Karnataka High Court
Mr T P Ravi vs State Of Karnataka on 18 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2393
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 549 OF 2014
BETWEEN
Mr. T.P. Ravi,
S/o Late Mr. Puttalinge Gowda,
Aged 36 years,
R/of Smt. Nagamma Vatara,
No. 56/4, Chunchaghatta Village,
Bangalore - 560 062.
(Now in judicial custody, serving sentence) ... Appellant
(By Sri. M. Shashidhara, Advocate)
AND
State of Karnataka,
By Subramanyapura Police
Bangalore.
Through the
State Public Prosecutor,
High Court Building,
Bangalore - 560 001. ... Respondent
(By Sri. Vijaykumar Majage, Addl. SPP.)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the order dated 08.04.2014
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passed by the Presiding Officer, Fast Track Court - II,
Bangalore in S.C.No.169/2010 - convicting the
appellant/accused for the offence punishable under Section
302 of IPC. And the appellant/accused is sentenced to
undergo life imprisonment and to pay fine of Rs. 5,000/-. In
default, he shall undergo simple imprisonment for six
months, for the offence punishable under Section 302 of IPC.
And the appellant/accused prays that he be acquitted.
This Criminal Appeal having been heard and reserved
for judgment on 30.11.2018, coming on for pronouncement
this day, K. SOMASHEKAR, J., delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence passed by the Presiding Officer, Fast Track Court-II, Bengaluru in Sessions Case No.169/2010 dated 08.04.2014 convicting the accused for the offence punishable under Section 302 IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/- with default sentence of six months. Further, the 3 accused was also directed to pay Rs.50,000/- in favour of his son.
2. We have heard the arguments of the learned counsel for the appellant as well as the learned Additional SPP for the State.
3. The factual matrix of the prosecution case is that, the accused T.P. Ravi, who was a resident of Thanganayakanahalli, Kanakapura Taluk had married the deceased Pushpalatha about six years prior to the incident. After three years of their marriage, the couple are said to have shifted their residence to a rented house in Chunchanghatta village along with their son. The accused was said to be working at a petrol bunk in Yelachenahalli. Since the salary of the accused was not sufficient to maintain their family, the deceased Pushpalatha had also taken up the work of flower vending, by way of which she was also earning some money.
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On the basis of the statements of Pushpalatha, crime came to be registered against the accused Ravi. The deceased Pushpalatha had given three statements, first one on 3.9.2009 between 3.55 p.m. and 4.30 p.m. as per Exhibit P-5, which was recorded by PW-14 Anantharaju. The second statement was recorded on the same day, i.e. on 3.9.2009 between 4.30 p.m. and 5.00 p.m. as per Exhibit P-16. The said statement was recorded by PW-21 Shri K. Sadananda, PSI of Subramanyapura P.S. The third statement was given on 7.9.2009 at about 2.00 p.m. as per Exhibit P-9 recorded by PW-9 Smt. Harishilpa - The Special Tahashildar and Executive Magistrate, Bangalore South Taluk.
4. In her first statement, deceased Pushpalatha has stated that the accused Ravi used to quarrel with her often asking her to give him money since he had developed the habit of drinking. On the date of the 5 incident, i.e, on 02.09.2009 at about 7.00 p.m., the accused is said to have come home in a drunken state and is said to have quarreled with the deceased Pushpalatha, and is said to have threatened her to bring money from her parental home or otherwise he would burn her. Saying so, he had taken the kerosene container which was in their house and doused kerosene on her and set her ablaze. As a result, she had sustained injuries on her face, hands, stomach and other parts of her body and hence was admitted to Victoria Hospital, where she was treated for her burns. Hence, she had requested to take appropriate action on the accused as well as her sister-in-law Smt. Savithramma and Savithramma's husband Manchegowda who were harassing her. This statement was recorded in the presence of P.W-8, Dr. Rajalakshmi.
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5. As per her second statement which is the dying declaration recorded as per Exhibit P-16, Pushpalatha has stated that her husband Ravi was working in a petrol bunk in Kanakapura Road and she was doing flower vending business. That they had a son by name Varun Kumar aged about 5 years. That the accused Ravi was suspecting her fidelity right from their marriage and used to frequently quarrel with her in that regard and used to assault her with his hands. Elders in their family had resolved their dispute and had advised him not to quarrel with his wife. On 2.9.2009 at about 7.30 p.m. when the deceased Pushpalatha was in the house, the accused is said to have started quarrelling with her for no reason and had stated that Pushpalatha was having an illicit relationship with her paternal aunt's sons namely Shivaraju and Lingaraju. The accused had further asked Pushpalatha to call both of them on their mobiles so that he could speak about their relationship. The deceased Pushpalatha had 7 refused to call up and had told her husband Ravi to call them up himself. Since she did not heed to his words, he started scolding her in filthy language and saying that she would be able to continue her illicit relationship only if she were alive and saying so, he brought a plastic container of kerosene and doused the same on her head and set her ablaze. But however as she screamed unable to bear the heat, her husband Ravi himself had poured water and put off the fire and then got her admitted to Victoria Hospital. He had asked her to tell the Doctors that the fire had caught due to stove bursting. Accordingly, fearing him, Pushpalatha had given statement to the Doctors that the fire was due to stove burst. Hence, deceased Pushpalatha had stated that her husband Ravi only in the intention of killing her had done the act and hence he be punished for the above said offence. This statement was recorded in between 4.30 p.m. and 5.00 p.m. on 3.9.2009 in the presence of 8 Dr. Sathyanarayana PW-18 who had certified that Pushpalatha was conscious, alert and oriented and responded to oral commands and was physically and mentally fit to give this statement. It is upon the statement of Pushpalatha as per Exhibit P-16 given on 3.9.2009 that a case in Crime No.461/2009 for the offence punishable under Section 307 IPC came to be registered at around 17.45 hours.
6. In her third statement recorded as per Exhibit P-9 which is also considered as her dying declaration, she had stated that she was residing along with her husband and son at Chunchaghatta and that her husband was working at a petrol bunk in Yelachenahalli and that she was doing flower vending business. She had stated that since her statement given on 3.9.2009 was not elaborate, she was giving the present statement as on 7.9.2009. That since seven months, her husband Ravi was abusing her saying that 9 Pushpalatha was having illicit relationship with three of her aunt's sons namely Lingaraju, Shivaraju and Anand and was also assaulting her. In this regard, Pushpalatha's mother had also advised the accused. Further, two years back when Pushpalatha had been to her husband's place, her sister-in-law Savithramma and her husband Manchegowda had suspected her fidelity and had abused her. In this regard, there was an altercation between them and Pushpalatha had lodged a complaint against them with the Sathanur Police and the police had called the parties and enquired them in this regard. Later, on 2.9.2009 at about 7.30 p.m., when the deceased Pushpalatha was at home, her husband Ravi had started quarreling with her for no reason and had scolded her saying that she was having illicit relationship with her paternal aunt's sons namely Lingaraju, Shivaraju and Anand, and had proceeded to ask her to call them on their mobiles. However, the deceased Pushpalatha had ignored the same. At once, 10 the accused Ravi saying that she would be able to continue her illicit relationship with them only if she were alive and saying so, brought a plastic bottle of kerosene from the kitchen and doused on her head and set her ablaze using a matchbox. However, as she screamed unable to bear the burns, the accused Ravi had torn open her nighty and had poured water on her and put off the fire and had then got her admitted to Victoria Hospital. Hence, she had requested to take appropriate action against her husband Ravi since he had done the same with the intention of killing her.
While she was under treatment in the Victoria Hospital, she died on 10.09.2009 due to septicemia infection as a result of the injuries sustained by her. Subsequent to receipt of the death memo, the aforesaid case was registered for the offence under Section 302 IPC. Thereafter, the Investigating Officer took up the investigation for the aforesaid offence and laid a charge- 11 sheet against the accused before the Committal Court. Subsequently, the Trial Court framed charges against the accused under Section 302 IPC, wherein the accused did not plead guilty but claimed to be tried. Accordingly, plea of the accused was recorded.
7. In order to establish the guilt of the accused, the prosecution in all examined 21 witnesses namely, PW-1 to PW-21 and got marked Exhibits P-1 to P-23. MO-1 and MO-2 were also got marked.
8. Subsequent to closure of the evidence of the prosecution, the accused was examined as required under Section 313 Cr.P.C. for any incriminating evidence appearing against him, wherein the accused has denied the truth of the evidence of the prosecution adduced so far. Subsequently, the accused did not come forward to adduce any defence evidence, but got marked three documents as Exhibits D-1 to D-3 through PW-18 Dr. Sathyanarayana. After hearing the 12 arguments advanced by the learned prosecutor and the defence counsel and perusing the evidence adduced by the prosecution and so also the vital documents at Exhibits P-5, P-9 and P-16 which are the dying declarations of deceased Pushpalatha, the court below convicted the accused for the offence under Section 302 IPC and sentenced him as aforesaid. It is this judgment which is under challenge in this appeal.
9. Learned counsel for the appellant Shri M. Shashidhara has taken us through the evidence of P.W.2, Rajagopal who is the owner of the rented accommodation wherein the deceased Pushpalatha and accused were said to be residing. The deceased was on flames and the accused had poured water over her and extinguished the flame and thereafter took her to Victoria Hospital in an auto-rickshaw and provided treatment to the victim. On enquiry with P.W.2 Rajagopal, he has stated that the accused had quarreled 13 with the deceased Pushpalatha and he doused kerosene on her and set her ablaze. But in the cross- examination, the aforesaid witness has specifically stated that the deceased had told him that the incident had happened due to bursting of the kerosene stove. The learned counsel contends that this specific evidence for the prosecution has not been corroborated with the evidence of any independent witnesses. Though P.W.2, Rajagopal had stated in his evidence that the deceased and accused used to quarrel with each other, but he did not state any specific reason as to why they were frequently quarreling with each other. He did not even know as to how the deceased caught fire and such being the case, the evidence of P.W.1 Nagaraju that P.W.2 had reported about the incident, cannot be believed.
10. It is the further contention of the learned counsel that the prosecution has placed much reliance on the contents of Ex.P.5, the statement said to be given 14 by the victim Pushpalatha on 03.09.2009 at about 3.55 p.m. This statement was recorded in the presence of P.W.8, Dr. Rajalakshmi. In the said statement, the deceased has specifically stated that her husband Ravi had picked up a quarrel with her by abusing her in filthy language and insisting her to bring money from her parents house. Saying so, he went inside the kitchen and brought a plastic bottle containing kerosene and doused the same on her and set her ablaze. As a result, she sustained burning injuries on her face, both the hands and also on the stomach as well as other parts of the body. After setting her ablaze, her husband Ravi himself had then admitted her to Victoria Hospital and provided treatment to her. The learned counsel contends that if as per Pushpalatha's statement it was her husband Ravi who had doused her with kerosene and set her ablaze, then there was no necessity for him to have extinguished the fire and then taken her to hospital for treatment. Hence, he 15 contends that the statement of Pushpalatha that her husband Ravi had done the said act, is very doubtful.
Moreover, on the basis of this statement at Ex.P.5, no crime came to be registered by the Police against the accused. But the case in Crime No. 461/2009 for the offence under Section 307 IPC came to be registered based upon Ex.P.16, which is the dying declaration said to be given by Pushpalatha on 03.09.2009 at about 4.30 p.m., which is the second statement given by her. The statement at Ex.P.5 and so also the dying declaration at Ex.P.16 have been recorded on 03.09.2009. But the first statement was recorded at about 3.55 p.m. and the second statement at Ex.P.16 was recorded on the same day at about 4.30 p.m. Moreover, it is to be seen that as per Exhibit D-3, the Accident Register maintained by Victoria Hospital dated 02.09.2009, the reason for the burns when Pushpalatha was admitted to hospital, has been stated 16 as 'stove burst' on 2.9.2009 at 6.00 p.m. while working in the kitchen. Moreover, Pushpalatha herself had stated the duty Doctor that the burns have been caused to her due to stove burst. Hence, the theory of Ravi having doused kerosene on Pushpalatha and setting her ablaze has been set up by the prosecution to implicate the accused in the alleged crime.
The case history as per Exhibit D3 was recorded on 02.09.2009 as per the say of the deceased Pushpalatha. Then, her statements have been recorded on 03.09.2009 at different timings. While the case history as per the hospital records reveals that the fire was accidental and was caused due to stove burst, on the contrary, her statements recorded reveal that the fire was not accidental but the accused Ravi had doused kerosene on Pushpalatha and set her ablaze, which are clearly contradictory to each other. Hence, the learned counsel contends that the statement of the deceased Pushpalatha cannot be believed as gospel truth. 17
Ex.P.17 is the second FIR which was recorded by P.W.21 PSI, Subramanyapura Police Station which bears his signature. Ex.P.20 is the FIR dated 03.09.2009 which also bears his signature.
Ex.P.9 is the dying declaration said to be given by the deceased Pushpalatha which bears the signature of P.W.21 PSI K. Sadananda and also bears the LTM of Pushpalatha. In this statement she has stated that while she had given the statement on 03.09.2009 before the police in the presence of the Doctor, she did not give detailed complaint relating to the burn injuries sustained by her as she was under shock. Therefore, she was giving this statement on this day dated 07.09.2009. She had stated to the effect that the accused used to frequently quarrel with her and assault her and therefore, her mother had advised Ravi not to do so. Moreover, about two years back when she had been to the native village of her husband, her sister-in- law namely, Savithramma and her husband 18 Manchegowda had suspected her fidelity and therefore, there was an altercation between them and as such a complaint was registered in Sathanur Police Station and there was also an enquiry made by the Police with regard to the said complaint. On 02.09.2009 at about 7.30 p.m. while she was present in the house, her husband Ravi had picked up a quarrel saying that she had illicit relationship with her relatives namely, Shivaraju, Lingaraju and Ananda and he had insisted her to call them up over phone. But she refused to do so. Raged by the same, the accused abused her in filthy language saying that only if she were alive she would have illicit relationship with them. Saying so, he went inside the kitchen and brought a plastic bottle containing kerosene and doused the same on her and set her ablaze. As a result, she sustained burning injuries and was screaming. The accused then extinguished the fire by pouring water, removed her nighty and took her to Victoria Hospital to provide 19 treatment. But thereafter he had disappeared. Therefore, Pushpalatha had given her statement to take action against her husband. This statement was recorded on 07.09.2009 at about 7.00 p.m. by P.W.9 Harishilpa, being the Special Tahasildar and Executive Magistrate, Bangalore South Taluk. The duty Doctor had made an endorsement as per Ex.P.7 that the patient was fit to give statement both physically and mentally. The said third statement is as per Ex.P.9.
But, the learned counsel contends that the statements at Exhibits P-5, P-16 and P-9 which are said to be given by Pushpalatha, run contrary to each other relating to the accused who picked up a quarrel with her saying that she had an illicit relationship with her relatives P.W-6 Lingaraju, P.W-12 Shivaraju and one Ananda. The Investigating Officer has not recorded the statement of Ananda during the course of the investigation, who was also a main witness to the prosecution. That itself indicates that Ex.P.5, P.9 and 20 P.16 had been recorded to implicate the accused in the alleged crime.
P.W.3 H. Shivarudraiah, P.W.4 Thimmegowda and P.W.5 Bhagavan were the relatives of the deceased and they were present during the course of inquest proceedings held on the dead body of the deceased Pushpalatha as per Ex.P.3 which bears the signatures of the aforesaid witnesses. P.W.7 Siddaraju is the elder brother of the deceased. The evidence of P.W.7 Siddaraju as well as the evidence of P.W.8 Dr. Rajalakshmi are in so far as the first statement said to be given by Pushpalatha as per Ex.P.5 but subsequent to her death, the same was treated as dying declaration. P.W.9, being the Taluk Executive Magistrate had recorded the statement of Pushpalatha as per Ex.P.9 on 07.09.2009. The learned counsel contends that these two statements run contrary to the evidence of P.W.7 Siddaraju. Moreover, Ex.P.5, Ex.P.16 and Ex.P.9 are further contradictory to the evidence of P.W.21 21 K. Sadananda being the Investigating Officer in part, who recorded the statement of the deceased as per Ex.P.16 and based upon her statement crime came to be registered by recording an FIR. But P.W.21 did not register the case based upon the first statement said to be given by Pushpalatha as per Ex.P.5 and it creates some doubt about the theory set up by the prosecution relating to these exhibits namely, Ex.P.5, Ex.P.9 and Ex.P.16 said to be given by deceased Pushpalatha on 03.09.2009 and also 07.09.2009. But the Trial Court, based upon these three vital documents and based upon the evidence of P.W.21 K. Sadananda had convicted the accused for the offence under Section 302 IPC. Since there is a doubt as to whether the said dying declarations had been given by Pushpalatha herself, the learned counsel contends that the judgment of the Trial Court needs interference.
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Further, Exhibit P.18 is the PM report issued by P.W.19 Dr. Bheemappa Havanoor who conducted autopsy over the dead body. The cause of death is opined as due to septicemia as a result of sustaining burn injuries. But, this evidence has not been appreciated by the trial court in a proper perspective. Therefore, the learned counsel contends that the entire evidence on record requires to be re-appreciated and moreover the order of conviction and sentence requires to be revisited.
It is further contended that PW-6 Lingaraju being the cousin of the deceased Pushpalatha had deposed to the effect that the accused used to assault the deceased suspecting her fidelity. After the incident of fire, PW-6 had gone to the hospital and had enquired with the deceased about the cause of the fire, for which she had stated to him that the accused had doused kerosene on her and set her ablaze.
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PW-7 Siddaraju said to be examined for the prosecution has spoken about some of the instances where the accused had assaulted the deceased.
PW-12 Shivaraju being another cousin of the deceased Pushpalatha has spoken about the incident of quarrel that had taken place between the accused and the deceased and so also about the accused extending harassment to her. He had been to the hospital and made enquiry with the deceased when she was alive wherein she had informed him that the accused had set her ablaze after dousing kerosene on her, suspecting that she had illicit relationship with him also.
Learned counsel contends that PW-6 Lingaraju and PW-12 Shivaraju though being the material witnesses for the prosecution, but their evidence runs contrary to the contents at Exhibit P-5 and Exhibit P-16 of the dying declaration said to be given by the deceased Pushpalatha on 3.9.2009 and so also the contents at Exhibit P-9 said to be recorded by PW-9 Harishilpa - 24 Taluk Executive Magistrate, Bangalore South Taluk. Moreover, the contents of the aforesaid dying declaration said to be given by the deceased Pushpalatha runs contrary to the evidence of PW-2 Rajagopal and PW-10 Nagamma.
On hearing the screaming sound of Pushpalatha, PW-2 Rajagopal and others had rushed to the house of the deceased wherein the accused was also present and he made attempt to extinguish the fire flame by pouring water, which itself indicates the conduct of the accused which was made to save his wife who was on fire, which leads to the conclusion that the fire was accidental due to the burst of the kerosene stove. This fact has been narrated by herself in the statements said to be given by her as per Exhibits P-5, P-16 and P-9.
The evidence of PW-18 Dr. Sathyanarayana who had given his opinion that the deceased was in a fit condition to give her statement, reveals that Exhibit D2 is the death memo relating to the death of the deceased 25 while she was on treatment in Victoria Hospital for having sustained burn injuries. Pushpalatha had given a history for having sustained burn injuries in which the duty Doctor had obtained her left toe mark. She had given the said statement in the presence of the duty Doctor in the Hospital. Ex.D.1 is also marked and the same has been got written by a Doctor who attended in burns ward.
Ex.D.3 is the MLC extract wherein it reveals that the incident had happened due to the kerosene stove burst accidentally. The same is borne out in the case sheet maintained in respect of the victim Pushpalatha after she got admitted to Victoria Hospital. Therefore, the evidence of P.W.8 Dr. Rajalakshmi in whose presence the deceased Pushpalatha had given a statement as per Ex.P.5 initially by narrating how that incident happened in her house wherein her husband Ravi was the one who had doused kerosene on her and set her ablaze, as a result of which she sustained burn 26 injuries, requires to be doubted. Her husband himself had admitted Pushpalatha to Victoria Hospital and provided her treatment.
P.W.18 Dr. Satyanarayana was the one who had certified that Pushpalatha was in a fit state of mind to give her statement. P.W.9 Harishilpa was the Taluk Executive Magistrate who recorded the statement of Pushpalatha at Ex.P.9. In all, the victim had given three dying declarations at Ex.P.5, Ex.P.16 and Ex.P.9 respectively. On the basis of her second dying declaration dated 03.09.2009 crime came to be registered in No.461/2009 for the offence under Section 307 IPC which is the first FIR. The second FIR has been registered for the offence under Section 302 IPC, after the death of Pushpalatha when she was under
treatment in Victoria Hospital. She died on 10.09.2009 in Victoria Hospital. The Investigating Officer had conducted inquest over the dead body as per Ex.P.3 in the presence of P.W.3, wherein he has subscribed his 27 signature. As on 10.09.2009 the said PW-3 had been secured by the Victoria Hospital wherein the dead body of Pushpalatha was found with burn injuries on her face and body. He has denied the suggestion that he subscribed his signature at Ex.P.3.
P.W.6 Lingaraju, a relative of the deceased Pushpalatha had deposed that about nine years ago the marriage of deceased Pushpalatha was performed with accused Ravi. Subsequent to her marriage, she was residing with her husband and son in Thenginayakanahalli. As he was addicted to consuming alcohol, due to intoxication he was frequently quarreling with his wife and assaulting her. P.W.6 had informed about the said acts of the accused to his cousin Shivaraju. He requested Shivaraju to provide a job in petrol bunk in Iliyas Nagar. But the accused told that he could not do that work and thereby returned to his village. At that time Pushpalatha was staying in her parents house. But he did not know the reason as to 28 why accused Ravi was assaulting Pushpalatha. One Murthy being a friend of Shivaraju had given information that accused Ravi had assaulted his wife Pushpalatha. Therefore, a panchayath was constituted to sort out the differences between the husband and wife. But he did not participate in the panchayath. A second panchayath was constituted wherein he also participated but the accused had assaulted the victim suspecting her fidelity that she had an illicit relationship with him. The said fact is stated by Pushpalatha when he had been to their house.
P.W.12 Shivaraju is also a relative of deceased Pushpalatha. He has deposed to the effect that Pushpalatha's marriage was performed with the accused Ravi subsequently she had given birth to a boy child namely, Varun Kumar. The deceased and the accused were residing in a rented house of one Nagamma along with their son in Chunchagatta. Prior to that they were residing were Deepegowdana Village. As there were 29 some differences between the accused and his wife that himself and one Bommalingegowda had advised the accused. But one Murthy being a neighbour of the accused had given telephonic message that the accused had picked up a quarrel with his wife Pushpalatha and set her ablaze by dousing kerosene on her.
But the evidence of P.W.6 and P.W.12 has not been appreciated by the Trial Court in a proper perspective. The entire case of the prosecution rests upon circumstantial evidence and the contents at Exhibits P.5, P.9 and P.16 of the dying declaration said to be given by the deceased. But the said contents in the aforesaid dying declarations have not been appreciated with greater caution as there are inconsistencies and contradictions found in the contents of the aforesaid dying declarations as well as the evidence of P.W.6, P.W.12, P.W.8 and so also the evidence of P.W.9.30
P.W.19 Dr. Bheemappa Havanur being a Medical Officer had conducted autopsy over the dead body of Pushpalatha and issued PM report as Ex.P.18 which indicates that the deceased Pushpalatha had sustained burn injuries wherein he has opined the cause of death to be septicemia as a result of burn injuries.
P.W.14 is the Head Constable who recorded the statement of the victim at Ex.P.5. But the concerned PSI PW-21 K. Sadananda who sent the said PW-14 to record the statement of the victim, did not register the crime against the accused based on the said statement initially, but he himself went to the Victoria Hospital and recorded the second statement of the victim as Ex.P.16 and based upon that statement, he registered crime against the accused initially under Section 307 IPC. PW-21 had conducted the major investigation in the case and thereafter he handed over the case to 31 P.W.20 being the Investigating Officer who laid the charge sheet against the accused.
Admittedly, there are no direct eye witnesses to the incident of dousing kerosene on Pushpalatha and setting her ablaze. P.W.1 and P.W.2 have been projected as the eye witnesses. But the evidence of the said witnesses discloses that they are not eye witnesses to the incident in question.
It is further contended that the Doctor has certified that the victim Pushpalatha was conscious and well-oriented to give her statement in the presence of the Doctor as per Exhibit P-5 and P-16 on 3.9.2009. That the said endorsement has been entered by the concerned Doctor only after the statement was recorded by the Head Constable. There is no specific endorsement to the effect that the Head Constable had recorded the statement of the injured Pushpalatha as per Exhibit P-5 at the relevant time.32
It is further contended that in the absence of the specific evidence to the effect that the deceased Pushpalatha and the accused were last seen together on the date of the incident immediately prior to that incident and the circumstances culminating in the death of the deceased Pushpalatha was caused by the accused Ravi and none other than the accused, it cannot be said that the accused was the perpetrator of the crime said to be projected by the prosecution against him that he had murdered his wife Pushpalatha by dousing kerosene on her and setting her ablaze. Therefore, the learned counsel for the appellant contends that it cannot conclusively be said that the accused had committed the murder of his wife Pushpalatha as narrated in her statements at Exhibits P-5, P-16 and P-9, since there is inconsistency in the said dying declarations. Thus, it cannot be said that the accused was the cause of the death of the deceased. 33
11. On all these grounds as urged by the learned counsel for the appellant, he contends that the prosecution has not proved the guilt of the accused for the offences under Section 302 IPC and it is based upon surmises and conjectures that the Trial Court has erroneously come to the conclusion that the accused had committed the offence and convicted and sentenced him as aforesaid. Therefore, the learned counsel seeks that the present appeal be allowed by setting aside the impugned judgment of conviction and sentence passed by the Trial Court in S.C.No.169/2010 dated 8.4.2014, since the evidence on record has not been appreciated by the Trial Court in a proper perspective.
12. Per contra, the learned Additional SPP argued before the Court that the documents at Exhibits P-5, the initial statement of the victim, the dying declaration as per Exhibit P-16 and the further dying declaration as per Exhibit P-9 have been appreciated by the Trial 34 Court in a proper perspective to convict the accused, since the Doctors concerned had certified that Pushpalatha was in a mentally and physically fit condition to give the above three statements. She had given her statements before the Doctors namely Dr. Rajalakshmi PW-8 and Dr. Sathyanarayana PW-18 to the effect that the accused suspecting that she was having illicit relationship with her cousins Shivaraju PW-12, Lingaraju P-6 and another Ananda, had abused her in filthy language and went inside the kitchen and brought a kerosene bottle and doused her with kerosene and set her ablaze. It is due to fear of her husband that the said Pushpalatha had first given her statement that the incident had occurred due to stove burst. But in her later statements, she gained the courage to tell the truth that it was her husband who had doused kerosene on her and lit the fire. Hence, the inconsistency in her statements in this regard are of no consequence since the circumstances reveal that it is her husband Ravi 35 who had doused kerosene on her and set her ablaze.
He was filled with the evil thought of suspicion which has led him to commit the murder of his own wife.
Though the defence counsel has incisively cross- examined PW-8 Dr. Rajalakshmi, PW-9 Harishilpa and PW-18 Dr. Sathyanarayana, but nothing has been elicited to disbelieve the evidence of these material witnesses for the prosecution relating to the contents at Exhibits P-5, P-16 and P-9, the dying declarations given by deceased Pushpalatha. Hence, the Trial Court has rightly come to the conclusion relying on the dying declarations as well as the evidence of PW-2 Rajagopal, PW-10 Nagamma, PW-6 Lingaraju, PW-12 Shivaraju, PW-7 Siddaraju coupled with the evidence of PW-21 K. Sadananda, the PSI who has done the major investigation in the case, that the accused Ravi had in fact committed the offence. Hence, the learned Additional SPP seeks to dismiss the appeal as being devoid of merits by confirming the judgment of 36 conviction and sentence held against the accused in S.C.No.169/2010 for the offence punishable under Section 302 IPC.
13. In the above said backdrop, we have carefully analysed the contentions of the respective counsel for the parties and the oral and documentary evidence on record. The case mainly depends upon the reliability of the evidence of PWs 1 and 2, who are the eye witnesses and so also the dying declarations at Exhibits P-5, P-16 and P-9.
14. PW-1 Nagaraj, an autodriver, was also another tenant of Rajagopal (PW-2), in whose house the deceased Pushpalatha and accused Ravi were residing. He being the neighbour has deposed to the effect that Pushpalatha and Ravi were residing along with their 5 year old son. That Pushpalatha was doing flower vending business while the accused Ravi was working in a petrol bunk. That the accused was frequently 37 quarrelling with his wife. In fact, Pushpalatha, before her death used to tell PW-1 that her husband Ravi was quarrelling with her suspecting her fidelity that she was having an illicit relationship with her cousins namely Lingaraju, Shivaraju and Ananda. He has further deposed to the effect that he knew that Pushpalatha's mother used to visit their house but that he had not seen anyone else visiting Pushpalatha's house. Further, himself and other neighbourers had also advised Ravi not to quarrel with his wife apart from Pushpalatha's mother advising him. That on 2.9.2009 at about 7.30 p.m. when PW-1 was in his house, he had heard commotion in Pushpalatha's house. Hence, he had gone there and witnessed that Pushpalatha was on flames and PW-2 Rajagopal and other neighbourers had gathered there. Accused Ravi was very much present in the house and he had poured water and extinguished the fire. It was this PW-1 Nagaraj who had taken Pushpalatha to Victoria Hospital in his auto rickshaw 38 and had come home leaving her there. Then, he came to know from PW-2 Rajagopal that the accused had doused kerosene on her and set her ablaze suspecting that Pushpalatha was having illicit relationship with her cousins. Hence, it is to be seen that this witness PW-1 who is said to be the eye-witness, had not directly witnessed the incident of Ravi setting ablaze Pushpalatha, but he got the said information from PW-2 Rajagopal.
However in his cross-examination, PW-1 has stated that the said Pushpalatha before getting into his autorickshaw, had told that the incident had happened due to stove bursting. But, he has denied the suggestion that Pushpalatha had caught fire due to stove burst while cooking. Both these statements in his cross-examination are totally contradictory to each other, which creates a doubt in the mind of this court. 39
PW-2 Rajagopal is the owner of the house in which deceased Pushpalatha and accused Ravi were staying. He has deposed to the effect that Pushpalatha and Ravi were tenants of a portion of his house since two years and that they used to quarrel with each other once in two or three months. But he did not know the reason as to why they were quarrelling. Further, he has denied all the statements given by him to the police immediately after the incident and has deposed to the effect that he did not know as to how Pushpalatha caught fire. The police had visited his house when he was very much present and PW-2 was also a witness to the spot mahazar as per Exhibit P-1. In the cross- examination, PW-2 has specifically denied the averment of Ravi having doused Pushpalatha with kerosene and setting her ablaze suspecting her fidelity. Hence, the evidence of PW-2 Rajagopal is of no consequence and does not support the case of the prosecution to any extent.
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When PW-1 Nagaraja has deposed to the effect that he was informed by PW-2 that accused Ravi had doused kerosene on his wife Pushpalatha and had set her ablaze and PW-1 had not witnessed the incident personally, in view of the fact that PW-2 himself having turned hostile to the case of the prosecution, the evidence of PW-1 Nagaraja has also no legs to stand regarding having seen the incident.
PW-3 Shivarudraiah was secured by the police to act as a panch witness. Accordingly, inquest mahazar was conducted as per Exhibit P-3 in his presence. During the course of the mahazar conducted by the police, one Thimmegowda was also present and the same was conducted by the police in between 4.30 p.m. and 6.30 p.m. PW-4 Thimmegowda has stated in his evidence that the police had secured him to act as a panch witness. Accordingly, a mahazar was conducted as per Exhibit P-3 in his presence, which bears his signature. 41
PW-5 Bhagawan is also a panch witness who was secured by the police and in his presence, the police had conducted the mahazar as per Exhibit P-3. During the course of the mahazar conducted over the dead body of Pushpalatha, he has stated that PW-4 Thimmegowda, PW-7 Siddaraju and PW-6 Lingaraju were present.
PW-6 Lingaraju has deposed to the effect that the deceased was his cousin and that her marriage with accused Ravi was performed about 9 years back. Subsequent to their marriage, they were residing at Thenginayakanahalli. Since his uncle Siddaraju PW-7 had told Lingaraju to arrange a job for accused Ravi, PW-6 got him a job in Ilyas Nagar Petrol Bunk. But Ravi left the job and went back to his place. Later, Ravi started working in a petrol bunk in Yelachenahalli. However, PW-6 learnt from PW-12 Shivaraju that the accused Ravi was frequently quarrelling with their cousin Pushpalatha and was harassing her. In fact he 42 had personally visited Pushpalatha, who had also informed about her husband's ill-treatment meted to her suspecting her fidelity that she was having illicit relationship with her cousins. Hence, he had warned Ravi that he would take legal action if he harasses her anymore. After the incident of fire, PW-6 along with his mother had personally visited Pushpalatha in the Burns ward on 3.9.2009 at 10.30 a.m. At that time, she had informed PW-6 that her husband Ravi had doused kerosene on her and set her ablaze.
PW-7 Siddaraju, the brother of the deceased Pushpalatha had deposed to the effect that the accused Ravi was in the habit of drinking liquor and beating her. At one instance, he had noticed it himself and had called up his cousins Lingaraju and Shivaraju and all three of them had advised Ravi not to assault Pushpalatha. Though he agreed and did not drink liquor for a week, when he again started drinking, he continued beating and abusing her. Then after the 43 incident on 2.09.2009, PW-7 had visited the Victoria Hospital along with his mother, where he saw Pushpalatha in an unidentifiable state with full of burns all over her body. When asked about how the incident happened, Pushpalatha had told that when her husband Ravi was abusing her in foul language, she did not heed to it and was watching TV. At once, he went inside the kitchen and brought a kerosene bottle and in spite of her resistance, doused kerosene on her and set her ablaze.
PW-8 Dr. Rajalakshmi is the one who had certified that Pushpalatha was in a physically and mentally fit condition to give her statement. It was then that her statement at Exhibit P-5 was recorded by PW-14 under the signature of the said Doctor and the thumb impression of Pushpalatha was obtained. PW-8 had also identified her signature to evidence the fact that Pushpalatha was in a fit condition to give the said statement.
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PW-9 Harishilpa is the Tahsildar / Taluk Executive Magistrate, Bangalore South Taluk who recorded the statement of Pushpalatha as per Exhibit P-9 after confirming with PW-8 that Pushpalatha was in a mentally and physically fit condition to give her statement. Thus after Pushpalatha's statement, her LTM was obtained along with the signatures of PW-9 and PW-21 K. Sadananda.
PW-10 Nagamma who was residing behind the house of Ravi and Pushpalatha has deposed to the effect that she was not at the spot when the incident occurred, since she had gone to the market to buy vegetables. Though she knew that the accused Ravi was frequently quarrelling with Pushpalatha suspecting her fidelity, she had not seen Ravi assaulting her but that she had heard it from Pushpalatha. But however, since she was not at all available at the time of the incident, she had not at all witnessed the incident and she had not seen anything of the sort of Ravi dousing 45 kerosene on Pushpalatha and setting her ablaze. However, she visited Victoria Hospital the next day and came to know from Pushpalatha that it was her husband Ravi who had doused kerosene on her and set her ablaze.
PW-11 Narasappa is the Head Constable who has deposed that after post-mortem over the dead body of Pushpalatha, the same was handed over to Lingaraju PW-6, under acknowledgement.
PW-12 Shivaraju, another cousin of Pushpalatha has deposed to the effect that Pushpalatha was residing along with her husband Ravi and a child Varun in Chunchaghatta from the year 2008. Since the husband and wife were frequently quarrelling, that PW-12 had advised Ravi not to harass his wife, on a previous occasion. However, after hearing about the incident of she having caught fire, PW-12 had gone to Victoria Hospital along with his mother and PW-6 and when enquired as to how the incident happened, Pushpalatha 46 had told that it was Ravi who had done the said act suspecting that she was having an illicit relationship with her cousins.
PW-13 Syed Azeem was the Police Constable who had apprehended the accused on 5.9.2009 when he was in his own house in Thenginayakanahalli.
PW-14 Anantharaju, a Head Constable of Subramanyapura Police Station has deposed to the effect that he had recorded Pushpalatha's statement as per Exhibit P-5 after Dr. Rajalakshmi certified that Pushpalatha was in a mentally and physically fit condition to give her statement. He had recorded her statement in the presence of the said Doctor and a nurse on 3.09.2009 from 3.55 to 4.30 p.m. and obtained Pushpalatha's LTM on Exhibit P-5.
PW-15 Dr. B.G. Thilak has deposed to the effect that he had issued the death intimation as per Exhibit P-15.
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PW-16 G. Ramakrishnaiah, a Head Constable of Subramanyapura Police Station has deposed to the effect that he had assisted the PSI K. Sadananda PW-21 in obtaining the statements of the deceased Pushpalatha at Exhibits P-9 and P-16. He was the one who had written the statements at both the exhibits which were given by Pushpalatha. But there is no evidence to that effect since PW-16 has not subscribed his signature. Further, he is the carrier of the second FIR at Exhibit P-17.
PW-18 Dr. B.N. Sathyanarayana has deposed to the effect that about 4.30 p.m. on 3.9.2009 PW-21 K. Sadananda, PSI had sought permission to obtain a second statement from the victim Pushpalatha who was admitted to the Burns Ward in Victoria Hospital. This PW-18 had certified that Pushpalatha was in a mentally and physically fit condition to give her statement. Accordingly, her statement was recorded by PW-21 as per Exhibit P-16. However, in the cross-examination, 48 PW-18 has stated that the case history maintained in the Victoria Hospital revealed that Pushpalatha's left leg thumb impression was obtained after recording her first statement. Moreover, the case history further revealed that the fire had caught accidentally due to stove burst.
PW-19 Dr. Bheemappa Havanur is the Doctor who had conducted post mortem examination of the dead body of Pushpalatha. He has deposed to the effect that the cause of death was due to septicemia as a result of sustaining burn injuries. He has further stated in his cross-examination that the injury shown in Exhibit P-18 may have been caused due to kerosene stove burst or any other inflammable.
PW-20 R. Narasimhareddy being the Investigating Officer has stated in his evidence that on 11.09.2009, he took over the case file from PW-21 K. Sadananda, PSI of Subramanyapura Police Station and he requested the concerned Executive Engineer to prepare a map of the scene of crime and also he received Exhibit P-18 - the 49 PM report issued by PW-19 Dr. Bheemappa Havanur who conducted autopsy over the dead body. He investigated the case and laid charge-sheet against the accused.
PW-21 K. Sadananda being the Investigating Officer in part has stated that on 3.09.2009, the Head Constable Anantharaju PW-14 had visited Victoria Hospital and recorded the statement of Pushpalatha at 3.00 to 3.30 p.m. and reported the same to PW-21. Since PW-21 saw that the case was serious, he felt that it would be better if he himself recorded her statement. Hence, he along with a Head Constable Ramakrishnaiah proceeded to Victoria Hospital and he had recorded Pushpalatha's statement as per Exhibit P-16 in the presence of Dr. Sathyanarayana. PW-21 had questioned her and it was Ramakrishnaiah who was the scribe to the statement. He has further stated that he conducted spot mahazar as per Exhibit P-1 in the presence of PW-1 and PW-2.
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In the cross-examination, PW-21 has stated that he was not sure as to the Doctor getting her left toe impression. But he has stated that since her fingers were injured, the Doctor might have got her left toe impression on the statement which was recorded.
15. In this background, it is relevant to refer to certain important evidence for the prosecution to prove the guilt of the accused with reference to the occurrence of the incident on 2.9.2009 at about 7.30 p.m. PW-1 Nagaraju, PW-2 Rajagopal and PW-10 Nagamma have been examined for the prosecution. They are neighbours of deceased Pushpalatha who have spoken about the relationship between accused Ravi and deceased Pushpalatha. Both of them were residing on rental basis in the house of PW-2 Rajagopal. But the said PW-2 has not withstood the statements given by him before the Investigating Officer on 2.9.2009. The spot mahazar as per Exhibit P-1 was also conducted in 51 the presence of the said PW-2. Further, PW-10 Nagamma has also turned hostile to the case of the prosecution to a certain extent.
PW-1 Nagaraju the auto driver after returning from Victoria Hospital had in fact enquired PW-2 Rajagopal about the incident. PW-2 had stated that the accused had quarreled with the deceased Pushpalatha and that he poured kerosene on her and set her ablaze. Whereas in the cross-examination of PW-1, he has stated specifically that the deceased Pushpalatha had told him that the incident occurred due to bursting of the stove. However, he also stated that the deceased had told that it was the accused who had poured kerosene on her and set her ablaze. Hence, there is inconsistency in the said statements of PW-1 in both stating that the incident had occurred due to stove burst and also stating that the incident had occurred due to accused Ravi dousing her with kerosene and setting her ablaze. Further, this particular piece of 52 evidence is not corroborated with the evidence of PW-2 Rajagopal, the owner of the house. PW-2 has stated that the accused and deceased used to quarrel with each other but he did not state the reason and he did not even know as to how the deceased Pushpalatha had caught fire and such being the case, the evidence of PWs 1 and 2 who reported about the incident, cannot be believed.
PWs 6 and 12 who are the cousins of Pushpalatha have both narrated that Pushpalatha herself had told them in the hospital that it was her husband Ravi who had poured kerosene on her and set her ablaze. But, the evidence of these two witnesses PWs 6 and 12, runs contrary to the evidence of PW-1 Nagaraju, PW-2 Rajagopal and PW-10 Nagamma, the neighbours of the deceased Pushpalatha. Since the evidence of PWs 6 and 12 are contradictory to the evidence of the neighbours PWs 1, 2 and 10, in our opinion, their evidence cannot be accepted as a whole that they are the circumstantial 53 witnesses relating to the incident which is said to have occurred.
The dying declaration was given by the victim Pushpalatha initially at Exhibit P-5 on 3.9.2009 which was recorded by PW-14 in the presence of PW-8 Dr. Rajalakshmi. On the same day, Exhibit P-16 was recorded by PW-21 in the presence of PW-18 Dr. Sathyanarayana between 4.30 to 5.00 p.m. On 7.9.2009, Exhibit P-9, the third dying declaration was recorded by PW-9 Smt. Harishilpa, Taluk Executive Magistrate of Bangalore South Taluk.
On going through the contents of Exhibits P-5, P- 16 and P-9, it is seen that they are vital documents for the prosecution in order to prove the guilt of the accused. The declaration was made by the victim Pushpalatha at Exhibit P-5 initially and thereafter she has given her second dying declaration at Exhibit P-16 and based upon her second dying declaration, crime came to be registered. Therefore, the genuineness of the 54 contents of Exhibits P-5 and P-16 and so also the genuineness of Exhibit P-9, the third dying declaration given by the victim Pushpalatha has not been appreciated by the Trial court in a proper perspective as to whether the said statements were actually given by Pushpalatha. Moreover, the Investigating Officer has not made any venture to record the statement of Ananda with whom the accused Ravi had suspected that his wife Pushpalatha was having an illicit relationship. Further, on a close examination, it is seen that the contents at Exhibits P-5 and P-16 are contrary to the contents at Exhibit P-9 to a certain extent. Hence, as such, there are omissions and contradictions which have been lost sight of by the court below. There are clouds of doubts with regard to the theory put forth by the prosecution and so also projected that the deceased Pushpalatha had given a statement by narrating the incident which is said to have been committed on her by her husband accused 55 Ravi on 2.9.2009 as a result of which she sustained burn injuries. Whereas PW-19 Dr. Bheemappa Havanoor who had conducted autopsy over the dead body of Pushpalatha has given his opinion as per the PM report at Exhibit P-18 that the death was due to septicemia as a result of sustaining burn injuries.
PW-18 Dr. Sathyanarayana who had certified that the victim was in a physically and mentally fit condition to give her statement has in his cross-examination, specifically stated that on 2.9.2009 while he was a Duty Doctor in the Burns Ward, Pushpalatha was admitted to the said Hospital and the history relating to the injuries sustained by her was recorded in the MLC by the duty Doctor as stove burst which is as per Exhibit D-1. The said document has been got marked on the part of the defence. It reveals that due to accidental bursting of the stove the victim had come into contact with fire and this history had also been stated by her and was also noted in the documents at Exhibit D-3, which had been got 56 marked. Therefore, the contents at Exhibit P-16 even though it has been stated by the victim Pushpalatha in the presence of PW-18 Doctor and though it has been recorded by the Sub-Inspector of Subramanyapura Police Station, this history relating to sustaining burning injuries given by the victim as accidental stove burst, cannot be brushed aside. Therefore, at a cursory glance of the contents at Exhibits D1, D2 and D3 it is seen that the MLC of the victim runs contrary to the contents at Exhibits P-5, P-16 and P-9. Even though Exhibit P-9 has been recorded by PW-9 the Taluk Executive Magistrate, there is some doubt in the mind of the court regarding the genuineness of the contents of these three vital documents at Exhibits P-5, P-16 and P-9 which have been placed by the prosecution in order to prove the guilt of the accused.
16. Therefore, in our opinion, the prosecution has not established the contents at Exhibits P-5, P-16 and 57 P-9 relating to the declaration given by the victim Pushpalatha that the said statements were given by her on her own volition. The circumstance that the accused Ravi himself who is said to have doused kerosene on her has also poured water on her and had extinguished the fire and further admitted her to hospital to provide treatment, has to be taken into consideration. This itself shows the conduct of the accused that he wanted to save his wife as she was suffering from burns.
No ingredients relating to the offence under Section 302 IPC has been constituted for the Trial Court to convict the accused for the said offence. Whereas Section 304 of IPC relating to culpable homicide not amounting to murder is attracted. In the instant case, there is no intention by the accused to eliminate his wife victim Pushpalatha by dousing kerosene on her and setting her ablaze, as reflected at Exhibit P-18 of the PM report. Even though there was knowledge that 58 his act was likely to cause death, but it was without any intention to cause death of the victim Pushpalatha, but with knowledge to cause such bodily injury as is likely to cause death.
Section 304 of IPC reads as under:
"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
Thus, Section 304 of IPC relates to punishment of culpable homicide not amounting to murder. The 59 offence committed by the accused being without any intention to commit the death of the deceased Pushpalatha, Section 304 Part II is attracted. In the instant case, the accused Ravi had picked up a quarrel with his wife Pushpalatha suspecting her fidelity on the fateful day and he went inside the kitchen and brought a bottle containing kerosene and doused kerosene over her and set her ablaze, which is clear from the contents at Exhibits P-5, P-16 and P-9 said to be recorded while she was admitted in Victoria Hospital. Exhibits P-5 and P-16 were recorded on 3.9.2009 in a very short span of time. But Exhibit P-9 was recorded on 7.9.2009 by PW-9 Taluk Executive Magistrate and the same indicates that the victim Pushpalatha had sustained burn injuries but the Doctor had opined in the PM report at Exhibit P-18 that the death was due to septicemia as a result of sustaining burn injuries. The incident had taken place in the house of PW-2 Rajagopal wherein the accused and the deceased were 60 staying in his house on rental basis but on 2.9.2009 at about 7.30 p.m. while she was on fire flames, PW-2 who entered into the house saw that accused was also present and he made attempt to extinguish the fire flame by pouring water on Pushpalatha. Therefore, it indicates that the very accused was present in the scene of crime and the incident had taken place in his house for the reason that she was suspected to have an illicit relationship with her cousins PW-6 Lingaraju, PW-12 Shivaraju and one Ananda. The same is reflected in the evidence of the prosecution. The death had been caused due to Pushpalatha sustaining burning injuries. However, the accused though having knowledge of causing injury to his wife Pushpalatha by way of his act of dousing kerosene on her and setting her ablaze, did not have any intention to eliminate her. A cursory glance of the contents at Exhibits P-5, P-16 and P-9 reveals that the accused himself had attempted to save Pushpalatha's life by pouring water and thereby 61 extinguishing the fire and thereafter he got her admitted to Victoria Hospital and provided treatment. The endeavour to save his wife itself indicates the conduct of the accused, which is the clinching evidence in favour of the accused. Moreover, from Exhibit P-18 PM report, it is seen that Pushpalatha had died due to septicemia as a result of burning injuries.
Here the act of the accused was not intentional but there was knowledge relating to causing burning injuries which would cause bodily injury as is likely to cause death. Moreover, the Trial Court has not considered the evidence going through the contents at Exhibits P-5, P-16 and P-9 coupled with the evidence of PW-8, PW-18 and PW-19. Therefore, we are of the opinion that the prosecution has proved the guilt of the accused for the offences under Section 304 Part II of IPC instead of Section 302 of IPC.
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17. For the aforesaid reasons, we are inclined to alter the judgment of conviction and order of sentence passed by the Trial Court in S.C.No.169/2010 by order dated 8.4.2014. Accordingly, for the aforesaid reasons, we proceed to pass the following:
ORDER The appeal preferred by the appellant is allowed in part. Consequently, the judgment of conviction and sentence passed by the Trial Court in S.C.No.169/2010 for the offence under Section 302 IPC is hereby set aside. But however, the accused is convicted for the offence under Section 304 Part II of IPC. The accused is sentenced to undergo a period of 10 years simple imprisonment. The fine of Rs.50,000/- which has already been awarded by the court below shall remain intact.63
The accused shall be entitled for set off as contemplated under section 428 Cr.P.C. in respect of the period for which he was under judicial custody.
Sd/-
JUDGE Sd/-
JUDGE KS