Karnataka High Court
Sri. Moula (A1) vs State Of Karnataka on 21 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1304 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1304 OF 2022(C)
BETWEEN:
SRI. MOULA (A1),
S/O LATE AKBAR,
AGED ABOUT 48 YEARS,
R/AT NEELASANDRA,
BENGALURU-560 047.
...APPELLANT
(BY SHRI. SRINATH, ADVOCATE, FOR
SRI.NANJUNDA GOWDA M.R, ADVOCATE)
Digitally signed by
VIJAYALAKSHMI B N
Location: HIGH AND:
COURT OF STATE OF KARNATAKA,
KARNATAKA
SARJAPURA POLICE,
BENGALURU,
REPRESENTED BY,
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS,
BENGALURU-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMARA MAJAGE, ADDL.SPP )
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CRL.A No. 1304 of 2022
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
15.03.2021 AND ORDER OF SENTENCE DATED 16.03.2021
PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, SITTING AT ANEKAL IN
S.C.NO.5041/2021 AND THE APPELLANT/ACCUSED NO.1 IS
CONVICTED FOR THE OFFENCE P/U/S 498(A) AND 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
RAJESH RAI J, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the convicted Accused No.1 is directed against the Judgment of conviction and order of sentence dated 15.03.2021 passed by the III Addl. District and Sessions Judge, Bengaluru Rural District, sitting at Anekal in S.C.No.5041/2014, convicting the Accused No.1 for the offences punishable under Section 498-A of IPC and sentencing him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.3,000/- and in default to pay the fine amount, he shall undergo further imprisonment for one month and the appellant-Accused No.1 is also sentence to undergo rigorous imprisonment for life for the offence punishable under Section 302 of IPC and to pay a fine of Rs.10,000/-. In default of payment of fine, he shall undergo further imprisonment for six months.
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2. The brief facts of the case of the prosecution is that:
The deceased in this case Smt.Jabeena was married to one Sri.Zahid Ali in the year 2001 and she was having a female child out of the said marriage. Thereafter, the said Zahid Ali had deserted deceased Jabeena. The appellant/Accused No.1 was also married and he had also left his wife. As the husband of the deceased had left her and the wife of Accused No.1 had left him, the Accused Nos.3 and 4 in this case had held talks and the marriage was solemnized between the deceased Jabeena and Appellant/Accused No.1 in a mosque situated at Vivekanagara, Bengaluru. It is the further case of the prosecution that the Accused No.1 was a drunkard and after consuming alcohol, he used to quarrel with the deceased often.
Further, the Accused No.1 and other accused were harassing the deceased mentally and physically and they were not looking after the deceased well. Later, Jabeena and accused have shifted their residence to Sarjapura, Bangalore and unfortunately, the Accused No.1, i.e., the appellant was consuming alcohol and harassing the deceased at that place also. It is the further case of the prosecution that on 28.02.2014 at about 8.00 p.m., the accused-appellant had -4- CRL.A No. 1304 of 2022 picked up a quarrel with deceased Jabeena asking her to pay Rs.50/- to consume alcohol. When the deceased refused, the accused became angry and poured kerosene on her from the stove and lit fire. As a result of which, the deceased Jabeena sustained burnt injuries. However, the accused failed to shift the deceased to the hospital immediately and he kept her in the house till evening. Later, the deceased taken to the house of Accused No.2 (mother of Accused No.1) situated at Neelasandra, Bengaluru. From there, the deceased was shifted to Victoria Hospital and admitted there. After five days, the deceased succumbed to the injuries in the hospital. On the above said facts, a detailed statement was given by the deceased herself in the hospital as per Ex.P1 before the then woman head constable one Saraswathi of Sarjapura Police.
Based on the said statement of deceased Zabeena, P.W.8 one Huchappa, Head Constable of the said police station registered the F.I.R in Crime No.48/2014 (as per Ex.P6) against Accused Nos.1 and 2, i.e., the appellant and his mother on 01.03.2014 for the alleged offence punishable under Sections 498-A and 307 read with Section 34 of IPC. Later, the deceased succumbed to the burn injuries on 06.03.2014 in the hospital -5- CRL.A No. 1304 of 2022 and thereby the respondent-Police based on the requisition and death memo from the hospital, on 07.03.2014, invoked Section 302 of IPC instead of Section 307 of IPC in Crime No.48/2014 and proceeded with the investigation. The accused was arrested on 04.03.2014 itself, i.e., after registration of the F.I.R for the offence under Sections 498-A and 307 read with Section 34 of IPC. After completing the investigation, charge sheet filed against four accused persons, viz., Accused Nos.1 to 4.
On committal of the case to the Court of Sessions against Accused Nos.1 and 2 (since A-3 and A-4 are absconding and case against them split up before the Magistrate Court), the same was tried in S.C.No.5041/2014 before the III Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru, sitting at Anekal. The learned Sessions Judge framed the charges against the accused Nos. 1 and 2 for the alleged offence punishable under Section 498-A read with Section 34 of IPC and for the offence punishable under Section 302 of IPC against Accused No.1. The accused pleaded not guilty for the charges leveled against them and claimed to be tried.
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In order to bring home the guilt of the accused for the charges leveled against them, the prosecution examined in total nine witnesses as P.Ws.1 to 9 and relied upon the documentary evidence Exs.P1 to P8 and also marked three material objects M.Os.1 to 3. Apart from denying all the incriminating circumstances appearing against the accused in the evidence of the prosecution witnesses, the accused did not choose to examine any witness in their favour nor marked any document. The defence of the accused was one of total denial and that of false implication.
3. After hearing the learned counsels appearing on both sides and the assessment of oral as well as documentary evidence, the learned Sessions Judge formulated the following points:
1. Whether the Prosecution proves beyond all reasonable doubt that the Accused No.1 was harassing the deceased mentally and physically by consuming alcohol and the Accused No.2 to 4 had also harassed the deceased mentally and physically as the deceased Smt. Jabeena was not looking after her husband well and thereby the Accused have -7- CRL.A No. 1304 of 2022 committed the offence punishable under Section 498 A read with 34 of Indian Penal Code ?
2. Whether the Prosecution proves beyond all reasonable doubt that on 28.02.2014 at about 8.00 A.M. the Accused No.1 had poured kerosene on his wife deceased Smt. Jabeena from a kerosene stove when she refused to give Rs.50/- to consume alcohol and he lit fire as a result of which she sustained burn injuries and succumbed to the same in Victoria Hospital, Bengaluru on 06.03.2014 at 8:15 P.M. and thereby the Accused No.1 has committed offence punishable under Section 302 of Indian Penal Code ?
4. Based on the evidence available on record, the learned Sessions Judge, by the Judgment under appeal, held that the evidence on record is established beyond reasonable doubt that the Accused No.1 is responsible for the death of his wife deceased Smt.Jabeena and opined that the prosecution has proved successfully the charges leveled against the accused No.1 for the alleged offence punishable under Section 498-A and 302 of IPC. Further, the learned Sessions Judge came to the conclusion that the prosecution failed to prove the guilt of the Accused No.2 for the charges leveled against her, i.e., for -8- CRL.A No. 1304 of 2022 the offence punishable under Section 498-A of IPC. Accordingly, the Accused No.2 was acquitted for the offences punishable under Section 498-A of IPC by the Judgment under appeal. However, Accused No.1 is convicted and sentenced to undergo S.I for three years for the offence punishable under Section 498-A of IPC and in default of payment, he shall undergo further S.I for one month and the accused No.1 also sentenced to undergo R.I for life for the offence punishable under Section 302 of IPC and directed to pay the fine of Rs.10,000/-. In default of payment of fine, the accused shall undergo further S.I for six months and further directed that the sentences shall run concurrently. Aggrieved by the said Judgment of conviction and order of sentence, the Accused No.1 is in appeal before this Court.
5. We have heard the learned counsel for the appellant Shri.Srinath, for Sri.M.R.Nanjunda Gowda and Sri.Vijayakumar Majage, learned Addl. SPP for respondent-State. Perused the records secured from the Trial Court.
6. Learned counsel for the appellant vehemently contended that the Judgment under appeal suffers from -9- CRL.A No. 1304 of 2022 perversity and illegality in as much as the learned Sessions Judge has failed to notice that except Ex.P1, the alleged statement given by the deceased Jabeena in the hospital before her death, absolutely no other evidence or materials are placed by the prosecution which inspires confidence of the Court. The evidence are highly inconsistent and discrepant. He further contended that there is huge gap between the date incident and the death of the deceased. According to the prosecution, the incident is said to have been committed on 28.02.2014 and the initial F.I.R was registered on 01.03.2014 for the offence under Sections 498-A and 307 read with Section 34 of IPC and after five days, i.e., on 06.03.2014, the deceased succumbed to the burn injuries in the hospital and Section 302 was invoked by the respondent-Police. As such, it cannot be concluded that accused is responsible for the homicidal death of the deceased. He would further contend that except hear-say version of P.W.1, i.e., the sister of the deceased and Ex.P1, i.e., the alleged statement given by the deceased in the hospital, the prosecution failed to prove all other circumstances since all other witnesses turned hostile to the prosecution case.
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CRL.A No. 1304 of 2022
7. The learned counsel would further contend that according to the prosecution, alleged statement of the deceased was recorded by one of the woman head constable, viz., Saraswathi at Victorial hospital on 01.03.2014 and the same was placed before P.W.8, the then A.S.I and based on the same, F.I.R was registered in Crime No.48/2014. But surprisingly, the said Saraswathi who allegedly recorded the statement of the victim was neither examined before the Court nor cited as a charge sheet witness by the Police. Further, on perusal of the statement of Jabeena, i.e., deceased as per Ex.P1, the same was recorded by woman head constable- Saraswathi at Victoria Hospital in the presence of the duty doctor of the said hospital. But once again, the Investigating Officer failed to site the said doctor as witness in the charge sheet and the prosecution has also failed to examine him before the Trial Court. As such, the prosecution totally failed to prove that the deceased was in a fit and conscious state of sound mind to give the statement as per Ex.P.1 in the hospital and as such, much evidentiary value cannot be attached to the statement of Ex.P1 said to have been given by deceased Jabeena.
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CRL.A No. 1304 of 2022
8. Learned counsel for the appellant further contended that the prosecution also failed to prove the homicidal death of the deceased since the prosecution failed to examine the doctor who conducted autopsy over the dead body of deceased Jabeena. The post mortem report of the deceased marked through P.W.9-the Investigating Officer as per Ex.P7. Hence, the prosecution failed to prove the very homicidal death of the deceased itself. Hence, the learned counsel for the appellant submits that prosecution utterly failed to prove the guilt of the accused for the alleged offence under Section 302 of IPC. The learned counsel alternatively contended that even if the case of the prosecution is believed based on Ex.P1 and the evidence of P.W.1 coupled with Investigating Officer, then also, the incident said to have been committed without any intention, motive or preparation by the accused and the incident must be committed by the accused in a spur of the moment under grave and sudde provocation by loss of self-control. As such, the offence falls under the provisions of Section 304 Part I of IPC instead of Section 302 of IPC. As such, he prays to set aside the impugned Judgment passed by the learned Trial Judge.
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9. On the other hand, Sri.Vijayakumar Majage, learned Addl. SPP sought to justify the Judgment under appeal and contend that the Judgment does not suffer from any perversity or illegality, since the learned Sessions Judge, on proper appreciation of the oral and documentary evidence, has recorded the conviction which is reasonable and regard being had to the evidence on record. Therefore, it does not call for interference by this Court. He further contended that the complaint has been filed by P.W.1 at the earliest point of time, i.e., on 01.03.2014 itself, immediately on the next day of the incident. He would further contend that by perusal of Ex.P1, i.e., the statement given by deceased Jabeena in the hospital clearly depicts that the accused committed the alleged incident, i.e., pouring kerosene on her body and setting her ablaze on 28.02.2014 at about 8.00 p.m. Further, the accused being the husband of the deceased failed to discharge his duty by admitting her in the hospital for the burn injuries sustained by her. Per contra, he forcibly took the deceased to his mother's house, i.e., to the house of Accused No.2 and from there, late in the evening, they shifted the deceased to Victoria hospital and due to the burn injuries, after 5 days, she succumbed to
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CRL.A No. 1304 of 2022injuries in the hospital. Hence, absolutely, there is no reason to disbelieve the contents of Ex.P1-statement given by deceased Jabeena in the hospital.
10. He contends that though the investigating officer failed to record the statement of Saraswathi-Police head constable who recorded the statement of Jabeena (deceased) in the hospital, the said faulty investigation by the investigating officer does not take away the case of the prosecution. He would further contend that P.W.1, the sister of the deceased categorically deposed before the Court on oath that the accused used to harass the deceased after consuming alcohol and also to bring cash from her parental house. The said version of P.W.1 is supported by Ex.P1. Thereby, he contends that the oral evidence of P.W.1 coupled with the statement of the deceased as per Ex.P1 recorded in the hospital clearly proved the guilt of the accused. Hence, the State Public Prosecutor sought for dismissal of the appeal.
11. In the facts and circumstances of the case and in the light of the submission made on both the sides, the points that arise for our consideration are:
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i) Whether the Judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the learned Sessions Judge is justified in convicting the Accused No.1 for the offence punishable under Sections 498-A and 302 of IPC?
12. We have bestowed our anxious consideration to the submission made by learned counsel appearing on both the sides and carefully perused the records secured from the trial court and also the reasonings adopted by the learned Sessions Judge.
13. Having heard the learned council on both sides and having perused the records, since this Court is the appellate court, it is just and necessary to re-consider the evidence on record. On a cursory glance of the evidence adduced before the trial court:
a) P.W.1 in his evidence has deposed that deceased Smt.Jabeena was her elder sister. Her marriage with the accused No.1 was solemnised about 8 years back. After marriage, the deceased was residing in her husband's house.
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CRL.A No. 1304 of 2022She is having one male and one female child. The accused No.1 used to quarrel with the deceased. The deceased was informing her about the said fact. The Accused No.1 was a drunkard and picking up quarrels with his wife, i.e., the deceased. He was assaulting the deceased and asking her to bring money from her mother's house. The Accused No.1 and the deceased later shifted their residence to Sarjapura. At that time also, the Accused No.1 used to consume alcohol and harassed the deceased. On the fateful day, i.e., on 28.02.2014, the accused No.1 after consuming liquor, demanded Rs.50/- from the deceased. When the deceased refused to give the same, he poured kerosene on her and lit fire. This fact was informed to her by the neighbours. She further deposed that even though the incident occurred during the morning, the deceased was kept in the house till 2.00 p.m. by Accused. Later, at the instance of neighbours, the deceased was admitted to Victoria Hospital. Her entire body was burnt. P.W.1 had seen her in Victoria Hospital and she was in talking condition. Accordingly, the deceased had told P.W.1 the manner in which the quarrel had taken place between herself and her husband for Rs.50/- and about pouring of kerosene by Accused No.1 and setting her
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CRL.A No. 1304 of 2022ablaze. This witness further deposed that the deceased had given the statement in her presence as per Ex.P1. Nothing worthwhile has been elicited in the cross-examination of this witness by the defence counsel to disbelieve the version of this witness.
b) In the evidence of P.W.2-Ashwath Achari, he has deposed that the deceased Smt.Jabeena and Accused No.1 were residing at Rajeev Gandhi Nagara. He does not know anything regarding the fact that Accused No.1 was consuming alcohol and picking up quarrels with the disease and he also denied all the contents of his statements. Hence, the prosecution treated this witnesses as hostile.
c) P.W.3- one Subramani has deposed that the police have not received anything in his presence under Ex.P3. This witness is also treated as hostile witness to the prosecution.
d) P.W.4, one Ismail also denied the contents of Ex.P4, i.e., the inquest panchanama. P.W.5, one Asif Ali Khan none other than the sister of deceased Jabeena both have turned hostile to the prosecution case.
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CRL.A No. 1304 of 2022
e) P.W.6-Aslam, the witness for seizure panchanama in the alleged spot also turned hostile to the prosecution case. P.W.7-Sri.Prakash - the then PSI of Sarjapura Police who conducted the further investigation by receiving the file from CW21 and deposed about the arrest of Accused No.2 and also about recording of the voluntary statement of Accused No.2 has further deposed about invoking of Section 302 in the FIR and he submitted the same before the court. He further deposed that he handed over the file to CW23 for further investigation.
f)P.W.8-Huchappa, the then ASI of Sarjapura Police Station deposed that on 01.03.2014, when he was in-charge of the Police Station, woman police constable Smt.Saraswati had recorded the statement of Smt.Jabeena, wife of Mulla in Victoria Hospital and produced the same before him at about 6.15 p.m., on the basis of which, he registered FIR in Crime No.48 of 2014 and submitted the first information report to the jurisdictional Court and to his higher officer. He also stated that he had visited the spot on 02.03.2014 at about 9.00 a.m and conducted panchanama as per Ex.P3 and seized M.Os 1 to 3 from the spot.
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g) P.W.9-V.K.Kishore Kumar, the Investigation Officer who conducted the further investigation of the case by receiving the file from C.W.21. According to him, he submitted a requisition to the Tahsildar to conduct inquest panchanama on the dead body of the deceased. Accordingly, the Tahsildar had conducted the inquest panchanama in the presence of C.Ws.10 to 12. The Tahsildar has recorded the statement of the relatives of deceased, namely C.W.13 and C.W.15. Thereafter, the dead body was sent to the Victoria hospital and got conducted the post-mortem and thereafter the body was handed over to the relatives of the deceased. He further stated that on 12.03.2014, C.W.18 and 19 secured accused No.1 and produced before him. He interrogated Accused No.1 and recorded his voluntary statement and later produced before the Court. He had sent the seized articles to the FSL on 24.02.2014 and received the post-mortem report of the deceased as per Ex.P7 on 25.03.2014.
14. By careful perusal of the evidence of the witnesses P.Ws.1 to 9, as discussed above, P.W.1 is the star witness in this case who is none other then the sister of the deceased Jabeena. Her evidence coupled with Ex.P1-the statement given
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CRL.A No. 1304 of 2022by the deceased in the hospital clearly depicts that the marriage between the Accused No.1 and deceased was solmenised about 8 years back and after the marriage, the deceased and Accused No.1 were residing in the house of accused No.1 and there was a frequent quarrel between Accused No.1 and his wife, i.e, the deceased. Further, her evidence clearly shows that the accused No.1 used to consume alcohol and was picking quarrel with the deceased. He used to assault the deceased and also used to force her to bring money from her mother's house. Later, they shifted their residence to Sarjapura village. There also, the accused used to harass the deceased and continued his bad habits. As such, as far as the alleged cruelty meted out by the accused No.1 to his wife for demand of money from her parental house is clearly proved by the evidence of this witness. Further on perusal of the evidence of this witness, she clearly stated that the deceased Jabeena had told her that on 28.02.2014 at about 8.00 a.m., Accused No.1 poured kerosene on her from a kerosene stove when she refused to give Rs.50/- to Accused No.1 to consume alcohol. As a result, she sustained burn injuries and later, the villagers admitted her to the hospital. Further this witness has clearly
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CRL.A No. 1304 of 2022deposed that the deceased had given statement as per Ex.P1 in her presence in the hospital. Hence, there is no reason to disbelieve the version of P.W.1 in respect of the statement given by the deceased before this witness in the hospital about the alleged incident. During the course of cross-examination also nothing has been elicited from this witness to discard her evidence. The evidence of P.W.1 corroborates to the evidence of P.W.8-Huchappa, i.e., the then Head Constable of Sarjapura police about the receiving of statement of deceased Jabeena and about registering of FIR in Crime No.48 of 2014 of Sarjapura Police Station.
15. Though the learned counsel for the appellant/Accused No.1 vehemently submitted that the prosecution failed to prove the homicidal death of the deceased since the doctor who conducted the autopsy over the dead body of deceased has not been examined before the trial court. However the post-mortem report was marked before the trial court as per Ex.P7 through P.W.9, the Investigating Officer. By perusal of Ex.P7, it clearly depicts that the opinion as to the cause of death is due to "Septicemia" as a result of burn injuries sustained. Hence, by this opinion of the doctor, it can
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CRL.A No. 1304 of 2022be easily concluded that the deceased succumbed to the burn injuries and her death was homicidal. Though the author of Ex.P7 was not examined before the Court, but as per the provisions of Section 67 of Indian Evidence Act, 1872, the proof of signature and hand writing of person alleged to have signed or written the document can be relied once the same was produced before the Court. Admittedly, Ex.P7 marked through the evidence of P.W.9, the investigating officer. Hence, there is no legal embargo to consider Ex.P7 in the evidence. Accordingly, in our view, the prosecution has proved the homicidal death of the deceased beyond reasonable doubt. Once the homicidal death of the deceased is proved, the next aspect arose for the consideration is that whether the accused is responsible for the same.
16. As discussed supra by perusal of the evidence of P.W.1 coupled with Ex.P1, it can be easily concluded that the accused No.1 committed the murder of his wife deceased Jabeena by pouring kerosene on her and by litting fire. The version of P.W.1 is supported by P.W.8 and P.W.9-investigating officer. There is no reason to disbelieve their version. The defence counsel also no where suggested either to PW8 or PW9
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CRL.A No. 1304 of 2022that Ex.P1, the statement of the deceased is concocted one. Hence, the prosecution proved the evidence of P.W.1 and the contents of Ex.P1. Though the witness for Ex.P3, i.e., the seizure mahazar of M.Os.1 to 3 have turned hostile, but PW8 has categorically stated about the drawing of Ex.P3 and the seizure of M.Os.1 to 3. The said version is supported by PW9- the investigating officer.
17. The learned counsel for the appellant vehemently contended that P.Ws.2 to 5 have turned hostile to the prosecution case and nothing has been elicited by the prosecution either in their evidence or in the cross- examination. hence, their evidence cannot be relied and is totally fatal to the prosecution case. As could be seen from the evidence of these witnesses, though these witnesses have deposed about the harassment meted out by Accused No.1 to his wife at the earlier point of time, however they turned hostile in respect of the other averments of their statement, i.e., about the incident is concerned. At the same time their evidence can be relied to the extent that the Accused No.1 used to harass the deceased ever since from the date of marriage. Hence, by perusal of the reliable portion of evidence of these
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CRL.A No. 1304 of 2022witnesses coupled with the evidence of P.W.1 and Ex.P1, the prosecution proved that the accused used to harass his wife deceased Jabeena throughout her marriage with the accused.
18. As could to be seen from the records, the investigating officer in this case has conducted faulty investigation and he has not carried out the investigation in a proper manner. He failed to record the statement of one Saraswathi, the woman Head Constable of Sarjapura Police Station who recorded the statement of deceased in the hospital. The Investigating Officer has neither recorded her statement nor cited the said Saraswathi as a witness in the charge sheet. This conduct of the Investigating Officer clearly depicts that he has not carried out the investigation in a proper manner. The Investigating Officer also failed to record the statement of the doctor of Victoria Hospital before whom the statement of deceased was recorded to show the deceased was in fit mental condition to give her statement. Hence, it appears to this court that the Investigating Officer failed to carry out fair investigation in this case for the reasons best known to him.
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19. As per the law laid down by the Hon'ble Apex Court in catena of decisions, the Investigating Officer is the master of the investigation and nobody can interfere in his duty of investigation, but unfortunately in the present case, the Investigating Officer has failed to perform his duty to investigate the case thoroughly and in a proper manner. Even otherwise, the prosecution also failed to conduct the case in a proper manner. The prosecution could have examined the witness Smt.Saraswati, woman head constable of Sarjapura police station who recorded the statement of the deceased in this case on 01.03.2014, at least after the evidence of P.W.8- Huchappa, who deposed about the said aspect. But the prosecution failed to summon the said witness Saraswati and also the Doctor of the Victoria Hospital before whom the statement of the deceased was recorded by filing necessary application before the trial court. Hence we have no other option but to observe that the prosecution also committed a grave error in this case by not conducting the case in a proper manner.
20. The Hon'ble Apex Court in catena of judgements, held that if the investigating officer failed to conduct a fair
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CRL.A No. 1304 of 2022investigation and the prosecution also failed to conduct the case in a proper manner, then such benefit cannot be encashed by the accused if those mistakes committed by the investigating officer does not go to the root of the case. Further, the Hon'ble Apex Court laid down the law in the case of RAKESH AND ANOTHER vs. STATE OF UTTAR PRADESH AND ANOTHER reported in (2021)7 SCC 188 regarding criminal trial/appreciation of evidence. How the evidence is required to be considered, the Hon'ble Apex Court held that while evaluating evidence, one is required to consider the entire evidence as a whole with other evidence on record. Mere one sentence here and there, that too, to the defence asked in the cross-examination, cannot considered stand alone. In the said Judgment, the Hon'ble Apex Court further held that some minor contradictions in the evidence of prosecution witnesses do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved. Hence, by perusal of the evidence of P.W.1 and Ex.P1, the statement of the deceased, in our opinion, the Prosecution proved the case against accused beyond reasonable doubt. One more circumstance proved
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CRL.A No. 1304 of 2022against the accused in this case is that admittedly, the accused No.1 and deceased were residing together at the time of alleged incident. The deceased died a homicidal death by sustaining burn injuries in the house. The said fact is well within the knowledge of accused. As such, the burden of proving the said fact which is specially within the knowledge lies upon him as per Section 106 of Indian Evidence Act. If the accused failed to explain the same, then the Court may presume existence of such facts as per the provisions of Section 114 of Evidence Act. In the case on hand, by the evidence of P.W.1 coupled with Ex.P1 the prosecution has successfully proved the relationship of accused with deceased and also that they both were residing together in the house and on the fateful day of 28.02.2014, the incident happened in the house of accused. In such circumstance, the burden lies on the accused to explain the same, that if he is not responsible for the act, then how the same has happened? But the accused totally failed to explain the same in this case. Hence, as per the provision under Section 106 read with Section 114 of Evidence Act, this Court no other option, but to presume existence of such act.
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21. By perusal of the evidence and for the reasons discussed supra, we are of the considered opinion that the prosecution has proved beyond reasonable doubt that the accused committed the alleged offences punishable under Section 498-A and also responsible for the death of his wife deceased Jabeena.
22. However, the alternative contention of the counsel for the appellant is that by perusal of the evidence available on record, it can be easily concluded that there is no such intention or preparation by the accused to commit the alleged incident by pouring kerosene to his wife and setting her ablaze. Admittedly, the accused had consumed alcohol on the date of incident and due to the quarrel between the accused and deceased, he lost his self-control and in a grave and sudden provocation, he committed the incident by pouring kerosene to his wife and set her ablaze. Hence, he prayed to convert the conviction of the appellant from 302 of IPC to Section 304 Part I of IPC.
23. By careful perusal of the evidence of PW1 and also by perusal of contents Ex.P1, the statement of deceased
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CRL.A No. 1304 of 2022recorded in the hospital in the presence of P.W.1 reveals that the accused and deceased were residing together in the parental House of the accused initially and thereafter the accused shifted his house to Sarjapura where the accused and deceased were residing. Admittedly, no such complaint has been lodged by the deceased against the accused for the alleged quarrel took place between the accused and deceased before this incident. Further on the date of alleged incident, i.e., 28.02.2014, accused No.1 was fully drunk and he demanded money from the deceased and thereby quarrelled with the deceased and poured kerosene from the stove by opening the cap of the stove and set her ablaze. This act of the accused is not pre-planned one and there was no such preparation to commit the act. The accused, after fully drunk, during the course of quarrel with his wife, by losing self- control and out of the sudden provocation, might have committed such an act. Admittedly, at later point of time, he shifted the injured to his mother's house and from there, to the hospital. This conduct of the accused also reveals that he had no such intention to commit the murder of his wife.
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24. The Hon'ble Apex Court in catena of judgments, laid the dictum by explaining the difference between Section 302 and Section 304 Part I. When a murder has taken place with the grave and sudden provocation, there is a possibility of sudden and temporary loss of self-control. Under such circumstances, the conviction of the accused for the offence punishable under Section 302 of IPC will not sustain and it has to be converted from Section 302 of IPC to Section 304 Part I of IPC and we answer the Point Nos.1 and 2 accordingly.
25. Our view is fortified with the decision of the Hon'ble Apex Court in DAUVARAM NIRMALKAR vs. STATE OF CHHATISGARH reported in AIR 2022 SC 3620 . The Hon'ble Apex Court in similar set of facts, has clearly held that:
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden;
(d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of
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CRL.A No. 1304 of 2022self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
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85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self- control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy, as :
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"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I]ndeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation...".
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self- control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the
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CRL.A No. 1304 of 2022offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
26. Hence, the dictum laid down by Hon'ble Apex Court in the above case is squarely applicable to the case on hand. Accordingly, we pass the following:
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ORDER
(i) Criminal Appeal No.1304/2022 is allowed in part.
(ii) The judgment of conviction dated 15.03.2021 and order of sentence dated 16.03.2021 passed in Sessions Case No.5041/2014 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal, convicting the accused No.1-Moula, Son of late Akbar, for the offence punishable under Section 498A of the Indian Penal Code and sentencing him to undergo simple imprisonment for three years and to pay fine of Rs.3,000/-, in default, to undergo imprisonment for one month, is hereby confirmed.
(iii) The judgment of conviction dated 15.03.2021 and order of sentence dated 16.03.2021 passed in Sessions Case No.5041/2014 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal, convicting the accused No.1 for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- in default, to undergo imprisonment for six months, is hereby modified.
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(iv) The accused No.1 is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for 'eight years' and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months.
(v) All the sentences shall run concurrently.
(vi) The accused No.1 is entitled to the benefit of set-
off under Section 428 of the Code of Criminal Procedure.
(vii) If the accused No.1 has completed the period of imprisonment, the concerned jail authority is directed to release him forthwith, on payment of fine amount, if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE bnv