Karnataka High Court
Vishwanath vs The State Of Karnataka on 27 June, 2014
1 Crl.A 883/09
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.883 OF 2009
BETWEEN:
Vishwanath,
S/o. late Prakash,
Aged about 28 years,
R/at Muthur Village,
Doddaballapur Town. ... APPELLANT/S
[By Sri. B. Manjunath, Adv. - Absent]
AND:
The State of Karnataka,
By Doddaballapur Town Police,
Doddaballapura Taluk.
Rep. by State Public Prosecutor,
High Court of Karnataka,
Bangalore. ... RESPONDENT/S
[By Sri. K. Nageshwarappa, HCGP.]
***
This Crl.A. is filed u/Section 374(2) Cr.P.C.
against the Order of conviction and sentence
dated: 06.11.2009 passed by the Presiding Officer,
2 Crl.A 883/09
Fast Track Court-III, Bangalore Rural District,
Bangalore in S.C. No.128/2009 - convicting the
appellant/accused for the offences p/u/Ss. 498(A),
307 of IPC. and accused shall undergo S.I. for a
period of one year and shall pay a fine of
Rs.1,000/- and in default, he shall undergo S.I.
for one month, for the offence p/u/S. 498(A) of
IPC and accused shall undergo S.I. for five years
and shall pay a fine of Rs.5,000/- in default, he
shall undergo S.I. for 6 months, for the offence
p/u/S. 307 of IPC.
The sentence of imprisonment shall run
concurrently and default sentences shall run
separately.
This Crl.A. coming on for Final Hearing, this
day the Court delivered the following:
JUDGMENT
The appellant has challenged his conviction and sentence for the offence punishable under Section 498-A and 307 IPC., on a trial held by the Fast Track Court, Bangalore Rural District.
2. The facts reveal that P.W.1-Pavithra is the wife of the appellant/accused and she is the daughter of P.W.2-Rajeshwari. P.W.4-Sarojamma is the mother of the accused and mother-in-law of 3 Crl.A 883/09 P.W.1. About 6 months prior to the complaint, the appellant married P.W.1-Pavithra and it was a love marriage. After the marriage, P.W.1 started residing with the appellant in a rented premises. It is the alleged that the appellant/accused was not bringing anything to the house and did not pay the rent. In this regard there was a quarrel. On 24.11.2007 at about 9.15 p.m., when P.W.1-Pavithra was sleeping, the appellant went to the house, doused her with kerosene and lit fire. As a result, she sustained burn injuries on her neck, hand, leg, chest, back etc., and was shifted to the hospital. P.W.8-K.Vishwanath, PSI., went to the hospital on the information and recorded the complaint of P.W.1 as per Ex.P1 and registered a case in Crime No.110/2007 for the offence punishable under Section 307 IPC. She was shifted for treatment to the hospital of P.W.5-Dr. Y.H.Shankanal and the injury certificate was collected. Spot mahazar-Ex.P2 was held in the 4 Crl.A 883/09 presence of the attesting witnesses and M.Os.1 to 5 were seized. Statements of the witnesses were recorded, seized articles were sent to the opinion of the experts, FSL report Ex.P9 was collected and on completion of the investigation, the charge- sheet came to be filed against the appellant for the charge under Sections 498-A and 307 IPC.
During the trial, the prosecution examined P.Ws.1 to 10 and in their evidence documents Exs.P1 to 9 and M.O.1 to 5 were marked. Statement of the appellant/accused was recorded under Section 313 Cr.P.C. but, no defence evidence was led.
The trial Court after hearing counsel for the parties and on appreciation of the material on record, convicted the appellant/accused for both the charges and ordered him to undergo simple imprisonment for 5 years and to pay a fine of Rs.5,000-00 in default, to undergo imprisonment 5 Crl.A 883/09 for 6 months for the offence punishable under Section 307 IPC and lesser sentence for the offence punishable under Section 498-A IPC. Aggrieved by the conviction and sentence, the present appeal is filed.
3. The appeal is of the year 2009 and though the matter was posted for hearing, learned counsel for the appellant was absent on all the dates as well. He filed no instructions memo. Notice of retirement was not served on the appellant/accused and therefore, the memo of retirement is rejected. The appellant is not in custody. Today as well, the appellant and his learned counsel are absent.
Learned High Court Government Pleader submits that in view of the Judgment of the Apex Court in Crl.A. No.518/13 dated 07.10.2013, whenever the counsel for the appellant/accused is absent and 6 Crl.A 883/09 the appellant/accused is not in custody, the appeal can be disposed of on merits.
4. In the aforesaid circumstances, as the appellant and the counsel are absent, I have heard learned High Court Government Pleader for the respondent.
5. The perusal of the grounds made out in the appeal memo would reveal that the appellant has taken up a contention that the evidence of the injured is not corroborated by the other witnesses and there are material discrepancies in the evidence of the prosecution and that the injured- P.W.1 has been supported by one political party and false complaint has been filed to take revenge against the appellant. It is also stated in the appeal memo that the provisions under Section 307 IPC are not applicable and that P.Ws.5 and 7- doctors have not stated about the injuries and furthermore the offence may fall under Section 323 7 Crl.A 883/09 IPC. On these grounds, the appellant has sought for setting aside the conviction and sentence.
On the other hand, leaned High Court Government Pleader has supported the Judgment and Order of the trial Court and submits that P.W.1 is an injured witness and she has sustained burns at the hands of the appellant and her evidence has been corroborated by the medical evidence as well. Hence, he submits no grounds are made out to warrant interference in the conviction and sentence ordered by the trial Court.
6. As could be seen from the contents of the complaint-Ex.P1, it was a love marriage between P.W.1-Pavithra and the appellant. The appellant was not paying the rent of the premises and he was not looking after the family by earning and in the circumstances there was a quarrel just prior to the incident. At about 9.15 p.m. on 24.11.2007 it is alleged that the appellant came 8 Crl.A 883/09 to the house and while P.W.1-Pavithra was sleeping, he poured kerosene on her and set fire. As alleged in the complaint, P.W.1 has deposed the act of the appellant in dousing kerosene and setting fire with the match-stick. As a result, she sustained severe burns and immediately she was shifted to the Government Hospital at Doddaballapur by her mother-in-law-P.W.4- Sarojamma. She also supports the version of the prosecution so far as shifting of the injured to the hospital. P.W.4 also supports the version of the prosecution carrying and shifting of the injured to the hospital. Though P.W.1 was examined at length, nothing is elicited in the cross-examination to disbelieve the evidence of P.W.1.
That apart, the incident took place at 9.15 p.m. on 24.11.2007 and immediately, she was shifted to the hospital and P.W.7 has examined her and issued the injury certificate-Ex.P6, she was 9 Crl.A 883/09 taken to the hospital at 11.30 p.m. i.e., within 2.15 hours of the incident. Even before the doctor P.W.1 has stated the name of the person, who has set fire to her. So, P.W.7-Dr. J.Mohan is the person, who was informed about the act of the appellant within the shortest possible time and the name of the appellant is disclosed in the injury certificate as well.
7. The doctor has certified that the injured has suffered burns on the neck, chest region, upper limb, first degree burns on the neck and upper limb, the burns on the chest region and on the breast were second decree burns and the doctor has certified that these injuries are grievous in nature. P.W.7-doctor has spoken to the contents of the certificate and also the statement of P.W.1-Pavithra on that day. Furthermore, she was referred to the Government Hospital, Doddaballapur and P.W.5-doctor examined her and has issued the certificate-Ex.P4. So, the 10 Crl.A 883/09 medical evidence also supports the version of the injured.
8. That apart, seized articles i.e., M.O.1- kerosene stove, M.O.2-one steel 'Batlu', M.O.3- match box, M.O.4-burnt nighty and M.O.5-one burnt bra were sent for the opinion of the experts and Ex.P9 is the report submitted. The perusal of the report submitted reveals that the articles sent for examination reveals the presence of kerosene and it is not in dispute that M.Os.4 and 5 were the cloths worn by the injured-P.W.1 on the date of the incident. So, the contents of Ex.P9-FSL report submitted by the expert also supports the version of the prosecution.
9. P.W.2-Rajashri is the mother of the victim and she was not present in the house at the time when the incident occurred. She states about the physical and mental cruelty that was committed by the appellant prior to the date of the 11 Crl.A 883/09 incident. Anyhow, the perusal of the contents of the complaint does not reveal any such cruelty prior to the incident except quarrel just preceding the incident at 9.15 p.m.
10. So far as the seizure of M.Os.1 to 5 are concerned, P.W.3 is the attesting witness to the spot mahazar-Ex.P2 and he speaks about the seizure of these articles by the Police official i.e., P.W.10-head constable, the person who had taken the articles to the expert and on examination, certificate-Ex.P9 has been issued.
11. P.W.4-Sarojamma is the mother of the accused. She states having heard the quarrel between her son i.e., the appellant and his wife- P.W.1-Pavithra. But, anyhow, she has not supported the case of the prosecution and has been treated hostile.
12. P.W.6 is the ASI., who arrested the appellant and produced him with the report-Ex.P5. 12 Crl.A 883/09 P.W.8 is the PSI., who registered the complaint and held the investigation and he speaks to the drawing of the spot-mahazar, recording the statements and collection of Ex.P9-FSL report from the expert. P.W.9 is examined to speak about carrying of the FIR to the Magistrate. The complaint of this incident was registered on 1.35 a.m. i.e., midnight of 24 and 25th November 2007. There is no delay in the first information report. Even the Magistrate has received the FIR at 3.00 a.m., in the said night. Therefore, there is no delay in the FIR. P.W.1 is the injured witness and there is no necessity to corroborate her evidence. That apart, medical evidence also supports her version. The scrutiny of the evidence does not reveal any discrepancy so as to disbelieve the case of the prosecution. In the aforesaid circumstances, the contentions raised in the appeal memo cannot be accepted.
13 Crl.A 883/09
13. Except for the offence under Section 307 IPC., there is no consistent evidence so far as the cruelty and harassment is concerned. Though P.W.1 has not stated anything about the cruelty in her complaint,, subsequently, she has improved her version. The conviction of the appellant for the offence under Section 498-A IPC is improper and liable to be set aside. The conviction and sentence for the offence under Section 307 IPC has to be upheld for the reason that the appellant attempted to take the life of the injured by setting fire. It is only because she was shifted to the hospital, she has survived in the incident. Therefore, he is responsible for the offence under Section 307 IPC. Hence, the point is answered in partly affirmative and partly negative.
Consequently, the appeal is allowed in part, affirming the conviction and sentence of the appellant for the charge under Section 307 IPC., his conviction and sentence for the charge under 14 Crl.A 883/09 Section 498-A IPC is set aside. He is acquitted of the charge under Section 498-A IPC. The appellant/accused is entitled to the set off under Section 428 Cr.P.C. The trial Court is directed to secure the presence of the appellant/accused to undergo the remaining sentence.
Sd/-
JUDGE.
Ksm*