Karnataka High Court
Shrikant S/O. Shivaputrappa ... vs State Of Karnataka on 13 September, 2017
Bench: L.Narayana Swamy, H.B.Prabhakara Sastry
Crl.A.100145/2014
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2017
PRESENT
THE HON'BLE Mr. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL No. 100145/2014
BETWEEN:
SHRIKANT
S/O. SHIVAPUTRAPPA ARALIKATTI
AGE: 34 YEARS, OCC: COOLIE
R/O. HIRE-ANGROLLI
TQ: KHANAPUR, DIST: BELAGAVI
...APPELLANT
BY SRI. M. B. GUNDAWADI, ADVOCATE)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHARWAD.
THROUGH NANDAGAD POLICE
TQ: KAHNAPUR, DIST: BELAGAVI
...RESPONDENT
(BY SRI. V. M. BANAKAR, ADVOCATE)
THIS CRLIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
ALLOW THE APPEAL AND PASS A JUDGMENT OF ACQUITTAL IN
FAVOUR OF APPELLANT FOR THE CHARGES AND ALLEGED
OFFENCES U/S. 498A AND 302 OF THE INDIAN PENAL CODE AND
THEREBY SETTING ASIDE JUDGMENT OF CONVICTION DATED
05.07.2014 PASSED BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI.
Crl.A.100145/2014
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, Dr.H.B. PRABHAKARA SASTRY J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant was the accused in S.C.No.69/2011 before the V Additional District and Sessions Judge, Belagavi (henceforth referred to as 'the Sessions Court', for brevity), who was convicted for the offence punishable under Sections 498A and 302 of the IPC and sentenced to undergo simple imprisonment for two years and to pay a fine of `10,000/- for the offence punishable under Section 498A of IPC, in default to pay fine, to further undergo simple imprisonment for six months, and to undergo simple imprisonment for life and to pay a fine of `15,000/- for the offence punishable under Section 302 of the IPC and in default to pay fine, to undergo further simple imprisonment for six months.
2. The summary of the case of the prosecution is that, the accused being the husband of Smt. Savita at Hireangrolli village, was suspecting her fidelity and was ill- Crl.A.100145/2014 3 treating her. On the date 18.10.2010 at about 1.00 pm, he poured kerosene on his wife Savita and their three daughters by name Sanjana, Soujanya and Sushmita and lit fire to them, who after sustaining burn injuries succumbed to it, thereby the accused was charged for the offences punishable under Sections 498A and 302 of the IPC.
After recording the evidence led before it and hearing the arguments addressed, the Sessions Court found the accused guilty of the alleged offences and sentenced him. It is against the said judgment of conviction and sentence ordered, the appellant has preferred this appeal.
3. In his memorandum of appeal, the appellant has taken a contention that with respect to the incident, at the earliest point of time, based on the statement given by the injured Savita, the police had registered the UDR case under Section 174 of Cr.P.C. in UDR No.18/2010. In addition to that, on the very same day, i.e, on 18.10.2010, the Taluka Executive Magistrate, Belagavi (PW32) at the Crl.A.100145/2014 4 request of the police and after visiting the hospital, had recorded the statement of the injured Savita as per Ex.P52. In the said statement also the deceased Savita had clearly stated that the incident was purely accidental. This aspect, the Sessions Court did not appreciate in its proper perspective. The appellant has further stated, had there been really any illegal act committed by the accused, the family members of the deceased i.e., PW8, PW9 and PW10 should have reported the matter to the police independently immediately after their visit to the hospital on 18.10.2010. Since they have not done it, the statement of the deceased becomes suspicious. It is further stated in the memorandum of appeal that the alleged dying declarations at Exs.P52 and P55 are contrary to each other. Further, the statement of the deceased Savita at Exs.P45 and P10 are also contrary to each other. As such, due weightage has to be given to Ex.P45 and Ex.P52 only. The appellant has also stated that the alleged dying declarations at Exs.P52 and P55 were retained by the Crl.A.100145/2014 5 Taluka Executive Magistrate and he produced them only when summoned by the Court to give his evidence. As such, the accused had no access to the contents of those alleged dying declarations. Further, stating that the alleged statement at Ex.P10 in its narration and length also gives rise to suspicion and the alleged seizure of the articles also leads to suspicion, the appellant has prayed for setting aside the judgment and order of sentence under appeal and to acquit him of the alleged offences.
4. The respondent - State is being represented by the learned Additional State Public Prosecutor. Lower Court records were summoned and the same are placed before this Court. Heard the arguments from both sides and perused the materials placed before this Court.
5. The points that arise for our consideration are:
i. Whether the prosecution has proved beyond reasonable doubt the alleged guilt of the accused punishable under Crl.A.100145/2014 6 Section 498A of the IPC as charged against him by the Sessions Court?
ii. Whether the prosecution has proved beyond reasonable doubt the alleged guilt of the accused punishable under Section 302 of the IPC as charged against him by the Sessions Court?
iii. Whether the judgment and order of sentence under appeal deserves any interference at the hands of this Court?
6. In order to prove the alleged guilt against the accused, the prosecution got examined 36 witnesses from PW1 to PW36 and through them got marked documents at Exs.P1 to P57(a). Materials objects at MOs.1 to 6 were also got marked from the prosecution side. From the accused side, neither any witness was examined nor any documents were marked as Exhibits.
7. The relationship between the parties to the effect that the deceased Savita was the legally wedded Crl.A.100145/2014 7 wife of the accused whose marriage was performed with the appellant/accused 8 years prior to the date of the alleged incident and that out of their marriage, they had begotten three daughters by name Soujanya aged about 6 years, Sanjana aged about 3 years and Sushmita aged about 1 year and that the accused, his wife and three children were residing in their house at Hireangrolli.
village, Khanapur Taluk, Belagavi District, within the limits of the complainant police station is not in dispute. The evidence of PW8, PW9 and PW10, who are the brother and parents of the deceased Savita on these lines and also the evidence of a relative as PW11 and a neighbor as PW16 is not disputed. Similarly, the evidence of PW1, PW2 and PW6, who are the panchas to the inquest panchanama at Exs. P1 and P2, the evidence of PW8, PW9, PW10 and PW11, who are the relatives of the deceased to the effect that the said Smt. Savita and her 3 daughters Soujanya, Sanjana and Sushmita succumbed to the burns sustained by them is also not in dispute. The Crl.A.100145/2014 8 evidence of the doctor as PW25 to the effect that he conducted autopsy of the deceased Savita and noticed that she had sustained 65% to 70% superficial to deep burns on her body and that in his opinion, the said Savita died due to septicemia as a result of 65% to 70% burns is also not seriously disputed. Her post-mortem report at Ex.P28 corroborates the evidence of PW25 regarding the death of Smt. Savita due to burns. The inquest panchanama of Kumari Soujanya at Ex.P30 and that of Kumari.Sanjana at Ex.P31 marked through PW26, the Investigating Officer, have also not seriously disputed. The post-mortem reports of Kumari Soujanya at Ex.P4, Kumari Sanjana at Ex.P5 and Kumari Sushmita at Ex.P6 marked through PW5 Dr. Gurudat Kolal, who is said to have conducted the autopsy of those three corpses go to show that all the three of them died due to neorogenic shock added upon with aspiration of root into respiratory track as a result of 85-90% burns sustained. Crl.A.100145/2014 9
From the evidence of PW5 and panchas to the inquest panchanama, who were examined as PW1, PW2, PW5, PW6 and PW25 read with exhibits P1, P2, P4, P5, P6 and P28, it is established that the death of Savita and her three daughters was unnatural death, which fact is not in dispute.
Regarding the spot of alleged offence, PW3 in his evidence has stated that the scene of offence panchanama was drawn in his presence as per Ex.P3, in which he has identified and marked his signature therein as Exs.P3(a). He has stated that the said place was a residential property belonging to one Sri.Yallappa Harizan in the village Hireangroli and the said house was tenanted by the accused Shrikant, wherein he was residing with his wife Savita and three daughters. PW3 was not examined from the accused side. As such, his evidence and the scene of offence panchanama at Ex.P3 remains undisputed. Crl.A.100145/2014 10
The Investigating Officer - PW26 also has given evidence about he drawing a scene of offence panchanama as per Ex.P3 keeping PW3 as one of the panchas.
These aspects clearly establish that the place of occurrence of the alleged offence is a tenanted house belonging to one Yallappa Harizan at Hireangroli village, wherein the accused was residing with his wife and children.
8. The next question to be considered is whether the said death of Smt. Savita and her three daughters was a culpable homicide amounting to murder and if so, whether the said murder was committed by none-else than the accused Shrikant himself.
On this point, the prosecution has examined PW8 to PW18, PW20 and PW21. Among these witnesses, PW12, PW13, PW14, and PW15, were projected as neighbors of the house of the accused and were examined, but they have not supported the case of the prosecution to any extent. Even after treating them as hostile and permitting Crl.A.100145/2014 11 the prosecution to cross-examine them, the prosecution could not elicit any favourable statement from them.
PW16 - Mahantesh Basavanneppa Deshannavar, was examined as circumstantial witness stating to be knowing the family of the accused and their living. The said witness in his examination-in-chief, has stated that he knows all the deceased and accused, and has further stated that the accused was in the habit of consuming liquor and was assaulting his wife under the influence of liquor. Despite the elders advising the accused suitably, there was no reformation in his behaviour. He has further stated that, according to the information received by him, the accused poured kerosene on his wife and children and burnt them. The prosecution treated him as hostile and cross-examined him, wherein he has stated that, when he had been to the hospital, he had approached Savita with the help of police and while he was standing at a distance, Savita told that her husband after pouring kerosene has burnt her. The denial suggestion made to him in his Crl.A.100145/2014 12 cross-examination were not admitted as true by this witness. This is the only independent witness who has stated that according to his information and as he heard, it was the accused who burnt his wife and children.
PW17 - Mouleshwara Fakirappa Kanakeri, is the maternal uncle of the accused, who has pleaded his ignorance about the details of the incident and did not favour the prosecution in any manner.
Similarly, PW18 - Shivaputrappa Basavaneppa Aralikatti, the father of the accused also did not support the case of the prosecution. On the contrary, he has stated that since his daughter-in-law and grand children got burnt, they were put in an Ambulance. He did not whisper any overt act against his son i.e., the accused.
PW20 - Smt. Annavva Shivaputrappa Aralikatti and PW21 - Bharamappa Yallappa Madig, who are also the circumstantial witnesses did not support the case of the prosecution in any manner. Though PW21 was expected by the prosecution to say about the alleged illicit Crl.A.100145/2014 13 relationship of the accused with a third lady, the said witness did not support the case of the prosecution. As such, from these also, the prosecution could not get any support.
9. PW8 - Kumar Rudrappa Desannavar is admittedly the elder brother of deceased Savita. The said witness in his evidence has stated that the deceased Savita was given in marriage to the accused about eight years back and that, at the time of the incident she was residing along with her three daughters with the accused in a rented house at Janata Colony. The accused everyday was consuming liquor and was suspecting fidelity and character of his wife Savita and also used to assault and beat her. The said fact was told by Savita herself to him and inmates of the house in her parental house. In this regard, they enquired with the accused and advised him not to repeat such acts, despite that, there was no reformation in his behavior.
Crl.A.100145/201414
About the alleged incident this witness has stated that, on the date of incident, at about 6.00 p.m. the brother-in-law of the accused by name Sri.Ashok telephoned to his father (father of PW8) and stated that the accused has burnt his wife and his three children and that injured were shifted to Khanapur Hospital, from there to District Hospital, Belagavi on the same night. This witness with his father and mother went to Belagavi Hospital at 8.30 p.m. Before that, while the injured were being shifted to the hospital Kumari Sushmita died on the way.
The witness has further stated that he enquired with his younger sister Savita, who was in a condition to speak when he enquired as to how the incident happened. The injured stated that on the date of the Banni festival, the accused (her husband) had brought a lady to his house for which she (Savita) objected. Annoyed by her objection and questioning her right to object, the accused stated that he would kill all of them and keep that lady with him. Crl.A.100145/2014 15 Stating so, the accused poured kerosene on his wife and children and lit fire. When the fire was put, the three children came and held their mother, at which said Savita along with her elder daughter came outside by yelling. Hearing the yelling noise, the neighbors gathered and putting off the fire, shifted all the injured in an Ambulance to the hospital.
The witness has also stated that, when he went to the Government Hospital, his sister injured Savita got written a complaint through him. He is the scribe of the said complaint and has written that complaint as stated by Savita. As the scribe, he has also put his signature in the said statement. His sister also has put her signature to the said statement. The witness has identified the said statement/complaint and signature therein which were marked at Exs.P.10 and P10(a) respectively. He has also identified the accused in the Court stating that he is the husband of his sister Savita. He has also identified the signature of the deceased Savita on the said statement at Crl.A.100145/2014 16 Ex.P.10(b). He has also stated that on the 19th day of that month he lodged the complaint, thereafter on 21st day of that month morning at about 3.30 his sister Savita died in the hospital and other two children were already dead in the hospital on the 18th day of that month.
This witness was subjected to a detailed and searching cross-examination from the accused side. The witness adhered to his original version and did not admit the denial suggestions made to him in the cross- examination.
10. PW9 - Shakuntala Rudrappa Deshannavar is admittedly the mother of deceased Savita. The said witness in her examination-in-chief, apart from stating that Savita was given in marriage to the accused about 8 years back and that she was residing with the accused in a Janata plot house at Hireangrolli village, has also stated that out of their marriage, the couple had given birth to four female children, out of which one was dead Crl.A.100145/2014 17 and the remaining daughters were Soujanya, Sanjana and Sushmita.
The witness has further stated that, while the deceased Savita was living with her husband in the said house, her husband was suspecting her for no reason and was assaulting her. She stated that these details were revealed by Savita herself and despite she (this witness) advising the accused not to do so, still there was no improvement in the behavior of the accused.
About the alleged incident, this witness has stated that about 2 years 1 month back, the younger brother of the accused telephoned and stated that the accused has burnt her daughter by pouring kerosene and putting fire. Thereafter she, accompanied by her husband and son, went to the District Hospital, Belagavi at about 8.00 p.m. on that day. In the hospital they met Savita, whose body was burnt. She stated that her daughter was in a condition to speak and when enquired about the incident, she stated that on the night while her husband was Crl.A.100145/2014 18 quarrelling with her, he stated that he would kill her. Accordingly on the next day morning he poured kerosene on her body and upon their children and put fire. The witness has also stated that when she saw, Sanjana and Sushmita were dead and by the time she went Soujanya also had died. Two days thereafter Savita also died in the hospital. She has identified the accused as her son-in- law. She was also subjected to a detail cross-examination from the accused side, wherein she had adhered to her original version and denied all the suggestions made to her from the accused side.
11. PW10 - Rudrappa Mudakappa Deshannavar, the father of deceased Savita also in his examination-in- chief has stated that accused is the husband of his daughter Savita, which couple after their marriage were residing in the village Hireangrolli in a Janata plot with their children. During the stay of the couple in the said house, the accused was suspecting the character of his wife Savita and harassing her (QgÀÄPÀļÀ PÉÆqÀÄwÛzÀÝ£ÀÄ). These Crl.A.100145/2014 19 aspects were being told to him by his daughter herself. The accused did not heeded to the advice of these people and continued what he was doing earlier. The couple had three daughters.
About the incident, the witness has stated that about 2 years 1 month prior to the incident, elder brother of the accused by name Ashok telephoned and stated that Savita (daughter of this witness) has got burnt. Immediately, himself, his wife and others went to the District Hospital, Belagavi and met his daughter and enquired her about the incident, which daughter was in a condition to speak at that time. The said daughter stated that, by pouring kerosene upon her and her daughters, her husband put fire to them. Before he seeing the daughters, two among them were already dead and elder died after he saw her. He has identified the accused as the husband of the deceased Savita.
Even this witness was also subjected to a detail cross-examination from the accused side, wherein the Crl.A.100145/2014 20 witness adhered to his original version and has denied all the suggestions made to him and has not accepted the denial suggestions made to him in his cross-examination.
12. The evidence of these three witnesses are very important material witnesses in the case. Learned counsel for the appellant/accused in his argument submitted that there is no consistency in the evidence of these three witnesses. Learned counsel submitted that one Sri.Ashok - the brother of the accused, telephoning and informing these witnesses is concerned, there is no consistency in the evidence of these three witnesses. He also submitted that none of these witnesses have spoken anything about they enquiring the details of the incident with the elder daughter of the deceased by name Soujanya, who was alive when these people went to the hospital. Further, PW8 being elder brother of the deceased Savita also did not take any steps to lodge a police complaint immediately after his visit to the hospital at 8.30 p.m. on the date of the incident, which was on Crl.A.100145/2014 21 18.10.2010. This aspect leads to a suspicion about the occurrence of the incident as alleged by these three witnesses in their evidence.
Learned counsel further submitted that, except PW8, neither PW9 nor PW10 have stated anything about the deceased Savita complaining about her husband maintaining an illicit relationship with a third lady. Learned counsel further submitted that, PW10 - the father of deceased Savita, in his cross-examination has stated that, after returning from the hospital to their village, admittedly PW10 has discussed the matter with his relatives, as such, with due deliberations the parents and elder brother of the deceased Savita have hatched a story accusing the accused of the alleged incident.
13. On the other hand, learned Additional State Public Prosecutor in his argument submitted that the evidence of PW8, PW9 and PW10 are in consonance with each other and they have uniformly stated that none else than the deceased Savita herself has stated before them Crl.A.100145/2014 22 that it was her husband/accused, who poured kerosene upon her and her children and put fire to them. Thus, the evidence of those three witnesses were reliable and is further corroborated by the dying declarations of the deceased Savita.
14. In the cross-examination of PW8, PW9 and PW10 from the accused side, it is not denied or disputed that the deceased Savita was the wife of accused and was married to him about 8-10 years prior to the date of incident. It is also not denied, out of their wedlock the couple had got three living female children by name Soujanya, Sanjana and Sushmita. It was also not denied that, as on the date of the alleged incident, the accused and all the four deceased were living together in a rented house at Hireangrolli village. From the accused side, it was also not denied that the alleged incident of fire has taken place in the said house at Hireangrolli village, where they were residing.
Crl.A.100145/201423
The entire cross-examination of PW8 has been confined in eliciting the details with respect to the genuinety and correctness of the incident of deceased Savita getting a statement recorded through PW8 using him as a scribe and the said PW8 submitting the said statement of the deceased to the complainant police for registering a criminal case against the accused. Nowhere in the entire cross-examination of this witness any suggestion was made denying the said Sri.Ashok telephoning these people intimating about the incident and that PW8, PW9 and PW10 rushing to District Hospital, Belgaum on the same night and reaching the hospital at about 8.00-8.30 p.m. and talking to injured Savita in the hospital. It is also to be noticed that nowhere in his cross-examination it was denied that injured Savita was not in a condition to speak when these people met her. It was also not denied that these people did not enquire with Savita about the incident and gathered information through her. Though a denial Crl.A.100145/2014 24 suggestion was made to this witness in his cross- examination to the effect that the statement of this witness that on the 19th day of the month he met the injured Savita and recorded the complaint as stated by her and delivered it to the police were all not true, but the said witness has not admitted the denial suggestion as true. However, the said denial suggestion was with respect to PW8 enquiring the injured Savita on the 19th day of the month, which admittedly is the next day of the incident. Whereas, the evidence of PW8, that after hearing from Ashok they going to District Hospital, Belagavi in the night at 8.30 p.m. which can be inferred as on 18th day of that month, has not been denied specifically in his cross- examination. On the other hand, a statement has been elicited in the form of suggestion in the cross-examination of PW8 which reads as below:
"CzÀgÀAvÉ ¸À«vÁ DUÀ ºÉtÄÚ ªÀÄUÀ½UÉ vÀPÀgÁgÀÄ ªÀiÁrzÀ¼É£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß ¦üAiÀiÁ𢠺Éý §gɸÄÀ ªÁUÀ §gɹ®è J£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî."
(Emphasis supplied by me) Crl.A.100145/2014 25 "CzÀgÀAvÉ, DgÉÆæAiÀÄÄ £Á£ÀÄ ¨ÉÃPÁzÀÝ£ÀÄß ªÀiÁqÀÄvÉÛãÉ, ¤Ã£ÀÄ PÉüÀĪÀªÀ¼ÀÄ AiÀiÁgÀÄ? ºÁUÀÆ »ÃUÁzÀgÉ ¤ªÀÄä£Éß®è PÉÆAzÀÄ ºÁQ CªÀ¼À£Éßà ElÄÖPÉƼÀÄîvÉÛãÉAzÀÄ JAzÀÄ, ¸À«vÁ ¦üAiÀiÁ𢠺Éý §gɸÄÀ ªÁUÀ ºÉý®è J£ÀÄߪÀzÀÄ ¸ÀļÀÄî."
(Emphasis supplied by me) The said suggestion shows that the accused has admitted that deceased Savita has dictated a complaint and got it written. However, the suggestion is that, in the said complaint she had not stated about she objecting to that intruder lady and accused stating that he would kill all of them and maintain that lady. Otherwise, the suggestion would not have included the word "¦üAiÀiÁ𢠺Éý §gɸÀĪÁUÀ" (when the complaint was got written) rather it could have been '¦üAiÀiÁ𢠺Éý §gɹgÀÄvÁÛ¼É JAzÁzÀ ¥ÀPÀëzÀ°è' (in case the complaint is said to have got written).
Therefore, it has to be inferred that, from the accused side they have not categorically denied that deceased Savita has not got a complaint written through her brother PW8. The said complaint as identified by PW8 is at Ex.P10.
Crl.A.100145/201426
At this point, it also cannot be ignored that PW8 has also identified the signature of said Savita in Ex.P10 and got it marked as Ex.P10(b). The said signature of victim Savita and her capacity to put her signature has also not been denied or disputed in the cross-examination of PW8. On the other hand, it was elicited in the cross- examination of PW8 that he was literate having studied up to second year Pre-University course and that his sister Savita had studied up to 7th standard and she knew reading and writing.
In this way, the cross-examination of PW8 instead of dismantling his evidence made in examination-in-chief rather has further corroborated it.
15. With regard to the evidence of PW9 - the mother of deceased Savita is concerned, the witness has admitted in her cross-examination that she had not stated before police that the accused was suspecting the character of his wife and was assaulting her. Though, she has stated that the police have not enquired her, but by Crl.A.100145/2014 27 that itself it cannot be inferred that she has not given any statement before the police. It is because no suggestion was made to this witness or anything has been elicited in her cross-examination showing that this witness neither has given any statement before the police, nor has stated before the police about the incident.
Furthermore, even the cross-examination of this witness also has given more details about these people getting a phone call from Sri.Ashok and timings of visit and stay of all these people i.e. PW8, PW9 and PW10 at District Hospital, Belagavi after the incident. Furthermore, this witness in her cross-examination has categorically stated that she was present in the hospital while her son was writing the complaint and that when the said complaint written by her son as per the dictation of her daughter was delivered to police, it was already morning. The said categorical statement of the witness has not been denied in further part of her cross- examination. As such, the said statement that PW8 has Crl.A.100145/2014 28 written the complaint as stated to him by the injured Savita and that PW8 has given that complaint to the police remains un-denied. In her cross-examination, a mere suggestion was made to the effect that the statement of deceased Savita that accused threatened her to kill and accordingly he poured kerosene on her and children are being stated by the witness first time in the Court. However, the witness has not admitted the said suggestion as true.
In this way, the evidence of PW9 about she along with PW8 and PW10 visiting the hospital on the very night of the alleged date of the incident and also gathering details of the incident from the mouth of her injured daughter Savita and also that Savita narrating her the details of the incident accusing her husband (accused) pouring kerosene on her (Savita) and their three children, has remained without being diluted or weakened, in her cross-examination.
Crl.A.100145/201429
16. The cross-examination of PW10 also is not an exception in its outcome when compared to the cross- examination of PW8 and PW9. Even in his cross- examination also he has given some more details about the timings of PW8, PW9 and PW10 visiting the hospital after receiving the phone call and staying in the hospital from 8.00 p.m. to 11.00 p.m. The said timings is in consonance with the timings stated by PW8 and PW9 in their cross-examination. Furthermore, this witness in his cross-examination also has stated that the deceased Savita had studied up to 7th standard and she was knowing reading and writing. Though a suggestion was made to this witness denying that the injured Savita was in a condition to speak at the time of their visit to the hospital, but the said witness has not admitted the said suggestion as true. On the other hand, this witness in his cross-examination has specifically stated that, on the next day of their visit to the hospital, a complaint was lodged as stated by his daughter. Though the said statement was Crl.A.100145/2014 30 denied but the witness has not admitted the denial suggestion as true.
In this way apart from PW8 and PW9 even PW10 has also stated that the complaint lodged with the police, which PW8 has identified at Ex.P10, was at the instance of the injured Savita. It cannot be lost sight of the suggestion made to this witness in his cross-examination which is reproduced here below:
"£ÁªÀÅ §AzÁUÀ ¥ÉÆð¸ÀgÀÄ £À£Àß ªÀÄUÀ¼À£ÄÀ ß PÉý §gÉzÄÀ PÉƼÀÄîwÛzÝÀ gÄÀ J£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî"
(Emphasis supplied by me) The above suggestion though denied by the witness as false, but by putting that suggestion the accused has admitted that while in the hospital injured Savita was in a condition to speak and that police have recorded her statement.
17. Thus, in the form of suggestions made to PW8, PW9 and PW10 in their cross-examination from the accused side and also by not specifically denying several Crl.A.100145/2014 31 of the statements made by those three witnesses in their examination-in-chief, the accused has shown that and has admitted that, these three witnesses being the family members of deceased Savita have rushed to the hospital immediately after they coming to know about the incident by Sri.Ashok, who was none else than the brother of the accused, and also that the injured Savita was in a fit condition to speak. Furthermore, these three witnesses gathered information in first hand from none else than the injured Savita in the hospital. The evidence of PW8 and PW9 further go to establish that accused could not able to demolish the case of the prosecution that the injured Savita herself has given a statement to his brother (PW8) and that the said statement is at Ex.P10.
18. In this background, the argument of learned counsel for the accused that the evidence of PW8, PW9 and PW10 is not in consonance and is not worth believing is not acceptable. Even though there is slight discrepancy in the evidence of PW8, PW9 and PW10 with respect to the Crl.A.100145/2014 32 informant Ashok informing them over the phone, but that is not material contradiction or variation to be considered. According to PW8 and PW9, Ashok is said to have told over the phone that accused has burnt (¸ÀÄnÖzÁÝ£É) Savita and children, whereas PW10 has stated that said Ashok informed over the phone stating that Savita and children have got burnt(¸ÀÄlÄÖPÉÆArzÁÝgÉ). Since the details of the incident is said to have been stated to these three witnesses later by none else than the injured Savita herself, which in uniformity all these three witnesses have stated that, as told to them by Savita, it was none else than the accused who poured kerosene and put them onto fire. The minor discrepancy in the narration about the information would not dilute the case of the prosecution.
19. After the evidence of PW8, PW9 and PW10, the next set of material evidence in the case is the alleged four dying declarations/statements of deceased Savita. Crl.A.100145/2014 33
20. According to the prosecution, the deceased Savita has given four statements as an injured/burnt victim. The first two of her statements are said to have been given on the date 18.10.2010 and the remaining two on the next day i.e., on 19.10.2010. All these four statements are said to have been given by her in the hospital while under treatment. Among these four statements, the first statement dated 18.10.2010, which is at Ex.P45 is said to have been given before a Police Officer. The said statement is shown to have been recorded and completed at 5.10 pm on 18.10.2010. In that statement, it is recorded that the injured Savita, apart from narrating her marital relationship with the accused and begetting three daughters, aged 6 years, 3 years and 1 year respectively, is also shown to have stated that, on the alleged date of incident, which was on 18.10.2010, while her husband was away from home on his work, she was attending cooking work in the house. She is also said to have stated that at that time her three daughters were Crl.A.100145/2014 34 playing around her in the kitchen. By that time, the youngest daughter Sushmita aged about one year came near the burning kiln (M¯É) and overturned a kerosene can, due to which the kerosene inside was spread on the floor and caught fire. The said fire within no time caught the saree worn by her. Scared by the incident, all the three daughters embraced their mother, due to which their cloth also caught fire and all the four sustained burns. By yelling she came outside, hearing which noise the neighbors gathered and put off the fire and shifted them to the hospital. She has stated that the incident has taken place at 12.00 noon on that day. She is also shown to have stated that, due to the burns her daughters Sanjana and Sushmita died.
21. PW33 - Anand Onakudre, the police Sub-
Inspector, in his evidence, though has not stated about he recording the statement of the victim Savita on 18.10.2010 in his examination-in-chief, however in his cross-examination from the accused side, has stated that, Crl.A.100145/2014 35 on 18.10.2010, based on telephonic information about the injured being brought to the hospital, he went to the District hospital, Belagavi at 3.30 pm. After confirming from the doctor about the fitness of the victim to give her statement, he has recorded the statement of the victim. The statement given by her was written by their station police constable No.1822. In this way, it is established that the first statement of the victim after the incident was recorded after getting her duly examined by the doctor about her fitness to give statement and the same was recorded by a Police Officer with the assistance of his staff.
22. The second statement of the victim which is also projected as her dying declaration is her statement of the even date, but shown to have been recorded by the Taluka Executive Magistrate which is at Ex.P52. The said document is in the form of question and answer comprising 12 questions, which includes that the person recording the statement of the victim through some initial questions ascertaining the fitness of the witness to give Crl.A.100145/2014 36 her statement and understanding the questions. After those primary questions, regarding the details of the incident, the victim is shown to have stated before the Taluka Executive Magistrate that on that day, at about 12 O' clock in the afternoon, while she was in the house cooking food and had forgotten to close the lid of the kerosene can, her youngest daughter lifted the can and spilled oil on the ground. The said oil immediately caught fire, which was in the kiln, due to which fire she and her three daughters sustained burns.
The Taluka Executive Magistrate, who was examined as PW32 also in his evidence stated to the similar effect about he recording the statement of the victim Savita after duly ascertaining her fitness to give statement by getting her examined by the doctor. The said witness reiterated the details of the alleged incident as shown in Ex.P52, as the statement given before him by the victim.
PW35 - Dr. Ratansingh Patel, in his examination-in- chief has stated that, before the Taluka Executive Crl.A.100145/2014 37 Magistrate recording the statement of the victim at his request, he had medically examined the victim Savita and had certified that she was in a fit condition to give her statement. The said witness has also identified an endorsement made by him at Ex.P52 as Ex.P52(a).
In this way, the second statement of the victim Savita is also shown to have been recorded only after confirming that she was in a fit condition to give her statement.
23. The third dying declaration is shown to have been recorded on the date 19.10.2010 by the elder brother of the deceased by name Kumar Rudrappa Deshannavar, who was examined as PW8. The said dying declaration which is marked at Ex.P10 is lengthier than the remaining three dying declarations. The said dying declaration is shown to have been the statement given by the victim Savita to her brother, who has written it in at her instructions. In the said dying declaration, apart from the victim narrating about her marital relationship with the Crl.A.100145/2014 38 accused and their family, is also further shown to have stated that, due to the trouble caused by her husband and due to his assault, she was staying in her parents' house since about two years. However, about 15 days back, she had returned to her husband's house. After her return also, the accused continued to ill-treat her. The accused also had an illicit relationship with two ladies, one at Angrolli village and another at Beedi village. At their instance, he was giving more trouble to her. It is also shown that the victim has stated that on 18.10.2010, her husband was at home, without going to his work. When questioned by her at about 1.00 O'clock in the afternoon, the accused stating that he would finish her, took out a kerosene can available in the house and pouring the oil on her and their three children, lit fire to it with a match stick. Because of the fire caught on their body, she along with her elder daughter ran out of the house by yelling. Other two daughters were inside the house. The neighboring people gathered and put off the fire, Crl.A.100145/2014 39 summoned an Ambulance and shifted them to the hospital. It is also shown that, in the very same statement, the victim has stated that on the previous day when she gave her statement before Nandgad police and the Taluka Executive Magistrate, though she had stated that it was an accidental incident of fire, but that was with the hope that her children would survive and she along with her children may have to live with her husband. However, since her three children are now dead, she had revealed the truth. She has also stated that her husband was suspecting her and was maintaining illicit relationship with other ladies. Since she had objecting to the same, in order to get rid of her, he had put fire to them using kerosene and match stick.
The said dying declaration was registered as a complaint in Crime No.201/2010 by the complainant police for the offences punishable under Sections 498A, 302 and 307 of the IPC. PW8 though has stated in his evidence that, at the instruction of his sister Savita, he Crl.A.100145/2014 40 had recorded her statement, as per Ex.P10 and obtained her signature as per Ex.P10(b), there is no endorsement by the doctor on the said document to the effect that the patient was in a fit condition to give her statement. PW8 also has not stated in his evidence about he getting the patient examined by the doctor about her fitness to give statement, prior to recording her statement as per Ex.P10. However, as already observed above while analyzing the evidence of PW8, that from the accused side it was not disputed that the victim was not in a fit condition to give the said statement at Ex.P10, on the other hand, as already observed above, in the cross-examination of PW8 from the accused side, it was suggested to the effect that the complaint was being dictated to him by the victim. Thus, PW8, the scribe of Ex.P10 has stated that the victim was in a condition to speak, which statement of PW8 has not been denied. As such, merely because absence of an endorsement by the doctor about the fitness of the victim to give the statement, Ex.P10 cannot be discarded. Crl.A.100145/2014 41
24. The last in the series of dying declarations is the dying declaration of the same date i.e., 19.10.2010 shown to have been recorded by the very same Taluka Executive Magistrate (PW32), who had on the previous day said to have recorded the dying declaration of the very same victim Savita in the very same hospital. The said dying declaration which is at Ex.P55 is in the very same format as that of Ex.P52. With respect to answer to question No.8 regarding the details of the injuries, the victim is shown to have stated before the Taluka Executive Magistrate that on 18.10.2010 at about 1.00 pm, while she was in the center room (£ÀqÀĪÀÄ£É) of their house in Janata plot along with her three children, her husband threw a metal cup (ªÁmÉ) and threw it aiming her head. It hit her head resulting in injury. Then, her husband taking a bottle containing kerosene, which was in the house, spilled it on her body. Kerosene also sprinkled on the three children who were around her. Thereafter, the accused took out a match stick, lit it and put fire to her Crl.A.100145/2014 42 and ran away. The fire caught her body as well that of her children who embraced her and as such, they also sustained burn injuries like her. All the three children died due to the burns. It is also shown that the said victim has stated before the Taluka Executive Magistrate in her dying declaration that her husband had illicit relationship with other ladies, which she was objecting to. Even on the date of incident also, he had brought one such lady to their house, which she objected to. For this reason, with an intention of killing her, he spilled kerosene upon her and her children and lit fire to it.
PW32 in his evidence has given a detailed account of he recording the said dying declaration of the victim Savita on the date 19.10.2010 also. He has stated that both the dying declarations were recorded at the request of the complainant police. The said witness has also stated that, before recording the statement of the victim on the date 19.10.2010 also, he confirmed from the medical officer about the fitness of the injured victim to give statement. Crl.A.100145/2014 43 According to him, the doctor after examining the victim certified that the victim was in a fit condition to give her statement. The Taluka Executive Magistrate identified the said 4th statement of the victim at Ex.P55 and the medical endorsement by the doctor at Ex.P55(a), signature of the victim Savita at Ex.P55(c) and his signatures at Exs. P55(d) and P55(e). The witness also has specifically stated that the victim girl was in a controlled mind (¸ÀªÀÄavÀÛ) from the beginning of her statement till he concluded recording her statement. At that time, no third party was present in that place and according to him, it did not appear to him that the said statement was being given under some pressure.
As already analysed above, even in his cross- examination, though certain details regarding he recording two statements of the injured were elicited, but nowhere it was denied that he had recorded the statement of the victim even as per Ex.P55.
Crl.A.100145/201444
Dr.Deepak, who was examined as PW36 in his evidence has stated about he examining the victim Savita on 19.10.2010 at the request of the Taluka Executive Magistrate and about he confirming that the victim was found to be in a fit condition to give her statement. The said witness has also identified the endorsement said to have been made by him to that effect at Ex.P55(a) and his signature on that document at Ex.P55(b). His evidence about he ascertaining the fitness of the victim to give her statement was not shaken in his cross-examination.
The Investigating Officer, who was examined as PW33, in his evidence has stated that on 19.10.2010, when he went to the District Hospital, Belagavi, in connection with the investigation in their station in UDR No.18/2010, the victim Savita told him that she would like to give restatement. Accordingly, he enquired the duty doctor, who told him that the victim was in a fit condition to give statement. When he approached Savita, she got her statement recorded through her brother Crl.A.100145/2014 45 Kumar Rudrappa Deshannavar, who was present there and handed it over to him (PW33), which statement he has registered in their station crime No.201/2010. He has also identified the said complaint statement of the victim at Ex.P10. This witness has stated that the doctor had issued a separate certificate certifying the fitness of the victim to give her statement, but he has not produced the said certificate before the Court. However, in his cross- examination, it was not denied about this witness going to the hospital on the date 19.10.2010 and the victim Savita getting her statement recorded through her brother as per Ex.P10 and handing it over to him.
Similarly, another Investigating Officer (PW26) also has stated that, based on the information of registration of Crime in Crime No.201/2010 of the complainant police, he requested the Taluka Executive Magistrate, Belagavi to record the dying declaration of the victim Savita. This corroborates the evidence of PW33 that it was at the Crl.A.100145/2014 46 request of the complainant police, he has recorded the said dying declaration of the victim.
25. In this way, recording of four statements of the victim at different times within two days has been established. As analysed above, while analyzing the evidence of PW8, PW9 and PW10 and in the subsequent analysis of the evidence of the Taluka Executive Magistrate (PW32) and the evidence of the doctor, it has been found out and taken as established that all these four statements are found to have and established to have been recorded while the victim was in a fit condition to give her statement. As such, none of these four statements can be ignored only on the ground that the victim was not in a fit condition to give her statement.
26. The learned Addl. State Public Prosecutor in his argument stating that the dying declaration recorded by the Taluka Executive Magistrate on 19.10.2010 being the latest dying declaration recorded by a higher officer, is Crl.A.100145/2014 47 to be relied upon. In his support, he relied upon a judgment of the Hon'ble Apex Court in the case of Lakhan Vs. State of M.P. reported in 2010 (4) Crimes 200 (SC). The said case also had involved more than one dying declarations. While dealing with the admissibility of such dying declarations, the Hon'ble Apex Court at Para 20 of its judgment was pleased to observe as below:
"In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not Crl.A.100145/2014 48 voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
The above observation would be a guideline in the case on hand also. At the same time, merely because Ex.P55 is said to have been recorded by the Taluka Executive Magistrate, being a higher officer, on 19.10.2010, by that itself it cannot be acceptable ignoring the other three dying declarations for the reason that the very same higher officer had also recorded previously i.e., on 18.10.2010, a dying declaration of the very same victim, which in fact is contrary in its contents about the incident to her subsequent dying declaration at Ex.P55. Therefore, as held by the Hon'ble Supreme Court, in Lakhan's case (supra), the facts of the case and the circumstances of the case on hand requires to be scrutinized very carefully to ascertain which of the declarations is worth reliance.
Crl.A.100145/201449
27. It is in this background, the learned counsel for the appellant/accused argued that, when there are multiple dying declarations and that any of the dying declaration is possible to be interpreted in two ways, then that interpretation which is beneficial to the accused is to be entertained. In this regard, he relied upon the following judgments:
I. In K. Ramachandra Reddy and Anr. Vs. The Public Prosecutor, reported in 1976 SCR 542, the Hon'ble Supreme Court while analyzing the scope of Section 32 of the Indian Evidence Act regarding omission of recording of Magistrate to question the injured regarding his mental capacity to make statement, was pleased to observe that, since in that case two views were reasonably possible, interference with the order of acquittal was not proper.
The said judgment shows that, where two views can be taken with regard to a dying declaration, that view which is beneficial to the accused be taken. Crl.A.100145/2014 50
II. In Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka reported in (2007) 13 SCC 112, the matter involved four dying declarations, two before the Medical Officers and one before the Executive Magistrate and one before the Police Officer. In the dying declarations before the Medical Officers, the victim had attributed the incident to have taken place accidentally; before the police she had accused her husband and in-laws of abusing her and setting her to fire; while before the Executive Magistrate, she was stated that her husband had assaulted her with a broomstick and when she fell down, her in-laws poured kerosene on her and had set her on fire. She has also stated that her husband and father-in-law also poured water on her while her husband brought her to the hospital. It is in the light of these facts, the Hon'ble Apex Court held that conviction can indisputably based on a dying declaration, the same should be reliable and to have been rendered voluntarily and truthfully - Consistency in the dying declaration is the relevant factor for placing full Crl.A.100145/2014 51 reliance thereupon. Observing that in the case before it, the deceased herself had taken contradictory and inconsistent stand in different dying declarations, and also of the fact that the parents-in-law of the deceased had already been acquitted, the husband who was the appellant before the Apex Court was held as he was not alone be held responsible.
Thus, when there is inconsistency and contradictions in a dying declarations, they should not be accepted on their face value, but caution in that regard is required to be applied.
III. In Umakant and Another Vs. State of Chhattisgarh reported in (2014) 7 SCC 405, though the Hon'ble Apex Court was pleased to hold that dying declaration requires no corroboration as long as it inspires confidence and is free from tutoring, but at the same time was also pleased to hold that, if two views are possible in the evidence adduced in the case, one pointing towards the guilt of the accused and other towards his innocence, Crl.A.100145/2014 52 the view which is favourable to the accused should be adopted.
28. It is in the light of the above judgments of the Hon'ble Apex Court, when the four dying declarations at Exs. P10, P45, P52 and P55 are taken into consideration in this case, as already observed above, all those dying declarations are proved to have been given by the very same victim Savita within a span of 24 hours. The first two dying declarations at Exs. P45 and P52 are recorded on 18.10.2010 and the remaining two at Exs. P10 and P55 are recorded on the next day i.e., on 19.10.2010. As already observed above, the prosecution has presented these four documents through the respective witnesses with equal force. It is also not the case of the prosecution that there was any technical defect or mistake either in recording the first two dying declarations dated 18.10.2010 or they are not acceptable for any other reasons. However, it's case is that, even after giving equal weightage to all four dying declarations, the ones at Crl.A.100145/2014 53 Exs.P10 and P55 which are dated 19.10.2010 overweighs the earlier two dying declarations dated 18.10.2010.
29. Similarly, as observed above, in the analysis of the evidences from the accused side also, the authenticity and genuinety of any of these four dying declarations have been challenged. Since the first two dying declarations dated 18.10.2010 by themselves exonerate the accused of the alleged offences, the defence side has not disputed them. Even though the other two dying declarations dated 19.10.2010 are against the interest of the accused and supporting the case of the prosecution, but as already analysed above, from the accused side, the correctness in recording those two dying declarations and the fitness of the victim to give statement and also the procedure followed in recording the dying declarations since have not been seriously denied or disputed, they also got equal weightage in their appreciation. However, the only contention of the learned counsel for the appellant is of the fact that the earlier two dying declarations dated Crl.A.100145/2014 54 18.10.2010, since give a clear chit to the accused, the subsequent two dying declarations which are against the earlier ones be not anchored upon. The subsequent two dying declarations for the said reason gives rise to suspicion and leads to two views, the benefit of which is required to be given to the accused.
30. As already analysed above, all these four dying declarations have been given by the very same victim Smt.Savita. Exs.P45 and P52 were recorded on the date of incident which was on 18.10.2010. Other two Exs. P10 and P55 were recorded on the next day i.e., on 19.10.2010. Admittedly, there is a change in the mind set of the victim from the date 18.10.2010 when she gave the statements as per Exs. P45 and P52, to her subsequent dying declarations dated 19.10.2010 which are at Exs. P10 and P55. In the earlier two, she had given a clear chit to her husband, whereas in the subsequent two she has accused her husband of the alleged act of pouring kerosene upon her and her children and putting fire to Crl.A.100145/2014 55 them. There is no medical evidence including in the evidence of PW34, PW35 and PW36 to the effect that such kind of change in the mind set can occur or happen in case of patient with burns. However, either in the cross- examination of the scribe of those documents or in the cross-examination of medical doctors, who were examined as PW32, PW35 and PW36, or even in the cross- examination of Taluka Executive Magistrate (PW32), no suggestions were made from the accused side to the effect that there was any change in the mind set of the victim and that was not medically as well practically possible.
On the contrary, as already observed above, the suggestions made from the accused side in the cross- examination, more particularly of PW8 and the non-denial of recording of dying declarations by PW8 and PW32 on 19.10.2010, as per Exs.P10 and P55 respectively, go to show that the accused has admitted that the victim has given her further dying declaration as per Exs.P10 and P55 respectively. This inference also takes away another Crl.A.100145/2014 56 doubt that what prevented the Taluka Executive Magistrate(PW32) to put a question to the victim and seek reasons for change in her mind set from 18.10.2010 to 19.10.2010 between her statements at Exs.P52 and P55. However, answer to the said change in mind set has been given by the victim voluntarily in her third statement at Ex.P10 given to her brother who is PW8 in the case. Her statement that, with the belief that she may have to live with her husband/accused along with her children in future, she did not accuse him of the alleged act, is not seriously disputed or denied from the accused side.
Though it was submitted by the learned counsel for the appellant in his argument that, by the time the victim gave her statement on 18.10.2010, one of her children had already been dead and the same was to the knowledge of the victim Savita, but her remaining two children were still alive. Probably it is for the said reason she tried to protect her husband by describing the incident as accidental. As such, the argument of the learned counsel for the Crl.A.100145/2014 57 appellant that the alleged true facts of the incident ought to have been revealed by Savita at the earliest i.e., in her first statement itself is not acceptable.
Undisputedly, by the time she gave subsequent two statements on 19.10.2010, all her children were dead. She was aware of the death of those children by that time. Making the said aspect clear, disclosing the said fact of she getting the knowledge of death of all her children, she has stated that she was determined to reveal the truth. This reason given by her is acceptable reason for change in her mind set.
31. Attempt was made from the appellant's side to show that Ex.P10, the third dying declaration dated 19.10.2010 being a detailed one and like a traditional complaint to the police, is not believable. No doubt, among four dying declarations, the declaration at Ex.P10 appears to be a detailed one. It's narration is also something like a traditional 'police complaint' being lodged in several criminal cases in those areas. However, by that Crl.A.100145/2014 58 itself Ex.P10 cannot be suspected and discarded. It is also for the reason that the first statement/dying declaration of the victim, which is at Ex.P45 is also exactly in the same format and in the same style like that of a traditional police complaint. The accused who is ready and willing to accept such Ex.P45 cannot suspect or doubt Ex.P10, which also stands in the same style.
32. Another factor to be noticed while analyzing these four dying declarations is regarding exact place of the occurrence of the offence in the house of the accused at Hireangrolli village. Both in Ex.P45 and Ex.P52, the statements recorded on 18.10.2010, the victim has stated the place of incidence as the kitchen in their house, whereas in her next day's statement, more particularly in Ex.P55, the victim has stated that the incident has taken place in the center room (£ÀqÀĪÀÄ£É) in their house. The said aspect has not been disputed by the accused side in the cross-examination of either PW32 - Taluka Executive Magistrate or of the Investigating Officer - PW26. Crl.A.100145/2014 59
The scene of offence panchanama (spot panchanama) at Ex.P3 does not mention that the place of offence was the kitchen in the house, but it was a room where a cot was laid. Similarly, Ex.P37 which is a sketch of the spot of the offence/spot sketch shows two rooms in that house, one being used as a kitchen and another as a entrance hall cum room. Both these documents are not disputed by the accused in the Sessions Court. Thus, when the scene of offence panchanama at Ex.P3 is read with the spot sketch at Ex.P37, it is clear that the place of the offence is not the kitchen in the house of the accused, but it is a room cum hall attached to the kitchen of the house.
Therefore, the say of the victim in her first two dying declarations dated 18.10.2010 that while she was cooking in front of kiln, at that time her youngest daughter uprooted a kerosene can, due to which the oil spread on the floor and caught fire proves to be unbelievable. Crl.A.100145/2014 60
On the other hand, the statement of the very same victim Savita in her latest dying declaration given before the Taluka Executive Magistrate, which is marked at Ex.P55 and recorded on 19.10.2010 clearly mentions that the place of offence is not the kitchen, but it is the room (£ÀqÀĪÀÄ£É).
33. From this, it can be inferred that as stated by the deceased victim herself in her third dying declaration at Ex.P10 dated 19.10.2010, her earlier statement that the incident took place in the kitchen and it was accidental one was not correct and the death of all her three children made her to reveal the truth. The said justification of the deceased further corroborated by the place of incident through Exs.P3 and P37 and as analysed above, makes Exs.P10 and P55 believable.
34. In addition to the above, it also cannot be lost sight that in the analysis of the evidence of PW8, PW9 and PW10 and the cross-examination of PW32 above, many Crl.A.100145/2014 61 admissions on the part of the accused in the cross- examination of those witnesses have been noticed and analysed. Thus, admissions in the form of suggestions made by none else than the accused would also go to show that the victim Savita herself has given statement (complaint/¦üAiÀiÁð¢) through her brother (PW8) as per Ex.P10 and also her dying declaration for the second time before the Taluka Executive Magistrate PW32 as per Ex.P55. As such also, in this case which involves multiple dying declarations, a careful scrutiny of all the four dying declarations reveals that the dying declarations recorded on 18.10.2010 which are at Exs. P45 and P52 are not trustworthy, whereas the dying declarations recorded on 19.10.2010 and marked at Exs.P10 and P55 are trust worthy. Moreover, independent of those dying declarations also, the evidence of PW8, PW9 and PW10 which has withstood thorough and searching cross- examination and have revealed that all those three witnesses have heard the details of the incident from the Crl.A.100145/2014 62 mouth of the deceased herself also go to show that the alleged act of causing burn injuries upon the deceased Savita and her 3 daughters Soujanya, Sanjana and Sushmita was done by none else than the accused and accused alone, who by pouring kerosene and litting fire has caused death of his wife and children. The said act is nothing but a culpable homicide caused by the accused.
35. The evidence of PW8, PW9 and PW10 reveals that the accused was subjecting his wife to ill-treatment and was torturing her. He was also suspecting her fidelity since prior to the incident. Even though the prosecution could not establish that the accused had illicit relationship with other ladies and that one such lady was also present on the date of Bannipooja, still that would not take away or weaken the case of the prosecution, but since the motive behind any offence is a hidden factor in the mind of the accused, it cannot be accepted to be depicted in black and white in all cases including the one on hand. However, the dying declaration of the deceased Crl.A.100145/2014 63 dated 19.10.2010 reveals that she was objecting to her husband of he having illicit relationship with other ladies. The said objection by the deceased is not in dispute. As such, the said objection by the wife also has led the accused to commit a heinous act alleged against him. Added to this, absence of any statement by any witness including any defence from the accused side to the effect that the accused had taken all immediate and expected steps to save the life of his wife and children and absence of his concern towards any of the deceased would also thicken the ground of suspicion against him and lead to a conclusion that he had a motive, which might have crystallized just prior to the incident also proves that he had the requisite mens rea and was aware of the consequences of his act. As such, the act of culpable homicide committed by the accused is nothing short of an act of murder committed by him.
36. Lastly, the defence of the accused is a general denial. The accused has only relied upon the earlier Crl.A.100145/2014 64 statement of the deceased dated 18.10.2010 and accepted that the incident was accidental. But as analysed above, the said defence of the accused could not be tenable in view of conclusion arrived at, that the incident was not accidental, but was intentional resulting in the murder of four lives.
37. Thus, it is clear and proved beyond reasonable doubt that the accused since prior to the incident dated 18.10.2010 was subjecting his wife Smt. Savita to cruelty and that he caused murder of his wife Savita and his three daughters. On that day i.e., on 18.10.2010, he intentionally poured kerosene on them and lit fire to them making them to sustain severe burns, to which injuries daughters Sushmita and Sanjana succumbed on 18.10.2010 and daughter Soujanya succumbed on 19.10.2010 and wife Savita succumbed on 21.10.2010. Thus, the accused has caused murder of all those four persons. Thereby, the prosecution has proved beyond reasonable doubt that the accused has committed offence Crl.A.100145/2014 65 punishable under Section 498A and 302 of the IPC. The Session Court after appreciation of the evidence led before it and the materials placed before it has arrived at the same conclusion holding the accused guilty of the alleged offence.
38. Regarding the quantum of sentence is concerned, the Sessions Court has sentenced the accused to undergo Simple Imprisonment for two years and to pay a fine of `10,000/-, and in default to pay fine, to further undergo Simple Imprisonment for six months for the offence punishable under Section 498A of the IPC. The accused is also sentenced to undergo imprisonment for life and to pay a fine of `15,000/-, and in default to pay fine, further to undergo simple imprisonment for six months for the offence punishable under Section 302 of the IPC. Considering the maximum punishment that can be awarded for the proven offences, gravity of the offence and circumstance of the case, we are of the view that the quantum of punishment awarded by the Sessions Court is Crl.A.100145/2014 66 proportionate to the offences proved and it has kept the facts and circumstances of the case also in mind while ordering the sentence.
39. For these reasons, we find no reasons to interfere in the judgment of conviction and order of sentence passed by the Sessions Court. Accordingly, we proceed to pass the following order:
ORDER The appeal is dismissed.
The judgment and order of conviction and sentence dated 05.07.2014 passed by the V Addl. District and Sessions Judge, Belagavi in S.C.No.69/2011 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE gab