Karnataka High Court
Gundappa S/O Veershetty Bhootpure vs State Of Karnataka on 12 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1217, 2019 (4) AKR 149
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY-2019
PRESENT
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL NO.3707/2011
BETWEEN:
Gundappa S/o Veershetty Bhootpure,
Aged about 27 years, Occ: Boral Village,
Tq: Humnabad, Bidar District.
... Appellant
(By Sri.Arunkumar Amargundappa, Advocate
AND:
State of Karnataka,
By Police, Mannaekelli Police Station,
Rept. By Public Prosecutor.
... Respondent
(By Sri. Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
of Cr.PC, praying that the judgment and order dated
30/08/2011 passed by the learned Principal Sessions
Judge, Bidar in S.C.No.27/2010 to the effect that accused
appellant Guddappa who is convicted for commission of
offence punishable under section 498-A & 302 of I.P.C.
and is sentenced to undergo imprisonment for a period of
one year and fine of Rs.5,000/- for the offence U/s 498-A
of IPC. In default to undergo further R.I. for a period of
three months. And imprisonment for life and also to pay
fine of Rs.50,000/- for the offence punishable U/s 302 of
IPC, in default to undergo rigorous imprisonment for a
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period of two year, be set aside and the appellant be
acquitted holding that the appellant has not committed
any offence as alleged and dismiss the complaint in
S.C.No.27/2010, on the file of the Principal Session,
Judge, Bidar, in the interest of justice and equity.
This appeal having been heard and reserved on
11.06.2019 and coming on for pronouncement of
judgment this day, ASHOK G. NIJAGANNAVAR J.,
delivered the following:
JUDGMENT
This appeal is preferred by the accused- appellant against the judgment dated 30.08.2011 in Sessions Case No.27/2010 convicting for the offences punishable under Sections 498-A and 302 of Indian Penal Code (herein after referred to as IPC for short). The trial court has sentenced the appellant to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- for the offence under Section 498-A IPC. In default to undergo rigorous imprisonment for a period of three months. The accused is also sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 302 of IPC. 3 In default to undergo rigorous imprisonment for a period of two years.
2. The facts in brief are that the deceased Mahadevi was the second daughter of the complainant and she was given in marriage to the accused Gundappa about two years back. After six months of marriage, the accused namely the husband Gundappa, mother-in-law Susheelamma, father-in- law Veershetty and brother-in-law Prabhu started harassing the complainant's daughter Mahadevi on the grounds that she does not know cooking or washing clothes. On 07.07.2009 morning hours, the complainant got the information from her daughter Mahadevi that her husband Gundappa has picked up quarrel with her and has assaulted. Therefore, the complainant and his wife Siddamma and his brother- in-law Gurappa went to Boral village to meet his daughter, but the accused refused to send Mahadevi 4 with them. Thereafter on 08.07.2009, the complainant Ghalappa received information over the phone that his daughter Mahadevi had sustained burn injuries and she was admitted to Humnabad Hospital for medical treatment and from there she was taken to District Hospital, Bidar. On receiving the said information, the complainant Ghalappa and his wife Siddamma and their relatives Rajkumar and Gunavatha came to the District Hospital and noticed that the complainant's daughter Mahadevi has sustained burn injuries all over the body. On enquiry Mahadevi informed that her husband, mother-in-law, father-in-law and brother-in-law Prabhu have poured kerosene and lit fire and thereafter, her husband Gundappa and father-in-law Veershetty have brought her to District Hospital, Bidar in a ambulance. On receiving the complaint, the Mannaekhelli Police have registered the case at P.S.Crime No.109/209 for the offence under Section 498-A, 307 R/w 34 of IPC. 5 During the course of investigation, the dying declaration of the victim was recorded by the Tahasildar, Taluka Executive Magistrate. The victim died in the hospital. Therefore, in view of death of the victim Section 302 IPC was inserted.
3. The accused was apprehended in connection with this case. After completion of the investigation and committal of the case to the Sessions Court, the charges were framed for the offences punishable under Section 498A and Section 302 R/w 34 IPC.
4. In order to prove its case, the prosecution has examined 21 witnesses as PW1 to PW21. The documents are marked at Ex.P1 to Ex.P14, Ex.C1, C1A and C2. The material objects are marked as MO1 & MO2. The defense evidence was led. Three witnesses were examined as DW1 to DW3. After recording of the evidence, the statement under 6 Section 313 Cr.PC was recorded. On hearing the argument and appreciating the evidence, the accused was held guilty for the aforesaid offences and sentenced him accordingly. It is this judgment assailed before this Court.
5. We have heard the learned counsel for the appellant and the learned Addl. S.P.P. Perused the judgment and records.
6. The learned counsel for the accused taking us through the material on record and submits that the trial court is not justified in convicting the accused for the alleged offences. The evidence placed on record do not make out a definite case that the accused has committed the murder by pouring kerosene and setting ablaze. There is no cogent evidence to prove the harassment whatsoever by the accused, his parents and brother-in-law. The prosecution has failed to prove the offences alleged 7 against him. Thus, the impugned judgment of conviction and sentence needs to be set aside.
7. Per contra, the learned Addl. S.P.P. for the State has argued in support of the judgment of the Court below and submitted that even though there are minor discrepancies nevertheless the prosecution is able to establish the dying declaration recorded by Taluka Executive Magistrate. When the dying declaration is proved beyond reasonable doubt, there is no need for any corroboration. The dying declaration itself is sufficient to convict the person. In addition to that the parents, other relatives and family friends have consistently stated about the harassment caused by the accused. As such, there are no valid grounds to interfere with the judgment passed by the court below.
8. In view of the rival contentions, the point that arises for consideration is 8 "Whether the conviction of the appellant has been rightly recorded by the trial court?
9. The present case rests mainly on the dying declaration of the deceased Mahadevi and the evidence of the parents, relatives of the deceased and the family friends, who have stated about the harassment.
10. As for as dying declaration is concerned, the court has to be on guard that the statement of the deceased was not a result of a either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind. In all cases, the court cannot rely on the dying declaration as the sole basis for conviction unless its is corroborated.
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11. Before adverting to evidence on record and the dying declaration which is prime material available in this case, it is necessary to have a cursory look at the evidence of prosecution witnesses.
12. PW1 is the complainant who is the father of the deceased. PW2 and PW3 are the spot panch witness, who have stated about the recovery of MO1 and MO2 and drawing of mahazar as per Ex.P2. PW4 is the paternal aunt of the deceased Mahadevi and inquest mahazar witness, who has stated about burn injuries over the dead body. PW5 is the relative of the accused, but he has not stated about the quarrel between accused and the deceased Mahadevi on the previous date of the incident in connection with missing of cash Rs.250/-. PW6, PW7 and PW8 are the neighbours of the accused and deceased Mahadevi. They have not stated about the quarrel between the accused and the deceased Mahadevi on 10 the previous date of the incident. PW9 is said to be independent witness, who had conversation with the injured victim Mahadevi in the Hospital. PW10 and PW11 are the son-in-law of the complainant and paternal uncle of the deceased, who have stated about the conversation with the deceased at Hospital and presence of Tahasildar and other relatives in the Hospital. PW12 is said to be the person who had acted as a mediator for the marriage of accused and deceased. PW13 is the daughter of complainant and sister of the deceased who has stated about dispute between accused and deceased and also the conversation with the deceased at the Hospital. PW14 is the independent witness who speaks about the dispute between accused and deceased. PW15, the medical officer has stated about the autopsy conducted over the dead body, percentage of burn injures and cause of death. PW16 is the mother of the deceased and wife of the complainant. PW17 who 11 has prepared the spot sketch. PW18 is the Circle Inspector who has conducted the investigation and filed charge sheet. PW19 is the PSI who has registered the case after receiving the MLC. PW20 is the Tahasildar who has recorded the dying declaration of the deceased. PW21 is another medical officer who has stated about the mental condition of the victim to give declaration.
13. The accused has led defense evidence to prove alibi by examining three witnesses who have stated about presence of the accused in a hotel with them when deceased Mahadevi sustained burn injuries in the house.
14. In the present case, the independent witness namely PW6, PW7 and PW8 who are the neighbours of accused and deceased Mahadevi have not supported the case of the prosecution. All these witnesses have stated in the examination in chief that 12 they do not know about the quarrel between the accused and his wife Mahadevi. PW6, PW7 and PW8 have stated that on the date of incident they have not gone to the house of the deceased and she has not informed anything about harassment done by the accused. All these three witnesses, denied the suggestion about the statement given before the police. These witnesses were treated as hostile. PW5 is the relative of the accused. He has not supported the prosecution case and has turned hostile.
15. In the cross examination PW6, PW7 and PW8 have denied the suggestion that they have given statement about quarrel between the accused and his wife and on 08.07.2009 afternoon at about 3.00 p.m. they saw Mahadevi rolling on floor in her house because of burn injuries on her body and she was shouting that her husband has set fire and at that time, then accused and his parents went out of the 13 house. They have also denied the suggestion that all of them namely PW6 Padmavathi, PW7 Basamma and PW8 Chittramma poured water on her body and thereafter they took Mahadevi to Hospital in a ambulance. PW6 has admitted that his house is adjacent to the house of the accused.
16. The prosecution has tried to make out a case that on 08.07.2009 afternoon at 3.00 p.m. All neighbours namely PW6, PW7 and PW8 had gone to the house of injured victim Mahadevi and they saw the injured victim shouting that her husband had set fire and the clothes on her body were burnt. At that time these witnesses along with some other neighbours poured water on her body to put off the fire, but this version is not at all supported by the independent witnesses namely PW6, PW7, PW8 who are the neighbours.
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17. In the cross examination by learned prosecutor, PW5 has denied the suggestion that on 06.07.2009, he came to know about the quarrel between the accused Gundappa and his wife in connection with missing of cash Rs.250/- and he advised the accused not to quarrel with his wife and also denied the arrival mother and brother-in-law of Mahadevi to the house of accused and request made by them to accused Gundappa to send Mahadevi to their house. Further he has denied the suggestion about the statement given as per Ex.P4.
18. Other witnesses namely PW1, PW4, PW10, PW11, PW13 and PW16 are close relatives of deceased Mahadevi. Thus, it is necessary to scan their evidence carefully in order to ascertain whether the evidence of these witnesses goes to prove the ill- treatment caused by the accused to his wife Mahadevi and murder committed by setting the fire. 15
19. In a decision reported in ILR 2018 Kar 5138 in the case of Devidas and Others vs. The State through Mahila P.S., Gulbarga, held that:
"68. The appreciation of evidence must be in such a manner that the Court must impartially decide the case irrespective of the nature, status, relationship between the parties. It is the fundamental basic principles of criminal jurisprudence that the Court should normally start with the presumption that the accused is innocent and he is not guilty unless the prosecution proves the case beyond reasonable doubt. Whenever the doubt that may arise if it is mere a doubt, it would not be sufficient to topple the entire case of the prosecution, such minor discrepancies can be ignored by the Court. Where the doubt created in the entire evidence after appreciation which goes to the root of the prosecution which shakes the very origin of the case and also shakes the basic structure of the case of the prosecution in such an eventuality, the benefit of doubt always should be given to the accused".16
20. "In a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully..... But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence. Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence..... If the criminal Court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account 17 given by him as to the assault has to be carefully scrutinized."
21. PW1 is the father of the deceased victim and complainant which is marked at Ex.P1. In the complaint PW1 has stated that his daughter told him in the hospital that on the date of the incident at about 3.00 PM. Accused No.1 his mother, father, brother-in-law have set fire by pouring kerosene. But in the oral evidence, PW1 has given different version in his examination-in-chief and has stated that his daughter told about assault done by his husband and fire set by him by pouring kerosene. He has further stated that the accused has set fire by suspecting that she has stolen Rs.250/-. In the cross examination, he has stated that they were sitting out side the ward in the Hospital till her death, which is contrary to his complaint Ex.P1. He has further stated that when they came to Bidar Hospital, Doctors did not allow 18 either the accused or them to go inside the ward to meet injured. Further he has stated that accused and his parents and his brother were not in the hospital when the injured was admitted in the hospital, but other witnesses PW10, PW11, PW13 and PW16 have stated that injured was brought by the accused, his father, father-in-law. Even the injured has also stated the same.
22. PW4 is the sister-in-law of the injured victim and witness to inquest panchanama Ex.P3. She has only stated that she has seen the burn injures on the body of Mahadevi and police have conducted the inquest panchanama in her presence.
23. PW10 is the maternal uncle of injured victim. He has stated about the ill-treatment and harassment done by the accused. Further he has stated that he along with PW1 had gone to the house of the accused to advise the accused. Further he has 19 stated that on 08.07.2009, he had gone to the hospital and on enquiry, the injured victim Mahadevi informed that her husband assaulted by accusing that she has stolen Rs.250/- and thereafter when she was on the cot, the accused poured kerosene and lit fire. Meanwhile his father-in-law and mother-in-law came and put of the fire. This version is contrary to contents of complaint, spot panchanama and evidence of PW9. In the cross examination, he has admitted that when injured victim Mahadevi was brought in a ambulance, her husband namely the accused and father-in-law and brother-in-law were there along with her. Thus it is evident that averments made in complaint are not true and correct. He has denied the suggestion that Mahadevi sustained burn injuries on account of accidental fire while making the tea.
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24. PW11 is the maternal brother-in-law of deceased (i.e. mother's brother) who had gone to the house of accused on previous day of the incident to invite Mahadevi for panchami festival and also discussed about ill-treatment by the accused. He has stated that, he saw Mahadevi in the hospital. Her face and front portion of the body were burnt. This version is again contrary to medical evidence and other witnesses. He admits that when accused and his wife were in Kollar and Naubad, there was a cordial relationship between them. Further, he has stated that on previous day, when they gone to the house of the accused, the injured had told about the assault done with the back portion of the axe. But no steps were taken by them as it was simple injury and they have not done any enquiry about theft of Rs.250/-. Further he states that he do not know as to when PW1 spoke to his injured daughter. In the cross examination, he has admitted that when injured 21 victim was brought to the hospital in ambulance, accused and his parents were there. While bringing the injured from the ambulance she was speaking and she was not unconscious. He has also admitted that when they were standing near her, there was no smell of kerosene from her body. He has denied the suggestion that when injured was brought to the Bidar Hospital, she was unconscious and she did not speak to any one. He has also denied the suggestion that Mahadevi sustained the burn injuries on account of accidental fire while cooking in her house and thereafter, the accused who was in the hotel came home and took his wife to Humanabad hospital.
25. PW13 is the sister of the deceased, she speaks about the harassment by the accused and also dying declaration given by her sister that accused has set fire by pouring kerosene. In the cross examination, she has stated that her mother 22 has told about the harassment done by the accused and further stated that on getting the information about burn injuries sustained by his sister, they went to the hospital at Bidar. Thereafter, the van/ ambulance came in which the accused his father, uncle and others were there. She spoke to her sister in the ward, at that time her parents were also there.
26. PW16 is the mother of the injured victim. She has stated about the harassment, but admits that they had not given two tolas of gold or Rs.50,000/- at the time of marriage and she has not stated about the dowry harassment. In the examination-in-chief, she has stated that accused was quarreling with his wife on the reason that she doesn't know cooking and she cannot even do the house hold works properly. In the cross examination, she has stated that on the previous day to the incident when she had gone to the house of the 23 accused along with her brother, the injured had informed about the assault done by the accused. As such she had sustained injuries on legs and back, but they did not take her daughter to the hospital. Which creates a doubt about the said incident of assault. Further she has stated that when the daughter was brought in a ambulance, accused, his father, uncle and his brothers were there. After taking the injured in the room, the doctors have not allowed them inside. Further in cross examination she has stated that she has told before the police that on account of dowry harassment, her daughter's death was caused for which husband, father-in-law, mother-in-law, brother-in-law and sister-in-law and aunt of accused are responsible, which is contrary to her statement. There are several inconsistencies in the evidence of relatives of deceased. 24
27. As far as evidence of these relatives of the deceased are concerned, there is no consistent version regarding the murder of the Mahadevi by setting fire and pouring kerosene. The complainant reveals that victim Mahadevi informed her father namely PW1 that her husband, father-in-law, mother- in-law and brother-in-law have poured kerosene and lit fire. Thereafter, the husband and father-in-law have brought her to the hospital. But in oral evidence PW1 has given a different version. There are several contradictions and inconsistencies.
28. Some of the independent witnesses namely PW9, PW12 are also examined by the prosecution. PW9 is also panch to inquest mahazar Ex.P3. he has stated that he spoke to injured victim Mahadevi and she told that accused set fire by pouring kerosene suspecting that she has stolen Rs.250/-. In the cross examination, he has stated 25 that four persons namely PW10 Kanteppa, PW1 Galappa, Basawaraj and PW14 Gunavatha spoke to injured. There are variations between evidence of PW9 and other relatives.
29. PW12 is the mediator for the marriage, he has spoken about the marriage talks and the discussions held about giving two tolas of gold and dowry of Rs.50,000/-. But PW16 Sidamma who is the mother of the victim has stated that gold and dowry was not given to the accused and none of the witnesses have stated anything about dowry harassment or dispute regarding payment of dowry to the accused. In the cross examination PW12 has stated that he had gone to the house of the accused. Prior to his visit PW1 and Sidamma PW16 had also gone to the house of the accused. But Mahadevi did not tell him about assault or injuries caused by accused. Further he has stated that accused 26 informed him that his wife has stolen Rs.100/- and Rs.1,000/- and accused abused her. The evidence of this witness is not of much to relevance as for as dying declaration is concerned.
30. In the present case, there is no consistent evidence regarding place of incident. The accused has taken specific defense that Mahadevi has sustained burn injuries on account of accidental fire while she was cooking in the kitchen. Ex.P2 is the spot mahazar wherein it is stated that sister-in-law of Mahadevi has shown the place which is the middle room in the house. As far as place of incident there is some variation between the evidence of spot mahazar witnesses namely PW2 and PW3. PW2 has stated that police have conducted the spot mahazar in the kitchen room which was shown by CW17 Nagamma and have collected the burnt bags containing jawar, safflower. In the cross examination, he has denied 27 the suggestion that the police have conducted the panchanama in another room which is contrary to Ex.P2. According to this witness, the panchanama was conducted in the kitchen room and not in any other place. Another panch witness namely PW3 has stated that the police have conducted the panchanama in the room where the bags containing jawar and cooking provision were there. The evidence of these witnesses is contrary to Ex.P2 spot panchanama.
31. PW20 is the Tahasildar who has recorded the dying declaration. He has stated that on 08.07.2009, he reached the hospital at 9.35 PM and visited burns ward where injured was admitted. Then he enquired the doctor about her mental condition to give the dying declaration. Thereafter, he asked few questions in Kannada language and she has given proper reply. Further stated that he has recorded the 28 dying declaration as per Ex.P13 and has taken the signature of the injured victim twice as per Ex.P13A and Ex.P13B. He has further stated that while recording Ex.P13 dying declaration, the injured was enquired as to how she sustained the burn injuries for which the injured informed that her husband assaulted with the handle of the axe by abusing that she has stolen Rs.250/-. When she told the accused to send her to father's house, the accused refused by saying that her father shall perform another marriage for him. In the cross examination, he has stated that the recording of dying declaration was commenced at 9.40 PM. Further, he has stated that while recording dying declaration except the injured victim and the medical officers all others were sent out, injured has told that her husband, father-in-law and mother-in- law have brought to the hospital and injured did not tell directly about dowry harassment. 29
32. Another important doubtful circumstance is with regard to physical condition of the injured victim at the time of giving dying delcaration. It is pertinent to note that PW9 is the PSI of Mannaekhelli who has stated that on 08.07.2009 in the evening at 5.00 PM, he received information that a lady from Boral village is admitted to Hospital for treatment as she has sustained burn injuries. Therefore, he visited the Humnabad Hospital. By the time he reached the hospital, the injured victim was taken to Bidar Hospital for treatment. Therefore, he directly went to Bidar Hospital and obtained the MLC intimation as per Ex.P11. Further he has stated that injured victim Mahadevi had sustained burn injuries all over the body as such she was not in a position to speak. Therefore, he received written complaint from her father namely PW1 Galappa as per Ex.P1. He was there in the Bidar Hospital till 7.00 PM, but the injured victim was not in a position to speak, as such 30 he gave a requisition to Tahasildar for recording her statement. Thereafter, he registered the FIR as per Ex.P12. On the same night at about 10.30 PM, the injured victim has expired. Thereafter on 09.07.2009 as per instructions of CPI, he brought Tahasildar to the Hospital and inquest mahazar was conducted. In the cross examination, he has admitted that in Ex.P11, it is mentioned that injured victim was in semiconscious state. Further he has stated that when he had come to Bidar at 7.00 PM, the injured victim was unconscious, he was there in the hospital till 8.30 PM, till then the injured victim had not regained consciousness. But he did not know as to when she regained consciousness, but where as the complainant PW1, mother of the injured PW16 and sister PW12 and other relatives have stated that the injured victim was conscious and she spoke to her parents relatives and other witnesses about pouring of kerosene and fire lit by the accused. Thus, there is 31 a clear contradiction between the evidence of PW9 police official who had met the injured victim in the hospital and the evidence of the relatives. When the relatives had come to the hospital there was every chance or possibility of creating a story by tutoring the injured victim to falsely implicate / involve the accused in the dying declaration.
33. Ex.P13 is the dying declaration which is in a printed form in English language, the answers are recorded are in Kannada language where in she has stated that her husband, her father-in-law and brother-in-law had brought her to the hospital. Further she has stated that her husband is the assailant and has narrated the reasons for sustaining injuries stating that she was assaulted by accused with the wooden handle of the axe. She informed her father about the same for which her father told that he will take her to his house. The accused informed 32 her father should bring another wife for him, if he intends to take his daughter to his house. The accused has informed this to everyone in the hospital. Thereafter on 08.07.2009 her husband poured kerosene and lit fire. Further she has stated about motive for assault that her husband has done this act on reason, that she has stolen Rs.250/- and her husband always complained frequently.
34. PW18 is the CPI who has conducted the investigation Further he has stated about the inquest panchanama, the spot panchanama and recovery of the articles. He has given requisition to Tahasildar for recording dying declaration and further recorded of statement of the witnesses namely PW11, PW12, PW13, PW14 and further statement of complainant and his wife PW16. After completion of the investigation, he has submitted the charge sheet. In the cross examination, he has stated that there are 33 five rooms in the house of the accused, but he did not go to any other rooms except kitchen room and there were semi burnt bags. He has clearly stated that he did not notice kerosene tin or match box at the spot. In the cross examination, he has admitted that he has recorded the statement of Abed Ali DW2, Chandrakanth DW1 and Mohamad Dastagir DW3.
35. It is pertinent to note that DW4, DW2 and DW3 were charge sheet witnesses, but these charge sheet witnesses are not examined by the prosecution. These witnesses are examined as defense witnesses DW1, DW2 and DW3. These three witnesses have clearly stated that on the date of the incident i.e. 08.07.2019. The accused was in the hotel and he was having tea with them. DW1 is the Head Master of the school. He has stated that when he was returning to the school after having lunch at his house. The accused invited him to have tea as such 34 he went in the hotel and had tea with him. He was sitting there with him at about 10 minutes. Thereafter, he came to school. Later he heard the screaming voice. Once again he has stated that when they were sitting in the hotel, they heard screaming voice from the house of the accused. Further he has stated that he might have gone to hotel at about 3.00 PM. In the cross examination by learned P.P. he has stated that the house of the accused is at distance of 40-50 mtrs. from the hotel. He has admitted that he has not given the statement as per Ex.D2. He has denied the suggestion that he is deposing false evidence about sitting with the accused in the hotel at 3.00 PM.
36. DW2 has stated that on the date of incident, he had gone to hotel at about 2.30 PM for having tea, At that time, the accused Gundappa, Chandrakanth Master and DW3 Dastagir were there. 35 Thereafter, he left the hotel, the accused was sitting with Chandrakanth Master and he was having tea. Later he came to know that the wife of Gundappa has sustained burn injuries while cooking in the kitchen. In the cross examination, he has stated that after he left the hotel, he do not know who came to the hotel and who else were sitting in the hotel.
37. DW3 Mohamad Dastagir has stated that on the date of the incident, he was in the hotel. On the same day, after noon at about 2.30 or 3.00 PM, the accused DW1 Chandrakanth Master and DW2 Abed Ali had come to his hotel for drinking tea and DW1 Head Master paid the bill. They were sitting at about 10 to 15 minutes in the hotel. After they had the tea, he closed the hotel. He has given the statement before the police after 2-3 days. In the cross examination, the learned P.P. he has stated that the house is the distance of 200 mtrs. from the hotel. 36 He has denied the suggestion that he is giving false evidence in order to help the accused.
38. The aforesaid defense witnesses have clearly stated that on 08.07.2009 afternoon at about 2.30 or 3.00 PM, they were having tea in the hotel belonging to DW3 Dastagir. The court has to give equal importance to the evidence of these defense witnesses equally as that of evidence of prosecution witnesses.
39. Another important aspect to be considered here that DW1, DW2 and DW3 are the prosecution witnesses. The investigating officer PW18 has admitted that he has recorded the statement of DW1 Chandrakanth on 09.07.2009 and recorded the statement of DW2 Abidali. DW3 is also said to be the charge sheet witnesses. According to the prosecution on 08.07.2009 at about 3.00 PM, the accused poured kerosene and lit fire to his wife. But the evidence of 37 DW1, DW2 and DW3 clearly goes to show that at point of time he was not at home. But he was with the DW1 and DW2 in the hotel belonging to DW3. This circumstance creates a serious doubt about the presence of the accused at home which is the place of incident. When there is no satisfactory evidence to prove the presence of the accused at the spot, the case projected by the prosecution that the accused has committed the murder of his wife cannot be believed.
40. It is pertinent to note that the majority of the witnesses who have spoken about the information said to have been given by the injured victim Mahadevi about pouring kerosene and liting fire by the accused are all close relatives of the deceased. It is duty of the court to consider the trustworthiness of evidence of these relatives. All though there is no absolute rule that the evidence of related witnesses is 38 to be corroborated by independent witnesses. It would be, trite in law to have independent witnesses. As already stated above, there are some glaring contradictions between the evidence of the relatives and independent witnesses and also the police official namely PW19 regarding the physical condition of the victim at the time, when she was brought to the Hospital for treatment.
41. On analyzing and meticulous evaluation of evidence the prosecution witnesses. We are of the opinion that there is consistent evidence as far as ill- treatment or the harassment done by the accused. On one or the other silly reasons and created by him. The accused being the husband instead of taking care of his wife has frequently quarreled and assaulted his wife on one or two occasions as narrated by the injured victim and her parents and close relatives. 39 Probably this kind of harassment might be the reason which instigated injured victim for self immolation.
42. It is pertinent to note that there is no clear medical evidence to show that the burn injuries caused were on account fire by pouring kerosene. The independent witnesses and medical officer have admitted that there was no smell of kerosene from the injuries.
43. Next question arises for consideration would be whether the deceased herself tried to immolate herself by pouring kerosene, and for what reason she committed such an act of self immolation. In the present case all the relatives and two independent witnesses have consistently stated about the ill-treatment and harassment caused by the accused Mahadevi probably for the said reason, she might have been driven to commit the suicide. In that event, the accused would be liable for having 40 abetted his wife to commit suicide and for the offence punishable under Section 306 IPC. On meticulous evaluation of the evidence on record, we are of the opinion that the prosecution is able to show that there was ill-treatment and harassment and cruelty meted out by all the accused persons, but there is no cogent evidence to prove that the accused has committed the murder of his wife.
44. For the foregoing reasons, we are of the opinion that it is a fit case to set right the anomaly committed by the Trial Court. Hence, we proceed to pass the following...
ORDER The Criminal Appeal is partly allowed. . The judgment of conviction and sentence passed by the Trial Court against accused for the offence punishable under Section 302 of IPC is hereby set aside. However, the accused is convicted for the offence punishable under Section 498A of IPC which is the lesser offence 41 than that of Section 302 and 306 of IPC. even in the absence of framing of any charge by the Trial Court, the accused can be convicted for the said offence.
Considering the nature and gravity of the offence, we are of the opinion that accused shall be sentenced to undergo imprisonment for a period of three years and shall also pay a fine of Rs.10,000/-. In default, to undergo further period of six months simple imprisonment for offence under Section 498A of IPC.
The set off is given to the accused under Section 428 of Cr.PC., for the period of punishment or imprisonment already undergone by him. If the accused has already served the sentence as noted above, accused shall be released forthwith if he is not required in any other case.
Office is hereby directed to send the copy of this judgment to the concerned jail authorities forthwith to take appropriate steps 42 in this regard, and also return the records to the trial Court with a copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE SMP