Karnataka High Court
Venkatesh vs The State Of Karnataka on 8 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.271 OF 2019
BETWEEN:
VENKATESH,
S/O PERUMAL,
AGED ABOUT 39 YEARS,
R/AT MANI BUILDING,
16TH CORSS,
NEAR YELLAMMA TEMPLE,
T.DASARAHALLI,
BANGALORE - 560 057.
... APPELLANT
(BY SRI DEVENDRA E.H., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY PEENYA POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION DATED 27.01.2006 ORDER OF
SENTENCE DATED 01.02.2006 PASSED BY THE ADDL.SESSIONS
JUDGE AND PRESIDING OFFICER, F.T.C.-IV, BENGALURU IN
S.C.NO.503/2005 - CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302
READ WITH 34 OF IPC.
THAT APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.1,000/- (ONE
THOUSAND RUPEES) AND IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERO FURTHER SIMPLE IMPRISONMENT FOR 1 MONTH
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ
WITH 34 OF IPC.
THE APPELLANT/ACCUSED PRAYS THAT HE BE
ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, S. RACHAIAH J., DELIVERED THE FOLLOWING:
3
JUDGMENT
The appellant being aggrieved by the judgment of conviction and order of sentence passed in SC No.503/2005 dated 01.02.2006 by the Presiding Officer, Fast Track Court-IV, Bengaluru, for the offence punishable under Sections 302 read with Section 34 of IPC.
2. Brief facts of the case are that :
The deceased Uma and accused No.1 are wife and husband. Their marriage was performed 7 years prior to the incident. It was love marriage. After the marriage, they were living peacefully. Due to the wedlock they have begotten three children. During Pongal festival, the deceased Uma wanted to go to Madras. She was supposed to stay 3-4 days in Madras, however, she had to come to Bangalore immediately after she visited her grand father. When she went to her house at Bengaluru, she saw her husband was with the company of another woman. She enquired about the presence of the woman in the house. The accused No.1 did not give any proper reply. On 4 the other hand, he has expressed that he want to keep that woman in his house as the said woman has no parents. The deceased Uma expressed her dissatisfaction about the presence of that woman. There was quarrels taken place about the presence of the woman. The accused No.1 has assaulted Uma and went for sleep. At about 2 O' clock, early in the morning on 20th Janurary 2005, again there was a quarrel between the accused No.1 and deceased Uma regarding the presence of the said woman. Accused No.1 and the woman present in the house have quarrelled with Uma and decided to kill Uma, as a result, accused No.1 poured kerosine on her body and set her ablaze.
3. The sister of accused No.1 Rajeshwari who was present in the house has took Uma to the house of PW1 Rathnamma. They have shifted Uma to KC General Hospital, Bengaluru, there the doctor has advised to take her to Victoria Hospital, Bengaluru and accordingly, she was taken to Victoria Hospital, Bengaluru. There, the deceased Uma had given her statement before the police in the presence of Doctor saying that she sustained burn injuries due to stove burst. Thereafter, after 5 two-three days, she expressed her willingness to give one more statement. The doctor intimated the same to the police. Accordingly, PW25-Shankaranarayana has recorded the statement which is marked as Ex.P8. Based on the Ex.P8, PW20- B.G. Bangarappa - Sub-Inspector of Police registerd the case and conducted partial investigation. Thereafter, PW23- H.Subbanna - Inspector of Police filed charge sheet.
4. After committal to the Sessions Court, the learned Sessions Judge framed the charges for the offence punishable under Section 302 read with Section 34 of IPC and explained the charges to the accused in the language known to him. The accused denied it as false and claimed to be tried.
5. To prove the case of the prosecution, the prosecution has examination PW.1 to PW25 and got marked Exs.P1 to P21 and also identified the material objects M.O.1 to M.O.4. After conclusion of evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions 6 of Section 313 of Cr.P.C. was recorded. He denied the incriminating evidence adduced by the prosecution witnesses, but not adduced any defence evidence and got marked documents at Ex.D1 and Ex.D1(a).
6. The trial court after having considered the oral and documentary evidence on record, opined that the accused No.1 has committed an offence punishable under Section 302 read with Section 34 of IPC and sentenced him to undergo imprisonment for life and fine of Rs.1,000/-, in default of payment of fine, he shall undergo Simple imprisonment for one month. The accused No.2 was not available for trial. Hence, the trial court proceeded with the trial of accused No.1, by splitting- up of the case against accused No.2.
7. Heard Sri. Devendra E.H for Sri. Mohan Kumar D., the learned counsel for the appellant and Sri. Vijaya Kumar Majage, learned Addl. SPP for the respondent-State. 7
8. Sri. Devendra E.H., learned counsel appearing on behalf of Sri. Mohan Kumar D. for the appellant contended that the judgment of the trial court is erroneous and oppose to the material available on record. Hence, the judgment is liable to be set aside.
9. The learned counsel for the appellant further contended that there are inconsistencies between the mother of the deceased and sister of accused No.1 and also the first dying declaration and 2nd dying declaration. Hence, the same may be considered as material contradiction and the judgment contains infirmity and liable to be set aside.
10. The learned counsel for the appellant further contended that the accused No.1 was present, when the deceased Uma was being shifted to the hospital and he was very much present in the hospital for two days. Thereafter, he has gone to visit the temple by taking Rs.500/- from deceased Uma, which clearly shows that the statement made by deceased Uma 8 as per Ex.P10 i.e., 1st dying declaration should have been considered by the trial court. In the first dying declaration, she has stated that due to the stove burst, she has sustained injuries, whereas in the second dying declaration which is marked as Ex.P8 she has narrated about the illicit relationship with accused No.2 by accused No.1 and also the quarrel for the said reason. This inconsistency ought to have been considered by the trial court and acquitted the accused. However, not considering the evidence properly by the trial court resulted in passing of this impugned judgment which requires interference by this court and also the judgment of conviction and order of sentence is liable to be set aside.
11. On the contrary, Sri. Vijayakumar Majage, Addl. SPP while justifying the judgment of conviction vehemently contended that, the trial court has rightly convicted Accused No.1 for the offence punishable under Section 302 read with Section 34 of IPC. It is not in dispute that the prosecution has cited accused No.2 as one of the accused in the case, it appears that she was present as on the date of incident. Because of her 9 presence in the said house, the quarrel had taken place between accused No.1 and deceased Uma, thereby the prosecution has proved the 'motive' for the murder of deceased Uma. The accused No.1 and 2 knowingly that the pouring the kerosine on the body and lit the fire would be sufficient to cause the death of a person, have committed murder of deceased Uma. Mere presence of accused No.1 along with the deceased in the hospotal cannot wiped out the crime which he has committed against his wife.
12. The learned Addl. SPP further contended that the deceased Uma had given two dying declaration, one is marked as Ex.P10 and another one is marked as Ex.P8. Though in the first dying declaration, she has stated that she has sustained injuries due to stove burst and later, she came to know that she wanted to tell the truth before the police and expressed her willingness to give one more statement to the doctor, the doctor intimated the same to the police, the police have recorded again the statement of the victim/deceased Uma and the same is marked as Ex.P8, which clearly indicates the genesis of the 10 death of deceased Uma. Such being the fact, the trial court considering all the facts and evidence on record, convicted the accused No.1 for the above mentioned offences. Hence, interference with the well-reasoned order is unwarranted. He further contends that the appeal filed by the appellant is requires to be dismissed.
13. Having heard the rival contentions urged by the learned counsel for the parties and perused the evidence and judgment on record, the question which arise for our consideraion are ;
[i] Whether the trial court is justified in convicting the accused No.1 for the offence punishable under Section 302 read with Section 34 of IPC?
[ii] Whether the appellant has made out a ground to interfere with the order of conviction passed against accused No.1?
11
14. This court being the first appellate court, in order to re-appreciate the entire evidence of the witnesses and material available on record, it is relevant to analyze the evidence for proper and better understanding of the case.
(a) PW1- Rathnamma - who is the mother of the deceased. She states that she has performed the marriage of her deceased Uma with accused No.1, about 7 years ago as on the date of the incident. She further states that, on 20.01.2005, at about 2.00 A.M., PW17-Kumari Rajeshwari had brought deceased Uma to her house stating that the said Uma sustained burning injuries. PW1 further states that she along with PW17 took deceased Uma to the hospital for treatment. She further states that the accused No.1 was responsible for the death of her daughter deceased Uma. She supported the case of the prosecution.12
(b) PW2 - Agastin - He is the witness to Ex.P3-Inquest Panchanama. He partly supported to the extent of seeing the dead body at Victoria Hospital and affixing the signature on Ex.P3. Rest of the contents of Ex.P3, he has turned hostile.
(c) PW3 - Srinivas - He is also witness to Ex.P3-
Inquest Panchanama. He partly supported to the extent of seeing the dead body at Victoria Hospital and affixing the signature on Ex.P3. Rest of the contents of Ex.P3, he has turned hostile.
(d) PW4 - Sridevi - She is the neighbour of the deceased. She states that accused was working as mason and deceased Uma was going to work in choultry. She states that both were living happily and turned hostile for the case of the prosecution. 13
(e) PW5 - Muniyamma - She is the elder sister of deceased Uma. She states that after she came to know that her sister Uma had sustained burn injuries, had went to the Victoria Hospital. She further states that the said Uma had spoken with her about the incident. However, the said Uma did not disclose as to how she sustained injuries. She further states that when she had been to the hospital, she has seen the accused No.1 in the hospital. The prosecution has treated her as hostile witness.
(f) PW6 - Manjunath - He is the busband of PW4 and residing next to the house of the deceased Uma. He is treated as hostile witness as he has not supported the case of prosecution.
(g) PW7 - A.S. Patil - working as a Special Tahsildar in Bengaluru North Taluk. He states that on 03.02.2005, on requisition made by the Peenya 14 Police, he has conducted inquest of the deceased Uma. The same is marked as Ex.P3. He has supported the case of prosecution.
(h) PW8 - Sheshadri S. - was working as Asst.
Executive Engineer, PWD North Division. He states that on 22.03.2005, on requisition being made by Peenya Police, he has prepared Sketch of the place of incident. The same is marked as Ex.P7, supported the case of prosecution.
(i) PW9 - Dr. Shankarappa - He was working as Professor of Forensic Medicine Division, Victoria Hospital, Bengaluru. On 28.01.2005, when he was working in female burns ward, he has received intimation from Head Constable, Shankaranarayana regarding the second statement of the deceased Uma. He states that at about 11.30 a.m., he has examined and opined that she was in fit condition to give statement. Thereafter, the head constable has 15 recorded the statement given by deceased Uma. The said statement is marked as Ex.P8. He supported the case of prosecution.
(j) PW10 - Vimala - She is working as Social Worker.
On 28.01.2005, at about 9.30 - 10.00 O'clock in the morning, she visited the ward where the deceased Uma was taking treatment. She further states that the police had come to record the statement of the victim and she was very much present at the time of statement being recorded. She has seen and identified Ex.P8 - second dying declaration, supported the case.
(k) PW11 - Venkatesh - He was working as auto driver.
On 19.01.2005, when he was sleeping at his house, at about 2.30 a.m., Rathnamma who is neighbour of him, had knocked the door and asked him to bring his auto to take her daughter for treatment for which 16 her daughter had sustained burn injuries. He further states, he went along with them. In the auto, Rathnamma, her daughter and the younger sister of accused No.1 were present. Supported the case of prosecution.
(l) PW12 - Umapathi B.S. - Police Constable, working in Peenya Police Station. On 03.02.2005, he has carried FIR and reached to the Magistrate at about 11.45 A.M., The FIR is marked as Ex.P9.
(m) PW13 - K.Shashidharachar - Police Constable attached to the Peenya Police Station. He was deputed to record the statement of the victim. Accordingly, at about 2.30 P.M., on 20.01.2005, he has recorded the statement of the victim as per Ex.P10. Supported the case of prosecution. 17
(n) PW14 - Siddegowda - ASI, Peenya Police Station. He has received information from the Victoria Hospital on 20.01.2005 at about 11.30 a.m., He has deputed PW13 to record the statement of the victim. On receiving the said statement from PW13, he has registered C.Misc. No.38/2005. The same statement which is already marked as Ex.P10 and he has identified his signature as Ex.P10(a). Supported the case.
(o) PW15 - G. Ramegowda - He was working as Head Constable at Peenya Police Station. He states that he was deputed to secure the presence of the accused on 04.02.2005. On receiving information from the informants, the whereabouts of the accused he has apprehended accused No.1 and produced before the Investigating Officer. Supported the case. 18
(p) PW16 - H.D. Basavaraju - Police Constable of Peenya Police Station. He was deputed to handover the material objects seized at the place of incident to the FSL. He has supported the case of prosecution.
(q) PW17 - Rajeshwari - Sister of accused No.1. She states that she was residing along with her brother and sister-in-law/deceased Uma. On 20.01.2005, when her sister-in-law gone to boil the milk to give to the child, the stove had burst, as a result, her sister-in-law sustained burn injury. As her brother/accused No.1 was not at home, hence, she has taken her sister-in-law to her mother's house and accompanied to the K.C. General Hospital along with PW1 and deceased Uma. Though the prosecution treated her as hostile, nothing has been elicited by the prosecution.
19
(r) PW18 - Muniswamy - He is the elder brother of deceased Uma. He states that he had gone to Victoria Hospital to see his sister who was suffering from burn injuries. He was told by her sister that she had sustained injuries by stove burst. The prosecution treated him as hostile.
(s) PW19 - Krishna - He is the witness to the seizure mahazar which is marked as Ex.P12. supported the case of the prosecution.
(t) PW20 - B.G. Bangarappa, PSI, Peenya Police Station
- He states that on receiving the statement which was recorded by Head Constable 1706, has registered the case in Crime No.28/2005 for the offence punishable under Section 307 of IPC. He has conducted partial investigation and handed over further investigation to the Police Inspector. 20 (u) PW21 - Dr. G. Sadashivaiah - He was working as Asst. Professor in Bengaluru Medical College in the Department of Plastic Surgery and Burns Division. On 19.01.2005, a lady by name Uma got admitted to the hospital for treatment. He states that she was suffering 53% burn injuries. On 27.01.2005, he has intimated to the police regarding the willingness of the victim to give second statement. He has supported the case of the prosecution.
(v) PW22 - Dr. Shobha - She was working as Deputy Chief Officer at Victoria Hospital. She states that she has received information from the victim about the injuries which the victim has sustained. She has produced MLC Register Extract which is marked as Ex.P20, supported the case of the prosecution. (w) PW23 - H. Subbanna - Police Inspector, Peenya Police Station - He has conducted investigation and 21 filed charge sheet. Supported the case of prosecution.
(x) PW24 - Dr. C.N. Sumangala - She was working as Lecturer in Bengaluru Medical College in the department of Forensic Science. She has conducted postmortem of deceased Uma and issued postmortem report, which is marked as Ex.P21 and opined that "the death is due to septicaemia as a result of burns sustained". Supported the case of prosecution.
(y) PW25 - B.S. Shankaranarayana - Additional witness
- He was working as Head Constable. He was deputed to record the statement of deceased Uma. He went there and consulted Dr. Shankarappa and obtained permission to record the statement. Accordingly, he has recorded the statement of 22 deceased Uma as per Ex.P8. Supported the case of the prosecution.
15. The prosecution has mainly depend upon the dying declaration of the victim. Before adverting to the other facts of the case, the legal position of dying declaration is relevant to be seen for better understanding. The dying declaration is an exception to the rule against admisibility of hearsay evidence. Normally, the courts attach the intrinsic value of truthfulness to the statements made in the dying declaration. Once the statement has been made voluntarily, it is reliable and it can form the basis of conviction more so, where the version given by the deceased as dying declaration is supported and corroborated by other prosection evidence. There was no reason for the court to doubt about the truthfulness of such dying declaration.
16. If there are multiple dying declaration, each dying declaration has to be considered independently on its merit so as to appreciate it's evidenciary value and one cannot be rejected 23 because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each of them in it's correct perspective and satisfy itself which one of them reflects the true state of affairs.
17. In the present case, there are two dying declaration said to have been recorded by police officers. Ex.P10 is the first dying declaration said to have been recorded by ASI and the second dying declaration said to have been recorded by the Head Constable which is marked at Ex.P8. Both are inconsistent with each other. In the first dying declaration, the declarant has stated that due to the stove burst, she has sustained injuries, whereas, the second dying declaration discloses that there was quarrel between accused No.1 and the deceased, regarding a lady who was staying at her house. The victim further stated in the second dying declaration that on 19.01.2005, at about 8.00 P.M., when she came out to purchase the ration, she has seen that accused No.2 was sitting on the lap of her husband. After seeking the same, she has quarrelled with accused Nos.1 and 2 and went for sleeping. Again, at about 2.00 A.M., accused Nos.1 24 and 2 started quarrelling with the declarant and poured kerosine and lit fire upon her. Consequently, she has sustained burn injuries. She further states that on 20.01.2005, when her husband had accompanied her to the hospital and he has threatened her that he would kill her children if she disclose anything about the incident. Fiering for that, she couldn't disclose the facts to either police or to the family members, now, after realizing that she may not survive, she disclosed everything to the police.
18. Now, it is relevant to see the corroboration since there are multiple dying declaration which are inconsistent with each other to arrive at conclusion. PW1 - mother of the deceased has stated that the marriage between the accused No.1 and the deceased Uma had performed about seven years ago. Due to their wedlock, accsed No.1 and deceased had three children. On careful reading of entire evidence, she states that the relationship between accused No.1 and deceased were cordial and no such misnderstanding between them. However, she states that the Accused No.1 is responsible for the murder of 25 her daughter. PW5 and PW18 are sister and brother of the deceased Uma. They have stated on oath that they were told that the deceased Uma sustained injuries due to stove burst. If at all, if the second dying declaration i.e., Ex.P8 would be a truthful, they wouldn't have stated before the court that deceased Uma being younger sister to them, sustained burn injuries due to stove burst. Taking into consideration their evidence with the second dying declaration - Ex.P8, there are lots of inconsistencies and improvements in the dying declaration.
19. PW4 and PW6 are the neighbours of deceased Uma have stated on oath before the Court both accused No.1 and deceased Uma were residing with a cordial relationship. They have not seen any untowards incident in the house of deceased and accused No.1. The evidence of these witnesses are very much relevant and significant to conclude about the relationship between accsed No.1 and the deceased. Except good relationship between accused No.1 and deceased, no other material/evidence 26 forthcoming by these witnesses. Hence, the evidence of PW4 and PW6 are relevant with regard to cordial relationship.
20. It appears from the evidence that till PW10 enters to the female burns ward, where the deceased was taking treatment only Ex.P10 was in existence. Even though the first dying declaration said to have been recorded on 20.01.2005 till 28.01.2005, there was no attempts made by the victim to give second statement. Upon entry of PW10 to the scene, the second dying declaration said to have been given by the victim and recorded by Head Constable-PW25.
21. It is well settled principle that, usually the married woman will disclose about the pros and cons of family affairs to her relatives. Except the relatives, it is very difficult to elicit the truth of any harassment meted out to the married woman. In this case, PW1, PW5 and PW18 are the relatives have consistent in their evidence that the deceased had sustained burn injuries because of stove burst. PW4 and PW6 are the neighbours. They 27 have stated before the Court that both accused No.1 and deceased were living happily without any quarrel. PW17 who is sister-in-law of the deceased and also sister of accused No.1 was very much present at the time of alleged incident said to have taken place. She also stated that due to stove burst, her sister- in-law has sustained burn injuries. The presence of PW17 at the seen of occurrence and accompany to the hospital with PW1 has not been denied by either PW1 or PW11-who is autodriver, has taken the injured to the hospital for treatment.
22. All these witnesses namely PW1, PW5, PW17 and PW18 and also Ex.P10 discloses that the victim has sustained burn injuries due to stove burst. PW4 and PW6 have stated that both accused No.1 and the deceased were living happily. By considering all the above observations, we feel Ex.P8-second dying declaration said to have been given by the victim is doubtful and it appears to be tutored. Hence, we are of the considered opinion that the trial court erroneously considered Ex.P8-second dying declaration as relevant and passed the 28 judgment of conviction and order of sentence which is liable to be set aside.
23. For the aforesaid reasons, Point No.1 is answered in the 'negative' holding that the trial court erroneously arrived at a conclusion and convicted Accused No.1 for the offence punishable under Section 302 read with Section 34 of IPC, Point No.2 in the 'affirmative' holding that the appellant has made out grounds to interfere with the impugned judgment of conviction and order of sentence by the Fast Track Court-IV, Bengaluru.
24. In view of the above, we proceed to pass the following :
ORDER
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment of conviction dated 27.01.2006 and order of sentence dated 01.02.2006 made in S.C.No.503/2005 on the file of the Presiding Officer, Fast Track Court-IV, Bengaluru, convicting the appellant/accused No.1 29 for the offence punishable under Section 302 of the Indian Penal Code is set-aside.
(iii) The appellant/accused No.1 is acquitted for the offence punishable under Section 302 of the Indian Penal Code.
(iv) The concerned jail authority is directed to release the appellant/accused No.1 forthwith, if he is not required in any other case, after following the existing Standard Operating Procedure.
(v) The fine amount, if any, deposited by the appellant/accused No.1 shall be refunded to him.
(vi) Registry is directed to return the Trial Court Records.
Sd/-
JUDGE Sd/-
JUDGE snc