Karnataka High Court
Shri Venkatesh vs State Of Karnataka on 17 November, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL No.453/2015
BETWEEN:
SHRI VENKATESH
S/O GOVINDAPPA
AGED 36 YEARS
R/AT CHIRADONI VILLAGE
CHANAGIRI TALUK
DAVANGERE DISTRICT-5660757. ...APPELLANT
(BY SRI SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
BASAVAPATNA POLICE
DAVANGERE-56607101 ...RESPONDENT
(BY SRI S. RACHAIAH, HCGP)
...
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE JUDGMENT, DATED
01/04/2015 PASSED BY THE 1ST ADDITIONAL DISTRICT
AND SESSIONS JUDGE, AT DAVANAGERE IN
S.C.NO.12/2014, IN THE INTEREST OF JUSTICE AND
EQUITY.
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THIS CRIMINAL APPEAL IS COMING ON FOR
HEARING THIS DAY, B.VEERAPPA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
The accused, who is the husband of the deceased, has filed the present criminal appeal against the impugned judgment dated 1st April, 2015 and order of sentence dated 7th April, 2015 made in S.C.No.12/2015 on the file of the Additional District and Sessions Judge, Davangere, convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two years for the offence punishable under Section 302 of the Indian Penal Code (for short, hereinafter referred to as 'IPC'); and rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for the offence punishable under Section 498-A IPC.
2. It is the case of the prosecution that the deceased Jayalakshmi and accused were married about 3 eight years back as on the date of the incident and out of their wedlock, two children were born and were residing in Chiradoni village, Channagiri Taluk in a rental house of P.W.7. During the said period, the accused was addicted to alcohol and he used to harass and ill-treat his wife Jayalakshmi persistently, suspecting her chastity and was subjecting her for mental and physical cruelty by abusing and assaulting her regularly. On 15.9.2013 at about 9.00 p.m., when the accused returned home consuming alcohol, he picked up quarrel with his wife Jayalakshmi suspecting her chastity, abused and assaulted her, and further with an intent to murder her, poured kerosene on her body and set her ablaze, due to which, she sustained severe burn injuries all over her body and later, on 19.9.2013 at about 7.50 p.m., she succumbed to burn injuries while taking treatment at C.G. Hospital, Davangere and thus, the accused causing the death of his wife - Jayalakshmi, has committed the offences punishable under Sections 498A and 302 of IPC. The 4 jurisdictional police after investigation filed the charge sheet against the accused.
3. The learned JMFC, Chennagiri committed the case to the Sessions Court. The learned Sessions Judge, Davangere framed the charges against the accused on 23.6.2014 and read over the same to the accused. The accused pleaded not guilty and claimed to be tried.
4. In order to establish its case, the prosecution examined 25 witnesses - P.Ws.1 to 25 on its behalf and got marked the material documents - Exs.P.1 to 34 and material documents - M.Os.1 to 3. After completion of recording of the evidence of the prosecution witnesses, the statement of the accused as contemplated under Section 313 Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') was recorded. The accused has denied all the incriminating evidences adduced by the prosecution witnesses against him and has not led any defence except filing the statement under Section 313(5) 5 of Cr.P.C. stating that his wife has committed suicide by pouring kerosene on herself.
5. The learned Sessions Judge based on the aforesaid material on record framed two points for consideration. After considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved beyond all reasonable doubt that the accused was addicted to alcohol and used to harass and ill-treat persistently his wife suspecting her chastity and further subjecting her to mental and physical cruelty by abusing and assaulting her regularly, has committed an offence punishable under Section 498A of IPC. The learned Sessions Judge has further recorded a finding that on 15.9.2013 at about 9.00 p.m., the accused after returning home by consuming alcohol, picked up quarrel with his wife Jayalakshmi suspecting her chastity, abused and assaulted her and further, with an intention to commit her murder, poured kerosene on her body and set her ablaze due to which severe burn 6 injuries were caused all over her body and later on 19.9.2013 at about 7.50 p.m., she succumbed to burn injuries while taking treatment at C.G. Hospital, Davangere and thus he has caused the death of Smt. Jayalakshmi which is an offence punishable under Section 302 of IPC. Accordingly, by the impugned judgment dated 1st April, 2015 and order of sentence dated 7th April, 2015 convicted the accused and sentenced him for life imprisonment and one year and to pay a fine of Rs.5,000/- and 20,000/- with default sentences for the offences punishable under Sections 498A and 302 of IPC respectively. Hence, the present appeal is filed by the accused.
6. We have heard the learned Counsel for the parties.
7. Sri Shankarappa, learned Counsel for the appellant contended with vehemence that the impugned judgment and order of sentence, convicting the accused for the aforesaid offences and sentencing him to undergo imprisonment for life is erroneous and contrary 7 to the material on record and cannot be sustained. He further contended that the prosecution witnesses - P.Ws.5 to 8, 12 to 15 and 17 have turned hostile and have not supported the case of the prosecution, but very strangely, the learned Sessions Judge has convicted the appellant only on the basis of the second dying declaration recorded by the Taluk Executive Magistrate as per Ex.P.5 ignoring the first dying declaration - Ex.P.16 made by the deceased on 16.9.2013 in presence of the Head Constable, her own brother-P.W.17, and the doctor - P.W.10. Therefore, the learned Sessions Judge has committed a grave error in convicting the accused and hence, the impugned judgment is liable to be set aside.
8. The learned Counsel for the appellant would further contend that there are lot of contradictions, omissions and improvements in the evidence adduced by the prosecution and the learned Sessions Judge convicted the accused mainly on the basis of the second dying declaration, the evidence of the Tahisldar - P.W.4 8 and the investigating officer, cannot be sustained. He would further contend that when there are two versions in the dying declarations i.e., one in the complaint made by the Tahsildar and the first dying declaration - Ex.P.16, and another in the second declaration - Ex.P.5, the learned Sessions Judge ought to have considered the version which is in favour of the accused instead has proceeded to convict the accused, which is erroneous.
9. The learned Counsel for the appellant would further contend that father, mother, brother, children, sister of the deceased, neighbours and owner of the house where the deceased and the accused were residing, who have spoken to about ill-treatment and harassment meted out to the deceased by the accused and also with regard to the incident that has occurred, have turned hostile. Absolutely as there is no material against the accused, he has been falsely implicated in the case. Therefore, he sought to allow the appeal. 9
10. Per contra, Sri S. Rachaiah, learned High Court Government Pleader, contended that the learned Sessions Judge was justified in passing the impugned judgment and order of sentence considering the second dying declaration made by the deceased when she was in a fit state of mind, that too in presence of the Taluka Executive Magistrate, on the basis of which a complaint was lodged by the Taluka Executive Magistrate and the jurisdictional police have registered a complaint on 19.9.2013 at 2.00 p.m. and have proceeded with the investigation. He would further contend that the material on record clearly depicts that accused always used to suspect the chastity of his wife -deceased Jayalakshmi and harass her; he was also addicted to alcohol and ultimately on the unfortunate day, he poured kerosene on her and set her ablaze which is an heinous crime attracting the provisions of Section 302 of IPC. Therefore, he sought to dismiss the appeal. 10
11. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that arises for our consideration in the present appeal is:
"Whether the learned Sessions Judge was justified in passing the impugned judgment, dated 1st April, 2015 and order of sentence, dated 7th April, 2015 convicting and sentencing the accused to undergo imprisonment for life and one year with fine and default sentences for the offences punishable under Sections 498A and 302 of IPC?"
12. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including the original records carefully.
13. Being an Appellate Court, in order re- appreciate the entire material evidence on record, it is relevant to consider the evidence of the witnesses and the material documents relied upon by the prosecution: 11
Out of total 25 witnesses examined by the prosecution, except Exs.P.4, 9, 10, 11, 20 to 25, all other witnesses including the eye witnesses and panch witnesses to the spot mahazar, parents, sister, brother and daughter of the deceased and owner of the house where the deceased-accused was residing have turned hostile to the prosecution case.
i) P.W.4 - Sri Manjunath R. Bellary, who was the Taluka Executive Magistrate, Davangere has deposed that he recorded the second dying declaration -
Ex.P.5 on which basis, he lodged a complaint - Ex.P.6 to Basavapattana Police Station to register a case against the accused in respect of the alleged incident and had sent the dying declaration to the PSI in a sealed cover for taking further action. He has supported the case of the prosecution.
ii) P.W.9 - Dr. Manjula, Senior Specialist in C.G. Hospital, Davangere, who conducted postmortem examination over the dead body of the deceased Jayalakshmi has deposed that she issued the 12 postmortem report - Ex.P.14 and has opinion that the cause of death was due to septicemic shock as a result of extensive burn injuries and has supported the case of the prosecution.
iii) P.W.10 - Dr. Jayaprakash, Senior Specialist in C.G. Hospital, Davangere has deposed that he has examined the victim on 16.9.2013 as to whether she was capable of giving her statement or not as per the request of the Basavapatna Police and accordingly, he examined the victim and opined that she was in a fit state of mind to give her statement and she was conscious throughout recording of the Dying Declaration by the Head Constable -58 in his presence as per Ex.P.16 and he has also given the endorsement on the same day as per Ex.P.15. He has identified his signature on the same as Ex.P.15(a) and in the dying declaration as Ex.P.16(a).
iv) P.W.11 - Hoovannashetty, who was the Junior Engineer, Chennagiri, has deposed that he prepared the sketch at the scene of offence - Ex.P.17, 13 has identified his signature at Ex.P.17(a) and has supported the case of the prosecution.
v) P.W.20 - Sri M. Shivakumar, who was the Head Constable of Basavapatna Police Station has deposed that on 16.9.2013, as per the direction of his Officer, visited the C.G. Hospital to record the dying declaration of the victim Jayalakshmi and after confirming with the doctor that she was conscious and was capable of giving her statement has recorded the dying declaration as per Ex.P.16 and he has put his signature at Ex.P.16(b). He also has deposed that at the time of recording of dying declaration, the accused was present at the spot in the hospital and he was insisting his wife - the deceased to give her statement.
vi) P.W.21 - Sri K.H. Gangadhar, who was the Medical Officer in C.G. Hospital, Davangere has deposted that on 17.9.2013, at the request of the Taluka Executive Magistrate, he issued an endorsement
- Ex.P.5 certifying that the victim was conscious and well oriented to give her statement. Further he has also 14 asserted that the victim was conscious throughout recording of her statement by the Tahsildar.
vii) P.W.22 - Sri Manjunath Pandith, who was the Sub-Inspector of Police at Basavapatna Police Station on the basis of dying declaration produced by Police Constable -39, on 19.9.2013 at 2.00 p.m. he registered a case in Crime No.133/2013 and sent the FIR to the Court as per Ex.P.27. He conducted the spot mahazar on the same and visited the hospital and recorded the statement of the victim as per Ex.P.29 and he has put his signature at Ex.P.29(a). Thereafter, he recorded the statement of the witnesses, arrested the accused, received the death memo from the hospital on 20.9.2013, sent the requisition to the Court to include the offence punishable under Section 302 of IPC as per Ex.P.30, conducted inquest mahazar as per Ex.P.8 in the mortuary and recorded statements of the witnesses, voluntary statement of the accused and at his instance, seized the material objects - M.Os.1 to 3 - kerosene can, lid and matchbox from the house of the accused under 15 seizure mahazar-Ex.P.2 in presence of the panchas, took photos in the house of accused as per Ex.P.3 and also the spot as per Ex.P.32.
viii) P.W.23 - Sri C.S. Patil, who was the Circle Police Inspector has deposed that he conducted the investigation in -part and handed over the same to P.W.25 - Ravinaika.
ix) P.W.24 - Sri Chandrashekar, who was Police Constable in Basavapatna Police Station, has deposed that he had carried FIR to the Court.
x) P.W.25 - Ravinaika, the Circle Inspector of Police, who conducted the investigation has deposed that he recorded the further statement of the complainant on 14.11.2013, witnesses - Veeresh and daughter of the deceased - Arpitha as per Exs.P.26 and 19, received the FSL report as per Ex.P.34 and after completion of the investigation, he filed the charge sheet.
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14. Based on the aforesaid evidence and material documents on record, the learned Sessions Judge has proceeded to convict the accused for the offences punishable under Sections 498A and 302 of IPC by the impugned judgment stated supra.
15. On re-appreciation of the entire material on record, it clearly depicts that it is an admitted fact that the deceased and the accused were husband and wife, and they had got married eight years prior to the incident and were having two children. It is the specific case of the prosecution that on 15.9.2013 at about 9.00 p.m., when the accused returned home by consuming alcohol, he picked up quarrel with his wife - Jayalakshmi suspecting her chastity, abused, assaulted her and with an intention to murder her, poured kerosene on her body and set her ablaze. The accused has filed his statement on 28.1.2015 under Section 313(5) of the Code of Criminal Procedure stating that on 15.9.2013 after having dinner, he had been to the shop and before he could come to the house, his wife herself 17 had poured kerosene on her and set her ablaze, he immediately shifted her to the hospital and in view of the burn injuries, she died.
16. On careful perusal of the entire material on record, it clearly depicts that there were two dying declarations recorded by the Head Constable P.W.20 in presence of the doctor P.W.10 and the brother of the deceased - P.W.17 on 16.9.2013 which was received by the Sub-Inspector of Police on the very same day. In the said dying declaration, it is specifically stated by the deceased that the accused and the deceased were married about 8 years back and out of their wedlock, they were having two children. On 15.9.2013 at about 9.00 p.m., after completion of the dinner, when they were about to go to the bed, her husband-accused went to the shop. At that time, as she was fed up with her life, she decided to commit suicide by pouring kerosene on herself. Accordingly, she herself poured kerosene on her body and set her ablaze. Thereafter, the people gathered there along with her husband, and her 18 husband poured water on her body and she was taken to the C.G. Hospital, Davangere in 108 Ambulance.
17. P.W.10 - Dr. Jayaprakash, Senior Specialist in the C.G. Hospital, Davangere, who had examined the deceased on 16.9.2013, on the request of Basavapatna Police, as to whether she was capable of giving her statement, had opined that she was in a fit state of mind to give her statement and had suffered the burn injuries to an extent of 95 to 100% and she was conscious throughout, while recording her statement. The Head Constable No.58 - P.W.20 - M. Shivakumar of Basavapatna Police Station was present while recording the dying declaration - Ex.P.16 and he has given his endorsement on the same as per Ex.P.15 and his signature is at Ex.P.15(a). He has also identified his signature in dying declaration as Ex.P.16(a) and nothing has been elicited in his cross-examination to disbelieve his evidence.
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18. Though the dying declaration - Ex.P.16 made by the deceased was recorded by P.W.20 - the Head Constable when she was in a fit statement of mind as opined by the doctor - P.W.10 and the same was received by the PSI on the very same day, the jurisdictional police have not registered the complaint. Very strangely on 17.9.2013 at about 9.40 p.m. on the request made by the police, the Taluka Executive Magistrate - P.W.4 has recorded the second dying declaration, which is nothing but a format stating that her statement was recorded on 17.9.2013 when the patient was conscious and self oriented to give statement. The background of assault was misunderstanding between the husband and wife and her statement was on par with the complaint made, that her husband had poured kerosene on 15.9.2013. Though the second dying declaration is made on 17.9.2013 on 9.00 p.m. to the jurisdictional police and P.W.4 has sent the same along with the complaint - Ex.P.6, the jurisdictional police have registered the complaint on 19.9.2013 at about 2.00 p.m. If we take 20 the first dying declaration dated 16.9.2013, there was a delay of four days in registering the case and if we take the second dying declaration which was recorded on 17.9.2013 which was received by the jurisdictional police on 19.9.2013, that too after two days, on the basis of which a criminal case was registered against the accused, absolutely there is neither any material nor explanation by the prosecution for the delay of two days in registering a case against the accused. Even in the impugned judgment, no reason is forthcoming as to why Ex.P.16 the first dying declaration is ignored. The learned Sessions while proceeding to convict the accused has failed to take into consideration the dictum of the Hon'ble Supreme Court that when two views are possible based on the dying declarations dated 15.9.2013 and 17.9.2013 on which basis a case is registered, the golden thread which runs in favour of the accused has to be taken into consideration. Unfortunately, inspite of all the prosecution witnesses including the parents, sister, brother, children, alleged eye witnesses, panch witnesses to the spot mahazars, 21 neighbours and even the owner of the house where the deceased and accused were residing turning hostile, the learned Sessions proceeding to convict the accused without there being any material evidence, is erroneous and cannot be sustained.
19. On meticulous examination of the evidence on record, it is clear that there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. It is well settled that there is no embargo on the Appellate Court reviewing the 22 evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
20. On careful perusal of the entire material on record, it is clear that ignoring the first dying declaration made before P.W20 - Head Constable, P.W.10 - Doctor who had certified that the deceased was in a fit state of mind and P.W.17 - the brother of deceased, the learned Sessions Judge has proceeded to convict the accused. Though the learned HCGP submits that the more weight has to be given to the second dying declaration made by the deceased when 23 she was in a fit state of mind that too in presence of the Taluka Executive Magistrate, on which basis a complaint was lodged, cannot be accepted in view of the fact that, after recording the second dying declaration, the Taluka Executive Magistrate has not shown his due diligence to send the same within time to the jurisdictional police and conveniently, after two days, has sent the same which clearly depicts that, he has not discharged the duty of the Magistrate and hence, recording of the second dying declaration and registering a case against the accused creates doubt and it is only a deliberate and willful act of the Taluka Executive Magistrate to falsely implicate the accused.
21. In view of the aforesaid reasons, we hold that the learned Sessions Judge was not justified in convicting the accused for the charges levelled against him.
22. For the reasons stated above, the point raised in the present appeal is answered in the negative holding that the learned Sessions Judge was not 24 justified in convicting the accused for the offences punishable under Sections 302 and 498A of IPC. Accordingly, we pass the following:
ORDER
i) The criminal appeal filed by the accused is allowed;
ii) The impugned judgment dated 1st April, 2015 and order of sentence dated 7th April, 2015 convicting and sentencing the accused to undergo imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two years for the offence punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for the offence punishable under Section 498-A IPC., are hereby set aside;
iii) The accused is acquitted of all the charges leveled against him and;25
iv) Bail bonds stand cancelled and the fine amount, if any already paid by the accused, shall be refunded to him.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-