has been treated as hostile. Except to the extent that she has admitted that for several months Yellavva had been staying with accused No.1 and accused No.2, she has not supported the case of the prosecution otherwise. Therefore the possibility of accused No.1 having committed the murder of Yellavva when inspite of being a married man he had convinced his wife to accept Yellavva to live along with them in harmony would be a pointer to the fact that he had no motive to commit the murder of Yellavva and hence, the Court below having chosen to accept the mere allegations of the complainant as an established fact has lead to a miscarriage of justice. In the absence of any eyewitness to alleged overt act on the part of accused No.1 accused No.2, the Court below having chosen : 12 : to convict accused No.1 while acquitting accused No.2 is a contradiction in terms which cannot be reconciled. If the allegation was against both accused No.1 and accused No.2. There was no reason as to why the Court should acquit accused No.2 and convict accused No.1 particularly, if, it was the case of the prosecution itself that accused No.1 and the deceased were infatuates and had a long standing affair and inspite of repeated attempts to separate them they had come together and finally were living in harmony in the house of accused No.1. This the learned counsel would submit is a circumstance which has not been explained or demonstrated to over shadow the allegation that he had committed the murder of the deceased and it cannot over shadow the torrid infatuation and affair which accused No.1 and Yellavva were going through. The trial Court, it is pointed out, has only taken a umbrage in holding that the prosecution has established its case so far as accused No.1 is concerned with regard to the defence that was set up, namely, that the deceased had caught fire when she tried to take down a kerosene lamp which was hung on the wall and as a result of the kerosene spilt on her, her clothes had accidentally caught fire and : 13 : resulted in 60% burn injuries. This, the learned counsel would submit would be unfair to hold against the accused when the prosecution had not established its case beyond all reasonable doubt and particularly when the burden of proof was on the accused and not the weakness of the defence that could be cited as being reason for holding that the charges have been proved beyond all reasonable doubt.
8. In so far as the evidence of PW-5 which is also relied upon by the trial Court to hold that the charges have been proved beyond all reasonable doubt is the testimony to the effect that PW-5 was fully aware of the fact of an affair between accused No.1 and Yellavva and that he had threatened him when he questioned about the marriage of the deceased with accused No.1 and that the further allegation that accused No.1 and accused No.2 had poured kerosene and set her on fire not being an eyewitness to the incident but a surmise on the part of the said witness. Therefore, the court below could not have drawn any sustenance that charges have been proved in so far as the testimony of PW-5 is concerned. : 14 :
9. PW-11, a cousin of the deceased who was married to PW-5 has only spoken about the fact that Yellavva had been brought away from Goa without the knowledge of her aunt by her neighbour accused No.1 and having kept her in his house but otherwise she has not supported the case of the prosecution. But, the Court below has proceeded to hold that the evidence of PW-1, 5, 11, 13 and 21 would support the case of the prosecution. Thus, the learned counsel would submit that the Court below has erroneously held that PW-5 has supported the theory of the prosecution that the deceased had been set fire by accused No.1 and accused No.2.
10. In so far as PW-13 is concerned, the learned counsel would submit that though he was cited as an eyewitness, he has not supported the case. Therefore, it is inexplicable that the Court below has proceeded to hold that he has supported the case of the prosecution.
11. PW-21 is the brother of the deceased and he was clearly a hearsay witness and had no personal knowledge of the events that : 15 : had taken place and hence, it is only the evidence of PW-1 and PW- 5 which the trial Court could have held had supported the allegations against the accused. But, whether the allegations could prove the charges against the accused being the moot question, the learned counsel would point out that there is no substance in the said evidence which could squarely frame the accused has having committed the murder of the deceased. The learned counsel hence seeks acquittal of the accused.
12. Shri V.M.Banakar, the learned Additional State Public Prosecutor on the other hand would point out that there was a homicidal death is not in dispute. The further circumstance that the deceased was not married to accused No.1 is a circumstance which would indicate that the accused had acted illegally in enticing a woman and bringing her to his matrimonial home even during the lifetime of his legally wedded wife who was very much present in the matrimonial home. This conduct on the part of the accused No.1 is not seriously disputed or denied by the accused himself and has been established by the evidence of PWs-1, 5 as well as PW-11. Therefore, the presence of the deceased in the home of the accused : 16 : is firmly established. If she had suffered burn injuries either on account of the accident or otherwise and as a result of those burn injuries she has ultimately died, it was for accused No.1 to explain the manner in which she had died and the reasons for such death. When such explanation is not forthcoming in the admitted otherwise conduct of the accused No.1, the Court below having held that he was guilty of the murder on the basis of the circumstantial evidence cannot be easily upset and therefore, the conduct of the accused No.1 a married man in enticing a single woman to come and to live with him in his matrimonial home along with his legally wedded wife and that person having died an unnatural death in mysterious circumstances would certainly lead to a circumstance which has rightly been established and has held that the charges having been proved cannot be slightly over turned and hence, there is no substance in this case.
13. It is also pointed out that the deceased has not been admitted to the hospital and she not having received any kind of treatment for her burn injuries and the further circumstance that the incident had not been reported to police even assuming that the burn injuries : 17 : were self-inflicted, it was the duty cast on the accused to have informed the police and in the absence of any such action on the part of the accused, points to his guilt and hence, the Court below having held against the accused cannot be faulted. Therefore, he would submit that the judgment of the Court below does not warrant any interference and it is a just and well reasoned judgment which had to be confirmed notwithstanding the acquittal of accused No.2 which unfortunately the State has not chosen to question by way of a separate appeal and that by itself would not lead to a presumption that there is contraction in terms in the reasoning of the Court below. In other words, the mischief was entirely that of accused No.1 in having enticed a single woman and having seduced her to join him in his matrimonial home ultimately leading to her death and it is this mysterious circumstance which is not properly explained by the accused and the manner in which the injuries having taken place and the ultimate death of the deceased, the Court below having found him guilt of the offences, cannot be faulted with.
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14. In the above background, while it is a fact that the deceased has died a gruesome death on having suffered 60% burn injuries and ultimately having died which is diagnosed by the Medical Practitioner on a post mortem as a result of and on account of septicemia which has occurred prior to three days from the time of conducting the post mortem. If the incident of having suffered burn injuries would certainly be termed as an unnatural death, the homicidal death of the deceased in the home of the accused is established. However, whether accused No.1 could have committed the murder by setting the deceased on fire is a circumstance that would necessarily have to be established by the prosecution at least by circumstantial evidence. In the absence of any direct eyewitness in this regard, the only witnesses who have spoken about the circumstantial evidence and supported the case of the prosecution are PW-1 and PW-5.
15. PW-1 was the mother of the deceased and she had no direct knowledge of the conduct and behaviour of accused No.1 and the deceased during immediate period that she lived along with the accused before her death. It is only PW-11 Jayashree who was the : 19 : immediate neighbour who had spoken about it. She has not supported the case of the prosecution as to there being any animosity between the deceased and accused No.1 during the said period. On the other hand, the background if seen was that of two lovers who were carrying on an affair notwithstanding the consequences and in the face of the fact that accused No.1 was a married man with his legally wedded wife very much present in the matrimonial home and he had managed to convince his wife to accept the deceased into the matrimonial home and they had lived together for more than six weeks before the deceased had suffered burn injuries. Therefore, the possibility of the deceased having committed suicide on account of depression of not being given her proper place as a wife and on account of pressure from her own people to stop living in sin along with accused No.1, also cannot be ruled out. The visit of PW-5, the husband of PW-11 and his demand that the deceased be given a proper status is a pointer in this direction, namely, that there was pressure from the family of the deceased that she be given a proper status and not that of a mistress. This possibility cannot be ruled out. Therefore, in the : 20 : absence of any direct evidence of overt acts on the part of the accused No.1 and accused No.2 it cannot be said that it was a cold blooded murder where accused No.1 in particular had poured kerosene on the deceased and set her on fire. This is not established by reference to any cogent evidence and the further circumstance that she had suffered burn injuries much prior to the death and had ultimately succumbed to the same also would not readily indicate that there was foul play. If indeed there was any such foul play, it would have been Jayashree the first person to react and respond and she has on the other hand chosen not to support the case of the prosecution. Therefore, indicating that there was no palpable evidence of the mischief on the part of the accused, it is a natural consequence of a possible situation where the deceased had gone into depression and committed suicide and attempts on the part of the accused to provide medical treatment at home cannot also be ignored as possibly it was the wish of the deceased that she be not admitted to any hospital and this behaviour on the part of the deceased cannot also be ruled out of not wishing to take any treatment and even if any treatment was given, there : 21 : was no evidence of the same which was brought on record. In that view of the matter, the Court below having proceeded to hold that there was mischief and foul play while ignoring the fact that accused No.1 was though misplaced in his priorities, had fallen in love with the deceased and had gone to the extreme extent of bringing her to his matrimonial home and trying to reconcile the situation with his legally wedded wife who had permitted him to live along with Yellavva is a situation that has been completely overlooked by the Court below. Therefore, it cannot be said that a case of murder was made out as found by the Court below. Consequently, in the absence of cogent and categorical evidence to bring home the charges, it cannot be said that the prosecution had proved its case beyond all reasonable doubt. Appellant No.1 has undergone imprisonment for more than six years and five months till date. Even, if there was some element of wrong doing on his part in having played with the feelings of a single woman and on account of which she having committed suicide, had been adequately punished by the term as imprisonment that he has already undergone and hence it would be in the interest of justice if : 22 : the appellant No.1 is acquitted of the charge of murder and is set at liberty.
16. Accordingly, the judgment of the Court below is set aside. The accused is acquitted. In so far as the fine amount is concerned, 80% of which was to be paid as compensation to the mother of the deceased. Though we have acquitted the accused, it would stand to reason that the appellant shall pay the amount of fine as compensation to the mother of the deceased. The fine amount to the extent of 20% however, is set aside.
Sd/-
JUDGE Sd/-
JUDGE jm/-