Karnataka High Court
Abdulla vs State Of Karnataka on 28 February, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE Mr. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mr. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.1012/2018
BETWEEN:
ABDULLA
S/O. HULLUR SAB @ HUNNUR SAB,
AGED ABOUT 35 YEARS,
RESIDING AT PERESANDRA VILLAGE,
CHIKKABALLAPURA TALUK-570001.
NATIVE OF
KHAJIPURA VILLAGE,
GORANTLA MANDALAM,
ANANTHAPURA DISTRICT,
ANDRA PRADESH STATE.
...APPELLANT
(BY SRI N.R. KRISHNAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY POLICE INSPECTOR,
GUDIBANDE POLICE STATION,
CHIKKABALLAPURA DISTRICT,
2
REPT. BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
16.01.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, CHIKKABALLAPURA C/c OF I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHIKKABALLAPURA IN S.C.NO.41/2012 -
CONVICTING AND SENTENCING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused, who is none other than husband of the deceased Banubee filed the present criminal appeal against the judgment of conviction and order of sentence dated 16/17-01- 2018 made in S.C. No.41/2012 on the file of the I Addl. District & Sessions Judge, Chikkaballapura, convicting him for the offence punishable under the provisions of Section 302 of IPC and sentencing to undergo imprisonment for life and to pay fine of Rs.10,000/- with default clause. By the very impugned judgment, 3 the trial Court acquitted the accused for the offence punishable under Section 498A of IPC.
2. Based on the statement of the deceased Smt. Banubee w/o of the accused dated 1.9.2011 as per Ex.P11, the jurisdictional Police initially registered Crime No.126/2011 for the offence punishable under the provisions of Section 307 of IPC and after her death on 2.9.2011, the same was converted into one under Section 302 of IPC.
3. It is the case of the prosecution that the accused and the deceased Banubee are husband and wife and their marriage was performed about 16 years prior to the incident and out of the wedlock, a female child was born and died and thereafter male child was born, aged about 14 years as on the date of the incident. It is further case of the prosecution that the deceased was subjected to cruelty both physically and mentally by demanding dowry. On 01.09.2011 at about 5:00 p.m., the accused told his wife to prepare non-vegetarian food, but she did not prepare the food inspite of several requests. When things stood thus, on the same day at about 9.30 p.m., the accused quarrelled with the deceased 4 and poured kerosene on her and set fire. She suffered burn injuries and her sister - Rasul Bi shifted her to Government Hospital, Chikkaballaura. PW.22 - Dr. Shivakumar, the then Medical Officer at Government Hospital, Chikkaballapura has initially treated the deceased and intimated the police. At about 10.30 p.m., PSI (PW.21) recorded the statement of the deceased as per Ex.P11 in presence of the doctor (PW.22) and registered the Crime No.126/2011 for the offence punishable under Section 307 of IPC. Thereafter, the injured was sent to Victoria hospital for higher treatment. On 2.9.2011 at about 5.30 p.m., the deceased succumbed to the injuries in the Victoria hospital. After completion of the investigation, the Investigating Officer filed the charge sheet for the offences punishable under Sections 302 and 498A of IPC. After committal of the matter, the learned Sessions Judge secured the presence of the accused and framed the charge and read over to the accused in the language known to him and he pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined as many as 23 witnesses as PWs.1 to 23 and got marked 16 5 documents as per Ex.P1 to Ex.P16 and 6 Material Objects as per MOs.1 to 6. On behalf of the Court, one witness was examined as CW.1 and got marked Ex.C1 - FSL report and Ex.C1(a).
5. After completion of evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused though denied all the incriminating circumstances that were found against him in the evidence of the prosecution witnesses, to question No.101, he has stated that on the date of the incident, he had been to the mason work of one Venkateshappa and he was not in the house and on hearing the information, he came to home. He has not lead any defence evidence.
6. The learned Sessions Judge based on the material on record, has framed two points for consideration, which are as under:
"Point No.1 : Whether the prosecution proves beyond all reasonable doubt that since from the date of marriage accused subjected the deceased to cruelty both mentally and physically by making unlawful 6 demand of money and thereby committed an offence punishable under section 498-A of IPC, as alleged? Point No.2 : Whether the prosecution proves beyond all reasonable doubt that on 01.09.2011 at about 9:30 pm in the house of accused at Peresandra accused got angry on the deceased for not preparing non- vegetarian food, poured kerosene on her and set ablaze and caused burn injuries with intent to kill her, and she succumbed injuries on 02.9.2011 at 5.30 p.m. in Victoria Hospital, Bangalore and thereby committed an offence punishable under Section 302 of IPC, as alleged ?"
7. Considering both the oral and documentary evidence on record, the learned Sessions answered the 1st point in the negative holding that the prosecution failed to prove beyond all reasonable doubt that the accused committed an offence punishable under Section 498-A of IPC and answered the 2nd point in the affirmative holding that the prosecution proved beyond all reasonable doubt that the accused committed an offence punishable under Section 302 of IPC. Accordingly, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 of IPC and 7 acquitted for the offence punishable under Section 498A of IPC. Hence, the present criminal appeal is filed by the appellant/accused challenging the judgment of conviction and order of sentence passed by the trial Court convicting him for the offence punishable under Section 302 of IPC.
8. The State has not filed any appeal against the judgment and order of acquittal acquitting the accused for the offence under Section 498A of IPC.
9. We have heard the learned counsel for the parties.
10. Sri N.R. Krishnappa, learned counsel for the appellant/accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the trial Court convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine Rs.10,000/- with default clause, while acquitting the accused for the offence punishable under Section 498A of IPC, is erroneous and contrary to the material on record and the same is liable to be set aside. He would further contend that Ex.P11, 8 statement of the victim recorded in the hospital depicts that immediately after the incident, her sister - Rusulbi shifted her to the Government hospital, Chickballapur, but she has not been examined and it is fatal to the case of the prosecution. He would further contend that the evidence of PW.6, who is neighbour of the accused and the deceased was not considered in the proper perspective. He would further contend that though on the earlier occasion, this Court by the by the order dated 12.2.2015 made in Criminal Appeal No.166/2014, has remanded the matter only to record cross-examination of PWs.1 to 8 and thereafter decide the matter finally, unfortunately even after the remand though the accused engaged a counsel, he remained absent. In fact the learned Sessions Judge has observed in the impugned judgment that no representation was made on behalf of the defence inspite of sufficient opportunity being given. In the circumstances, he sought to allow the appeal. He would further contend that the voluntary statement of the accused as per Ex.P14 depicts that since his wife refused to prepare non-vegetarian food, he quarrelled with his wife and poured kerosene on her and set fire. The same was stated by the deceased in Ex.P11. The statement of the victim 9 (Ex.P11) was corroborated with the voluntary statement of the accused (Ex.P14). He further contended that PW.10, who is none other than son of the deceased and the accused has not supported case of the prosecution and stated on oath that the accused and the deceased were very cordial and were leading happy married life. Alternatively, learned counsel submits that in case this Court comes to the conclusion that the accused has committed murder of the deceased, it is not with an intention, but due to provocation without any premeditation. Learned counsel submits that when the deceased did not prepare non-vegetarian food, there was quarrel between the accused and the deceased, thereby the accused enraged and poured kerosene on the deceased and set fire to her. Therefore, at the most, the offence falls under Section 304 Part I of IPC and not under Section 302 of IPC and therefore seeks for modification of the impugned judgment accordingly.
11. Per contra, Sri Vijaykumar Majage, learned Addl. SPP for the State while justifying the impugned judgment of convection and order of sentence, has contended that though the learned Sessions Judge recorded a finding that the prosecution failed to prove 10 beyond reasonable doubt the commission of the offence under the provisions of Section 498A of IPC, the fact remains that on the date of the unfortunate incident i.e., on 1.9.2011, the husband was very much with the wife in the house. When the prosecution proved the initial burden, the accused has to offer explanation what happened to his wife on that day, in view of the provisions of Section 106 of the Evidence Act. The same has not been done. Therefore, the learned Sessions Judge is justified in convicting the accused for the offence under Section 302 of IPC. He further stated that though the accused has taken the plea of alibi while answering question No.101 in the statement recorded under Section 313 of the Code of Criminal Procedure, he has to prove it in view of the dictum of the Hon'ble Supreme Court. The same has not been proved in the present case. He would further contend that doctor - PW.16, who examined the deceased, has issued the post-mortem report - Ex.P7, which clearly depicts that the death was due to shock consequent to burn injuries sustained. During the investigation, the Investigating Officer - PW.23 has recovered MO.1 - kerosene can; Mo.2 - match box; Mo.3 - red sari; MO.4 - petticoat; Mo.5 - blouse; and Mo.6 - sweater at the instance of the accused as per 11 Ex.P1 - spot mahazar. The inquest mahazar clearly depicts that the deceased died out of burn injuries. In the circumstances, the trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC. Therefore, he sought to dismiss the appeal.
12. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present criminal appeal is:
"Whether the appellant/accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting him for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine and default sentence, in the facts and circumstances of the case ? "
13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
12
14. This Court being the appellate Court in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
(i) PW.1 - Babu Sabi, who is brother of the deceased has deposed that marriage of the appellant and his sister (deceased) took place about 16 years prior to the incident at Gorantla, Andhra Pradesh and they were living happily. They were doing coolie at Gorantla and later they came to Peresendra. The deceased was going to factory work at Setadinne and leading their life by using the money given by the employer The accused was not giving money to house, but spending towards unnecessary expenses. The accused was quarrelling with his sister and there was panchayath in respect of the same. The deceased left her son Chand Pasha in the house of mother of the accused at Ananthapur. After he came to know with regard to the incident, he went to Victoria hospital and saw the dead 13 body of the deceased. He came to know that since his sister (deceased) has not prepared the non-vegetarian food, the accused quarrelled with the deceased and poured kerosene on her and set fire. He supported the case of the prosecution.
(ii) PW.2 - Jabirabi, neighbor of the accused and the deceased has stated that the accused and the deceased were residing in a rented house at Peresendra. The accused has two children, one male and another female and the female child died because of the health problem. The distance between the house of the accused and her house is about 200 feet. Occasionally, accused and the deceased were quarrelling and since the quarrel was usual, she was not worrying. On the relevant day, during evening, while she was returning from coolie work, when she was proceeding in front of house of the accused, the accused and the deceased were quarrelling and the accused was beating the deceased. She went to her house and pacified the 14 quarrel. When she was sleeping, again she heard shouts and then, she came out and saw the injured with burn injuries and she alongwith one Seenamma and Narayanswamty extinguished the fire. On enquiry, she was informed by the deceased that the accused poured kerosene and set fire on her. Thereafter, PW.1 came to the spot and called ambulance and shifted the injured to the Government Hospital. She supported the prosecution case.
(iii) PW.3 - Narayanaswamy, who was neighbour of the accused has deposed on par with PWs.1 and 2. He supported the prosecution case.
(iv) PW.4 - Senamma, who is another neighbour of the accused has also deposed on par with PWs.1,2 and 3.
He supported the prosecution case.
(v) PW-5 Fakruddin deposed that the deceased is his daughter-in-law and had two children, out of them, a female child died due to health problem and another 15 one is a boy, by name, Chand Pasha. He further deposed that about 1½ years back, deceased and accused were quarrelling. On the date of incident, there was Gowri Festival. One day before to that day, there was Ramzan Festival, on that day at 9.00 p.m., deceased and accused were quarrelling on the ground that the deceased wife had not prepared mutton meals and being provoked, the accused poured kerosene on his wife and set her ablaze supports the case of the prosecution.
(vi) PW-6 Venkatesh who is also a neighbour of the deceased and accused has stated on par with the other witnesses supports the case of the prosecution.
(vii) PW-7 Hussain Saab who is the brother of the deceased deposed that about ten years back, the marriage between the accused and deceased was performed and out of the wedlock, two children are born. The female child died due to health problem and the male child is aged about 14 years and residing with his grand- 16 mother. He further deposed that everyday, accused was quarrelling with the deceased after consuming alcohol and was pressurizing the deceased to give money. He further stated that on the information, he went to the hospital where the people were assembled and his sister was shouting like "amma, aiyoo". When he enquired how the incident took place, his sister informed that since she has not provided mutton meals to the accused, the accused quarrelled with her and poured kerosene and lit fire, which supports the case of the prosecution.
(viii) PW-8 Fakruddin Saab who is the witness to the inquest mahazar Ex.P2 supports the case of the prosecution.
(ix) PW-9 Avalakonda Rayappa who is the neighbour of the accused and deceased has deposed that the deceased and accused had two children and they were doing Coolie work and the accused was addicted to alcohol supports the case of the prosecution.
17
(x) PW-10 Chand Pasha who is none other than the son of the deceased and the accused had deposed that his parents were cordial. Further, he has stated that his mother voluntarily poured kerosene on herself and lit fire and died has not supported the case of the prosecution but turned hostile.
(xi) PW-11, Mamatha who is the Panchayath Development Officer on the requisition made by the Circle Inspector, Gudibande, who issued assessment register of the house list No.678 as per Ex.P4 supports the case of the prosecution.
(xii) PW-12 Ramesh Kumar, Assistant Executive Engineer on the requisition made by the Circle Inspector prepared the spot sketch as per Ex.P5 supports the case of the prosecution.
(xiii) PW-13 Dr.Sathya Shankara Rao who treated the injured initially stated that on 01.09.2011 at 11.00 p.m. Smt.Baanubee (deceased) was brought by her sister 18 Rasoolbee with burn injuries to the District Hospital and she was provided with first-aid. Later, for further treatment, she was shifted to Victoria Hospital. He has further deposed that condition of the victim was critical and her pulse was not working and blood pressure was also not capable to catch. The victim was conscious except stomach part and knee part front portion of the body was burnt, backside of the body neck and head was burnt, approximately more than 50% was burnt. Since the patient condition was critical, immediately, first-aid has been given and sent the injured for further treatment to Victoria Hospital supported the case of the prosecution.
(xiv) PW-14 Razzak who is relative of the deceased has deposed that the deceased was his elder sister's daughter. The marriage of the deceased was arranged 15 years back with the accused and out of the wedlock, they had two children. The accused was residing near Peresandra with the deceased in a rented house. He 19 has further deposed that the accused poured kerosene on the deceased and lit fire and murdered supports the case of the prosecution.
(xv) PW-15 Moula Saheb who is the inquest witness has deposed that about one year back, he had signed on a document in Victoria Hospital, Bengaluru at Mortuary and that the police conducted inquest on dead body of the deceased Baanubee, since dead body was wrapped in white cloth, he did not see the injuries caused at different parts. Ex.P2 is the inquest report partly supports the case of the prosecution.
(xvi) PW-16 Dr.C.N.Sumangala, Assistant Professor who conducted post-mortem of the deceased on 03.09.2011 at the request made by the jurisdictional police between 11.45 a.m. to 12.45 a.m. on the same day noted the injuries over the face, neck, upper limbs with de-gloving of both palms, front and back of both thighs and in patches supports the case of the prosecution. 20 (xvii) PW-17 Harish who is the witness to the spot mahazar Ex.P1 has stated that when the police called him to the place where the deceased died came to know that the accused poured kerosene supports the case of the prosecution.
(xviii) PW-18 Budenabi who is the witness to the inquest mahazar Ex.P2 supports the case of the prosecution. (xix) PW-19 Ashwathappa Police Constable who submitted F.I.R. has stated that as on 01.09.2011 night at 12.00 'o' clock PSI of Station gave F.I.R. of Station Case No.126/2011 since P.O. of Gudibande Court was on leave submitted to the Principal and JMFC Court, Chikkaballapura at 10.30 a.m. supports the case of the prosecution.
(xx) PW-20 Krishnappa, Police Constable has stated that as the items seized in this case were ordered to submit to FSL on 23.09.2011 and the same was submitted on 21 29.09.2011 and obtained acknowledgement supports the case of the prosecution.
(xxi) PW-21 Krishnappa A.S.I. who recorded statement of the deceased on 01.09.2011 on the information given by the deceased Baanubee who was taking treatment in Government Hospital, Chikkaballapur for burn injuries, he went to Hospital at 10.30 p.m. and recorded dying declaration of Baanubee in the presence of the doctor and obtained endorsement of doctor supports the case of the prosecution.
(xxii) PW-22 Dr.Shivakumar who treated the injured at Victoria Hospital has stated that on 02.09.2011 midnight at 1.00 a.m. the patient by name Baanubee sent by Government Hospital, Chikkaballapura to examine, when examined she was conscious. After recording her statement that during night at 9.30 p.m., on 01.09.2011 her husband poured kerosene and lit fire, injured was sent to burn injuries ward for treatment supports the case of the prosecution. 22 (xxiii) PW-23 Shantha Kumar, Investigating Officer who has submitted charge-sheet has deposed that on 03.09.2011, he went to Victoria Hospital, Bengaluru drawn inquest on dead body of Baanubee in the presence of Moula Saab, Rasoolbee, Budieenbee. He has further deposed that during that time, the statement of the relatives of the deceased was also recorded and after conducting investigation, he has filed the charge-sheet.
(xxiv) PW-24 Nanjappa, who is the FSL Officer has deposed that on 24.09.2012, Krishnappa, Police Constable (PW-
21) had brought five items which was sealed relating to Gudibande Police Station Crime No.26/2008 with related documents. He has given the same in the office and sent to his section. The seal was intact and tallying to the specimen seal sent by I.O. On 29.10.2011, the said items were taken for examination supports the case of the prosecution.
23
15. The gist of the statement of the victim on 01.09.2011 recorded by the A.S.I. PW-21 in the presence of PW-13 Dr.Sathya Shankara Rao specifically stated that the marriage between the accused and deceased took place about 16 years back and out of the wedlock, a female child was born and died due to health problem; another one is a male child who is not aged 14 years. On 31.08.2011, it was a Ramzan festival and as the deceased could not prepare non-vegetarian food, the accused started quarrelling with her. On the same day, i.e., on 01.09.2011 at about 5.00 p.m., the accused/husband came to the house with mutton and asked the wife/deceased to prepare mutton meals, when the wife refused to prepare the same, thereby there was a quarrel between the victim and the accused. The sister of the victim, Smt.Rasoolbee came to the spot and advised him. At about 9.30 p.m., again, the accused started to quarrel with the deceased with an intention to murder her, poured kerosene on her and set her ablaze. The victim has further stated that the assault of pouring kerosene by the accused was due to non-preparation of mutton meals by the victim. Though at the inception, on the statement made by the deceased, a case was registered under Section 307 IPC in Crime No.126/2011, on 24 01.09.2011 at about 11.55 p.m., on her death on 02.09.2011 at Victoria Hospital, Bengaluru, the same was converted to the offence punishable under Section 302 of IPC. After investigation, the Investigating Officer, PW-23 had filed the charge-sheet.
16. On perusal of the entire material on record, it is clear that the marriage between the accused and deceased was performed about 16 years back and out of the wedlock, two children were born, out of them, the female child died and the male child is now aged about 14 years and residing with the mother of the deceased. It is specifically stated in Ex.P11, statement given by the victim, which subsequently became dying declaration that due to non-preparation of non-vegetarian food by the victim, there was a quarrel between the accused and the deceased. Subsequently, the sister of the deceased came to the spot and advised the accused. Admittedly, the prosecution has not examined the sister of the deceased Rasoolbee to prove that there was a quarrel between the accused and the deceased. It is also not in dispute that though as contended by the learned counsel for the accused that no opportunity of cross-examination was provided to the accused to 25 cross-examine PW-3 in terms of the decision of this Court between the parties in Crl.A.No.166/2014 dated 12.02.2015. The fact remains that, after remand, when the opportunity was given, the same was not availed. It is also not in dispute that the averments made in voluntary statement/dying declaration tally with Ex.P14, which is the voluntary statement of the accused. It is also not in dispute that PW-10 who is none other than the son of the deceased and the accused who has stated on oath that his parents were in cordial terms and were living happily. PW-16 Dr.C.N.Sumangala who conducted post-mortem of the deceased has issued the post- mortem report at Ex.P7, which clearly depicts the external injuries and the same reads as under:
External Appearance
1) Condition of Subject stout, emaciated, decomposed etc.
2) Wounds: Position, size, character.
3) Fracture, dislocation etc.
4) Mark of ligature on neck.
- Body smells of kerosene.
- Dead body is that of a female measuring
154
26
cms in length, moderately built and
nourished. Rigor mortis present in all parts of the body. Liver mortis could not be appreciated due to burns over the back.
Foley's catheter present insitu. Blue ink mark present over plantar aspect of left great toe.
- Second and third degree burns present over face, neck, front of chest and abdomen, front and back of both upper limbs with degloving of both palms, front and back of both thighs and in patches over back. Most of the burnt area shows areas of redness.
Scalp hair, eyebrows and eyelashes are singed.
The cause of death was due to shock consequent to burn injuries sustained. The FSL officer, CW-1 has issued Ex.C1 and the FSL reports clearly depicts about the items seized at the spot, which reads as under:
OPINION
1. Density, UV-Spectrophotometric and TLC methods indicate that the sample found in article No.1 is kerosene with blue colour dye (Dialkyldiamino anthraquinone).
2. Thin Layer chromatography and UV-
Spectrophotometric methods have responded positive 27 for the presence of kerosene residues in article Nos.3 to 6.
3. Thin Layer chromatography method has responded negative for the presence of kerosene residue in article No.2.
4. The match sticks found in article No.2 are live.
17. On meticulous examination of the entire oral and documentary evidence and also medical and scientific evidence on record clearly depicts that the accused and deceased were husband and wife and were living happily for more than 16 years as admitted by PW-10 who is none other than the son of the accused and deceased. All the witnesses, sisters and brothers of the deceased in un-equal terms specifically stated that there was a demand of dowry and the accused and deceased used to quarrel frequently and the sister of the deceased Rasoolbee who shifted the deceased to the hospital as alleged in Ex.P11, sister of the deceased has not been examined by the prosecution to prove that it was the accused who used to always demand for dowry and was assaulting the victim and poured kerosene and set her ablaze. The 28 fact remains that as on the date of unfortunate incident, the accused was with the victim as stated in her dying declaration and also stated by the other prosecution witnesses. Very strangely, while admitting his presence in the house as per Ex.P14, voluntary statement, he has taken a alibi in Section 313 of the Code of Criminal Procedure statement in question No.101 that he was not in the house, he went to mason work to Venkateshappa's house. Admittedly, the said Venkateshappa has not been examined. Thereby, once the prosecution discharges its burden, once the accused has taken a plea of alibi, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person as held by the Hon'ble Supreme Court in the case of STATE OF HARYANA VS SHER SINGH & OTHERS reported in AIR 1981 SC 1021, at paragraph No.4 as under:
"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:29
"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".
18. It is also not in dispute that when the accused was with the deceased, he has to explain how his wife died with burn injuries as per Ex.P7, post-mortem report and he has not offered any explanation. In the absence of any explanation, adverse inference has to be drawn against the accused as contemplated under the provisions of Section 106 of the Indian Evidence Act as held by the Hon'ble Supreme Court in the case of Prahlad Vs. State Of Rajasthan reported in (2019)14 SCC 438 at paragraph No.11, it has held as under:
"11. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record. There is every probability that the accused can be reformed and rehabilitated. In this context, the 30 observations made by this Court in the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684. , is reproduced as follows:
"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over- emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care 31 and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
19. On re-appreciation of the entire material on record both oral and documentary, medical and scientific evidence, it clearly depicts that the unfortunate incident occurred due to quarrel between the accused and the deceased (husband and wife). When the accused brought mutton and asked the deceased to prepare mutton meals on 01.09.2011 when she was sleeping at 9.30 p.m., when she refused to prepare mutton meals, thereby the accused lost his self-control and poured kerosene on the victim and set her ablaze. Therefore, it is a clear case of sudden provocation of the accused by the deceased. Thereby, it is a clear case, which falls under the provisions of Exception I of Section 300 of IPC. Thereby, the provisions of Section 304 Part I would attract and not 32 the provisions of Section 302 of IPC as has been held by the learned Sessions Judge. Ignoring all these material facts, the learned Sessions Judge has erroneously proceeded to convict the accused under the provisions of Section 302 of IPC.
20. Apart from that, when the prosecution registered the case in Crime No.126/2011 initially under Section 307 of IPC and after the death, under the provisions of Section 302 and 498(A) of IPC, after considering both oral and documentary evidence, the learned Sessions Judge has recorded a finding of fact that the prosecution has failed to prove beyond reasonable doubt since the date of marriage, the accused subjected the deceased to cruelty, both mentally and physically making unlawful demand of dowry, thereby committed an offence under Section 498(A) of IPC. Accordingly, the very impugned judgment acquitting the accused under Section 498(A) of IPC, the said order passed by the Sessions Court has reached finality as the prosecution has failed to prove beyond reasonable doubt whether the deceased was subjected to cruelty both mentally and physically for unlawful demand of dowry. Once Section 498(A) of IPC is not proved, the fact remains is that, 33 how she died? It is the categorical statement made by the adjacent owner of the deceased and accused that there was a quarrel between the accused and the deceased and according to the statement of the victim, Ex.P11, after her death, which became the dying declaration is that when she refused to prepare non- vegetarian meals, the accused got provoked and poured kerosene on her and set her ablaze. The said statement is corroborated with the evidence of PW-14, voluntary statement. Ofcourse, the voluntary statement can be relied upon only for recovery as has been done by the Investigating Officer recovering, MOs-1 to 6. The fact remains is that the unfortunate incident occurred between the parties when the quarrel took place and it was not intentional of the husband to kill his wife after leading matrimonial life for more than 16 years that too having two children, the same has not been considered by the learned Sessions Judge. Thereby, the Trial Court is not justified in convicting the accused under the provisions of Section 302 I.P.C. and the accused has made out a case to interfere with the impugned judgment of conviction and to modify into lesser punishment under Section 304 Part I of IPC.
34
21. For the reasons stated above, the points raised in the present appeal is to be answered partly negative and partly affirmative holding that the learned Sessions Judge is not justified convicting the accused under the provisions of Section 302 of I.P.C., imprisonment for life with fine of Rs.10,000/- and the accused has made out a case to interfere with the life imprisonment and to modify into lesser punishment under the provisions of Section 304 Part I of I.P.C. Thereby, the accused is liable to be convicted for a period of ten years with fine of Rs.20,000/- (Rupees Twenty Thousand only).
22. In view of the above, we pass the following:
ORDER
i) The criminal appeal filed by the appellant-Abdulla is allowed in part.
ii) The impugned judgment and order of conviction and sentence passed by the Principal District and Special Sessions Judge, Chikkaballapura C/c of I Additional District and Sessions Judge, Chikkamagaluru in S.C.No.41 of 2012 in 35 convicting the appellant/accused for the offence punishable under Section 302 of IPC is modified.
iii) The appellant is convicted under the provisions of Section 304 Part I of IPC with imprisonment for ten years with fine amount of Rs.20,000/-
(Rupees Twenty Thousand only).
iv) The appellant is entitled for a set off under Section 428 of Cr.P.C.
v) In view of the provisions of Section 357(3) of Cr.P.C., out of the fine amount imposed, on deposit, the fine amount shall be deposited in the name of the son, Chandpasha, PW-10 in any Nationalized Bank for a period of three years and he is entitled to withdraw the accrued interest periodically.
vi) Since the accused has already undergone the punishment of ten years four months, which is more than the punishment imposed by us, the Jail 36 Authorities are directed to set release the accused forthwith on deposit of fine amount, if he is not required in any other cases.
Sd/-
JUDGE Sd/-
JUDGE Pages 1 to 14 GSS 14 to end DH