Bangalore District Court
State By Halasuru P.S vs Ramesh on 20 December, 2022
KABC010066192017
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 20TH DAY OF DECEMBER, 2022
PRESENT:
Sri Manjunatha, B.A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.338/2017
Complainant State by Halasuru P.S.,
(By the learned Public
Prosecutor)
AND
Accused Ramesh
S/o Late Thippanna,
A/a 42 yrs.,
R/a No.31, 1st Cross,
7th main, MV Garden,
Halasuru, Bengaluru City.
(By Sri VM, Advocate)
*****
Date of offence & time 15.11.2016 at 15.30 hours
Date of report of offence 15.11.2016 at 23.40 hours
Date of arrest of the accused 16.11.2016
Date of release on bail Accused is in Judicial custody
Total period of custody
Name of the complainant Sri Ganesh
2 S.C.No.338/2017
Date of commencement of 26.11.2019
recording of evidence
Date of closing of evidence 07.11.2022
Offences complained off U/s.302 of IPC
Opinion of the Judge Accused found guilty
JUDGMENT
This case is the result of charge sheet filed by the complainant Police against the accused for the offence punishable under Section 302 of Indian Penal Code in Halasuru P.S., Crime No.444/2016.
2. The prosecution was set into motion against the accused on the information of C.W.1 Sri Ganesh, who is the son of deceased Smt. Saraswathi and accused. The case of prosecution is that the marriage of accused with deceased- Saraswathi was solemnized about 14 years back from the date of filing of complaint, they resided in house bearing No.1, situated at 1st Cross, 7th Main, MV Garden, Halasuru within the limits of Halasuru P.S., Bangalore City along with their children, at that time the accused having illicit relationship with CW.13 Rekha, and on 15.11.2016 at 3.30 p.m. deceased found accused along with CW.13 Rekha, and enquire, and poured kerosene on herself putting fear on accused. At that time the accused picked up quarrel, by assaulting took her outside the house, by questioning, lit fire from the match box kept in his pocket for smoking and deceased sustained burn injuries, shifted her to Victoria Hospital, and on 22.11.2016 at 4.30 p.m. Smt. Saraswathi succumbed to burn injuries and thereby the 3 S.C.No.338/2017 accused committed murder of the deceased and hence the accused charge sheeted for the alleged offence.
3. Initially on the information of deceased-Smt. Saraswathi the complainant police have registered the case against the accused in Crime No.444/2016 for the offence punishable U/s.307 of IPC. Subsequently after the death of Smt.Saraswathi and on the information of C.W.1 Ganesh the complainant police in their Crime No.444/2017 invoked Sec.302 of IPC and took up investigation. At the initial stage of investigation of the case, the accused was arrested and produced before jurisdictional Magistrate, he was remanded to judicial custody. After completion of investigation they filed charge sheet against the accused for the said offence. as stated herein above. The accused appeared through the counsel before the learned Magistrate. The learned Magistrate furnished copy of the charge sheet to the accused and hence, the provision of Sec.207 of Cr.P.C. was complied with. As the offence charge sheeted against the accused is exclusively triable by this Court, the learned Magistrate acting under Sec.209 of Cr.P.C. has committed this case to this Court for trial. Hence, the matter is taken up before this Court for further proceedings accordingly.
4. The accused has been in judicial custody. As per the direction of this Court, he has been produced before this Court. After hearing the learned Prosecutor and also the leanrned counsel for accused, as there are sufficient materials against the accused for the alleged offence, this Court on 28.05.2018 4 S.C.No.338/2017 has framed charge against the accused for the offence punishable under Section 302 of IPC. The accused pleaded not guilty of the said offence and he has claimed to be tried of the offences charged.
5. In support of the case of prosecution, the prosecution has examined in all 12 witnesses as P.W.1 to P.W.12. The prosecution has produced 17 documents at Exs.P.1 to P.17 and got identified Material Objects MOs1 to MO2. After closing of the evidence of prosecution witnesses, this Court has recorded the statement of the accused under Sec.313 of Cr.P.C. in which the accused has denied the incriminating materials forthcoming against him in the evidence of prosecution witnesses and got marked Ex.D1. the accused has not chosen to adduce any defence evidence. However, the accused has got marked Ex.D.1 relevant portion of statement of PW.10 on his behalf in the cross- examination of prosecution witnesses .
6. Heard the arguments of both the sides and perused the materials on record.
7.The points that arise for consideration of this Court are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused being husband of the deceased on 15.11.2016 at 3.30 p.m. at house No.1, situated at 1st Cross, 7th Main, MV Garden, Halasuru within the limits of Halasuru P.S., Bangalore City picked up quarrel with deceased as the deceased found the accused with CW.13 Rekha and poured 5 S.C.No.338/2017 kerosene on herself by putting fear on him, and the accsed lit fire by lit fire stick, her causing burn injuries, with intention of causing death or with the knowledge by such act likely to cause death and thereby the accused has committed the offence punishable U/s.302 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused being husband of the deceased on the place date and time above mentioned picked up quarrel with the deceased as the deceased found the accused with CW.13 Rekha and put fear on the accused poured kerosene on herself and the accused without intention of causing death with the knowledge such act is likely to cause death lit fire in spur of the moment and thereby the accused has committed the offence punishable U/s.304(II) of IPC?
3. What order?
8. This Court has answered the above points are as hereunder:
Point No.1: In the Negative Point No.2: In the Affirmative Point No.3: As per final order for the following:6 S.C.No.338/2017
REASONS
9. Points No.1 to 3: All these points are taken up for consideration together for convenience and also for avoiding repetition of discussion on the facts of the case and also regarding point of law.
10. It is not in dispute that the deceased is wife of the accused and the marriage of the deceased solemnized with the accused about 14 years back. It is also not in dispute that as on the date of death of the deceased, she was residing with the accused at house bearing No.1, situated at I Cross, 7th Main, MV Garden, Halasuru within the limits of complainant police along with their children. The offence charged against the accused is punishable under Section 302 of IPC. Whether the prosecution proves that the accused being husband of the deceased on 15.11.2016 at 3.30 p.m. at house No.1 situated at I Cross, 7th main, MV Garden, Halasuru, Bangalore, picked up quarrel with the deceased as the deceased found the accused with CW.13 Rekha and put fear on the accused poured kerosene on herself and the accused with or without intention of causing death with the knowledge such act is likely to cause death lit fire in spur of the moment and thereby caused death of the deceased.
11. As stated herein above, the prosecution against accused was set into motion on the information of deceased- Smt. Saraswathi. It is not in dispute that PW.1 is the son of the deceased. The informant is examined as PW.1. PW.1 Ganesh being the minor/son of the deceased-Saraswathi and accused, 7 S.C.No.338/2017 deposed in his evidence that when the incident took place he was studying at 7th Standard and his sister was studying at 5th standard. He was residing along with his father and mother at MV Garden, Halasuru. His mother deceased-Saraswathi was doing iron work at Bank of India quarters. Before incident they went to Bellary to attend the cremation of his grand father. At that time PW.10 Rekha and accused were speaking to each other. After cremation of his grand father, Rekha came to Bangalore along with his father and mother. The accused provided a job to PW.10 Rekha. Rekha was residing with them and attending her work. One day at about 3.00 to 3.30 p.m. PW.10 had not gone to her work. He came from school and removed his uniform, his mother came little early started shouting that her life has been spoiled, she poured kerosene on her, the accused picked up quarrel with his mother, and assaulted his mother by saying that she is creating fear by pouring kerosene. His father immediately opened the match box and lit fire, as his mother was very near to his father and set ablaze suddenly. His father immediately poured water on his mother and covered with bed sheet. His mother fell down and immediately she was shifted to Hospital. CW.2 Hanumakka and his mothers' sister Smt. Shanthi came there. Cw.7 Ramanna took him to police station and he gave complaint before the police. The jurisdiction police visited his house took the accused to their custody. On the next day he visited Victoria hospital and spoke to his mother, his mother had sustained burn injuries. The jurisdiction police seized kerosene 8 S.C.No.338/2017 stove under Ex.P1 mahazar. Mo1 Stove is marked on behalf of prosecution. His mother picked up quarrel with the accused by stating that his father had illicit relationship with PW.10 Rekha. His father used to smoke beedi and kept match box with him. He gave statement before the Magistrate same is marked as Ex.P2. During cross-examination PW.1 further deposed that his mother died in the Hospital. His father and mother were doing iron work for their livelihood. The relationship between his father and mother was cordial till the incident took place. Relationship between his mother and PW.10 Rekha was cordial. He does not know the contents of Ex.P1 Mahazar. Ex.P1 Mahazar was not read over to him. He has signed Ex.P1 Mahazar in the Police Station. The person by name Ramu took him to Police Station and tutored him to give statement before the learned Magistrate. Accordingly he gave the statement before the Magistrate and before the Court in his examination in chief. In view of hostile of evidence of PW.1 my learned predecessor permitted the learned public prosecutor to cross- examine the witness, after the cross-examination by the learned counsel for the accused. Procedure adopted by my Learned Predecessor is incorrect. Though the witness is a minor and eyewitness to the incident, is clear from written evidence of PW.1 that he is capable to understand the worldly affairs. He used to come to home every day at 3.00 p.m. and on the day of incident he came to home at 3.30 p.m. By that time his mother was in the hospital. His grand mother told him regarding murder. He was not aware as to how kerosene fell on the 9 S.C.No.338/2017 ground. He signed Ex.P3 Complaint in the Police Station. Before giving statement before the Magistrate, marked as Ex.P2, the Magistrate cautioned him that he should give true statement before Magistrate. Accordingly he gave statement marked as Ex.P2 before the Magistrate. Based on the evidence of PW.1, it is clear that he is an eyewitness to the incident, he gave statement before the jurisdiction police marked as Ex.P3. Once FIR is registered based onhe information of Victim for the offence punishable u/s.307 of IPC. Subsequent statement of PW.1 amounts to statement U/s.161 of Cr.P.C., However, I.O., obtained signature of PW.1. Statement of PW.1 cannot be treated as second complant in the same case registered based on information of Cictim marked as Ex.P.10. He was taken before the learned Magistrate for recording statement U/s.164(b) of Cr.P.C., He gave statement before the Magistrate narrating the incident took place in his presence when he returned to home. Ex.P2 statement reveals that accused and PW.10 Rekha on the date of incident were in side in the house and deceased returned after attending her work little early. The accused and PW.10 Rekha did not open the door immediately, because of delay caused in opening the door, the deceased questioned the accused as well as PW.10 Rekha by suspecting the illicit relationship. The accused assaulted the deceased, the deceased poured kerosene on her by shouting that her life has become miserable. The accused thought that the deceased is trying to create fear. The accused opened the match box from pocket lit the fire, and deceased 10 S.C.No.338/2017 sustained burn injuries. The accused suddenly poured water and covered her with bed sheet, people gathgered there shifted her to the Hospital in an ambulance. PW.1 during cross- examination tried to help the accused, if possible. There is no doubt that PW.1 is an eyewitness to the incident took place in the house of deceased and accused.
12.PW.2 Hanumakka being the co-worker of deceased- Smt.Saraswathi deposed in her evidence that the deceased and accused are being the husband and wife, used to quarrel off and on. The jurisdictional police telephoned and enquire regarding the burn injuries sustained by Saraswathi. The jurisdictional police also visited the place of occurrence and drawn the mahazar marked Ex.P1 and seized MO1 stove. She does not know the contents of Ex.P1 mahazar.
13.PW.3 Basavaraju deposed that Saraswathi sustained burn injuries and admitted to the police, the jurisdictional police visited the place of occurrence, drawn the Ex.P1 mahazar, but he is not aware of seizure of MO1. However, during the cross- examination he admits that Saraswathi used to attend Dhobi Ghat for her work. He knows why the accused is in J.C., Generally he puts his signature after going through the contents of documents. He knows that PW.1 is the son of deceased- Saraswthi. MO1 was seized under Ex.P1 mahazar by the concerned police. During cross-examination by the learned counsel for the accused, he gave contradictory statement that he alone was present when Ex.P1 Mahazar was drawn. No notice was given to him to be present at the time of drawing 11 S.C.No.338/2017 mahazar. Out come of evidence of PW.2 and PW.3 that the I.O., visited the place of occurrence, drawn the mahazar marked as Ex.P1, seized MO1 stove in the presence of mahazar witnesses.
14.PW.4 Honnuru Swamy, the brother of the deceased- Smt. Saraswathi deposed that marriage of deceased - Smt. Saraswathi was performed with accused about 15 years back. After marriage they were residing at Ramapura, Molkalmuru Taluk. Thereafter, shifted to Bangalore and were residing at Halasuru. The deceased and the accused were doing iron work. Around 3-4 months back before death of the deceased, the accused and deceased went to their native place. While turning from native place PW.10 Rekha being the relative of accused came to Bangalore. The accused had illicit relationship with her. Deceased- Smt. Saraswathi, was subjected to cruelty by the accused. Deceased-Smt. Saraswathi telephoned to her mother and relatives of the accused to advise him not to continue illicit relationship with PW.10, however, accused continued his illicit relationship with PW.10, on 15.11.2016 bat 3.30 p.m. Smt. Saraswathi found the accused and PW.10 Rekha in her home and questioned the accused, deceased-Smt. Saraswathi poured kerosene on her to put fear on accused, but the accused lit fire, Sarawathi sustained burn injuries. One Ramu telephoned and informed him regarding the incident. On next day morning he along with relatives of deceased rushed to the Hospital. PW.4 is not an eyewitness to the incident. During cross-examination he 12 S.C.No.338/2017 deposed that deceased and the accused were leading happy married life till PW.10 Rekha came to Bangalore. He met deceased-Smt. Saraswathi in the Hospital. He denies the suggestion that the relationship between accused and PW.4 was not cordial. Smt. Saraswathi had not told him that the accused lit fire on her. PW.5 T. R. Manjunath, one of the inquest mahazar witnesses deposed regarding drawing of Ex.P4 inquest mahazar on the dead of deceased-Smt. Saraswathi. PW.6 D.V. Polaiah being the neighbouring resident of accused and deceased-Smt. Saraswathi deposed in his evidence that the accused as well as the deceased with their children were residing as tenant in MV Garden under him. The accused and the deceased-Smt. Saraswathi were doing iron work. The accused used to consume alcohol and had illicit relationship with other women. On 15.11.2016 in the afternoon, he was taking rest, after having lunch, deceased-Smt. Saraswathi suddenly came out of the house by pouring kerosene on her, the accused was pulling her inside the house. The accused suddenly lit fire on her and he rushed to the spot and covered the deceased-Smt. Saraswathi by bed sheet, she sustained burn injuries and fell down. She was immediately shifted to Hospital with the help of sister of Saraswathi. During cross-examination by the learned counsel for the accused he further admits that there was no rent agreement between him and the accused. He has not handed over any documents to the police to show the landlord and tenant relationship between him and the accused. He denies that he has no knowledge of 13 S.C.No.338/2017 the personal relationship between accused and deceased-Smt. Saraswathi. He admits that deceased-Smt. Saraswathi poured kerosene on herself. Litting fire by the accused has been denied by the learned counsel for the accused. Suggestion put to PW.6 that deceased-Smt. Saraswathi herself lit fire on her. PW.6 admits that he came out of the house due to shouting by the deceased-Smt. Saraswathi. He is not aware about the illicit relationship of accused with other women. He admit that initially the accused and deceased-Smt. Saraswathi were leading happy life.
15.PW.7 Dr. Pradeep Kumar, Assistant Profession Forensic Medicine, Victoria Hospital, Bangalore, conducted postmortem and issued PM report marked as Ex.P5, which reveals that death is due to septicemia as a result of burn injuries sustained and anti-mortem infected burn injuries were present. PW.8 Krishnamurthy, Assistant Executive Engineer, PWD, Bangalore, received Ex.P6 Memo and visited place of occurrence, drawn Ex.P7 sketch in the presence of PW.12.
16.PW.9 Lakshmi, daughter of deceased-Smt. Saraswathi and accused deposed in her evidence that in the year 2016 she was studying in 6th standard in Government Higher Primary School, Murphy Town, accused and her mother were doing iron work in an apartment. The accused used to quarrel with her mother in intoxicated stage. On 15.11.2016 evening she came from school and her mother gave chocolate to her and her brother PW.1. At that time PW.10 Rekha was present in the house, she came out of the house along with her 14 S.C.No.338/2017 brother. The accused and her mother were quarreling each other in the house. She returned to house and found that her mother pouring kerosene on herself. PW.10 tried to rescue her mother, she was about to run away to call her grand mother, suddenly fire fire covered her mother, her father was trying to extinguish the fire, PW.6 Polaiah, covered her mother with bed sheet, and her mother was shifted to hospital. During cross- examination she further deposed that PW.10 Rekha was residing with them, as her father brought her. She denies that when deceased-Smt. Saraswathi poured kerosene herself, the accused abused her and lit fire, she also denies that she saw litting fire by the accused. She is not aware about statement given by her mother before the Doctor. She denies the statement given before the I.O., marked as Ex.P9 and she is deposing false to help the accused. Nothing has been elicited from the mouth of PW.9 to disbelieve the fact that the deceased-Smt. Saraswathi and accused are being husband and wife, were quarreling each other in view of presence of PW.10 in their house. The deceased-Smt. Saraswathi was suspecting her husband that he has illict relationship with PW.10. PW.9 and PW.1 are being the minor, and child eyewitnesses to the incident saw the quarrel took place on the date of incident and burn injuries sustained by deceased-Smt. Saraswathi after pouring kerosene by herself.
17.PW.10.Rekha deposed in her evidence that the accused is her uncle, deceased-Smt. Saraswathi was the wife of accused, about six years back, she came to Bangalore along 15 S.C.No.338/2017 with accused and deceased-Smt. Saraswathi, she was helping the accused and deceased in their iron work. Till the death of deceased she was residing in the house of accused. As on the date of incident Smt. Saraswathi came home little early, the accused had consumed alcohol and he was in the house. Quarrel took place between deceased-Smt. Saraswathi and accused. deceased-Smt. Saraswathi poured kerosene on herself, the accused became angry and lit fire and the deceased suddenly hugged him and set ablaze. Sister and sisters' husband of deceased extinguished the fire and shifted the deceased-Smt. Saraswathi to the hospital. During cross- examination she denies portion of statement given before I.O, marked as Ex.D1. It is pertinent to note that I.O., not suppose to obtain the signature in the statement given U/s.161 of Cr.P.C., But the statement of PW.10 contains her signature. Ex.P3 statement given by PW.1 Ganesh contained his signature. Obtaining signature on 161 of Cr.P.C., statement is illegal. The error committed by the I.O., is not a ground to disbelieve the entire investigation carried out in this case. Error in conducting investigation by the Police Officer is not a ground to acquit the accused. Whole evidence of the prosecution need not be rejected on the ground that the I.O., committed erron in conducting investigation.
18.PW.11 Shivakumar being the AsI of Halasuru P.S., deposed in his evidence that on 15.11.2016 he was on SHO duty, he received information through phone from Victoria Hospital, Bangalore, that Smt. Saraswathi admitted to the 16 S.C.No.338/2017 hospital with history of burn injuries. Therefore, he deputed Head Constable Venkatesh, to record the statement of injured- Smt. Saraswathi, Head Constable Venkatesh rushed to the Hospital and recorded statement of Smt. Saraswathi, marked as Ex.P10 and handed over to him. Thereafter, he has registered the case and forwarded the FIR to the jurisdictional Magistrate as per Ex.P11. The incident took place on 15.11.2016 at about 3.30 p.m. and FIR has been forwarded to the Jurisdictional Magistrate on 16.11.2016 at 11.00 a.m. based on the statement of the victim-Smt. Saraswathi marked as Ex.P10. It is significant to note that the deceased-Smt. Saraswathi when admitted in the hospital gave statement before the Head Constable Venkatesh after her examination by the Medical Officer. The medical officer has endorsed that Smt. Saraswathi wife of Ramesh is conscious and alert, she is fit to give statement, Head Constable No.4284 Venkatesh has come to take the statement on 15.11.2016 at 10.30 p.m. In her statement Victim-Saraswathi stated that "she is residing with her husband and children at MV Garden, Halasuru, Bangalore. She is doing iron work along with her husband in RBI Quarters. She had three children, including PW.1 and PW.9. On 15.11.2016, at about 3.00 p.m. quarrel took place between her and the accused with regard illicit relationship of her husband with PW.10 Rekha. With intention to create fear on her husband, she brought stove from the kitchen and poured kerosene on herself. The accused being her husband pulled her outside the house 17 S.C.No.338/2017 and aggrieved by the act of deceased took the match box from his pocket and lit fire on her. She sustained burn injuries and the neighbouring people shifted her to hospital". There was dispute between her and her husband with regard to illicit relationship of her husband with PW.10 Rekha. He husband attempted to kill her by litting fire, when she poured kerosene on her with intention to create fear. She also stated that PW.1 Ganesh had returned from the School, when the incident took place. Statement given by the deceased-Smt. Saraswathi before Head Constable Venkatesh, has been corroborated by the testimony of PW.1 Ganesh, who is none other than the son of deceased and accused. Available evidence on record that the accused and the deceased picked up quarrel on the date of incident, the deceased with intention to create fear, poured kerosene on her, and accused became angry and lit fire from the match box kept in his pocket for smoking. The head constable who recorded the statement of victim has not been cited as witness to the case of the prosecution. It cannot be said that Ex.P10 is poved without examination of Medical Officer, who certifies the condition of Victim that she is conscious and fit to give statement and then constable who recorded the statement marked as Ex.P10. It is only a corroborative piece of evidence for prosecution case. The medical officer who certified the victim before giving statement is not cited as witness to the case of the prosecution. Statement given by the deceased-Smt. Saraswathi, is denied and also suggested that the deceased was not in a position to 18 S.C.No.338/2017 give statement before Head Constable-Venkatesh. Mere suggestion is not sufficient to disbelieve the evidence of the prosecution. Contents of Ex.P10 has been corroborated with other material witnesses examined on behalf of the prosecution.
19.PW.12 Subramanya, Police Inspector, Halasuru P.S., took further investigation from CW.20, and examined the part of the investigation conducted by CW.19 and CW.20. CW.20 B. Dhananjaiah, has not been examined by the prosecution due to his ill-health. CW.19 as per report suffering from carcinoma rectum cancer, he is reported to be on long leave. PW.12 visited place of occurrence on 16.11.2016, drawn Ex.P1 Mahazar, seized MO1 kerosene stove and filed PF No.110/2016 to the jurisdictional Court. The accused was arrested through his staff and recorded voluntary statement of the accused marked as Ex.P12. Based on voluntary statement of the accused, he has visited near Halasuru Tank and recovered the match box, marked as MO2 and drawn the seizure mahazar in the presence of mahazar witnesses and filed PF No.11/2016 to the jurisdictional Court. Based on Ex.P14 Death Memo issued by the Victoria Hospital, submitted a requisition to the jurisdictional Court to include Sec.302 of IPC and thereafter CW.20 visited Victoria Hospital and drawn the inquest mahazar marked as Ex.P4. Cw.20 has handed over the dead body for postmortem and received Ex.P5 PM report, which is marked through PW.7. On 24.11.2016, PW.12 recorded statement of PW.6 B.V. Polaiah and PW.9 Kumari Lakshmi, on 1.12.2016, he submitted a requisition to the Judicial Magistrate to record 19 S.C.No.338/2017 statement of PW.1 U/s.164 Cr.P.C., Accordingly statement of PW.1 recorded U/s.164 of Cr.P.C., marked as Ex.P2, collected case sheet and sketch of the place of occurrence. Recorded statement of witnesses, and collected photographs marked as Ex.P17 and filed charge sheet against the accused for the offence punishable U/s.302 of IPC. The learned counsel for the accused during cross-examination denied the official act carried out by the I.O., including recording of voluntary statement of the accused. The property recovered based on the voluntary statement of the accused, is match box used by the accused to lit fire. The deceased-Smt. Saraswathi undoubtedly sustained burn injuries and death is due to septicemia as a result of burn injuries sustained by her. Nothing has been elicited from the mouth of PW.12 to disbelieve the part of investigation conducted by him. Non-examination of CW.20, by the prosecution is due to genuine reason, as CW.20 is suffering from cancer. According to the prosecution the marriage of the deceased with the accused performed around 14 years back from the date of incident, out of wedlock the deceased and accused gave birth to three children, including PW.1 and PW.9. Matrimonial dispute arose between the deceased and the accused after arrival of PW.10 Rekha to Bangalore and started residing with the accused and deceased-Smt. Saraswathi. There is no allegations against the accused that the accused was subjecting the deceased for mental and physical cruelty before arrival of PW.10 to Bangalore. The deceased was suspecting illicit relationship between the accused and PW.10 20 S.C.No.338/2017 Rekha. On the date of incident she came little early to the house and found the accused as well as PW.10 Rekha residing together in the house. She suddenly picked up quarrel, and with intention to create fear poured kerosene on her from MO1 kerosene stove, and the accused enraged by the behaviour of the deceased and took the match box kept in his pocket for smoking purpose, and lit fire. This situation leads to altercation between the accused and deceased-Smt Saraswathi, caught filre, thereby deceased sustained burn injuries. The incident had occurred at the spur of the moment and the people who gathered there immediately shifted Smt. Saraswathi to the Hospital. There was no motive or preparation to commit crime under the facts and circumstances of the case. The accused has been charge sheeted for the offence of murder of his wife by recording the statement of the victim and witnesses including the children of deceased-Smt. Saraswathi. These aspects of the matter would indicate that there was no per-mediation to cause the death and the incident had occurred at the spur of the moment. The deceased was taken to Hospital, but unfortunately she breathed her lost. Therefore, if these aspects are in view as mitigating circumstances in the opinion of this Court, the conviction U/s.302 of IPC would not be justified. The facts and circumstances of the case clearly reveals that the accused has committed an offence U/s.304(II) of IPC i.e., the act is done with a knowledge that it is likely cause death, but without any intention to cause death. Hon'ble Supreme Court in Jaikaran Yadav Vs., State (NCT of Delhi) through SHO 21 S.C.No.338/2017 DD on 23.11.2022 , conviction U/s.302 of IPC has been modified, and to held the appellant is guilty of the offence U/s.304(II) of IPC under similar circumstances.. The appellant preferred the appeal before Hon'ble Supreme Court against concurrent murder conviction of a husband accused of killing wife partly allowed, modified to Sec.304(II) of IPC on the ground that the there was no pre-mediation to cause the death and the incident had occurred at the spur of the moment and the appellant having realized the mistake had thereafter taken immediate steps to shift his wife to the Hospital. Hon'ble Andhra Pradesh High Court in Bontha Ramachandrudu, Karnool Vs., Inspector of Police, Sirvel Circle, Kurnool(2022 CRI.L.J 1724) under similar circumstances held that allegations that the accused persons, husband and in- laws of deceased, set her on fire. Prosecution did not produce any positive evidence that the burn injuries on body of the deceased were only due to act of deceased in setting fire on blouse, and septicemia burns were only because act of accused. Possibility of deceased sustaining burn injuries, as she also set herself on fire, though came out, and removed saree a little later, cannot be ruled out. Father of deceased deposed that accused persons took deceased to hospital. If really they wanted deceased to die, they would not have made any effort to take deceased to hospital. Considering manner in which incident took place, conviction of accused altered from Sec.302 of IPC to Sec.304(II) of IPC. The deceased was in fit mental condition of giving statement before Magistrate, stated 22 S.C.No.338/2017 that accused her husband used to harass her on ground that she is having extra marital affairs with others. Her husband came home in drunken condition and suspecting her fidelity, harassed her and then forced her to die. In the evening she poured kerosene on her and set fire to her saree. At that time accused set fire to her blouse. Deceased did not state anything about dowry or harassment by co-accused persons, statement of deceased corroborated by evidence of Sub-Inspector of Police, not motive for Magistrate to falsely implicate accused in alleged crime. Dying declaration established presence and participation of the accused, and the conviction of accused altered from Sec.302 of IPC to Sec.304(II) of IPC in the above referred case.
20.Facts and circumstances of the case on hand is almost similar. The accused on 15.11.2016 at 3.30 p.m. picked up quarrel with the deceased-Smt. Saraswathi when she objected his presence with PW.10 Smt. Rekha, the deceased herself poured kerosene on her to create fear, there was no pre-mediation to cause the death and the incident had occurred at the spur of the moment and thereafter the deceased was immediately taken to Hospital. Testimony of child witnesses that the accused poured water immediately to extinguish the fire. But unfortunately she breathed her lost. PW.1 Ganesh and PW.9 Kumari Lakshmi being the minor children of the deceased and the accused, narrated the incident taken place and presence of PW.1 has been spoken by the deceased in her statement given before the Police Officer, when she was 23 S.C.No.338/2017 admitted to Hospital. In the decision referred above the Hon'ble High Court of Andra Pradesh and Hon'ble Supreme Court of India, altered the conviction of the accused U/s.302 of IPC to Sec.304(II) of IPC, fact of the case on hand is identical and the prosecution failed to prove the charge leveled against the accused U/s.302 of IPC, but the accused has committed the offence punishable U/s.304(II) of IPC. Ingredients of Sec.304(ii) of IPC is done with knolwedge that it is likely to cause death, but without any intention to cause death is established by the prosecution. Sec.304(ii) of IPC being lesser offence, no separate charge is equired to be framed. Accordingly I answer the point No.1 in the negative and point No.2 in the Affirmative .
21. Point No.3: In the result, therefore, I proceed to pass the following:
ORDER Acting U/s.235(2) of Cr.P.C. the accused is hereby convicted for the offence punishable U/s.304(ii)of Indian Penal Code.
For hearing on sentence.
(Dictated to the Stenographer directly on computer, corrected by me and then pronounced in open Court on this the 20th day of December, 2022) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 24 S.C.No.338/2017 ORDER ON SENTENCE The accused produced before this Court through V.C., The learned counsel for accused is also present. Heard the accused and his counsel and also the learned Prosecutor appearing for the complainant police regarding order on sentence.
2. The accused submits that he is having three children, and he has to take care of them. Hence, the accused seeks for leniency in imposing sentence. Further, the learned counsel for accused submits that there is no any antecedent of accused that he has committed any offence earlier and hence, considering the materials on record, leniency may be taken on imposing punishment against the accused.
3. However, the learned Public Prosecutor appearing for the complainant police submits that the accused is convicted for the offence punishable U/s.304(ii) of IPC. The case alleged the accused is case of heinous in nature, as the accused without intention of causing death with the knowledge such act is likely to cause death lit fire in spur of the moment caused of death of his wife. Hence, no leniency can be shown to the accused and adequate and proper sentence my be imposed on the accused.
4. The submissions of both the parties are taken into consideration in the circumstances of the case and also from the materials on record, it is clear that the accused is convicted for the offence punishable U/s.304(ii) of IPC and it is undoubtedly a social evil. Hence, if leniency is shown to the accused, it will give wrong message to the society at large. The 25 S.C.No.338/2017 accused has committed heinous offence. Therefore, considering materials on record and the offence committed by the accused reasonable sentence to be passed.
5. It is well settled principle of law that the Court should weigh the sentence with reference to the crime committed and circumstances of the case. The relevant facts to be considered before awarding appropriate sentence to the accused is the motive, intention of the accused to commit offence, the gravity, dimension and nature of injury, the age and general health condition of the accused etc. Such circumstances are only illustrative and not exhaustive. The offences involved in moral turpitude or moral delinquency, which had great impact on social order and public interest, cannot be lost sight. Any liberal approach in imposing meager sentence or taking too sympathetic view is against societal interest which needs to be cared by imposing proper and adequate sentence on the accused.
6. In the result, I proceed to pass the following:
ORDER The accused is sentenced to undergo rigorous imprisonment for seven years and he shall also pay fine of Rs.1,000/- for the offence punishable under Section 304(ii) of IPC, in default to pay the fine, the accused shall undergo further imprisonment for two months.
The period of imprisonment already undergone by the accused as under trial prisoner in this case shall 26 S.C.No.338/2017 be given set off towards the punishment of sentence of imprisonment imposed herein.
In pursuance of provision of Sec.363 of Cr.P.C. the copy of judgment is furnished to the accused person free of costs.
The MO1 is ordered to be confiscate to the State and MO2 is ordered to be destroyed as worthless after the expiry of appeal period. Office is directed to send the copy of the judgment to the Member Secretary, District Legal Service Authority, Bangalore Urban District as provided U/s.357A(2) of Cr.P.C., to award compensation in favour of three children of deceased-Smt. Saraswathi and accused, i.e., PW.1 Ganesh, PW.9 Kumari Laksmi and another (child name is not known)under the victim compensation scheme.
Office to issue conviction warrant accordingly.
(Dictated to the Stenographer directly on computer, corrected by me and then pronounced in open Court on this the 21st day of December, 2022) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 27 S.C.No.338/2017 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Ganesh P.W.2: Smt. Hanumakka P.W.3: Basavaraj P.W.4: Honnuruswamy P.W.5: T. R. Manjunath P.W.6: Polaiah P.W.7: Dr. Pradeep Kumar P.W.8: Krishnamurthy P.W.9: Kumari Lakshmi P.W.10: Rekha P.W.11: Shivakumar P.W.12: Subramanya.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Seizure Mahazar Ex.P.2: Statement of PW.1 U/s.164 of Cr.P.C., Ex.P.3: Statement of PW.1 dated 22.11.2016 Ex.P.4: Inquest Mahazar Ex.P.5: PM Report Ex.P.6 Letter to PWD from police Ex.P.7: Sketch Ex.P.8: Letter from PWD to police Ex.P.9: Relevant Portion marked in State of PW.9 Ex.P.10: Complaint Ex.P.11: FIR 28 S.C.No.338/2017 Ex.P.12: Vol. Statement of accused Ex.P.13: Seizure Mahazar Ex.P.14: Death Memo Ex.P.15: Requisition Ex.P.16: Case Sheet of Victoria Hospital Ex.P.17: Photographs
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:
Ex.D.1: Relevant portion of statement of PW.10 List of Material Objects marked on behalf of Prosecution: MO1: Stove MO2: Match box .
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 29 S.C.No.338/2017 Accused produced from JC through VC Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(2) of Cr.P.C. the accused is hereby convicted for the offence punishable U/s.304(ii) of Indian Penal Code.
For hearing on sentence call on 21.12.2022.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
Accused produced from JC through VC. Learned counsel for the accused present. Learned Public Prosecutor present. Heard the accused, learned counsel for the accused and learned public prosecution on question of sentence.
Order pronounced in the open Court vide its separate order ORDER The accused is sentenced to undergo rigorous imprisonment for seven years and he shall also pay fine of Rs.1,000/- for the offence punishable under Section 304(ii) of IPC, in default to pay the fine, the accused shall undergo further imprisonment for two months. The period of imprisonment already undergone by the accused as under trial prisoner in this case shall be given set off towards the punishment of sentence of imprisonment imposed herein. In pursuance of provision of Sec.363 of Cr.P.C. the copy of judgment is furnished to the accused person free of costs. The MO1 is ordered to be confiscate to the State and MO2 is ordered to be destroyed as worthless after the expiry of appeal period. Office is directed to send the copy of the judgment to the Member Secretary, District Legal Service Authority, Bangalore Urban District as provided U/s.357A(2) of Cr.P.C., to award compensation in favour of three children of deceased-Smt. Saraswathi and accused, i.e., PW.1 30 S.C.No.338/2017 Ganesh, PW.9 Kumari Laksmi and another (child name is not known)under the victim compensation scheme.
Office to issue conviction warrant accordingly.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.