Karnataka High Court
State By Cottonpet Police vs K C Mohan S/O Chandre Gowda on 6 July, 2010
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
IN THE HIGH COURT or KARNATAKA AT BANGALORE DATED THIS THE 6"' DAY OF JULY, 2010 PRESENT THE HON'Bi_E MR. JUSTICE K. SREEDHAR RA,0.V_,:'-«._,'_t'~._vv AND THE HON'BLE MR. JUSTICE__ARA_LI N--AVG'A'E.i?§3'V"": it it CRIMINAL APPEAL NO.V'-13€-j_4I'A}§ ' Bgtweenl . State by Cottonpet Police, Bangalore City. , .AA.'.:'..,,A1ppei!ant (By Sri Bhavagnii rgmgh, iAd¢a'.fsPP.)'''i~it' , A E<.C. Mohan,_ " _ V _ S/o Ch_andregowda., Ageciabout 22 years, , '*.NO;354i3, Near Chetéhia Convent, , .He..r.nav_ath%i New_ Extension, R; ...Respondent B.M.Siddamaliappa for Mylaraiah Associates) This Appeal is flied under Section 378(1) and (3) Cr.P.C.by the State Public Prosecutor forthe State praying to grant leave to file an appeal against the judgment dated 26.2.2003 passed by the XXV Addi.City Civi-i.f"--an'd Sessions Judge, Bangalore, in S.C.No.442/2001,;~a~cqei_tti'hg" the respondent-Accused for the offence punishabie_under*'--, ' Section 302 IPC. This appeal coming on for NAGARAJ, 3., delivered the following: S " Jupéfiemrdp This appeal is by__ the conopirain'a_nt--State,challenging the correctness of .:'Qr'»d_er of acquittal passed by the "Fr_iel__Cou:rt' respondent herein, of the offence§'--:i,nd,je:r-;'_Secti_on._30~2 it hiayeu;§§14eard»..V.t'he argluvments of Sri G.Bhavani Singh, learned Public Prosecutor for the appeli_avnt~Sit"ateV »a'ndA'*.S"r'i B.M.Siddamallappa, learned 'J'~..cou-nsela;-for"vr-- the respondent-accused. Perused the entire plate;-iai"«fouvndi in the original records obtained from the 1".ria__lCo u.I'.t'.'x*: A thereafter, she was admitted to the hospitai. But she succumbed to the injuries just two days after the incident. 4. The respondent-accused was tried for under Section 302 IPC. In order to establi.sh,:_u_:theegiuilt the "accused, the prosecution has}:got»_exarhgin'ed 20 and has got marked Exs.P_1 toé'P._1."5 andV.M0s.i The Trial Court found that"V"0't.h_e _prosecu:tio'n failed to establish the guilt ofnthe faccuVse_d.V:'beyondifreasonable doubt. Accordingly, it of the said offence. I=*_Vl'l'f.A'1f56~VvQ_riS.S«..,l5;'na'ndal3Da, the Medical Officer in VictoriaA'H,ospitai=._hafs"stated"in his evidence that while he was 50-nggdutfl/,~-.V_Aat' faboutz' 11.15 pm. on 29.3.2001, the A""c.orfip.laEi~n'anVtr~\(.Njavuairamaiah brought the deceased to the injuries, he admitted the deceased in thfexsaid' 'h.ospfital. He has further deposed that when he ansgkedz ii.e}' regarding the history, she stated before him that her husband poured kerosene on her person at about 11 fl% p.m. on that day and lit fire and therefore she sustained the burn injuries. He has further deposed that she...__had sustained 80% burn injuries and that after admititi'n-gnif"p:«h:er4 he sent intimation to the poiice as per Ex.P10. A 6. Pw.12 Dr.Gurumurthy is:."ano.t.hé_.%' in the said hospitai. He has Vde.posed' that at about 11.45 p.m. he continiuedc the to the deceased who was that on perusal of the case sheetoi._thvé.dec*e'aVse~dj,i--.he noticed that it was written" before the doctor who hospital that, on that day at p..rn..V'h'ei'f'v-husbainidpoured kerosene on her person and lit fire=t_oih_er.' _ 'Fhe i'"a'c't"""that the deceased Mangaiamma ,_'_.s'us_t'ai»!1:é'€f:buufi"i.nju'ries on 29.3.2001 at about 10.30 p.m. whilie sheflwlas residing in the residential premises beiongirig to PW.5 complainant, is not disputed. It is aiso dispute that she succumbed to the burn injuries. i?W.16 Medicai Officer, who admitted the deceased to the rm' hospital, has deposed that on the next day, when the police came to the hospital for recording the staternentrgof the deceased, she was not able to give her_;vs'taten3:e!:t" because she was administered with sedative"_j"dVrugs,._for" treating the burn injuries. Thus itjis quigte, clgear_'t--hat.. declaration of the deceased _co_uld_ nostllbe rer;e}.rd.edé' eitgher by the police or by the Taluka Executive ll/ia.q:'istratfle:, 8. The evidence of two Medical Officers cl ea rly e':§iablisl1esi 'the"id'ecea'sed stated' before PW.16 giying"'history, that on that day, atv'dVabout.i1'.g1 th'eV.:'acc_usedpoured kerosene on her person and-lit fire'itjo_h'er:lA'a~nd consequently she sustained the burn inljliri,esia'ndA'tha't. the said history was written by _ i2.n~.the_case'sh'eet. Added to this, the allegations in clearly go to show that the deceased inforrned..th:e'lVcomplainant, while she was taken to the 'i..,hospital,V__by the complainant, that she was set on fire by "'liV'he_r,.h_usband Mohan by pouring kerosene on her person and' litting fire to her. W 9. Learned counsel for the respondent--accused strongly contends that, though it is stated by the deceased before PW.16 that 'her husband' poured kerosene and lit fire to her, she has not given the narne of her husbangd'-and therefore that much of evidence is not sufficient_to"con"nec't V. the accused with the causing of the death of th'e::de;cevas_edV.:.4'i _ It is pertinent to note that it is"clea'riy 7averre'd._by*:the': complainant in his complaint that she :d.i_sciosedr gbefore:.'\him'~-- that her husband Mohan,"'*ewho is'.é1ccu'sed,:Rflherein,V committed the said act of setti'ng'Vs.:heVr"io_n fire'."T'hvis aspect of the case is totaliy lost sight Trial Court. Further, the not considered the evidenciary value ofthe _ staterfm-:n't"_.»s. of the deceased made before doctor"'"a.s::to the circumstances under which she .' injuries which ultimately resulted in her dea_t_h."' statement clearly amounts to oral dying deciara--tioh;f Since there was no occasion for the police to recordvvthe dying declaration through the Taiuka Executive "Magistrate for the reason that on the very next day, when f-- absolutely there was no delay in lodging the said complaint, there could be no occasion for the said Police Inspector to get the said complaint falsely prepared against the accused. 11. As could be seen from the hrecor-ds',' accused " had been tenant of the complai.nanh'ta..andss.._the'refore._lied' turned hostile to the prosecutlion so that he co'u{.civ.saye'3 the accused from being punished. __'ir.e_0ther n'e«i:g_h'boufrs of the accused viz., PW.4 i\i";.l.5aras.husjfavrn'=.a»nAd~ his wife PW.11 Smt.Thangamma.havestated in_the'il?~.. lefiiygience that when they asked the was on fire, she disclosed her husband poured kerosene on her person and_l'it.fire"'to4her. Further, the contention of theglearned xcouinseléi for the respondent-accused that rltiioughvithefdeceased informed these two witnesses that 1"her.._huVsb'a'nd'rpolured kerosene and lit fire to her, she has not'"disclose;d the name of the accused Mohan, as her 'nusbanvdt and therefore, the accused could not be held "responsible for causing the death of the deceased. It is ..__f*r\------I EU pertinent to note that the name of this accused has been given in the complaint as the husband of the deceased. Further, the neighbours of the accused have ciearly stated in their evidence that the accused and deceas.Cd._,:'w_e~~re residing in the said house since iong ago as wife. Therefore, there is abundant...rn_ateri'ai'o'n'_';Vre'cord.Vto it" show that accused and the deceased 'living' in the said house as husband:_a'n,d wife and _ti';atAiw.d'u.ringi the reievant night, there occurre€f,_...Ci:ua_rrevi between Htiiiem and during the said quarrei,the7act:,use'd-Vfvseitithe deceased on fire and went away with'the1cVhii.d,ren.; ]f&h.e:Trial Court has totaliy'i'igno're..dV_the:'se rn'a,t_eriaI..'fa'cts of the case which are againstthe accuse_d._»i"'Bes«id*es this, the statement of the accused re'c:1fCied'.'--u}':de'r' Section 313 Cr.P.C. does not dis'ciosei.any' exb'ia'n'ation by the accused as to how the de.c'eased_hsijst_ai.ned the burn injuries in his house. He has strongiy .d:e:nied in his said statement, aii the incriminating circurnstiances put to him. For the reasons aforesaid, we the considered opinion that the Trial Court has c...§."V'\-- li committed serious error in acquitting the accused by its impugned Judgment and Order. Hence, the following: ORDER
Appeal is allowed. The impugned 3udg.rn'eht-:"ej'a:nd.V Order of the Trial Court acquitting the resporrdé:n't--accu's'ed;_4'n M of the offence under Section 302 Ii5C,"'i«s 'here_byfV'setV:a'si'deV}g The accused is hereby convicted"«for-the lo'i_f,erice«. Section 302 IPC. Since it the Vrarestvurolf-ethe rare 'V V cases, he is sentencedgto u.r1der'go'VV'i"ife in;lipr'i'son:ment. A copy of this judgment shall the to the Trial Court for giving eh'-ect to