Karnataka High Court
Ningappa S/O Hussainappa vs The State Through Cpi Yeragera Ps on 13 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B. A. PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3610/2013
Between:
Ningappa S/o Hussainappa
Age: 30 years, Occ: Agriculture
R/o Matmari village, Tq. Raichur
... Appellant
(By Sri B.V. Pinto & S.B. Math, Advocates)
And:
The State through C.P.I. Yeragera P.S.
Tq. & Dist. Raichur
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, praying to allow the appeal,
set aside the impugned judgment and order passed by the
II-Addl. District and Sessions Court, Raichur, in
S.C.No.21/2013 dated 24.08.2013 convicting and
sentencing the appellant for the offence punishable under
Sections 498(A) and 302 of IPC and acquit the appellant of
the said charges.
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This appeal coming on for final hearing this day,
B.A.Patil J., delivered the following:-
JUDGMENT
This appeal is preferred by the appellant-accused seeking intervention of this Court in the judgment of conviction and order of sentence passed by the II-Addl. Sessions Judge, Raichur in S.C.No.21/2013 dated 24.08.2013.
2. Brief facts of the case of the prosecution are that, the accused got married with deceased and about four years they led cordial marital life. Thereafter, accused started ill-treating, harassing and abusing the deceased by stating that she is not good looking and she don't know to prepare the food; he had also expressed that it is not possible for him to lead marital life with her and was asking her to die so that it would be convenient for him to go for second marriage. In that light, on 17.09.2012 at about 6.00 a.m. when the deceased Hulgemma was sleeping in her hut, the 3 accused started waking her up by hurling with abusive words and also assaulted her with hands and in order to kill her, he poured the kerosene on her and lit the fire. As a result of the same, she suffered burn injuries and immediately she was taken to Government Hospital and subsequently she succumbed to the injuries. On the basis of the complaint, a case has been registered in Crime No.184/2012 and after investigation, charge sheet was came to be filed.
3. On filing of the charge sheet, the learned Magistrate took the cognizance and secured the presence of the accused. After complying the provisions of Section 207 of Cr.P.C. has committed the case to the Prl. Sessions Court, Raichur. Thereafter, the learned Prl. Sessions Court has registered the case in S.C.No.21/2013 and made over the case to the Fast Track Court, Raichur and the said Court after securing the presence of the accused has framed the charge for 4 the offences punishable under Sections 498-A and 302 of IPC. The accused pleaded not guilty and he claimed to be tried. In the meantime, the FTC, Raichur came to be closed. Hence, this case along with other cases pending on its file were withdrawn and made over to the II-Addl. Dist. and Sessions Court, Raichur for trial and disposal and as such, the trial was fixed.
4. To prove its case, the prosecution got examined 14 witnesses as PWs.1 to 14 and got marked 17 documents as Exs.P1 to P17 and 4 material objects as M.Os.1 to 4. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material against him and he denied the same. The accused has not led any evidence on his behalf, nor produced any documents. After hearing both the sides, the trial Judge came to the conclusion that the evidence produced by the prosecution is sufficient to bring home the guilt of the accused and as such 5 convicted the accused for the alleged offences. Challenging the legality and correctness of the same, the appellant-accused is before this Court.
5. We have heard Sri B.V. Pinto, learned counsel for the appellant-accused and Sri Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State.
6. The main grounds urged by the learned counsel for the appellant-accused are that the judgment of conviction and the order of sentence passed by the Trial Court is contrary to law, evidence and material placed on record. The Trial Court, only on presumption and assumption without there being any legal evidence has come to a wrong conclusion and has wrongly convicted the accused. It is further submitted that the mother of the deceased, who is examined as PW.5 though clearly deposed before the Court that the deceased sustained burn injuries while cooking the 6 food, that itself clearly goes to show that it is an accidental fire. It is further submitted that the said fact has been also substantiated by the evidence of PWs.8 and 9, the doctors, who got treated the injured in the hospital. In their evidence, they have also clearly stated that the injured was fully conscious when she was brought to their unit and she herself gave the history as accidental burns. When the said evidence was available, under such circumstances, the Trial Court ought not to have came to the conclusion that the accused poured the kerosene and lit the fire. It is further submitted that the prosecution is intending to rely upon the dying declaration-Ex.P17 said to have been recorded by PW.13. Further it is submitted that on bare seeing of the dying declaration-Ex.P17, the impression of the thumb had clear ridges and the curves are also seen. But, the inquest mahazar - Ex.P2 clearly goes to show that both the hands have been burnt and even the skin of the said hands has also been scraped out. Under 7 such circumstances, taking of the thumb impression of the deceased itself creates a doubt. It is further submitted that when the both limbs have been burnt, including the upper limbs, under such circumstances, the dying declaration which is produced at Ex.P17 creates a doubt. It is further submitted that the Tahsildar, who has recorded the dying declaration has not been mentioned that the said thumb impressions belongs to whom and the identity of the said thumb impression has also not been made by any of the witnesses. Under such circumstances, the Trial Court ought not to have accepted the dying declaration - Ex.P17 ought to have acquitted the appellant-accused. In order to substantiate the said contention, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Gian Kaur and another reported in AIR 1998 SC 2809. It is further submitted that the evidence produced is not containing the certificate of fitness by the doctor and 8 the same has also been admitted by the doctor, who came to be examined as PW.14. It is further submitted that no material is produced to show that the accused used to ill-treat and harass the deceased and in that light, on the alleged date of incident he poured the kerosene and lit the fire. Even the evidence produced by the prosecution goes to show that the said dying declaration has been recorded on 17.09.2012 and in the said dying declaration, she has stated that the alleged incident has been taken place on the previous day at about 6.00 a.m. That itself falsifies the case of the prosecution. It is further submitted that even the neighbors of the deceased have also not supported the case of the prosecution. Under such circumstances, the Trial Court ought to have given the benefit of doubt to the accused. On these grounds, he prays to allow the appeal and to set aside the judgment of conviction and order of sentence by acquitting the accused. 9
7. Per contra, learned Additional State Public Prosecutor vehemently argued and contended that the prosecution has produced the dying declaration at Ex.P-17, recorded by the P.W.14 and there is a corroboration in the evidence of these witnesses. Even the complaint, Ex.P-14, which came to be recorded by the A.S.I. and his evidence corroborated with the evidence of P.W.14. It is his further submission that the father of the appellant i.e., P.W.3 has clearly deposed before the Court that the appellant used to ill-treat the deceased and at the time of incident himself and his wife were also present and everyday the appellant used to ill-treat and harass. It is his further submission that the brother of the deceased came to be examined as P.W.6 and he has also substantiated the fact of ill- treatment and harassment meted out to his sister by the appellant. Taking into consideration the above said factual matrix of the case, the trial Court has rightly 10 convicted the appellant. On these grounds, he prayed to dismiss the appeal.
8. We have carefully and cautiously gone through the submissions of the learned counsel appearing for the parties and we have perused the records including the trial Court record.
9. In the fist instance to prove the case of the prosecution that the deceased died a homicidal death, got examined P.W.2, the inquest mahazar panch for Ex.P-2 and also P.W.14, the doctor who conducted the postmortem of the deceased which got marked as Ex.P-8. On perusal of Ex.P-8, it indicates that the deceased has sustained burn injuries to the extent of 99% and doctor has opined that the death of the deceased is due to hypevolaemic shock as a result of 90 to 95% of antimortem dermo epdermal burn injuries. Even the learned counsel for the appellant - accused has not disputed the fact that the deceased died an 11 unnatural death. Taking into consideration the above said factual matrix it can be safely held that the deceased died a homicidal death.
10. To prove the case of the prosecution that the appellant used to ill-treat and harass the deceased and in that light on the alleged date of incident he abused by hurling words and thereafter he poured the kerosene with an intention to kill her and lit the fire, the prosecution got examined the father and mother of the appellant as P.W.3 and P.W.4, respectively.
11. P.W.3, the father of the appellant in his evidence deposed that they are residing together and deceased-Huligemma died about 10 months back and her son and deceased-Huligemma were cordial. He further deposed that on the date of incident which taken place in the morning, he had gone outside to fetch water for bullock and at that time deceased-Huligemma came out of the hut with fire, then himself and his wife 12 extinguished the fire by fetching the water. In the meanwhile, the other witnesses have also come and this witness has been treated as hostile. During the cross- examination by the prosecution, a suggestion has been put to him and he had admitted that his son was abusing his wife to get up early in the morning and get herself prepare for other works and she was getting up late in the morning. He has also further admitted that she was going to bed by late after completing cleaning of utensils. He further admitted that she was preparing the food in the morning and used to serve the food. He further admitted that he and his wife advised her daughter-in-law. He further admitted that on the date of incident, his daughter-in-law was still sleeping. Thereafter, her elder son Nagappa, Veerabhadra and daughter Durgamma took her to the hospital. He has further admitted that they have compromised the matter.
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12. P.W.4 is the mother of the appellant and she has also not supported the case of the prosecution and she has been cross-examined by the prosecution. In the cross-examination, she has admitted that whenever her son and daughter-in-law used to quarrel, herself and her husband used to advise not to quarrel since they married about nine months ago. She further admitted that on 17.09.2012 her son got up early and witness has volunteer that witness has gone to attend agriculture work and daughter-in-law was still sleeping. During the cross-examination of this witness, nothing has been elicited.
13. P.W.5 is the mother of the deceased. In her examination-in-chief has deposed that her son-in-law was looking after her daughter very well and her daughter died about 10 months back when her daughter trying to put fire wood for preparing tea, it caught to her saree and thereby she received the burn 14 injuries and she tried to talk to her but she was not in a position to talk with her. This witness has been treated as hostile and during the course of cross-examination by the learned Public Prosecutor, nothing has been elicited so as to substantiate the case of the prosecution.
14. P.W.6 is the brother of the deceased and he has deposed that during the stay, deceased used to complain that her husband was torturing her saying that while she was living with him and was asking to go and die somewhere. Except that nothing has been elicited from the mouth of this witness and this witness has also been treated as hostile. During the course of cross-examination he has admitted that his sister has stated before him in the hospital that her husband lit the fire by pouring the kerosene on her. He has further admitted that the appellant wanted to marry second 15 wife. Except that, nothing has been elicited from the mouth of this witness.
15. P.W.7 is the neighbour who is running a Math. But this witness has completely turned hostile and nothing has been elicited from the mouth of this witness in the cross-examination.
16. P.W.8 is the doctor, he has deposed that on 17.09.2012 at 9.15 a.m. the injured was brought with a history of accidental burn by her husband and patient herself gave the history of burn injuries in the presence of her husband only. She was conscious at that time. Except her genital every other organs of the body were burnt. He has also further deposed that he has certified the Thasildar that the patient was conscious and able to give her statement. During the course of cross- examination, he has deposed that when the patient was brought to their unit, the body was burnt and she was not in a position either to sign or put her thumb 16 impression and the patient was talking fluently without any stammering and she had not complained by taking the name of anybody as the cause for her burns.
17. P.W.9 who is also another doctor who has also deposed that the deceased was fully conscious when she was brought to their unit and she herself gives the history that the burn injuries sustained by her are due to accidental burns. During the cross- examination of this witness, he has deposed that it was 99% burn injuries she suffered. Except that nothing has been elicited.
18. P.W.10 is the ASI, he has gone to the Govt. Hospital, Raichur and after consultation with the doctor he has recorded the statement of the deceased as per Ex.P14 and subsequently returned to the police station and registered the case in Crime No.184/2012 and dispatched the FIR as per Ex.P-13. During the course of cross-examination nothing has been elicited. 17
19. P.W.11 is the PSI, who has partly investigated the case. P.W.12 is the Police Inspector who further investigated the case and filed the charge sheet against the appellant.
20. P.W.13 is the Thasildar who recorded the dying declaration as per Ex.P.17. In his evidence he has deposed that he received the requisition from RIMS Hospital at 2.30 p.m. and went to the Burn Ward where the deceased-Huligemma was taking treatment thereafter he enquired with the doctor who is giving treatment to Huligemma and at that time husband of the deceased was also present. He has further deposed that he sent husband of the deceased out of the ward and he talked with Huligemma and on enquiry, she disclosed her name and on further enquiry how that she sustained burn injuries, she told that her husband poured kerosene and lit the fire on that morning at 6.00 a.m. and the same has been recorded as per Ex.P-17. 18 During the course of cross-examination he has deposed that he had sent the sealed cover to CPI, Yergera on 13.12.2012 and he cannot say why this dying declaration was not immediately sent. He has also further admitted that he has not mentioned the thumb impression on EX.P.17 identifying that it is the thumb impression of deceased-Huligemma. Except that nothing has been elicited.
21. On perusal of the case of the prosecution and the evidence produced on record that though it is alleged by the prosecution that because of the ill- treatment and harassment said to have been meted out by the appellant on the alleged date of incident that the appellant poured the kerosene and lit the fire. In that light, on perusal of the evidence of P.Ws. 3 and 4, who were residing along with the deceased and the appellant and P.W.3 deposed that that his son and deceased- Huligemma were cordial and when this witness has 19 been cross-examined, he has admitted that his son abusing his wife to get up early in the morning and get herself prepared for other works she was getting up late in the morning. By taking the said evidence it is submitted by the learned Additional State Public Prosecutor that the said statement indicates that there was ill-treatment and harassment and even that the said witness has stated that they used to advise their daughter-in-law. On perusal of the statement of said P.W.3, if the son is abusing his wife to get up early in the morning that itself does not amounting any ill- treatment and harassment in the ordinary course of business. If that type of words constitute of ill- treatment and harassment, then under such circumstances, no family would live happily in this world. It is all in the normal course that if the wife is in the habit of getting up late and in that light if those words are going to be used to get up, then under such circumstances that it is not such a serious aspect so as 20 to consider it as an ill-treatment in the eye of law. Even as could be seen from the evidence of P.W.5, the mother of the deceased that the same has been got admitted but what was the reason that has been also narrated by the said witness that there was some small matter since they were married back about 09 month, they used to advise. In that light, it substantiate the said contention of the learned counsel for the appellant.
22. On perusal of the evidence of P.W.5, the mother of the deceased in her evidence has deposed that her son-in-law was looking after his daughter very well. When the mother of the deceased herself has come forward to say that her son-in-law was looking after well of her daughter, then under such circumstances, we are of the considered opinion that the ill-treatment of which the prosecution is intending to rely upon the case has not been clearly established with cogent and substantial evidence in this behalf. 21
23. Even though the prosecution got examined P.W.6, the brother of the deceased though he has deposed that during the stay of her sister she used to complain that her husband was torturing her saying that why she was living with him and was asking her to go and die somewhere. But, it is neither the case of the prosecution nor it is the contents of the dying declaration or it is nobody's case. Under such circumstances, that evidence cannot be considered to be an evidence in the eye of law so as to accept the same and so as to bring home the guilt of the accused.
24. On perusal of the evidence that none of the witnesses have supported the case of the prosecution either they have turned partly hostile or fully they have given go-bye to their statement. In that light, it is the submission of the learned Addl. State Public Prosecutor that the deceased has given a statement as per Ex.P-14 22 and she has also given the dying declaration as per Ex.P-17.
25. We have carefully and cautiously gone through the said original records. On perusal of Ex.P-17 which indicates that P.W.13, the Thasildar, who has recorded the dying declaration has taken the left thumb impression of the deceased. The thumb impression, which has been taken is so clear. Even the ridges and curves are clearly seen from the said records. Even as could be seen from Ex.P-14 that it is also a clear thumb impression. P.W.14, who has recorded the dying declaration and has taken the thumb impression has not made any endorsement by mentioning that it is thumb impression of the deceased and he has also not put any signature.
26. Be that as it may. On perusal of Ex.P-2, the inquest mahazar wherein it has been clearly mentioned that the description of the body which was seen has 23 been specifically mentioned and from neck to region chest, shoulders and both the hands have been burnt and even that it has been specifically mentioned that the skin peeled off when that the skin peeled off from fingers, then under such circumstances how the Thasildar - P.W.13 has taken the thumb impression of the deceased, so clearly none identifies the left thumb impression and mentioning anything and the circumstance which shows that the skin has been peeled off and that it is clear that in that light signature which has been taken on Exs.P.14 and on Ex.P-17 creates a doubt. Even as could be seen from the evidence of P.W.13 in his cross-examination he has deposed that he has not written anything in the dying declaration above and he has sent it in a sealed cover to CPI, Yergera on 13.12.2012 and he cannot say why this dying declaration was not immediately sent that itself goes to show that there is delay in sending the said dying declaration also. It is the trite law that if the 24 thumb impression has been burnt and the burn injuries to the extent of 100%, the thumb impression on dying declaration there is a clear ridges and curves, then under such circumstances that the evidence is said to be inconsistent and the appellant is entitled to the benefit of doubt. In that light, we rely upon the decision rendered by the Hon'ble Apex Court in the case of State of Punjab v. Gian Kaur and another (Supra), wherein at para No.5 held as under;
" The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found evidence of Dr. Ajay Sahni-P.W.1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-
mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Courts 25 right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view."
27. On perusal of the aforesaid paragraph and looking to the factual matrix of the case on hand, it indicates that the circumstances under which the dying declaration Ex.P-17 and the complaint Ex.P-14 has been recorded that it is not fair and conclusive. Coupled with this, the material witnesses also not supported the case of the prosecution and they have been treated as hostile. When the other witnesses have not supported the case of the prosecution and they have been treated as hostile and the dying declaration recorded and the thumb impression which has been taken they are under the clouds, under such circumstances the benefit of doubt has to be given to the appellant.
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28. Be that as it may. When P.W.5, the mother of the deceased herself deposed in the examination-in- chief itself that the deceased who was her daughter was trying to put fire wood for preparing tea, it caught to her saree and thereby she received the burn injuries. This evidence of P.W.5 is also corroborated with the evidence of official witnesses. The doctors who have treated immediately at about 9.15 p.m. that they have recorded the history as an accidental burns and even that they have clearly mentioned that it is the husband who has brought the patient and that the said history has been given in the presence of her husband and she was conscious at that time and in that light and also in the light of the evidence of P.W.9 that the said evidence corroborated with the evidence of P.W.5, the mother of the deceased.
29. Looking from any angle the dying declaration which has been clouded with so may doubts and the evidence also goes to show that the deceased died due 27 to accidental fire injuries, under such circumstances, the trial Court ought not to have convicted the appellant.
30. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court has convicted the appellant only on the surmises and presumptions and without taking into consideration the legal evidence and in that light the judgment of the trial Court requires interference at the hands of this Court. In the light of the discussion held by us, we pass the following;
ORDER The appeal is allowed.
The judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Raichur in S.C.No.21/2013 dated 24.08.2013 is set aside and the appellant -
accused Ningappa S/o Hussainappa is acquitted of all the charges levelled against him 28 and he is directed to be released forthwith, if he is not required in any other case.
The concerned Jail Authorities are hereby directed to release appellant - accused Ningappa S/o Hussainappa forthwith, if he is not required in any other case.
The Registry is hereby directed to intimate the Principal District and Sessions Judge, Raichur as well as the concerned Jail Authorities through e-mail to release the appellant - accused Ningappa S/o Hussainappa, if he is not required in any other case.
The Registry is also directed to send back the trial Court records.
Sd/-
JUDGE Sd/-
JUDGE LG/BL