Karnataka High Court
Sri Anbu S/O Ramanna vs State By Banashankari P S on 26 March, 2014
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
Crl.A.845/2011
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF MARCH 2014
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR. JUSTICE K N KESHAVANARAYANA
CRIMINAL APPEAL NO.845/2011
BETWEEN
Sri Anbu,
S/o Ramanna,
Age: 42 years,
R/a Narayanappa,
Sister's House,
III Cross,
Next to Masjid,
Kadirenahalli II Stage,
Bangalore-560 070. Appellant
(By Sri P N Hegde, Adv., for appellant)
AND
State,
By Banashankari P S,
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bangalore. Respondent
(By Sri K R Keshavamurthy, Addl.SPP, for respondent)
---
This Criminal Appeal is filed under Section 374(2) of the Code of
Criminal Procedure, praying to set aside the order dated 7.1.2011
Crl.A.845/2011
2
passed in SC No.1083/2009 on the file of P.O. and Addl. S J, FTC-XV,
Bangalore convicting the appellant/accused for the offence punishable
under Sections 309 and 324 of IPC and the appellant/accused is
sentenced to undergo RI for a period of 10 years for the offence
punishable under Section 436 of IPC and to pay fine of `10,000/-, in
default, to undergo SI for 3 months.
This Appeal coming on for hearing, the same having been heard
and reserved for pronouncement of Judgment, Dr. Bhakthavatsala, J.,
delivered the following:
JUDGMENT
Appellant/accused in S C No.1083/2009 on the file of Fast Track Court-XV, at Bangalore City, is before this Court under Section 374(2) of the Code of Criminal Procedure challenging the judgment of conviction dated 7.1.2011 and an order of sentence dated 11.1.2011 sentencing the accused for the offence punishable under Sections 436 and 302 of IPC, made in the above-said case.
2. Brief facts of the case leading to the filing of the Appeal may be stated as under:
P.W-2/Shivalingaiah is the younger brother of the appellant/accused. They are tailors by profession. The accused was working in the Tailoring shop of P.W-2. Naveena is the wife of P.W- 2/Shivalingaiah. P.W-2/Shivalingaiah and his wife-Naveena were residing in the house bearing No.53, 22nd Main Road, Banashankari II Crl.A.845/2011 3 Stage, Bangalore-560 070. Out of the wedlock, they have a female child, aged about 5 years. It is the case of prosecution that when the accused called Naveena for illicit relationship, she took a serious objection and cautioned him stating that she would inform about the incident to her husband/P.W-2, for which the accused threatened her with a dire consequence. However, Naveena informed the incident to her husband/P.W-2, who cautioned the accused and told him not to come home. The accused did not come to shop for 4 days. But, on 4.8.2009, the accused came home and forced Naveena to have illicit relationship. Therefore, she went to a public phone situated nearby the house and informed her husband about the incident. P.W-2 replied saying that he was present in the next street and he would come home. It is the case of prosecution that when she (the victim) was near the public phone, the accused poured petrol on Naveena and attempted to set her ablaze. Therefore, she escaped from him and went inside the house and bolted. After some time, at about 4.30 pm, she heard sound of opening of the gate of their house, she (the victim) under the impression that her husband/P.W-2 was coming, she opened the main door and at that time, the accused, who was present there only, set her ablaze with cigarette lighter. As a result of which she sustained burn injuries all over her body. This incident was witnessed by P.W-2, who was entering the house and with the help of his worker-P.W 3/Papanna, they doused fire on her and Crl.A.845/2011 4 in that process P.W-2 sustained burn injuries to his fingers. On 4.8.2009, at 4.45 pm, P.W-9/Nagasundara, HC-2134, received a direction to go to tailoring shop of P.W-2. Accordingly, he went to the spot. In the meantime, P.W-13/Kantaraju, ASI, who also came to know about the incident from South Police Central Room, secured an Ambulance vehicle-108 and sent the victim and P.W-2 to Victoria Hospital. P.W-9 escorted them. P.W-6/Muniyappa, PSI, recorded the statement of victim (vide Ex.P-16) in the Hospital, after P.W-15/Dr. Jayashree certified that the victim was in a fit condition to give statement and registered a case in Crime No.231/2009 against the accused for the offences punishable under Sections 307 and 436 of IPC. It is also the case of prosecution that while P.Ws-2 and 3 were dousing fire on Naveena, the accused went to the tailoring shop of P.W-2 (situated by the side of the house of P.W-2) and poured petrol on the articles in the tailoring shop and set fire. P.W 13-ASI found the accused was sitting inside the tailoring shop and due to smoke in the shop, the accused had breathing problem. Hence, he sent the accused through HC 2134 and PC 8193 to Jayanagar General Hospital for treatment. Accordingly, the accused was got admitted to the said Hospital. The victim, who was undergoing treatment in the hospital, succumbed to the burn injuries on 9.8.2009 at 10.15 a m. Thereafter, P.W-2 gave a report to the Police as per Ex.P10. The Police issued an additional FIR adding Section 302 of Crl.A.845/2011 5 IPC. After the accused was discharged on 6.8.2009 from the Hospital, the Investigating Officer arrested him and produced him before the Court with remand application. Thus, the accused has been in judicial custody from the date of his arrest. After the investigation was over, charge sheet came to be laid against the accused for the offences punishable under Sections 436 and 302 of IPC. The case of the accused is of total denial and also contended that on account of quarrel between the deceased Naveena and her husband (P.W-2), the latter set her ablaze and he is innocent of the offences alleged against him. In support of the case of prosecution, it has got examined as many as 15 witnesses, got marked Exs.P1 to P24 and got exhibited M.Os.1 to 5. After the evidence on the side of prosecution was closed, statement of accused under Section 313 of Cr.PC was recorded. The accused has denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. He has not adduced any defence evidence.
The trial Court, after hearing arguments and perusing the oral and documentary evidence on record, came to a conclusion that the prosecution proved the guilt of the accused for the charges levelled against the accused and after hearing the accused on the point of sentence, the accused was sentenced to undergo RI for a period of 10 years and pay a fine of `10,000/-, in default in payment of fine, to Crl.A.845/2011 6 undergo SI for 3 months for the offence punishable under Section 436 of IPC and to undergo rigorous imprisonment for life and pay a fine of `10,000/-, in default in payment of fine, to undergo SI for 3 months for the offence punishable under Section 302 of IPC. Thus, the judgment of conviction and order of sentence made by the trial Court are impugned in this Appeal.
3. We have summoned the records in SC No.1083/2009 on the file of Fast Track Court-XV, at Bangalore City, and the same is before this Court.
4. Learned Counsel appearing for the appellant/accused submits that though it is pleaded in para-8 of the memorandum of Appeal that there was no cordial relationship between the deceased and her husband and that she was insisting her husband to get money from her ancestral place to set up a business, he did not press the same. He submits that there is inconsistency in the evidence of prosecution and failed to produce medical report with regard to the alleged injuries sustained by P.W-2 (the husband of the deceased) and since there are no independent eye witness, and non-production of medical certificate in so far as admitting the appellant to the Hospital for treatment and the FSL report (Ex.P-21) of the clothes of the deceased does not indicate the presence Crl.A.845/2011 7 of either petrol or kerosene, the trial Court erred in convicting the appellant on the ground of presumption and assumption in the absence of legal evidence to prove the guilt of the accused beyond reasonable doubt. He further submits that the trial Court erred in believing the evidence of P.W-2/husband of the deceased and his worker- P.W3/Papanna, who are interested witnesses. It is also contended that since the deceased had suffered 90% of burn injuries, it was not possible for her to give a statement. It is submitted that the alleged dying declaration of the victim does not indicate that the victim's statement was recorded in the presence of the Medical Officer and that nothing prevented the Taluka Executive Magistrate to record her statement either on 4.8.2009 or on the following day and the impugned judgment of conviction and order of sentence may be set aside and the accused may be acquitted of the charges levelled against him.
5. Sri Keshavamurthy, Addl. SPP, submits that the prosecution has proved that the accused has committed the offence alleged against him beyond reasonable doubt and there is no good ground to reject the dying declaration of the victim, evidence of P.W-2/the husband of the deceased and P.W-3/Papanna (a worker in the tailoring shop of P.W-2) and other circumstantial witnesses.
Crl.A.845/20118
6. In the light of the arguments addressed by the learned Counsels for the parties, the only point that arises for our consideration is:
• Whether the impugned judgment of conviction and sentence call for our interference ?
7. Our answer to the above point is as per final order.
8. Admittedly, the appellant/accused is elder brother of P.W- 2/Shivalingaiah. The deceased Naveena is the wife of P.W-2 and sister- in-law of the present appellant. Out of the lawful wedlock between the deceased and P.W-2, the deceased had given birth to a female child. The child was 5 years old. The deceased, her husband-P.W-2 and their daughter-lass were living together in the house bearing No.53, 22nd Main Road, BSK II Stage, Bangalore-560 070; Tailoring shop measuring 3'x6' with rolling shutter (vide photo at Ex.P2) was adjoining to the house of P.W-2. At the entrance of the premises of P.W-2 there was an iron collapsible gate. It is stated that the appellant/accused was working in the tailoring shop of P.W-2 and also taking food in his house. It is in the evidence of P.W-2 that when the accused attempted to have illicit relationship with his wife-Naveena she objected and told him that she would inform the same to P.W-2, for which the accused threatened her Crl.A.845/2011 9 with dire consequences if she informs her husband. But, Naveena informed about the incident to P.W-2. P.W-2 cautioned him and told the accused not to come home. Thereafter, for 3 to 4 days, the accused did not come to the tailoring shop. On 4.8.2009 in the evening when he had been to the next street of their house, his wife called him (P.W-2) over phone from a public phone situated nearby their house and told him that the accused attempted to have illicit relationship with her. P.W-2 replied stating that he was in next street and he would come. It is stated that when Naveena had gone to make a telephone call, the accused poured petrol on her person and attempted to set fire. Hence, she ran away from the place and went inside her house and bolted the door from inside. After some time, she heard the sound of opening the gate-iron (collapsible gate). On hearing the sound, presuming that might be her husband (P.W-2), she opened the main door and at that time the accused, who was standing there only, set her ablaze by using lighter and as a result of which she sustained burn injuries. P.W-2, who was entering the house, witnessed the incident and attempted to extinguish fire with the help of P.W-3/Papanna (a worker in the shop of P.W-2). Thereafter, P.W-2 and his wife-Naveena were taken to Victoria Hospital for treatment. After the victim was admitted to Victoria Hospital, MLC report was sent by P.W-15/Dr.Jayashree. P.W-6/PSI went to the Hospital on the same day and recorded statement of the victim as per Crl.A.845/2011 10 Ex.P16 after the Medical Officer certified that the victim can give statement. He returned to the Police Station and registered a case in Crime No.231/2009 for the offence punishable under Sections 307 and 436 of IPC. On the top of Ex.P16, P.W-15/Medical Officer has certified that the patient was physically and mentally fit to give statement and she permitted to take statement of the victim by P.W-6/K M Muniyappa, PSI. Thus, statement of the victim was recorded by P.W-6 as per Ex.P-
16. The victim has subscribed her LTM to Ex.P16. She succumbed to the burn injuries in the Hospital on 9.8.2009 at about 10.15 pm. Hence, FIR was issued adding Section 302 of IPC. P.W-15/the Medical Officer has deposed that the victim was mentally and physically fit to give statement and she permitted P.W-6 to record statement of the victim. The Medical Officer's (P.W-15) endorsement has been marked as Ex.P16(a). P.W-15 has deposed that she was not present while recording the statement of the victim. Though P.W-15/Lady Medical Officer has deposed that she was not present while recording the statement of the victim-Naveena by P.W-6. Statement of the victim at Ex.P16 falls within the scope of Section 32 of the Evidence Act. Thus, Ex.P16 is the dying declaration of the victim-Naveena. The victim has disclosed about the manner in which the accused committed crime. Apart from that dying declaration of the victim has been corroborated by P.W-2 (husband of the deceased) and P.W-3 (a worker in the tailoring shop of P.W-2). The defence has not Crl.A.845/2011 11 elicited anything worthwhile in the cross-examination of P.Ws.2 and 3 (eye witnesses to the incident), to disbelieve their evidence. Merely because the victim had sustained 90% of burn injuries, it cannot be said that she was not in a fit condition to give statement and that P.W-6 did not record the victim's statement as per Ex.P16. If the burn injuries were to be very deep like first, second and third degree, the mental and physical condition of the victim can be doubted. In the instant case, immediately after the accused set fire to the victim, P.Ws.2 and 3 doused fire. 90% of the burn injuries refers to the area of the body of a person. There is no evidence to show that left hand thumb was completely burnt and therefore it was not possible to subscribe her LTM to the statement. Learned Counsel for the appellant submits that the Investigating Officer sent (i) plastic bottle, (ii) half liter empty paint box, (iii) nighty, (iv) langa and (v) burnt cloth pieces in all five articles to FSL and obtained the report as per Ex.P21, but it does not indicate petrol residues in item No.2 (half liter empty paint box), item No.3 (burnt cotton nighty), item No.4 (burnt langa) and item No.5 (burnt cloth pieces). In so far as item No.1 (green colour plastic bottle of two liters capacity) is concerned, presence of petrol residue was found in that. According to the prosecution, the accused threw petrol on the victim-Naveena from M.O- 1/bottle. It is also a case of prosecution that the accused went to the tailoring shop of P.W-2 situated by the side of the scene of crime and Crl.A.845/2011 12 poured remaining petrol from M.O-1, and destroyed the articles kept in the tailoring shop. At the time of incident, the victim was wearing brown and black colour checks and striped cotton nighty (M.O-3) and green colour langa (M.O-4). They were half burnt. Since M.Os.3 and 4 were half burnt and M.O-5 is burnt cloth pieces, there would not be petrol residue in those articles. Therefore, it cannot be contended that the victim did not sustain burn injuries due to pouring petrol on the victim and setting fire. The defence has not elicited any omissions and contradictions in the case of prosecution. Under such circumstances, the trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC. In so far as the offence alleged against the accused under Section 436 of IPC is concerned, Ex.P2 (photograph of the tailoring shop of P.W-2) does not show that the accused destroyed articles alleged to be kept in the tailoring shop of P.W-2 and caused loss of `50,000/- to `60,000/-. His self serving evidence that the articles kept in his shop worth `50,000/- to `60,000/- were destroyed by the accused cannot be accepted in the absence of details of the articles. Merely because few cloth pieces were destroyed by fire in the shop of P.W-2, the trial Court is not justified in convicting the accused for the offence punishable under Section 436 of IPC.
Crl.A.845/201113
9. For the reasons stated supra, we pass the following order:
Appeal is partly allowed. The judgment of conviction dated 7.1.2011 and order of sentence dated 11.1.2011 passed against the accused in SC No.1083/2009 on the file of P.O and Addl. S J, FTC-XV, at Bangalore, for the offence punishable under Section 436 of IPC is set aside while confirming the judgment of conviction and order of sentence passed against the accused for the offence punishable under Section 302 of IPC.
Sd/-
Judge Sd/-
Judge Bjs