Karnataka High Court
Smt Gowramma vs The State Of Karnataka Gangammanagudi on 3 February, 2018
Author: K. N. Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL No. 30/2013(C)
BETWEEN
SMT. GOWRAMMA,
WIFE OF NARAYANAPPA,
AGED ABOUT 37 YEARS,
RESIDING AT 4TH CROSS,
BEHIND SUDHAKAR'S SHOP,
ABBIGERE DINNE,
CHIKKABANAVAR POST,
BENGALURU - 560 090
(IN JUDICIAL CUSTODY) ... APPELLANT
(BY SRI. H.R. NARAYANASWAMY, ADVOCATE)
AND
THE STATE OF KARNATAKA-
GANGAMMANAGUDI POLICE STATION,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
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THIS CRLIMINAL APPEAL IS FILED U/S 374(2) OF
Cr.P.C. PRAYING TO SET ASIDE THE ORDER DATED
13.06.2012 PASSED BY THE ADDL. S.J., FTC-XIV,
BENGALURU, IN S.C. NO.262/2011, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF
IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO IMPRISONMENT FOR LIFE AND SHALL PAY
FINE OF RS.15,000/-, IN DEFAULT SHE SHALL UNDERGO
S.I. FOR A PERIOD OF SIX MONTHS FOR THE OFFENCE
P/U/S 302 OF IPC.
THIS CRLIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, SREENIVAS HARISH KUMAR, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the accused in S.C. No.262/2011 on the file of the Additional Sessions Judge, Fast Track Court - XIV, City Civil Court, Bengaluru City. The learned Trial Judge by his judgment dated 13.06.2012 found the accused guilty of the offence under Section 302 of IPC and sentenced her to undergo imprisonment for life and pay fine of Rs.15,000/- with default sentence of six months simple imprisonment.
2. The name of the deceased is one Kondalaraya, son of Narasimhalu. The Sub-inspector of Police set the criminal law into motion on the basis of a statement given by 3 the deceased Kondalaraya as per Ex.P4 when he was in the hospital. In Ex.P4, it is stated that the deceased was a Tractor Driver. Behind his house, the family of the accused was living. About 4 or 5 years prior to the date of incident, the husband of the accused namely Narayana had committed rape on the sister of the deceased namely Vasantha and in that connection, Narayana had been convicted and sentenced to undergo imprisonment for a period of 14 years. It is stated that in the background of this incident, the accused, who is wife of Narayana, used to quarrel with the deceased and his family members and she used to say that she would take revenge against their family. On 03.05.2009, the deceased was in the house. At that time, the accused asked him to give her money to buy liquor. As he said that he did not have money, the accused went inside her house and brought kerosene and poured on him. The deceased just thought that she was doing it for fun and therefore, he kept quiet. Immediately, the accused set him on fire and thus the deceased caught fire. Seeing this, the accused went inside her house and brought water to 4 douse the fire. Some of the neighbourers secured an Ambulance and shifted him to Victoria Hospital for treatment.
3. Based on this, the Police investigated into the matter and filed charge sheet against the accused for the offence punishable under Section 302 of IPC.
4. The learned Trial Judge held trial. The prosecution examined 18 witnesses viz., PWs.1 to 18 and got marked 18 documents as per Exs. P1 to P18 and three Material Objects - Mos. 1 to 3. When the accused was examined under Section 313 of Cr.P.C., she simply denied all the incriminating circumstances against her and she did not lead defence evidence. The learned Sessions Judge, after appreciating the evidence, came to the conclusion that the prosecution was able to bring home the offence under Section 302 of IPC against the accused and sentenced her as above said.
5. Assailing the findings given by the learned Sessions Judge, learned counsel for the appellant argues 5 that the learned Sessions Judge has committed error in law in coming to conclusion that the accused has committed an offence punishable under Section 302 of IPC. He argued that, the impugned judgment is the result of not appreciating the facts and evidence properly; trying to make-out some contradictions in the evidence of PWs. 3, 4 & 5, he submitted that these contradictions go to the root of the matter and therefore, the entire prosecution case becomes unbelievable. He also argued that the doctor's evidence does not disclose the percentage of burn injuries sustained by the deceased, who survived for about five days, even after the incident. The learned Sessions Judge should have taken these aspects into consideration while appreciating the evidence. Therefore, he argued for acquitting the accused.
6. On the other hand, the learned Additional State Public Prosecutor argues for sustaining the impugned judgment. He submitted that, there are no contradictions in the evidence of the witnesses. The evidence given by PWs. 3, 4 & 5 is very much believable because, these witnesses were 6 very much present when the deceased revealed about the incident. This revelation was just after the incident, even before the deceased was shifted to the hospital, therefore, their evidence carries much weight. Another point that he argues is that, Ex.P4-complaint contains certification by PW.7-A Lakshmana Raju about the fitness of the deceased to give statement. If the entire contents of Ex.P4 (complaint) is subjected to scrutiny in the light of the evidence given by PW.7, it can be said that the evidence of PW.7 has to be accepted. Therefore, it is his argument that the learned Trial Judge has rightly come to a conclusion to hold that the accused had committed an offence punishable under Section 302 of IPC.
7. We have considered the arguments of the learned counsel for the accused and also the Additional State Public Prosecutor. We have perused the records and also the impugned judgment. Before giving our finding, it is just and necessary to have a look at the oral evidence given by some of the witnesses.
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8. PW.1-Siddaraju is residing in a house in the vicinity of the house of the accused. His evidence is that, about two years ago, he heard some crying noise when he came near a shop. He came there and saw a match box, kerosene can and some burnt clothes. He saw the police being there and he also saw the police seizing those items while drawing mahazar as per Ex.P1. He has stated in the cross-examination that, he did not read Ex.P1 before he put his signature.
9. PW.2-Pradeep is a witness to Inquest Panchanama drawn as per Ex.P2. There is no need to refer to the entire evidence given by him, as it is not disputed.
10. PW.3-Narasimhalu is the father of the deceased. From his evidence, it can be made-out that, the husband of the accused namely Narayana had eloped with Vasantha, the sister of the deceased and therefore, a criminal case had been registered against him and that he was arrested. His further evidence is that the deceased had illicit relationship with the accused, and that, one day at about 7.00 pm., when 8 he returned to house, he came to know that his son Kondalaraya had sustained burn injuries, and when he enquired his son, he came to know that it was the accused- Gowramma, who set fire to him. He has stated that he and others took the deceased to hospital, where he was treated for five to six days and at last, died. His clear evidence is that, when his son was in the hospital, he was able to speak and at that time, his younger daughter Adilakshmamma and son-in-law - Velu and another daughter-Vasantha were also there. On perusing the cross-examination of this witness, it is found that he has given some contradictions to the effect that, for the first time, he stated that, Gowramma i.e., accused used to say that she would take revenge against his family. Rest of the cross-examination discloses that he has denied suggestions given by him.
11. PW.4-Velu is the Brother-in-Law of the deceased. He speaks about the husband of the accused having taken the sister of the deceased to Mysuru and marrying her and that Narayana had been convicted in a criminal case. He has stated that the deceased used to stay 9 in the house of the accused and they used to quarrel each other very often. He has also stated that he advised the deceased not to go to the house of the accused and very importantly he states that, one day about three years ago, he had gone to the house of his father-in-law and at that time, the deceased came there with his salary. The accused asked him to give her money, and the deceased gave her Rs.400/-. At that time, the accused picked-up quarrel with the deceased for the reason that, her husband had been sent to jail. He came out of the house and saw the deceased having fallen down on the ground. He saw the deceased having caught fire. Immediately, he went to his house, brought a woolen blanket and covered the deceased. When he asked the deceased, he came to know from him that it was the accused who set fire to him because of refusal by him to give money. He has further stated that, he carried the deceased inside the house and switched on the fan. Further, he has given evidence about taking the deceased to the hospital. If the cross-examination is perused, it is found that he denied 10 all the suggestions given to him. He has denied the suggestion that he did not see the incident.
12. PW.5-Vasantha is the sister of the deceased. She has stated that, Narayana, the husband of the accused, after release from the jail did not stay with his wife, but he went to his parents' house and was living there. Very specifically in the examination in chief, she has stated that, the quarrel used to take place between the deceased and the accused, and one day, she saw her brother coming out of the house crying and also saw him having caught fire, and then she saw PW.4 (Velu) coming and covering her brother with a woolen blanket. She says that, Velu brought the deceased inside the house and switched on the fan and when they asked the deceased as to what happened, the deceased revealed at that time that the accused set him on fire. She has further stated that, in the hospital when the Doctor and Police asked the deceased as to what happened, he clearly revealed that the accused set him on fire because of refusal by him to give money. The said evidence of PW.5 during her cross-examination, has not been impeached. 11
13. PW.6-Padma is a neighbourer of the accused. She has also given evidence that, about two years ago, she heard some screaming noise and she came out of the house and saw a crowd of people; she saw the deceased having been caught with fire and he also saw the accused standing at a distance of five feet and crying. Since he did not fully support the prosecution case, he was treated hostile and cross-examined by the Public Prosecutor, but his effort has gone in vain. However, the evidence to the extent that she saw the deceased having caught fire, remains.
14. PW.7-Lakshman Raju was a Police Sub-
Inspector. His evidence is to the effect that, on 30.05.2009 at about 7.30 pm., when he was on the patrolling duty, he received information that, a woman had set a man on fire and the latter had been admitted to Victoria Hospital. Therefore, he went to Victoria Hospital at about 1.00 p.m. and came to know that the deceased had been admitted there and then he met the Duty Doctor and gave an application seeking permission to record the statement of the deceased. After obtaining permission, he recorded the 12 statement of the deceased in the presence of the Doctor and he obtained the Left Thumb Impression of the deceased in presence of the Doctor. Returning to the Police Station, he registered a case in Crime No. 75/2009 and then sent the FIR to the Court. He also speaks about sending the accused to the Rajya Mahila Nilaya, visiting the spot on the next day for the purpose of drawing mahazar, and then seizing a kerosene can, a match box in the presence of the witnesses. He further says that, on 09.05.2009, he received a call from Assistant Sub Inspector-Mr.Ramakrishna who said that the deceased had died. Therefore, he came to the Police Station and after receipt of a memo from one of his Staff, namely Thimmegowda at about 2.45 am., he registered another FIR and sent the same to his Higher Officer. He has identified the statement given by the deceased as per Ex.P4 and the second FIR as per Ex.P5. In the cross-examination of this witness, questions are put to him that, Dr. Ramesh was not a duty doctor and that he did not record the statement in his presence. But all those suggestions have been denied. 13
15. PW8-Rajalakshmi D.K was working as women Police Constable. She has deposed that she was appointed to trace the accused for being produced in the police station. She has stated that along with another police constable Satish, she went to Abbigere, Chikkabanawara, and after collecting information from the informants, she was able to trace the accused and then they brought the accused to the police station. She gave a report as per Ex.P12.
16. PW9-Adilakshmi is the younger sister of the deceased. She has stated that on the day when the incident took place, her elder sister alone was present in the house. On that day there was a procession in the temple and, therefore, she had gone to the temple along with her parents. At about 7.00 PM they were all waiting near the bus-stand to come back to their house and at that time her elder sister came to that place in an autorickshaw and told that the accused had set fire to the deceased. Learning this incident, they all came to the house in the same autorickshaw and then saw the deceased being kept under running ceiling fan. When they enquired the deceased as to what happened, he 14 told that when he gave Rs.400/- to the accused, she picked up quarrel with him and saying further that she would take revenge for having sent her husband to jail, she poured kerosene on him and set him on fire. Thereafter, they all shifted the deceased to the hospital. He was there for five days and then succumbed to the injuries. In the cross- examination, a suggestion is put to her that whatever she has deposed in the examination-in-chief was stated by her for the first time before the court and further she has denied that she has given false evidence because of the animosity with the accused. She also denies the suggestion that the deceased did not tell before her that the accused herself set him on fire.
17. PW10 - Venkataramana has given evidence that on 3.5.2009 when he was on patrolling duty, one Ravisiddegowda was the driver of the Hoysala Van. At about 7.00 PM on that day, it was brought to his notice that fire was set to a young man near the shop of Sudhakar and he went to that place immediately. He saw the deceased having sustained injuries. Immediately he made a call for 15 summoning the ambulance. Since there was delay in the arrival of the ambulance, he took the deceased in his Hoysala van. On the way, seeing the ambulance coming in the opposite direction, the deceased was taken to hospital in that ambulance. Nothing worth to be mentioned here is elicited from this witness in the cross-examination.
18. PW11 is the Police Head Constable who has given evidence with regard to carrying of some of the articles seized by the police to the station.
19. PW12, Dr. Ramesh, has given evidence that on 3.5.2009 about 11.30 PM, PSI by name Lakshmanraju of Gangammana Gudi Police Station came to the hospital and told him that he wanted to take statement of the patient by name Kondalaraya. He has further given evidence that he told the Police Inspector that he can record the statement of the injured because he was in a position to give the statement. He also says that the PSI took the statement of the injured Kondalaraya in his presence as per Ex.P4. He has identified his signature on the said statement as per 16 Ex.P4(b) and (c). In the cross-examination an attempt is made to discredit him by putting questions that he was not present in the hospital on that day and that the deceased was not in a condition to give statement and of course, he has denied these suggestions. Very important question put to him is that the deceased was not in a condition to give statement because he was put on sedatives. But, this suggestion is also denied. Therefore, from the evidence of this witness it can be stated that he confirms that in his presence statement of the deceased was taken by the Police Inspector.
20. PW13 is a witness to the mahazar drawn as per Ex.P1 where under the police seized the kerosene can and a match box. Though some questions have been put to this witness in the cross-examination, but it can be stated that the defence has failed to discredit him.
21. PW14 H.Ramakrishna is the witness to mahazar drawn as per Ex.P7. Though he identified his signature but he failed to give evidence with regard to the contents of the 17 said document. Therefore, he was treated hostile and cross- examined by the prosecutor. He was suggested in the cross- examination that about 7.00 PM when the deceased was sitting in front of the house of the accused, she picked up quarrel with him and then set him on fire after pouring kerosene on him. He has denied these suggestion and answered that he did not see the incident.
22. PW15 Srinivas is another neighbour of the accused. His evidence is to the effect that he saw the deceased having suffered burn injuries and that the police came to that place and at that time they collected the burnt clothes of the deceased. He has identified the clothes as per MO3.
23. PW16, P.R.Jayaramu, is the Assistant Director of Forensic Laboratory. He has given evidence with regard to subjecting some of the articles seized by the police to the scientific examination. His evidence is of not much importance.
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24. PW17, K.V.Satish, is the doctor who conducted post mortem examination. Ex.P16 is the post mortem and according to him death took place because of infection due to burn injuries.
25. PW18 is the investigation officer. He has given evidence sequential with regard to investigation conducted by him.
26. If the entire evidence is scrutinized again, it can be stated that the evidence of PWs 3, 4 and 5 especially cannot be disbelieved. There is no dispute with regard to the fact that the deceased died due to burn injuries. These witnesses have consistently given evidence as to what they came to know about from deceased himself soon after the accident. Therefore, having come to know directly from the mouth of the deceased about the incident, their evidence assumes importance and relevancy. Though the learned counsel for the appellant tries to make out some contradictions that the husband of Adilakshmi was not present according to the statement given by her, in our 19 opinion, it is not a material contradiction because when these witnesses have spoken that they were very much present and came to know as to how the deceased caught fire, the minor contradiction will not take away the evidentiary value. Moreover, Ex.P4 is the dying declaration given by the deceased in the hospital. Ex.P4 contains certification by the doctor that the deceased was in a fit condition to give statement. The entire contents of Ex.P4 has been corroborated by the doctor who has been examined as one of the witnesses. Therefore, we find that the evidence of these witnesses clearly take to the point that it was the accused who set the deceased on fire in connection with a quarrel. Thereby the finding given by the learned Sessions Judge that the incident gets established from these witnesses cannot be found fault with. We do concur with the findings given by the Sessions Judge.
27. However, what we have to observe now is that the deceased was living with the accused because of some intimacy between them. Moreover, the husband of the accused, against whom a criminal case had been registered 20 and had been convicted in that connection did not chose to live with his wife after his release from the jail, rather he went and stayed with his parents. In Ex.P4 it is stated that there was a quarrel between the accused and the deceased. In the said statement itself it is found that when the accused poured kerosene on the deceased, he did not take it seriously and thought that the accused was doing it for some fun. Even after the accused set the deceased on fire, her conduct assumes importance, in the sense she went inside the house, brought water and poured the same on the deceased to douse the fire. Therefore, if all these factors are taken into consideration, it can be clearly said that the accused did not have intention as such to cause the death of the deceased. In these circumstances, it is difficult to say that an offence under Section 302 IPC gets established. We find it relevant to refer to the judgment of the Supreme Court in the case of Santosh Shankar Pawar vs State of Maharashtra [AIR 2015 SC 3789] wherein it is held as below :
"13. Insofar as the conduct of the accused in attempting to extinguish fire, placing reliance 21 upon the judgment of this Court in Kalu Ram's case (AIR 2000 SC 3630), it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram's case (supra), the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realized that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would not have intended to inflict the injuries which she sustained on account of act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part II IPC".
28. In another Division Bench judgment of Gujarat High Court, in the case of Dilipbhai Madhubai Patel vs State of Gujarat [2003 Crl.L.J. 565], in the similar set of 22 circumstances, it was held that the offence under Section 304 Part II IPC will get established and not the offence under Section 302 IPC. Therefore, having regard to the principles laid down by the Supreme Court and the Division Bench of the Gujarat High Court, we find mitigating circumstances in this case also to bring down the offence from Section 302 to 304, Part II IPC. Therefore, we modify the judgment as below: -
(1) The appeal is partly allowed.
(2) The judgment of the Sessions Judge in S.C.262/2011 on the file of the Additional Sessions Judge, Fast Track Court-XIV, Bengaluru City, is modified.
(3) The accused is found guilty under Section 304 Part II IPC. The conviction under Section 302 IPC is set aside.
(4) The accused is convicted for the offence under Section 304 Part II IPC, and after hearing the learned counsel for the accused and the Additional State Public Prosecutor 23 with regard to sentence, we find it appropriate to sentence the accused to undergo rigorous imprisonment for 10 years and pay fine of Rs.15,000/-, and to undergo imprisonment for six months in case of failure to pay fine.
(5) Period spent by the accused in jail is given set off.
Sd/-
JUDGE Sd/-
JUDGE KGR/CKL