Karnataka High Court
Santosh S/Io Yankat Pawar vs The State Through Mahila Police Station on 20 November, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF NOVEMBER 2017
PRESENT
THE HON'BLE MRS. JUSTICE RATHNAKALA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.3627/2011
Between:
Santosh S/o Yankat Pawar
Age: 30 years,
Occ: Tanker Driver
R/o Bharat Nagar Tanda
Gulbarga.
... Appellant
(By Sri Baburao Mangane and
Sri Ashok B. Mulage, Advocates)
And:
The State
Through Mahila Police Station,
Gulbarga.
... Respondent
(By Sri Sheshadri Jaishankar, HCGP)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C. praying to allow the appeal and set aside the
judgment and order passed in S.C.No.138/2010 on the file of
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the I Addl. Sessions Judge at Gulbarga dated 21.01.2011
convicting appellant for the offence under Sections 498(A)
and 302 of IPC and sentencing him to undergo rigorous
imprisonment for a period of 3 years and to pay fine of
Rs.5,000/- for the offences punishable under Section 498(A)
and life imprisonment for the offence punishable under
Section 302 of IPC and acquit the accused/appellant of the
alleged offence.
This appeal coming on for dictating judgment this day,
N.K.Sudhindrarao J., delivered the following:
JUDGMENT
This appeal is directed against the judgment passed by the I-Additional Sessions Judge, Gulbarga in S.C.No.138/2010, wherein the appellant herein was convicted for the offences punishable under Sections 498A and 302 of IPC.
2. As the facts unfurl, it is seen the complaint was lodged by Tarabai W/o Suresh on 04.11.2009 at 10.00 a.m. stating that herself and her sister Sharada Bai were given in marriage to Suresh and Santosh respectively, incidentally who are also brothers. At the time of marriage, Rs.25,000/- dowry and 3 tolas of gold were given. In the subsequent family developments, the 3 complainant and her husband started living separately. However, her sister and brother-in-law stayed with the family. Her sister begot four issues, three female and one male. The marital life of her sister was said to be a miserable one, as she was subjected to serious torture by her husband Santosh both mentally and physically who even tried to strangulate her. This matter was also informed by the deceased Sharada Bai during her life to her parents. In this connection, her brother-in-law was advised to mend his way, but better sense did not prevail on him. It is also stated that he doubted on the marital fidelity of his wife and also was possessing vices. On the date of incident it was night 1.00 a.m. the complainant heard screaming voice and came rushed out of the house and came to know that her sister Sharada Bai had set fire and immediately she rushed to her sister's house and saw her sister Sharada Bai was sitting near door and her entire body had sustained burn injuries including peeling out of skin due to burns. Her husband, the accused was present. Sharada Bai was taken in an auto to the hospital. 4 The complainant states that Sharada Bai spoke in a struggling voice that her husband beaten her and when she pleaded him not to suspect her marital loyalty and also claimed that she has not done any wrong, he doused her kerosene and set her ablaze and told her to die and went out. The complainant also states that her sister Sharada told her to communicate the news to mother and succumbed to burn injuries. Hence, the case came to be registered against the accused for the offences punishable under Sections 498A and 302 of IPC.
3. The police who registered the case against the accused Santosh, conducted requisite formalities of inquest mahazar. The investigation went ahead, under which the Police arrested the accused and completed with the required formalities. Upon completion of investigation, submitted the charge sheet against the accused for the said offences. The case was committed to the Court of Sessions Judge. The learned trial Judge heard the matter and framed the charges for the offences punishable under 5 Sections 498A and 302 of IPC. Accused pleaded not guilty and claimed to be tried.
4. The prosecution, in order to bring home the guilt of the accused, examined 18 witnesses PW-1 to PW- 18 and got marked Exs.P-1 to P-18 documents and M.O.s- 1 to 5 material objects. The accused was examined under Section 313 of Cr.P.C. The accused got examined one Bhimanayak as DW-1. No document was produced.
5. After analysing the oral and documentary evidence on record, the learned Sessions Judge has convicted the accused for the offences punishable under Sections 498A and 302 of IPC and sentenced the accused to undergo rigorous imprisonment for a period of three years with fine of Rs.5,000/-, with default sentence of one year simple imprisonment for the offence punishable under Section 498A of IPC and also sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence of simple imprisonment for two years for the offence punishable under Section 302 6 of IPC, which judgment and sentence is called in question before this Court.
6. We have heard the arguments of learned counsel for the appellant and as well as the learned Additional State Public Prosecutor. We have also carefully re-evaluated the materials available on record and re- appreciated the oral and documentary evidence.
7. Learned counsel for the appellant submits that the trial Court erred in convicting the appellant on the basis of the evidence. Even though there are so many material contradictions and inconsistency in the evidences, the trial Court without properly and judiciously appreciating the material on record passed the impugned judgment. He further submits that most of the prosecution witnesses have turned hostile and there are no eyewitness to the incident. The witnesses are all circumstantial witnesses. Hence he prays that the impugned judgment convicting the accused may be set aside and the accused may be acquitted.
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8. Per contra, learned Addl. S.P.P. submits that, the trial Court in fact has considered all the above said grounds which are urged by the learned counsel for the appellant before this Court and by giving proper reasons the Court came to the conclusion that the prosecution has established the guilt of the accused beyond reasonable doubt. Therefore, he pleaded for dismissal of the appeal.
9. Having heard learned counsel on both sides, we would like to look into the evidence of the prosecution witnesses sequence wise.
10. PW-1 is Dr.Shivshankrayya who conducted postmortem on the dead body of the deceased Sharada Bai. In his evidence he deposed regarding the postmortem and the injuries. He has given the opinion as to cause of death as hypovolemic shock.
11. PW-2 is the complainant and the younger sister of the deceased. Her evidence is regarding the relationship of deceased with her husband, marital life, 8 torture being posed by the accused on her and attempt by him and other members of the family to extinguish Sharada Bai. She also deposed regarding the first aid given with the help of covering thick cloth to Sharada Bai when she was injured. She was cross-examined.
12. PW-3 Sakku Bai is the mother of the complainant and the deceased as well. She deposed regarding the marriage of her daughter Sharada with the accused, failure of marital life, his demands for dowry, torture and Sharada Bai complaining about the same are said to have been stated by her. She also deposed regarding death of Sharada Bai due to burn injuries.
13. PW-4 Tukaram is the father of deceased Sharada Bai. He has deposed regarding the miseries and difficulties of the marriage life faced by his daughter.
14. PW-5 Suresh is the brother-in-law of the deceased and husband of complainant PW-2. This witness being the brother of accused has married the complainant. 9 His evidence is to the effect that he came to know about the death of Sharada Bai and does not support the prosecution further and he was treated hostile to the prosecution.
15. PW-6 Sanjay is examined as a circumstantial witness. He turned hostile to the prosecution. PW-7 Ramu, PW-8 Shankar, PW-9 Anithabai, PW-10 Shivaji turned hostile to the prosecution.
16. PW-11 Vijay Kumar was mahazar witness. He also turned hostile to the prosecution. PWs-12, 13, 14 and 15 also turned hostile to the prosecution.
17. PW-16 Somu is examined as circumstantial witness. His evidence is that 10 years back Sharada Bai was given in marriage to the accused. Seven to eight years the couples had a cordial life but trouble started thereafter. In this connection, Panchayat was conducted and in the presence of elders accused was advised to behave properly and eight to nine days earlier to the death 10 of Sharada Bai, Sharada Bai had come to the village and accused came to take her. At that juncture accused was advised and after eight days he came to know through phone call that accused doused Sharada Bai with kerosene and set her ablaze.
18. PW-17 M. Bhimaraya is the Investigating Officer who speaks about the formalities including taking over the charge from I.O. Lalabi PW-18. PW-18 Lalabi is the woman PSI who recorded the statement of the complainant in the police station.
19. Insofar as the defence evidence i.e. DW-1 Bhimanayak is concerned, he deposed regarding the marriage of Sharada Bai with accused and that the daughter of accused informed the matter to him and he also visited the place of incident. Sharada Bai was not in a position to speak. At that time, accused had gone to Chincholi with tanker.
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20. As the complaint was registered by virtue of the statement, the inquest mahazar Ex.P-15 was conducted and statements of Mapanna, Vijay Kumar and others along with relatives of the deceased were recorded during the inquest mahazar and the other formalities of the procedure of spot mahazar was conducted on 05.11.2009. The postmortem was conducted and the doctor who conducted the postmortem concludes his opinion as death due to hypovolemic shock as a result of 95% burn injuries, time since death 6 to 12 hours.
21. In the context of the case, as the offence charged against the accused include the one punishable under Section 302 of IPC, it is incumbent on the part of the prosecution to establish that the death of Sharada Bai was a homicide and not a natural death. As stated above, Sharada Bai sustained burn injuries of 95% and she died because of it as stated in the complaint, statement recorded during the inquest mahazar, postmortem report of PW-1 Dr. Shivshankrayya. On perusal of the evidence, 12 the trial Court rightly held that the death of Sharada Bai was a homicide and not a natural one. Having established the homicidal death of Sharada Bai, it is incumbent on the part of the prosecution to prove and establish that Sharada Bai was done to death by the accused Santosh.
22. From the oral and the documentary evidence it is clear by this time that PWs-6 to 10 have turned hostile to the prosecution and the complainant is not an eyewitness to the incident. She states that her sister Sharada Bai informed that her husband doused her kerosene and set ablaze. This witness states that when she heard screaming voice she came out of the house. Her house is is said to be nearby to that of the accused and knowing that her sister sustained injuries and she finds her sister Sharada Bai was sitting near door with burns throughout the body and peeling of skin on many parts of the body. Her sister Sharada Bai told about her husband setting fire despite her pleading that she was loyal to her husband and to the marital house and life and 13 also requested the complainant to inform the matter to her mother Sakku Bai. But for recording or other formalities she was not alive as she succumbed to the injuries. The homicidal death of Sharada Bai is established by Ex.P-15 inquest mahazar and the evidence of PW-1 doctor and PWs-2, 3 and 4 sister and parents of the deceased. The mahazar witnesses in respect of inquest mahazar, spot mahazar, cloth seizure mahazar and others turned hostile. In the context of the substance of the case, their hostility does not appear to be a hole in the case of prosecution to discredit its version.
23. Further, the accused has examined one Bhima Nayak as DW-1 who has given oral evidence that he knows the family of the accused for 10 to 12 years and Sharada Bai was given in marriage to accused and they begotten children and on the date of incident he came to know about the incident from the daughter of the accused and the deceased. His evidence is that on that day accused was not present at home and had gone to 14 Chincholi along with petrol tank. Thus, at this juncture the accused wants to drive a point that at the time of the incident he was not at home. The witness examined as defence witness from the side of the accused has reason to believe that he was not in the house at the time of the incident. But the evidence of the complainant is that he was at home at that time. Sharada Bai when spoken to complainant, was in her last breath of her life. Natural death could never have been the case in the light of 95% of burn injuries that caused her death in less than 12 hours. There is no coming or spreading of fire from other means like stone or short circuit. If it is to be suicidal death, the evidence of all the witnesses are to be scrapped and the suicidal death is nobody's case and the nature and circumstances do not reflect even minute symptoms. The injuries from below the forehead, major portion on the head and hair and no impact can never be a case of suicide. There cannot be a case of accidental death from a gas light oil (in rural side referred to kerosene) in a small lamp having a smaller opening can only be next to 15 impossible injuries, skin peeling. Thus the homicide from outside pouring at or forceful sprinkling is only the possibility substantiated by oral evidence of complainant what she heard from her sister when the latter told about her husband inflicting as he doused kerosene and set her fire and the evidence of the parents of the deceased point and prove only one aspect of homicide with knowledge, desire with sufficient confidence that the injured will die happened in the hands of accused. The very fact of gas light oil kerosene oil even suicide is not even possible. The nature of injuries, the pattern of burn injuries on the body, face and other parts of the body totally 95% burn injuries causing death can never be a suicide. The deceased besides a wife, also was a mother. In the circumstances, the accused tried to make out a point that he was not at home at the time of incident. Hence, do not know what happened to his wife. This is totally unbelievable. If the version of the accused were to be right, then there must be a reason to commit suicide by his wife. This to be seen with the sequence of events and 16 the injuries suffered by her. The pattern and mode of injuries, type of injuries suffered by her would 10 out of 10 times indicate that she suffered homicidal death and the conduct of the accused through the defence that he was not at home, that too through the witness but himself resorting to silence in this connection, morefully in the light of evidence of the complainant, parents and doctor mentions conduct of the accused. In this connection, in the light of the accused giving false explanation by examining DW-1 to drive a point that he was not at home in the place, fails.
24. In the circumstances, the hostility of the PWs- 6 to 10 does not cause a hole in the case of prosecution They are either neighbours or circumstantial witnesses. In the circumstances, many things which happen in the home and in the family cannot be expected to be proved by the neighbours. A neighbour cannot be expected to know everything and even if they know about the activities of the family, they will have their own calculations. 17
25. In the circumstances, when the matter gets established by the factors stated about the homicidal death there are no circumstances that can falsify the evidence. It is already come on record to hold and to find that the accused appellant herein has inflicted burn injuries on his wife because of which she sustained 95% burn injuries. Further, the previous conduct of the accused during his marital life was not good as he posed cruelty on her nor looked after his wife in a proper or atleast in normal way. The evidence of complainant, the parents Sakku Bai and Tukaram, the independent evidence and also regarding substance and procedure by the police witnesses have come on record. In the circumstances and situation, the prosecution has beyond reasonable and shadow of doubt has established the cruelty of the accused on her wife during her lifetime and the offence of murder. Thus, we find that the finding of the trial Court in convicting the accused for the above said 18 offences is neither perverse nor irregular nor does it call for interference.
26. In the circumstances, the appeal is dismissed. The judgment convicting the accused passed by the learned Sessions Judge, Gulbarga in S.C.No.138/2010 dated 21.01.2011 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE swk