Bangalore District Court
State Of Karnataka vs Deepak S/O Shivakumar on 27 December, 2022
1
SC NO. 858/2016
*IN THE COURT OF LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH70)
Dated this the 22nd day of December, 2022
Present: Sri. Rajesh Karnam.K., B.Sc.,LL.B.,LLM.,
LXIX Addl. City Civil and Sessions Judge,
Bengaluru.
SESSIONS CASE No.858/2016
Complainant : State of Karnataka
By Srirampura P.S.
(By Learned Public Prosecutor )
V/S
Accused; Deepak s/o Shivakumar
22 years, No. 33,
13th cross, Bandireddy circle,
LN pura, Srirampura, Bangalore.
1 Date of commission of 11.3.2016
offence;
2 Date of report of occurrence 11.3.2016
3 Name of complainant; Natraj B.J
4 Date of commencement of 23.6.2017
evidence
5 Date of closing of evidence 19.2.2022
6 Offence complained of U/Sec. 436, 307,
302, 326, 440 of
IPC
7 Opinion of the Judge Charge proved for
the lessor offence
2
SC NO. 858/2016
u/sec. 306 of IPC.
: JUDGMENT :
The Police Inspector of Srirampura Police Station, Bengaluru has submitted the chargesheet, against the accused in Cr.No.48/2016, for the offences punishable under Sections 436, 440, 307, 302, 326 of IPC.
2. The committal court after taking cognizance on the chargesheet registered C.C. No.12520/2016 on the file of VII ACMM, Bengaluru, against Accused and committed the case for trial under Sec. 209 of Code of Criminal Procedure, after complying the provision of Sec. 207 of Code of Criminal Procedure to the Prl. City Civil and Sessions Judge. In pursuant to the committal order, on committal of the case, present case has been registered and assigned to this court for disposal in accordance with law. While committing the case to the Sessions Court, the accused was in JC. After securing the presence of the accused, this Court heard the accused and the prosecution and found sufficient material to frame the charge. Accordingly, this court has framed the charge for above offences. The accused pleaded not guilty and claims to be tried.
3. The case of the prosecution in brief is as follows: It is the case of the prosecution that the accused Deepak who was in love affair with Meghana, offered her to marry and the parents of Meghana gave assurance of marriage after he gets any job and after completion of her 3 SC NO. 858/2016 education, but the accused Deepak was under the impression that the parents of Meghana are just giving false assurance. Then on 11.3.2016 at about 12.00 am, in the night accused pored petrol in the house of Meghana situated at No.39/2, 2nd Stage, 2nd cross, Saibaba nagar and set ablaze and as a result Meghana sustained severe burn injuries along with other family members namely parents and sister. On 17.3.2016 she succumbed to the injuries at Saint John`s hospital. In the incident CW. 1 the father of Meghana, CW. 2 the mother and CW.3 Sanjana the sister of Meghana also sustained burn injuries. The accused Deepak also sustained burn injuries at the time of commission of offence. Accordingly CW. 1 lodged complaint against the accused for the above said offences.
4. The Prosecution in all examined 27 witnesses as PW.1 to 27 and got marked 47 documents exhibited as Ex.P1 and 47 and marked 10 Mos. After completion of the evidence on prosecution side the statement of the accused U/sec. 313 of Cr.P.C. is recorded. The accused denied the incriminating evidence adduced against him , but not chosen to lead any evidence. However marked Ex.D. 1 to 8.
5. This Court has heard the arguments of both sides and perused records carefully.
6. In the light of above materials and allegation of prosecution, following points arises for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 11.3.2016 at 4 SC NO. 858/2016 about 12.00 am at No. 39/2 2 nd cross, Saibaba nagar since the parents of the deceased were not agreeing for marriage of deceased with accused, the accused being angry poured petrol and set house on fire and thereby committed offence punishable u/sec. 436 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that accused poured petrol and set house on fire and caused grievous injuries to PW. 1 to 3 and attempted to commit their murder and thereby committed an offence punishable U/Sec.307 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that accused poured petrol and set house on fire which resulted in death of victim and thereby committed an offence punishable U/Sec.302 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that accused poured petrol and set house on fire and caused grievous injuries to PW. 1 to 3 and thereby committed an offence punishable U/Sec.326 of IPC?
5. Whether the prosecution proves beyond all reasonable doubt that accused in order to put the victims in fear poured petrol and set house on fire and thereby committed an offence punishable U/Sec.440 of IPC?
6. What order?
7. My findings to the above points are as follows: Point No.1 2,4 5: In negative 5 SC NO. 858/2016 Point No.3: For lessor offence punishable under section 306 Point No.6: As per final order, for the following: : REASONS :
7. POINT NO.1, 4 AND 5: The prosecution has examined 27 witnesses as PW.1 to 27 and got marked 47 documents exhibited as Ex.P1 and 47 and 10 Mo 's inproof of the charges punishable under sections 436 440 326 of IPC.
8. The PW.1 father of the deceased Meghana has deposed that, he know the accused Deepak and they are their neighbors and they were living at 2 nd floor and his first daughter Meghana was studying BE 6 th semester and they were cordial with family of Deepak and on 9.2.2016 Meghana did not returned from college and she informed that she and Deepak went to Mysore and as such he went to lodged missing complaint and at about 2.30 father of Deepak informed that Deepak and Meghana returned and at that time they were loving each other and they wanted to marry and the Pw1, objected the same in the Police Station as Meghana was still studying and and on next day on 11.2.2016 at about 11.00 Deepak received the amount from Meghana and returned and as usual Meghana was going to college and on 11.3.2016 in the night suddenly heard hue and cry and observed the fire in the house and he heard the sound of his daughter and as such 6 SC NO. 858/2016 came out of the room and saw Deepak was standing near the window and was shouting that they have not gave importance to their love and as such they have to die and there was petrol can in his hand and and when they shouted the neighbors came there and doused the fire and shifted them to hospital and Meghana suffered 60% burn injuries and Sanjana 30% burn injuries and they suffered breathing problem due to smoke and he further deposed that Meghana was undergoing treatment at St. Johns Hospital and Sanjana was under going treatment at Victoria Hospital and St. Johns Hospital, the statement to the police given and the statement is marked as Ex.P. 1of complainant, and this witness deposed that after 6 days Meghana succumbed to death at St. John`s Hospital and they took treatment for 5 days and he further deposed that after putting fire he tried to ran away, he also sustained burn injuries to his legs and the Pw1 identified the accused and his family members by seeing the photos and identified the MO.1 to 9.
9. In the crossexamination of Pw1, by the learned counsel for accused the witness has denied the suggestions and denied that the accused is not responsible for the incident and he has denied the suggestions that it is not possible for the accused to pour petrol from the window and lit fire and there is no chance to stand on the windowsill and he admitted the existence of the premises and identified 7 SC NO. 858/2016 the photos shown to him and the Pw1 admitted the suggestion that there was love between the deceased victim and accused and they were also agreed to perform their marriage and denied the suggestion that infact deceased tried to commit suicide and at that time the fire blast occurred and all have suffered injuries and the incident happened. The pw1 deposed that the accused was outside the house and he suffered burn injuries and he denied the suggestion that the MLC shows that the history is shown as accidental thermal burns and he has falsely implicated the accused, in this case is denied, The pw1 also deposed that the public have shifted him to the hospital and he do not know who have informed the history as accidental thermal burns. PW. 1 was cross examined by the defense at length, he denied all other suggestions barring love of accused, ExD2 to 5 photos.
10. The PW. 2 is the mother of the deceased victim and she has deposed in consonance with PW. 1 and deposed that on 9.2.2016 Meghana was missing and as such they went to police station to give complaint, Deepak and Meghana were loving each other, but as they were studying, the Pw1&2, wanted to perform their marriage after completion of studies and at the time of fire, the Pw2 also deposed that due to smoke they were unable to breath and she became unconscious and Meghana succumbed to injury after 5 days and since accused was not satisfied with 8 SC NO. 858/2016 their assurance regarding marriage, due to anger committed the offence and Pw2 identified the photos of the deceased and accused and she admits the love affair of the accused and the deceased and she identified the accused and the Mos. in court. The learned PP treated the witness as partly hostile and in the crossexamination the Pw2, deposed she saw Deepak was holding can and he was shouting that they are not giving importance to his love and as such they have to die. The PW. 2 was also cross examined by the defense at length and she denied the suggestions put to her and she admits that on 9.2.2016 they went to the Police Station to lodge complaint as Meghana did not returned. And she denied the suggestion that even after they shifted their house to some other place the accused used to visit their house and she denied the suggestion that Meghana was returning to home from college at late hours and on 9.2.2016 Meghana informed them that she and Deepak have went to Mysore and one ASI Honnappa had negotiated the matter and on that day of incident, she deposed that, heard the sound of Meghana, Sanjana and her husband and as such she came out of the room and saw the fire. The Pw2 denied the suggestion that a person cannot stand by the side of the window, however she deposed that the accused can stand on the window sill of the window and she deposed that the accused was standing on the stair case of the adjacent building and she deposed that she had given the name of the accused before 9 SC NO. 858/2016 the Doctors while undergoing treatment and she took treatment for 5 days at ICU and she denied the suggestion that since Meghana attempted to commit suicide by pouring petrol on herself and setting ablaze and when Deepak and all have tried to douse the flame they suffered burn injuries and the accused Deepak is not responsible for the incident and they have falsely implicated the accused in the case and she is deposing falsely.
11. The PW. 3 is the sister of the deceased and she has also deposed in consonance with the Pw. 1 and 2 . This witness deposed that Meghana had told before Pw. 3 that accused was blackmailing deceased and was forcing to cooperate with him and he used to give threat with dire consequences and used to give gifts and once he came to their house and received back the gifts from deceased and he poured petrol from window and set the house on fire and killed Meghana . In the crossexamination by the learned counsel for accused she had denied all the suggestions.
12. The PW.4 is the neighbor of PW. 1 and the mahazar witness has deposed that on 11.3.2016 in the midnight he heard blast sound and as such he came out of the house and saw the accused was escaping and public gathered and they caught hold of accused and he admitted about the incident and he stated about the pouring of petrol and setting fire and there was fire at chappal stand and they tried to open the door and it was locked and the owner 10 SC NO. 858/2016 of the house stated to open the door from putting hand in window by breaking windowpane and as such they broke the glass of the window and opened the door and shifted the injured. The water can was also burning and the injured were shifted to hospital and the police came there and drawn the mahazar and seized the water can and match box and other articles and the pw4 deposed that the accused and deceased were in love and he came to know that accused by thinking that the parents of the deceased will perform the marriage of deceased with some other boy he committed the offence. The learned PP treated the witness as partly hostile and in the crossexamination he denied the suggestions, put to him and he admitted having given statement before the police and he admitted that accused was trying to escape from the spot by using his Activa Honda.
13. In the crossexamination by the defense he denied the suggestions and he has deposed about the situation of the building and he saw the accused was working in the medical store and he did not saw the accused used to visit the house of PW. 1 and he do not know about the love affair between accused and the deceased victim. This witness deposed that he heard the sound of PW. 1 and their daughters and they saw deceased and PW. 2 were unconscious. The pw4 deposed that he do not remember from where the water can and the match box was seized 11 SC NO. 858/2016 and he denied the suggestion that the mahazar was not drawn at the spot and he is deposing falsely in order to help the PW. 1 and denied other suggestions. He deposed he do not know since the accused was inside the house he suffered burn injuries. He denied other suggestions .
14. PW. 5 is the spot and seizer mahazar witness , he identified the spot mahazar and deposed about the seizer of the articles at the spot and he identified MO. 1 to 12 before the court.
15. PW. 6 has also deposed in consonance with the PW. 4. He is the neighbor of PW. 1 and the mahazar witness has deposed that on 11.3.2016 in the midnight he heard blast sound and as such he came out of the house and saw the accused was escaping and public gathered and they caught hold of accused and he admitted about the incident and he stated about the pouring of petrol and setting fire and there was fire at chappal stand and they tried to open the door and it was locked and the owner of the house stated to open the door from adjacent window and to break the glass of the window and as such they broke the glass of the window and opened the door and shifted the injured and the water can was also burning and the injured were shifted to hospital and the police came there and drawn the mahazar and seized the water can and match box and other articles and he deposed that the accused and deceased were in love and he came to know that accused 12 SC NO. 858/2016 by thinking that the parents of the deceased will perform the marriage of deceased with some other boy he committed the offence. The learned PP treated the witness as partly hostile and in the crossexamination he denied the suggestion put to him and he admitted having given statement before the police and he admitted that accused was trying to escape from the spot by using his Activa Honda.
16. In the crossexamination by the defense he denied the suggestions and he has deposed about the existence of the building and he saw the accused was working in the Vaidehi medical store and he did not saw the accused used to visit the house of PW. 1 and he do not know about the love affair between accused and the deceased. This witness deposed that he heard the sound of PW.1 and their daughter and they saw deceased and PW.2 were unconscious. He deposed that he do not remember from where the water can and the match box were seized and he denied the suggestion that the mahazar was not drawn at the spot and he is deposing falsely in order to help the PW. 1 and denied other suggestions. He deposed he do not remember since the accused was inside the house he suffered burn injuries. He denied other suggestions.
17. PW. 7 is also the neighbor of PW. 1 and he has also deposed about the incident and he identified the accused before the court and he deposed that the window 13 SC NO. 858/2016 glass was broken by the people and then opened the door and shifted the injured to hospital and the police seized the can from the spot and drawn mahazar and he came to know about the accused and the deceased and their love affair and he came to know that the accused committed the offence since the parents of deceased were not performing their marriage and the witness turned partly hostile and in the crossexamination he denied the suggestions put forth.
In the crossexamination by the defense he deposed that he heard the blast sound and he saw that the accused was caught hold by the people at the spot and he denied the suggestion that he had not given any statement before the police and he is deposing falsely to help the complainant.
18. The PW. 8 is the owner of the medical store where the accused was working, he deposed about the working of the accused but deposed he do not know about the incident and he turned hostile and in the crossexamination by the learned counsel for the defense he denied the suggestions.
19. The PW. 9 is also the neighbor of PW. 1 , he has deposed about the hearing of the sound and shifting of injured and drawing of mahazar. He deposed he do not know how the fire blast occurred in the house of Pw. 1 , he deposed that he did not saw the accused near the spot and the police have not recorded his statement and the statement of PW. 9 is marked as Ex.P. 7 He turned hostile to the case of the prosecution and in the crossexamination 14 SC NO. 858/2016 by the PP his statement is marked and he denied the suggestions put to him.
20. The PW. 10 is the worker of the Satya Petrol bunk, he turned hostile and not supported the case of the prosecution. In the crossexamination his statement is marked by the PP. In the crossexamination by the defense he denied the suggestions. He had not identified the accused before the court and he admitted one person had purchased petrol from their petrol bunk on11.3.2016 in water bottle 2 liters by paying Rs.136/,but cannot identify the person.
21. The PW. 11 is also the neighbor of PW. 1, he has deposed about the hearing of the blast sound and shifting of injured and drawing of mahazar. He deposed that accused and deceased were loving each other and once they ran away from the house and then returned and he heard that as the parents were not agreeing for their marriage, the accused poured petrol and put fire and committed the offence. He gave statement before the police . In the cross examination by the learned counsel for accused he deposed that he heard the sound and his house is situated adjacent to the house of the PW. 1 and he admitted that before the incident he did not know about the love affair of the accused and the deceased.
22. The Pw. 12 is the Medical Officer of Department of 15 SC NO. 858/2016 Forensic Medicine, St.John Hospital, Bengaluru. He deposed that on 18.03.2016 at 10.35am he got requisition from Srirampura PS for conducting PM examination on the dead body of Kum. Meghana. The PM report is marked through consent as Ex.P.8. Witness identified ignature same is marked as Ex.P.8(a). Witness further deposed that on 12.03.2016 at 11.30am patient by name Sanjana B.N. was brought to emergency medical department with alleged history of homicidal attempt resulting in burn injury on 12.03.2016 at 12.30am. The patient was accompanied by one Harish. On examination of the patient the following injuries were found. 20% superficial to deep flame burns over face, right and left upper limbs and right and left lower limbs. Soot around mouth and nostrils with change of voice. Singeing of facial, nostril and scalp hair present. There after the injured was admitted to plastic surgery department and treatment is provided till 15.04.2016. To that effect he issued wound certificate Ex.P.9 and the signature of the witness is marked as Ex.P.9(a). she further deposed that at the time of examination injury was fresh in nature and was grievous in nature and which is possible to cause such injury when anybody put fire to the house.
23. In the Cross Examination she admitted that they will maintain MLC register and they used to mention all the details of injury and its caused on the basis of information provided by patient or the person accompanied the patient 16 SC NO. 858/2016 and she admitted Ex.P.9 wound certificate is issued on the basis of the information contained in the MLC register and admitted her evidence on the basis of information contained in Ex.P.9 wound certificate. This witness deposed that the patient on 12.03.2016 at about 11.30 already took treatment from other hospital. To the suggestion that on the basis of the information given by the attendants of the patient she collected the information as mentioned in the wound certificate, witness deposed that, she is present at the time of admission of the patient. The Patient was brought by her relative one Harish. In the wound certificate "the alleged history of homicidal attempt resulting in burn injuries" is struck down on the basis of information given by the patient and her attendant Harish and she admits that at the time of admission patient was in conscious state and she is able to speak.
24.The PW. 13 is the Doctor of St. John`s Hospital where deceased Meghana was treated and he deposed about the deceased suffered 53% burn injuries, the MLC registered is identified and marked as Ex.P. 10 and he deposed in detail about the burn injuries suffered by deceased and another MLC register is marked as Ex.P. 11 and he deposed and admitted that 2 injured persons were able to talk at that time. In the crossexamination he admitted about the maintenance of case sheet by the hospital and he denied other suggestions.
25. The PW. 14 the CMO of Victoria Hospital has also 17 SC NO. 858/2016 deposed about the treatment given to the injured and issuance of Ex.P. 12 to 15 and he identified the MLC registers before the court and in the crossexamination by the learned counsel for accused suggestion some are admitted about the mentioning of history as accidental thermal burns and later it is written as homicidal burns by pouring petrol and lighting fire to the house by known person at 12.30 am and admitted about the corrections made in the MLC.
26. The PW. 15 the Medical Officer of KC General Hospital has deposed that he treated the accused for burn injuries and issued OPD slip and OPD slip is marked as Ex.P. 16 and he deposed about the 3 burn injuries suffered by the accused and in the crossexamination by the defense he admitted about out patient slip and which is marked as Ex. D 8 and also admitted Ex.P. 16.
27. The PW. 16 is the Doctor of Gurushree hospital where initially the injured were shifted and where they were given first aid treatment and he deposed that he is the Medico legal consultant of Gurusri Hitech Multi specialty Hospital, Chandralayout, Bengaluru and had intimated to the police on 12.03.2016 around 12.40am regarding Mr.Nataraja B.J, aged about 49 years is brought to hospital with history of burns on 12.03.2016 at around 12.30am. The intimations issued by Dr.Ashik are marked as Ex.P.17 and 18 and On examination he found to have the following injuries:
18SC NO. 858/2016
1. One burn injury on face, forehead, eyelash, both cheeks, lips, conjunctiva, eyelid is oedematous.
2. Left hand finger and web spaces burn present. The burn is total around 9% and both the wounds 1 and 2 are grevious in nature and the age of the wound is around 15 minutes.
On the same day One Mrs. Anupama, aged about 42 years is brought to the hospital with the history of burns. On examination found:
1. Face 4% 2nd degree super facial burns over forehead, nose, both cheek, lip with tongue oedema .
2. Hand 2nd degree super facial burn over both hands around 1%. Both the injuries are grevious in nature.
He issued wound certificates as per Ex.P.19 and 20 and the signature of the witness is marked as Ex.P.19(a) and 20(a). he deposed that the injuries may cause on contact with substance like fuel flame. He deposed that if the injured are not properly treated at the right time it may cause infection and breathing difficulty and there is possibility that the patient may die.
28. The PW. 17 is the Engineer of PWD who prepared the rough sketch of the spot as per Ex.D.1 and the letter submitted to police is marked as Ex.P. 21 and in the cross examination he denied the suggestions put.
29. The PW. 18 is the Fire Extinguishing Officer who has deposed about the fire extinguishing on 12.3.2016 and received phone call about the same and he issued report as 19 SC NO. 858/2016 per Ex.P. 22 and 23. In the crossexamination he denied the suggestions put.
30. The PW. 19 is the another Doctor of St. John`s Hospitaland he was the Junior Resident at that time and he deposed that on 12.3.2016 one Anupama and Natraj were brought to hospital with the history of burn injuries and he deposed about issuance of Ex.P. 25 to 28 and he deposed that for plastic surgery they were shifted to another hospital and the injured have stated before the doctors that some person tried to put fire and such they suffered injuries. In the crossexamination he admitted that injured were able to speak at that time.
31. PW. 20 Dr. Deevish the then PG Plastic Surgeon of St. John`s Hospital has deposed that he treated Sanjana and found 20% burn injuries to whole body and she was not in a position to give her statement and on 23.3.2016 she was in a state to give statement and he identified the case papers as per Ex.P. 29 , she suffered inhalation injury which caused damage to her vocal cords, as such she was not able to talk. This witness deposed that if she has not been given proper treatment at right time it was dangerous to her life and it was difficult to save her. In the cross examination he denied the suggestions put.
32. The PW. 21 is the pancha for inquest mahazar drawn in respect of death of Meghana , he signed the same and one Santhosh, Harish, Divya and Shashikumar have also signed the same and he came to kknow how Meghana 20 SC NO. 858/2016 succumbed and he came to know accused lit fire and he identified the inquest mahazar as per Ex.P. 31. in the cross examination he denied the suggestions, he deposed that he know the father of deceased and he do not know about the love affair of deceased with accused. He came to know about the incident from PW. 1.
33. The PW. 22 is the brother of PW. 1 and he has deposed about the incident and he deposed that he came to know about the incident from neighbor who telephoned to him and as such he rushed to spot and saw the deceased sustained burn injuries and his brother also sustained burn injuries and they shifted deceased to St. John`s Hospital and shifted his wife to Gurushree hospital. In the cross examination he has given detailed description about the distance between his house and his brother`s house and he admitted that deceased victim and accused were residing in same building but different floors and his brother never told before him about the love affair of deceased and accused. He admitted that the accused also sustained burn injuries in the incident.
34. The PW. 23 is grand mother of deceased and she deposed about the incident and deposed about the cause of death and she identified the accused before the court. She is ;the hearsay witness. She denied the suggestions put to him.
35. The PW. 24 is the then ASI of Srirampura PS and he deposed that on 11.3.2016 when they were on patrolling 21 SC NO. 858/2016 duty received information about the fire accident at Saibaba nagar and as such they rushed to the spot and when they were near the spot saw one person was escaping and the people were chasing and as such they caught hold of him and another police Budihal and ASI Chandrappa have took accused with them and then he visited the spot and shifted the injured to hospital in Hoysala and then he produced the accused and the vehicle before the SHO and submitted report as per Ex.P. 32 and he deposed that when he visited the spot he saw Meghana suffered severely. This witness is also cross examined by the defense at length and in the crossexamination he denied the suggestions that in order to help the complainant he is deposing falsely and he has also denied the suggestions that he did not visited the spot and did not shifted the injured to hospital and did not caught hold the accused and seized the vehicle of the accused.
36. The PW. 26 is the ASI of Cubbonpark PS who took the photographs of the incidental spot which are marked as Ex.P. 2 to 15.
37. The PW. 27 is the IO who did the investigation and he deposed about the receiving of the information and deposed that he alongwith staff rushed to the spot and deputed police to the spot and then visited the St. John`s Hospital and saw Meghana was not in position to speak and hence he recorded the statement of Natraj in the presence of Doctor as per Ex.P. 1 and he further deposed that he 22 SC NO. 858/2016 received MLC marked as Ex.P. 27 and 28 and the acknowledgement is marked as Ex.P. 34 and 35, and he further deposed that his staff Ranganath and Arun have produced the accused Deepak and as such he took him to custody and received the report as per Ex.P. 32 and also received one Activa Honda and subjected the same to PF No. 22/2016 and then recorded the voluntary statement of the accused as per Ex.P. 36 and as per his statement he and accused visited the Satya Petrol bunk and inquired and one person Tirumalesh has stated that accused purchased petrol in a plastic can on 11.3.2016 and he visited the P.S. and gave statement and he further deposed that he sent requisition to FSL as per Ex.P. 37 and drawn the mahazar as per Ex.P. 4 and seized 10 articles at the spot and sealed the said articles and put slips and put signature on it and recorded the statements of the witnesses Sampath kumar, Balamurli, Shravan, Dilip, Kanaka, Krishna, Venkatesh, Suresh babu, PC Arun kumar and statements are marked as Ex.P. 6, 7 and he further deposed that on 14.3.2016 he sent requisition to St. John`s Hospital and received reply that Sanjana and Meghana were not in a position to speak and as such he did further investigation and seized the Rent Agreement of the PW. 1 and then on 18.3.2016 visited the St. John`s Hospital and conducted inquest mahazar and the same is marked as Ex.P. 31 and took the photographs and on 19.3.2016 he sent requisition as per Ex.P. 39 to Fire Brigade and on the 23 SC NO. 858/2016 same day sent requisition to Rajarajeshwari college and on 21.3.2016 received the study certificate from the college and put up in the file and continued the investigation and on 25.3.2016 received report from Fire department and on 28.3.2016 received the PM report from the hospitl and on 6.4.2016 recorded the statement of the injured Sanjana and then received the wound certificate of Anupama from Gunashree hospital and also received wound certificate of Natraj and the same are marked as Ex.P. 19 and 20 and on 2.5.2016 recorded the statement of the owner of the vehicle Activa Honda and after completion of the investigation filed the charge sheet against the accused and he identified the exhibits and the accused and Mos before the court. In the crossexamination by the learned counsel for accused he denied the suggestions put to him and denied that there is discrepancy in the seizer of the water can and there are contradictions and he denied the suggestions that he acted in favor of the complainant and he has not recorded the statements of the witnesses and he is deposing falsely in order to help the complainant.
38. The learned counsel for accused argued that the charge sheet is filed for the offences punishable u/sec. 436, 326, 307, 302 of IPC. The prosecution got examined PW. 1 to 26. Ex.P. 1 to 46 have been placed . The Mos have been got identified. The learned counsel for accused submits accused and deceased are childhood friends , they are very fond of each other, they were in deep love. Accused was 24 SC NO. 858/2016 working in a medical store. The allegation of the prosecution is that on 11.3.2016 the accused and deceased were in deep love, on that day the accused poured petrol in the house of the complainant and set house on fire. The accused and deceased were in deep love is an undisputed fact. The allegation is accused used to persistently pressurizing the victim to marry him. In other words there was no any refusal on the part of the parents of the victim and accused and even then due to frustration the accused has contacted, as such resulting bizary incident. Infact before the incident one month prior the accused and the victim allegedly ran away from the house and they have went to Dodda Aaladamara resort and Mysore and they returned on the next day. The complainant father of the victim had went to the police station to report about daughter not returning to house on that date, similarly the accused father had went to the police station and as a victim and accused returned back one Honnappa the ASI had negotiated between the parties and got them to truce. In the cross examination the 20 liter can having 2 inch mouth MO.1 is used for committing offence is the allegation. The situation of premises is the premises is in 2nd floor as per Ex.D. 1 sketch, a grill and and diwan where deceased was sleeping is adjacent to the window and it is placed before the court by prosecution that a portion of the petrol is remaining in the can. Infact the petrol is a very volatile substance it cannot remain in the can as it is and it is highly impossible 25 SC NO. 858/2016 when petrol is used to set ablaze the remaining petrol as it is a volatile substance being remain in such a situation in the house being set on fire. The petrol inside the can will become gaseous and there is very possibility of again being exploded. Further prosecution has come up with the story that from the window from the two inch mouth of the can petrol has been poured in the house. Infact is a impossible to pour the petrol from a 20 liter can which of approximately 2 liters as the petrol will not reach the mouth of the can as a diameter of the can will be more and from second floor premises as per the situation of the place of incident adjacent to the window there is .... open space of about 1 ½ feet from top to bottom the building is open. It is highly impossible from the staircase any person can get access to the window , it has been specifically established by the defense by placing Ex.D.1 and also the other exhibits namely Ex.D. 1 to 7 photographs. It is visible from the photograph the gap is continuous from bottom to top. It is not possible for a person to either stand on the window and open space and edge of the building adjacent to the window namely house No. 38 upstairs. Therefore if a person stand to the window and the upstairs he cannot give both the hands as can is very huge and petrol cannot be poured simply or putting the nasal into the window, but it is to be spilled but not throwing the same into the window by spilling and entire petrol cannot flow into the window. Infact the gravity of the fire disclose as petrol is spread to almost 26 SC NO. 858/2016 entire portion of the hall and also it is went towards kitchen and even the room of the sister of the victim where she was sleeping and in a movement such as same quantity of petrol cannot be put on the ground which would be gaseous as it is very inflameble.
39. The learned counsel for accused argued the entire prosecution case is a created one, the accused has also sustained injuries and admitted to hospital. However the prosecution is silent about the incident with regard to the injuries sustained by the accused as per Ex.P. 16. infact as per the compromise arrived as on 9.2.2016 both the victim and accused had went away to Mysore and said Honnappa had got compromised , then there was no any grievance between the accused and the victim. Even the parents of the deceased were having no grievance towards the compromise. Infact such being the case even there is no any mensrea for the accused to commit such a heinous offence. However it is pertinent to note that there was difference in the status, caste and economic status of the parties being different. Accused is from different community and victim`s father was doing cloth business and having substantial income. Further accused family is substantial settled other than that of the victim family. Infact the difference in the status was affecting, the complainant was not agreed for the compromise, but he had just made attempt to come out of the situation as on 9.2.2016. Infact both the victim and 27 SC NO. 858/2016 the accused had decided to put an end to this and deceased tried to immolate herself and hence she thrown petrol on the floor and set fire and if at all accused was standing on the gril and the adjacent space of the building how he can spill over petrol as his both left ankle and right foot and even both his hands have caught into contact with fire. Therefore it is an attempt made by the victim just to put the complainant family in fear and even get convince that she should be given in marriage to the accused she had spilled petrol and the family members namely complainant, his wife and daughter tried to drag victim from self immolating, at that time the accused was also inside the house. However the fire starts from the lamp in the pooja room i.e. pooja cupboard whether due to the lighting lamp fire resulted and it has exploded and damaging the window pain. As the petrol was thrown on the floor and even on the deewan they have caught fire immediately even the Refrigerator , fans have also burnt in the incident. Pooja stand, the God photos, which are adjacent to the cot of the deceased. Infact evenyone tried to douse the fire of the victim, but they were unable as it was a ball of fire and they all breath the smoke as such they were unable to put the fire douse and at this movement accused also ran and went outside the house. The deceased had taken such a extreme step against the wish of the parents as she was refused to be given in marriage to the accused. The petrol was spilled by the victim as it has spread to the other 28 SC NO. 858/2016 corners of the house and fire has been started from lamp in the pooja stand. Therefore as all the persons tried to douse the flame on the victim they have suffered similar injuries to the hands and legs only.
40. The complainant, the wife of complainant, sister of the fictim have not specified in their complaint that accused poured petrol in the house at the first instance when they were taken before the Medical Officer and the medico legal case registered being entered. It is only an afterthought by the IO who wanted to implicate the accused to teach him a lesson. The petrol can top portion is slightly burnt when the petrol is inside the can and the petrol can has also got opened in the top how can the petrol inside the can, can remain as it is a very volatile substance. Therefore when the grievous injuries sustained by the accused is also is to be explained by the prosecution. Infact Ex.P.16 and Ex.D. 8 both are the medical documents of the accused which speaks duly. Infact as on 21.8.2018 Section 91 application is filed which came to be allowed on the part of the defense permitted and Ex.D.8 was pleased to be produced before court which actually contradicts Ex.P.16 wound certificate of the accused. Medical record of the accused. The wound certificate and medical records contradicts the prosecution case. Infact there is no any mensrea of the accused to commit such a heinous offence. Infact if at all the prosecution case is to be explained 29 SC NO. 858/2016 prosecution has not at all conducted investigation concerning mensrea of the accused.
41. The learned counsel for accused submit the discard between the accused and the deceased and parents were not agreeing to give in marriage has not at all being put up by the prosecution in the evidence of prosecution witnesses , if that is explained when the accused and the deceased were cordial the question of accused taking such type of heinous action by pouring petrol in the house and setting at ablaze does not arise. At the first instance either the victim or the complainant, his wife and daughter have at not at all specified before the Medical Officer and Police Officer about accused being responsible for setting house on fire. It is only an after though of the IO to better implead the accused it has been synthesized, Ex.D. 2 photographs placed all specifically disclose accused and victim were cordial and the accused even visit house of the victim, the mother of the victim, sister of the victim had cordial relationship with accused. He is not a stranger. Therefore the allegations of the prosecution that accused had intent to kill the victim and the family members contradicts with this incident. I infact Ex. D. 3 clearly shows that the window sill (sajja ) is on the upper of the window and below the window there is no any sajja or platform so as to stand on the platform and the steps of the adjacent building is they are unevenly placed. Infact in the evidence of prosecution 30 SC NO. 858/2016 witnesses it has been brought out with regard to Ex.D. 7 that the sajja of the first floor below window of the house of the victim it is at a height of about 6 feet below the window through which alleged pouring of the petrol is made. Therefore the pouring of the petrol by the accused from the window become very unusual contradicts the entire gamat of the alleged offence and burning of the house due to the pouring of the petrol, therefore at the first instance the house was set on fire from outside itself finds no support from the material placed by the prosecution is the contention of the defense.
42. The learned counsel for accused submit it is the entire case got botched by the IO, complainant though injured and shifted to hospital at the earliest had given complaint only at about 6.30 am on 12.3.2016. the complainant had suffered only 5% burn injuries. As per Ex.P.1 the complainant himself has signed the complaint. When he is able to sign the complaint then the complainant was in a conscious state of mind as per the document placed by the prosecution itself to speak about the incident at the first instance before the Medical Officer. Even considering the victim and the complainant and the complainant`s wife and daughter are in shock when they have explained how they have suffered injuries before the Medical Officer they could have definitely pointed out that at the instance of the accused only the entire incident 31 SC NO. 858/2016 happened. Therefore Ex.P.1 complaint and Ex.P. 14 and 15 actually contradicts the prosecution case. Ex.P. 12, 13, 14, 15 admittedly contradicts the prosecution case to consider that the IO is fair enough to show that the incident had happened as per the charge sheet. The learned counsel for accused submit the photographs taken in the house of the complainant, the Ex.D. series disclose how the situation speak. Infact as there is caste difference between the accused and the victim who succumbed to the injuries, however Ex.D. 1 to 6 clearly shows that they were cordial, even the family members have accepted their friendship and deep love was not under threat. Ex.D. series came to be marked through the defense in the evidence of PW. 1 only who has specifically given explanation about the situation between the accused and the victim and his family members. Infact PW. 2 has actually turned hostile to the prosecution case who is the mother of the victim who has none other than wife of PW. 1. infact there is no any attempt made by the IO to record the statement of the victim as per Ex.P. 12 victim was conscious when she was brought to the hospital.
43. It has been noted in Ex.p.12 that the incident happened a history of accidental thermal burn, exact details not available, at home at Saibaba nagar, 4 th cross, at about 1.00 am and all 4 family members have been affected, the victim was in a shock and unable to talk as per Ex.P. 13 32 SC NO. 858/2016 itself it also noted similarly. However the accidental thermal has been strike off and it has been written as homicial burn by pouring petrol and lighting fire to harass by known person at about 12.30 am on 12.3.2016 while she was asleep and this victim was brought by the police constable and incident taken place in the same place and she is also unable to speak. However in Ex.P. 14 and 15 only the accidental thermal burn has been recorded. Infact the time of recording Ex.P. 12 to 15 the first victim was examined at about 1.45, around 1.00 victim was examined about 1.50 am, Nataraj complainant has been examined at about 2.05 am and his wife is examined simultaneously at about 2.00 am. Infact after such record made in Ex.P. 13 at about 1.50 am that it is homicidal burn as noted by the M.O is to be considered the same Medical Officer has examined the complainant and also his wife. However even at about 2.00 am when these two victims have been examined by the same Medical Officer Dr. Varalakshmi the corrections found in Ex.P. 13 by striking off incidental thermal burn, homicidal burns pouring petrol is an unreasonable and false information has been entered. Since below the same note it has been specifically noted patient in a shock and unable to speak. When victim was unable to speak at about 1.50 am then when she has explained about the homicidal burns. Therefore this aspect of entry in the MLC register is made only at the instance of the IO , even cooked up the entire case is the argument of the learned 33 SC NO. 858/2016 counsel for accused. It is the attempt made by the police and they wanted to implead the accused as he is the only other person available there who is not a family member and the blame can be placed on the accused easily without there being any much difficulty. As such the entire prosecution case without making any reference to the mensrea of the accused has been made as accused only to make believe the prosecution case.
44. The learned counsel for accused submit Ex.d. 1 is admitted by PW. 2 in the crossexamination at page 11 the daughter of PW. 2 and accused were very close even the adjacent neighbors used to advise that they are very closely moving, as such negotiations had been taken place between the parents of both the victims and accused and the accused have after vacated the premises and went to Nagendra block. Therefore the victim and the accused were very fond of each other is not a new one, but they are knowing each other and having cordiality since long. Further in page 12 crossexamination of PW. 2 last five lines that as per the pressure exerted by victim they got admitted victim to the Sheshadripuram college only. Further The learned counsel for accused brings to court`s notice in the crossexamination of PW. 2 at page 13 last lines and similarly at page 14 7 lines and similarly in cross examination of PW. 2 at page 16 first four lines, to prove the relationship between the victim and the accused specifically 34 SC NO. 858/2016 admissions have been given by PW. 2 which disclose the defense being constant. Further brings to court`s notice crossexamination of PW. 2 at page 17 last 4 lines that ASI Honnappa had got panchayath done in the Police Station and they have taken back their children to their respective house. Further in page 20 specifically admits Ex.D. 1 that there is open space in between the buildings and Ex.D. 1 disclose that the property No. 38 and 39 are separate buildings and they are not as per Ex.D. 1 and the sketch shown in Ex.D. 1 about house NO. 138 is correct and the stair case of house No. 38 is after the house of PW. 2. Further brings to court`s notice crossexamination of PW. 2 in page 24 in last four lines as admitted there is sajja window sill to the window, she has deposed she does not know whether there is sajja to other windows other than the place where victim was slept. It has been explained the sajja is situated above the window and below the window there is 34 feet space from the sajja below to the actual window. PW. 2 deposed accused seen standing in the stair case of adjacent building but not on the sajja.
45. The learned counsel for accused brings to court`s notice the crossexamination of PW. 3 , in chief examination itself in page 2 advice of PW. 1 to the deceased and accused is admitted. Infact PW. 2 in the crossexamination at page 12 last portion finds corroboration in the evidence of PW. 3 that gifts were given by the accused to the victim 35 SC NO. 858/2016 and same has been returned with amount even by the victim on next day i.e. on 10.2.2016. The learned counsel for accused submits as per Ex.P. 11 to 13 , 2 nd photograph had disclose about situation at the spot is not as per the prosecution case, but as per the defense. The injuries sustained by the victim , it has been mentioned in Ex.P. 11 it is homicidal attempt resulting in burn injuries, patient was while sleeping and the same was set on fire by outsider.
46. The learned counsel for accused argued both things cannot be simultaneously applicable. When it is homicidal attempt then it will not become fire put by the outsider. When the question of homicidal burn is to be accepted, then it should have corelation with Ex.P. 12 to 14 and even 15. However alongwith victim and family members of the victim accused has also sustained burn injuries. As per the suggestion made in the crossexamination of PW. 2 accused was inside the house when victim tried to self immolate, all the persons collectively tried to douse the flame, but they were unable to do that as blast occurred. Everyone was in a shock. At that juncture IO hatched the plan to implicate the accused who is the outsider. However this fact does not support in the MLC register at the first instance as per Ex.P. 12 to 15 but in Ex.P.13 corrections has been made as homicidal burn by pouring petrol. This aspect has been specifically crossexamined to Medical Officer who has written the same has specifically deposed 36 SC NO. 858/2016 the person accompanying the victim one Santhosh has given account, as such entries has been made by the Doctor about the incident. Therefore the factum of incident happened and only Santhosh is only the hear say witness who came to know about the incident from complainant who is the brother of complainant and after he visits the house by that time fire was doused. Therefore the corrections has been affected by the Medical Officer at the instance of hear say witness rather the persons namely PW. 1 to 3 who were able to speak when they were taken to hospital . infact Ex.P. 13 disclose in 2 nd portion when patient was unable to speak, on the same question asked to PW.3 in her crossexamination at page 20 middle portion 8 lines from top has specifically deposed she was able to speak and she had informed about petrol was poured by the accused Deepak. However the MLC contradicts the same, even in the crossexamination of PW. 3 admission has been given at page 14 about the cordiality between the accused and the victim and the accused used to visit the house of the victim. As per the exhibits palced by the defense are specifically admitted. In the cross examination of PW. 3 at page 20 middle portion her statement and the evidence actually contradicts about the incident being reported before the Medical Officer.
47. The learned counsel for accused submit PW. 4 in chief examination at page 2 has specifically deposed the 37 SC NO. 858/2016 fire was even burning outside the house in the front door and chappal stand and he doused the same first as the door was closed and he by break open the door by that time the owner of the house advised to open the door by breaking the glass of the window. This person putting cloth on the window he removed the latches of the main door then door opened. Therefore this fact actually probable the defense that accused was also in the house he also tried to douse the same. Even he suffered burn injuries to his hands and both his legs, in the shock accused came out of the house. The allegation that the water can was found in front of the house of the victim and it has been deposed by material witnesses PW.4 and even owner of the house that the water can nasal / mouth was burning. The accused has tried to save the victim rather he is perpetrator. The explanation offered by the prosecution that water can is seized outside the main door of the victim house. If at all accused had poured the petrol from the window only definitely the accused alongwith that can shall be fallen into the space between the house of victim and house No. 138. It is impossible for a person to hold can in one hand and at the same time take match box and strike it and throw it into the house of the victim since if at all such a thing is happened as per prosecution case itself petrol has spilled over on the hands of the accused and also on his hand, then due to the space the accused cannot balance himself near window and the adjacent stair case. As it would be an unexpected 38 SC NO. 858/2016 one the contentions raised by the defense that accused has lit the match box and thrown into the house cannot be considered. If that is the case the prosecution has to explain that the match box and the water can are seized in front of the house of the victim. Infact if at all petrol is poured even for the sake of argument considered when the victim was sleeping on the deewan by opening the window the petrol definitely gone towards down the deewan when it falls on the face of the victim, then definitely she will be get alarmed and she will be get up and tried to make hue and cry and definitely there will be no any time to pour the entire petrol or the substantial portion of the petrol so as to spread over to the entire house.
48. The exhibits placed on record i.e. photographs of the house, Ex.D. 1 the deewan only the upper portion is seen to be burnt alongwith curtain. But the entire deewan is intact. However the petrol is even spread even to the kitchen as shown in Ex.P.2. the photograph No. 4 as per Ex.P. 2 disclose the front door is burnt one of the tiles in the hall has been broken and the fire has entered into the kitchen, the refrigerator upper portion has been burnt and the house premises about 3 feet the fire is spread in a lightening speed. Further as per photograph No.6 the compartment above 4 feet from the floor has been burnt i.e. the pooja room portion has been gutted in fire is evident from photograph No. 8, but below portion is intact, the 39 SC NO. 858/2016 photographs kept in the pooja cupboard below portions photographs are intact. Infact the lamp in the pooja room is intact, but above the lamp the photographs and wiring is burnt.
49. The learned counsel for accused submit the crossexamination of PW.4 discloses at about 12.00 am the incident occurred on 11.3.2016 midnight. However his crossexamination contradicts with the crossexamination of PW. 3. in the chief examination of PW. 4 he has deposed that PW. 1 and 2 deposed they were shifted in Ambulance. But PW. 3 deposed herself and PW. 1 were shifted in Ambulance and victim PW. 2 and 3 were shifted in Hoysala vehicle. However PW. 4 deposed contrary to the prosecution case. In page 3 of chief examination of PW. 4, he has specifically deposed he has signed mahazar as per Ex.P. 4. he signed the same on 12.3.2016 when police and doctors have visited the spot and he had shown the spot. This witness has deposed the water can is fallen and it was burning, and he has given statement before police. As per mahazar exhibit P.4, it has been written as 20 liters water can and also match box were seized in front of the house of complainant. But the complainant stated that the accused who was in the staircase of adjacent house visible through the window along with the water can in his hand. These facts contradict with the evidence of PW1, 2 and 3. The independent witnesses who have doused the burning can 40 SC NO. 858/2016 and helped to evacuate injured to hospital. However PW1 has not explained what has happened inside the house and in front of the house. PW. 6 has deposed he heard sound and cry. He went to the first floor and saw plastic can and matchbox. PW6 has turned hostile. This witness has not seen the accused in the spot. In the cross examination of PW6 at page 7 last 10 lines and page 8 first line he has deposed he has informed about the fire being started from the window. This witness has specifically admitted in page 8 of his cross examination about the situation of the building, house No. 38. This witness had admitted that a person if has to go to the main road need not has to go to house no. 38 and there is no not access to move into the complainants` house from house No.38 directly. The PW6 has admitted exhibit D1 sketch. The PW6 has specifically admitted there is window sill (sajja) above window but not below. He admits that from the below portion a person standing cannot be seen, even on standing on the sajja - window sill and the grill measuring 3x4 inch. Therefore in such a small window grill portion, water can cannot be put into to pour petrol completely. The PW6 admits if got down only 5 steps from his house, then 2nd floor would be visible. The PW.6 witness admits in front of the house of the complainant there was no fire when he saw but later deposed the chappal stand was burning. The PW6 deposed he had accompanied Sampath PW.4 while fire was doused. The PW6 deposed victim was in first bedroom as stated by 41 SC NO. 858/2016 Sampath and the complainant and his second daughter Sanjana was seen in second bedroom. These facts contradict with the prosecution case is the argument.
50. The PW.7 has deposed he heard blast sound but he did not went to the house of the complainant. PW8 and 10 cashier of the petrol bunk and other witnesses have not supported the prosecution case and identified the accused. There is no any proof with regard to minute details of the chain of events to prove the incident and accused having nexus. The petrol is 2 liters purchased but the can is of 20 liters. There is no corroboration to that effect. There are lacunae in the investigation. Even in the evidence of PW11 at page 2 has deposed in chief examination that Meghana and her mother were injured taken out in bedsheet in Hoysala to hospital. The Exhibit and P16 and D8 the injuries sustained by the accused has not been explained by the prosecution.
51. The learned counsel for the accused argues the injured PW.3 Sanjana was conscious and able to speak as per her evidence. However, IO not recorded statement at the earliest. Infact in her cross examination she has mentioned she reported before the medical officer about the incident when she was shifted to Victoria hospital. Infact exhibit P.11 issued by PW.13, the PW.13 has deposed that victim was unable to speak and this witness treated the injured and issued exhibit P10 and 11.
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52. The PW.14 at page 5 deposed in his cross examination that the intimation was recorded and sent. It is recorded as homicidal burns by pouring petrol and lighting fire to house by known person. This witness deposed it has been written by his junior and further deposed the accidental thermal burns has been strike off and the exact details are not been available has been written. This witness PW14 specified that, the police accompanying and one Santosh informed about the incident. As such is written as accidental thermal burns. He striked off and did write homicidal burns by pouring petrol and lighting the house on fire. This shows that medical officer has not taken pain to enquire the injured witnesses who are able to speak, as to record the MLC register notice, how the injured sustained burn injuries. There is no mention by the injured victim that they suffered burns due to lighting of fire by known person, if at all he is a known person definitely they would have mentioned the name of the person. Therefore, it is only an afterthought of the I.O as accused alone was third person present, to implicate. The MLC has also been distorted by mentioning accidental burns and replaced by, known person set house on fire.
53. The learned counsel for the accused drawn attention to exhibit P.12 the patient was brought at about 1:45 AM, as per exhibit P.13 patient examined at 1:50 AM and as per exhibit P.14 and 15 the patients therein have been examined by medical officer at 2:00 AM and 2:05 AM.
43SC NO. 858/2016 Therefore, these are material contradictions so as to believe the prosecution case. The learned counsel for accused argues the PW.13 in cross examination has specifically admitted both victims namely deceased Meghana and Sanjana were able to speak while recording exhibit P12 and
13. After that they were unable to speak as per medical records. Therefore, this aspect contradicts the prosecution case.
54. The learned counsel for accused argues as per exhibit P16 and D8 both records of the accused actually the time of examination differs. The notes made therein in the wound certificate differs. The contents are also contradictory to the medical record, Medical officer evidence before the Court, it seems it is botched up. The learned counsel for accused argues as per PW.15 Dr.Chennakeshava issued Ex.P16 the OP records to police and exhibit D.8 OP record, is considered the other records namely exhibit P.15 is concocted. The witness has specified he is not the author of the same. The subordinates doctors on duty have written the same and he signed as monitoring authority of the same.
55. In fact the PW17 inspected spot as accompanied by police inspector, one ASI Honnappa who is also working in the same police station and is material to bring compromise between the accused and victim family. However, the PW.27 I.O has closed his eyes towards the factors that there is love between deceased and accused and he has answered that 44 SC NO. 858/2016 there is no any need to investigate in regard of the love between the deceased and the accused, in his answer. The PW27 contradicts though ASI Honappa was working under him he never desired to inquire about the compromise and the differences between both families. If at all Honappa ASI have been made witness in this case, would have thrown light on the actual matter in controversy. The learned counsel for accused argues PW18 is the fire brigade authority who recorded information, on receiving of call from Pannalgu as per exhibit P23. He has also made a report, the PW18 deposed some miscreant have poured petrol and set fire as such he visited spot to douse the flame. Exhibit P25 and 26 does not disclose the name of the outsider. As per exhibit P29 patient was unable to speak but it contradicts exhibit P9 and 10. Accused and victim were in deep love, the Santosh PW22 who is none other than the brother of the complainant at page 3 of his evidence, has admitted that he went to his brother's house, his brother's daughter Meghana had suffered injury to head, hands, leg and back, the brother and brother's wife were shifted to Victoria Hospital in ambulance. The PW22 deposed there was no any adversity among the family of the accused and the deceased. This witness also deposed the accused used to visit the house of the complainant and he knows about the love affair.
56. The PW.23 independent witness close relative of CW1 also deposed that she came to know about the accused 45 SC NO. 858/2016 only in the TV. The PW 24 deposed one person was escaping, another person chasing him and caught hold of him. At page 2 and 7 of this witness evidence contradicts the evidence of PW.24 who is official witness. This witness deposed he got treatment to the accused up to 7:30 A.M. However, in his cross examination at last 4 lines as deposed, facts speaks differently. The PW24 deposed he has taken accused to treatment and he took him back to the police station. The injuries on the accused were denied at the first instance. Secondly only after showing exhibit P16 and D8 which were placed on record the injuries of the accused is admitted. In fact accused was injured at about 12:40 A.M but he was made available with medical attention only after 3:30 A.M or 7:30 A.M as per prosecution case. Therefore, when the accused has not been inquired about how the incident happened, only after his treatment he has been questioned by the IO and recorded voluntary statement as per prosecution case. In fact the cross of PW24 actually contradicts the prosecution case. In the evidence of PW27 who has recorded voluntary statement of accused as per exhibit P.36, in fact to consider the aspect of voluntary statement it has been alleged that accused has taken the petrol and sprinkled all over the house from the window. The cross examination of PW24 actually demolishes the prosecution case and his contradictions got elicited actually goes against the prosecution. In fact the date of incident is 12/3/2016. The Magistrate was in home office as it was 46 SC NO. 858/2016 second Saturday but FIR received belatedly and there is no mention in the FIR why the same was not sent to the Magistrate at the earliest. The PW.26 is the police personnel, of the police department took photographs and he deposed about the same. The PW.27 is the person who conducted entire investigation, deposed about incident and the IO has recorded the voluntary statement of the accused, the petrol of 2 liters was purchased from Satya Petrol Bunk. If the same is considered, in so far as per the defense is considered when the accused has access and gone in the house is to be considered for the sprinkling of the petrol in the entire house and other allegations may seem somewhat unbelievable. Further prosecution case is very definite accused poured the petrol from the window only. If the petrol is poured from the window spreading of the petrol even on the entire diwan bed itself can be annoying to the victim who may get up from the bed. Under these circumstances it will make the victim who succumbed, to get up and therefore the spreading of the petrol afterwards to the entire house will not be possible. In fact it is to be appreciated the petrol was carried in 20 liters water can which is seized and placed before court. Therefore , if the presence of the accused is the contention of the defense inside the house, but it has not been whispered by the victim in the hospital initially, the IO registered FIR. The IO has not followed the due procedure, it is only another case for the IO to prepare record and file chargesheet. Why the 47 SC NO. 858/2016 insensitivity of the IO towards facts namely love affair and definitely IO not taken pain to enquire about the love between victim and the accused and even PW1 to 13 to speaking as per the case papers prepared by the IO is not an act of public servant doing duty consciously. It is a deliberate act of the police inspector to implicate accused. Therefore, the entire prosecution case has no any relevance considering the factum, from the date of registering FIR till filing charge sheet everything is got prepared as if tailor made. Therefore, accused is to be given benefit of doubt and acquittal.
57. The learned counsel for the accused argues the complainant was able to talk when he was taken to hospital but his statement has not been recorded at the earliest, only after 6:30 A.M he has been made by the IO to give statement. Though I.O inquired victims in hospital at about 4:30 A.M itself, in the cross examination of the PW.27 the IO the recording of the statement actually contradicts exhibit P.39, 40 and 41. The note of the IO towards not inquiring about the love affair, being supported or in other words not given importance by the I.O, makes it clear accused has no any intention to commit offense namely under section 326, 436, 440 and 307 of IPC. Only in the evidence of witnesses PW1 to 3 they have deposed only "you all have to die as you have not given importance to the love", between accused and victim and by holding a can in his hand from the stairs of house no. 38 accused was shouting.
48SC NO. 858/2016 After the victims have starting hue and cry he ran away from the spot is the allegation. M.O.1 is admittedly seized in front of the house of the victim, however the accused was holding M.O.1 visible from the window standing in the staircase of the adjacent house. Both these facts contradicts. In fact as per the prosecution case there was petrol inside the water can of 20 liters. However judicial note can be taken that petrol kept in 20 liters can that too only 2 liters and mouth of it is small, pouring the petrol will definitely burst into flame and there will be possibility of the accident of can burning, there will be no any control over to the mouth of the can being not flammable. The PW.1 in page 4 of his evidence has deposed similarly is that of PW.2 that accused was seen in the window along with water can that contradicts the seizer mahazar. The evidence of the PW.2 at page 30, evidence of the PW.4 at page 4, the PW.3 has not specified that accused was holding the can as visible from the window. Therefore, it is natural as the PW.3 was not enquired till she recovered. There is time gap between lodging of complaint and statement of PW3 being examined. The PW1 and 2 have consistently deposed that they were able to speak as per the instructions of the IO. However the PW.3 was not aware about registering the crime by the I.O implicating the accused. Therefore, about her evidence only because accused holding of can in the adjacent building visible from the window, from the room in which as she came out. The exhibit P4 spot mahazar 49 SC NO. 858/2016 contradicts with the evidence of material witnesses PW1 to 3 in page 3 of mahazar at first 4 lines and also at page 4. The fact differs from the mahazar. There is no probability of 20 liters can nozzle is burnt partially and it is intact even after the blast. At this juncture, if the can is outside house, catching fire to the nozzle of the can becomes improbable. Therefore, these material contradictions and the evidence of PW.7 hostility and evidence of PW.1 in page 7 of his evidence the explanation offered by the prosecution witnesses prove the petrol in the can M.O.1 seems unnatural, per contra explanation of accused that it was snatched away finds support. No person after committing such a heinous crime will be seen showing that he has intention to do the offense and matchstick which is wet with petrol being intact outside the house as per exhibit P.4 when the door and the chappal stand beside the petrol in the can M.O.1 were ablaze. Accordingly, seeks acquittal of the accused from the alleged offenses.
58. The Learned PP argues that there are specific admissions on behalf of the defense about the accused being available in the spot. The accused, the seizure of the petrol in the water can and the fire has been caused by use of petrol. The petrol being purchased by the accused being established by examining the manager of Satya Petrol Bunk discloses the substance which has caused the fire is none other than the petrol is an admitted fact. In fact prosecution examined material witnesses even the fire station book has 50 SC NO. 858/2016 been summoned as exhibit P23 to show that fire mishap had occurred. In fact the material witnesses PW1 to 3 namely the parents and sister of the deceased have consistently deposed about suffering burn injuries and also the trauma suffered and setting their house on fire. The accused was outside the house near the window holding petrol can is in consonance with the voluntary statement Ex.P36 of the accused, even the voluntary statement of the accused corroborates with the medical record and the evidence of PW1 to 3 who have deposed accused is material person who caused the fire. The can M.O.1 with petrol inside is seized along with matchbox. In fact while committing the offence the accused was standing on the grill window and also stairs of the adjacent house while pouring the petrol as it spread over his knee and hand was wet with petrol when he lit the house resulted in blast. Immediately accused also caught fire to the hand and also his left leg and ankle. Learned PP argues the premises is burnt in fire mishap. It is burnt only due to petrol, used as fuel had caught fire. In the incident one person has succumbed and three other persons have suffered grievous injuries. It is a very heinous offense. The gravity of the commission of the offense is very serious and unpardonable one.
59. The prosecution has got examined 27 witnesses. There is no any inconsistency in the evidence placed on record. All most all the witnesses have supported the 51 SC NO. 858/2016 prosecution case. The hostility of some of the witnesses does not come in the way to consider material evidence placed on record so as to bring home the guilt of the accused. It is admitted that identification of the accused is proved beyond doubt. PW 1 to 3 have consistently deposed about the incident who are the key witnesses to the incident. There is damage caused to the premises which is resulted in loss to the tune of Rs. 2,00,000/ . The complainant was obliged to compensate the owner of the premises. In addition, the complainant has suffered loss of his beloved daughter and also household articles. The witnesses PW1 to 3 have specifically deposed that accused while standing on the staircase of property no. 38 at Sai Baba Nagar from the window has warned all the PW1 to 3 that they shall die as they have not given any value. Therefore, it is an attempt of murder of PW1 to 3. At the same time the overt act of causing fire mischief is resulted in fatal injuries to the victim who had succumbed to the injuries. Therefore, the specific ingredients of offense punishable under section 440 of IPC that there was preparation to cause death, even hurt in the present case, as such accused is answerable to the mischief committed resulting in death of one person and also grievous injuries to the others. Learned PP argues the petrol is inflammable substance which is resulted in the above incident and PW1 has given statement before police in the presence of doctor at hospital about how the incident happened which is 52 SC NO. 858/2016 finding corroboration in the evidence of prosecution witnesses. There is no any inconsistency in the evidence of PW1, after prolonged cross examination nothing has been elicited so as to discredit trustworthiness of prosecution witnesses. Accused is an known person as such the incident happened as per the evidence of prosecution witnesses directly points towards the accused and none other than the accused who is responsible for entire incident beyond all reasonable doubt. The death of the victim is not in dispute. Accused has not visited for more than one month as there was difference between both the families and victim was not allowed to meet accused which actually frustrated the accused and he committed the gusty offense. The setting of fire of the house through window when the victim was sleeping and door locked from inside the opening of the door and instructions of the complainant by neighbors goes to show the fire mischief done by the accused is unpardonable one. Exhibit P2 photographs disclose there is grill to the window through which the accused has poured petrol which was bought in a water can. Accordingly after pouring the petrol, he has set on fire and standing on the adjacent staircase he even warned victim and PW.1 to 3 with dire consequences that they shall die as they have not respected his love. The accused used to blackmail the victim also which has come in the evidence of PW1 and 2. Even after thorough cross examination nothing has been elicited so as to disprove the prosecution case.
53SC NO. 858/2016 Prosecution has got corroborative substantial evidence to prove its case. The allegations that there is lacunae in the prosecution case is baseless. In fact in the evidence of victim and also the accused has sustained injuries discloses accused was present at the spot and he is the perpetrator. There is mens rea to the accused as he had pre planned how to commit the offense. The page 23 of cross examination of PW.1 five lines and also in page 22 makes it clear accused was the perpetrator and he is responsible for fire mischief. Accused has brought the petrol is proved by examining witnesses who deposed on the previous day petrol for a sum of Rs. 136 is purchased in a water can which is identified as MO.1 before the court. The love between the victim and accused is undisputed. The photographs placed by the prosecution and even the evidence of PW10 and 11 makes it very clear from the window petrol has been poured which is also supported from exhibit P19, 20, 31, 38 and even the evidence of IO PW27 and there is water mixed in the petrol as stated which was present even at the time of evidence which was thoroughly sealed by the IO.
60. Learned PP further argues there is no discrepancy in the evidence of witnesses. The IO has observed and accused has given voluntary statement which also finds support that at the instance of accused material recovery has been made. Therefore the photographs, the injuries sustained by the victim deceased prove before this court 54 SC NO. 858/2016 consistently with the PM report, evidence of authorities, the act of the accused and accused was having sufficient knowledge pouring of the petrol is resulted in grievous injuries to the victim and other family members. Accused has no any regard towards deceased and family of deceased. As such he committed offense punishable under Section. 307 of IPC as the victim were injured grievously. Further the accused is having knowledge that fire mischief would result in fatal injuries or may cause death. The victim had succumbed to the injuries establishes prima facie of the link which leads towards guilt of the accused. The prosecution has placed material objects, cogent and corroborative substantial evidence and thirdly the witnesses examined for the prosecution have deposed about the incident and also in the manner in which incident did occurred. All these materials specifically points towards the accused and accused even in the statement U/s 313 has given explanation how the incident happened.
61. The Learned PP submits the materials placed are substantial and prosecution is able to prove the guilt of the accused on all aspects. There are no any circumstance so as to doubt the case of the prosecution. In this case no any cross examination made so as to contradict the prosecution witnesses which will show the prosecution case being doubtful. The evidence placed is of the eye witnesses, the identification of the accused is undisputed. The incident of fire mischief happened is proved by placing cogent 55 SC NO. 858/2016 documents in other words accused does not dispute fire mischief seriously. The defense is very weak and there is no chain of link even to consider for arguments sake of defense.
62. The Learned PP relies on citations by way of counters to the citations relied by the counsel for the accused. The accused is last seen in the premises as such the last seen theory is also available in the present case. The evidence of eye witnesses there is consistency to prove the ingredients of alleged offenses. Hence by relying on 2012 (7) SCC 646 in case of Shyamal Ghosh v. State of WB part A and G the Hon'ble Supreme Court of India has observed as follows ;
Eyewitnesses to significant parts of chain of circumstance-Last seen together-Recovery of dismembered corpse and weapons of offence and other crime articles conviction confirmed.
Circumstantial evidence-last seen together- Theory of-Applicability-Time of death.
Criminal Trial-Appreciation of Evidence- Contradictions, inconsistencies, exaggerations or embellishments-need for holistic appreciation of testimony of witness-Material contradictions alone are relevant and can affect case of party concerned-Every variation may not be enough to adversely affect case of prosecution-No statements of a witness can be read in part and/or in isolation-Court should examine statement of a witness in its entirely and read said statement along with statement of other witness in order to 56 SC NO. 858/2016 arrive at a rational conclusion -Court has to see whether variations are material and effect prosecution case substantially.
(G) Criminal Trial-Witnesses-Hostile Witness- Evidentiary value of hostile witness-Statement of a hostile witness, reiterate, can be relied upon by court to the extent it supports case of prosecution- Mere fact that two witnesses had turned hostile in present case would not affect prosecution case adversely-Moreover even statements of these witnesses, who had turned hostile, partially supported case of prosecution.
Accordingly accused is to be convicted.
63. The Learned counsel for accused submits there is no any mensrea for the accused to commit the alleged offense. The alleged fire mischief is not done by the accused. The prosecution lacunae create doubt and benefit of which is to be given to the accused. Further parents of the accused were ready to perform the marriage with that of deceased and even panchayat was held on 09.02.2016. The evidence shows that there is no any material so as to consider the motive. As such accused is to be acquitted. Further brings to court`s notice in the absence of mens rea the act of accused is not proved by relying on the citations as follows;
1. (2018) 15 SCC 725
2. AIR 2021 SCC 2342
3. 2021 (5) KCCR 1052
4. ILR 2021 KAR 1170
5. 2019 Crl.LJ 2918
6. 2019 (4) KAR 81 57 SC NO. 858/2016
64. The counsel has relied on ;
CRIMINAL APPEAL NO.1785 OF 2011 in SHANKER VS STATE OF MADHYA PRADESH WITH CRIMINAL APPEAL NOS. 17861788 OF 2011 SURESH DHOBI Versus STATE OF MADHYA PRADESH Held, before awarding conviction against accused for offence under Section302 IPC, courts should be mindful of fact that there should be no room to suspect evidence of key prosecution witness based on whose evidence conviction is being awarded. In a criminal case, court should bear in mind, that it is not quantity, but quality of witness and evidence adduced on record and to assess the same in a prudent before convicting accused.
Further relied on Surendra Kumar vs State Of Uttar Pradesh on 20 April, 2021 in CRIMINAL APPEAL NO._______OF 2021 (Arising out of SLP (Crl) No. 6965 OF 2019) (A) Penal Code (45 of 1860), S.302, S.120B Evidence Act (1 of 1872), S.3, S.8 Murder Circumstantial evidenceMotiveAccusedHusband being unhappy with deceasedwife hatched conspiracy with his brother and father, eventually murdering deceased.
Prosecution failed to adduce any evidence to prove meeting of minds of accused reasonably implicate his brother or two unrelated accused.
Accusedhusband being unhappy with deceasedwife hatched conspiracy with his brother and father, eventually murdering deceased.
In 2021(5) KCCR 1052 KARNATAKA HIGH COURT in case of Ashok @ Madiwallappa and Others V/s State of Karnataka through SubUrban P.S., held 58 SC NO. 858/2016 Dharwad PENAL CODE,1860Sections 302 and 106 EVIDENCE ACT, 1872Section 106Conviction appealLast seen theoryBurden Cannot discharge the burden of establishing the guilt of the was found lying injured All the places are public places having access to publicpancha witness to seizing of MO's turned hostileProsecution failed to establish weapons for assault chain of events not proved.
In ILR 2021 KAR 1170 in CRIMINAL APPEAL
No.200088/2014
Appeal against Judgment of conviction and Order of sentence Offence punishable under Sections 302 and 201 of IPC Correct approach to be adopted by the Courts while assessing the evidenceStandard of proof applicable in criminal cases "Fouler the crime, higher the proof"
HELD It is trite law that standard of proof applicable in cases which are criminal in nature before finding of guilt can be entered is proof beyond reasonable doubt.
FURTHER HELD The process of ascertaining whether a case is proved by the standard of proof beyond reasonable doubt essentially is an execrise of assessing the evidence taking a pragmatic Courts have to be extremely cautious to ensure that no leeway is provided to those incharge of investigation to use their "Persuasive powers".
In case of Kadamanchi Laxmi vs The State Of Ap., on 11 February, 2019 in CRIMINAL APPEAL NO.1032 OF 2013 High Court of Andhra Pradesh, Hyderabad. Held 59 SC NO. 858/2016 Penal Cde (45 of 1860) S.302 Evidence Committee murder of her husband by setting him ablaze on account of certain quarrel post mortem report proving cause of death as 94% burn injuries Similarity in allegation and content of dying declarationTwo dying declarations recorded by investigation officer and Doctor, and no contradictions found in their contents.
Mortem burns are 94% The case of death also testified that the victim had suffered 94% burns and that the death was caused only due to burns.
In 2019(4) AKR 81 AIR Online 2019 Kar 1007 In case of State of Karnataka V/s Venkatesh Criminal Appeal No.702 of 2013 it is held;
It was neigbours who shifted wife to prosecution Although wife sustained burns erroneously recorded 92% of body burnsprosecution only set wife ablaze Accused entitled to benefit of doubt (Paras 22,23,24,25) In (2012) 7 Supreme Court Cases 646 (Before A.K. Patnaik and Swatanter Kumar JJ) in case of SHYMAL GHOSH vs. STATE OF WEST BENGAL Eyewitnesses to significant parts of chain of circumstanceLast seen togetherRecovery of dismembered corpse and weapons of offence and other crime articles conviction confirmed.
Circumstantial evidencelast seen together Theeory ofApplicabilityTime of death.
Criminal TrialAppreciation of Evidence Contradictions, inconsistencies, exaggerations or embellishmentsneed for holistic appreciation of 60 SC NO. 858/2016 testimony of witnessMaterial contradictions alone are relevant and can affect case of party concernedEvery variation may not be enough to adversely affect case of prosecutionNo statements of a witness can be read in part and/or in isolationCourt should examine statement of a witness in its entirely and read said statement along with statement of other witness in order to arrive at a rational conclusion Court has to see whether variations are material and effect prosecution case substantially.
(G) Criminal TrialWitnessesHostile Witness Evidentiary value of hostile witnessStatement of a hostile witness, reiterate, can be relied upon by court to the extent it supports case of prosecutionMere fact that two witnesses had turned hostile in present case would not affect prosecution case adverselyMoreover even statements of these witnesses, who had turned hostile, partially supported case of prosecution.
G. Parshwanath vs State Of Karnataka on 18 August, 2010 Author: J Panchal Bench: Harjit Singh Bedi, J.M. Panchal
65. The case of prosecution is in the intervening night of 11.03.2016 at about 12:00 A.M the accused came to the house of complainant No. 39/2, 2 nd floor, 2nd cross, Sai Baba Nagar and poured petrol which was brought in 20 liters water can with an intention to murder Meghana and sprinkled petrol from the window and lit fire with matchstick. In the incident Meghana suffered fatal injuries due to burns, the victim was shifted to St. Johns Hospital where the treatment was not successful and she succumbed 61 SC NO. 858/2016 to the injuries on 17/03/2016 at about 10:50 PM. The incident accused is responsible for the death of victim. It is further alleged CW.2 Anupama, CW.3 Sanjana and CW1 Natraj were also sleeping and to kill all of them fire was lit as such accused committed offense punishable U.S. 436, 326, 307, 302 of IPC.
66. The Prosecution to prove its case got examined 27 witnesses and marked exhibit P.1 to P. 47. In defense exhibit D.1 to D.8 are got marked through the prosecution witnesses. The statement under section 313 of the accused is recorded. He denied all the incriminating evidence adduced. The accused in his 313 statement admits he had suffered burn injuries and he was taken to K.C General hospital where he was treated by CW.15 Dr. Channakeshva is admitted. The medical record of the accused is summoned from the jail authorities which is submitted on 19.09.2016 with Medical records. The Accused has submitted his written submission as follows;
" Since from my childhood I new the deceased Meghana and my family and their family were residing in the same building where we also residing, since from my high school days both we were in love each other and our relationship continued. My father was working as News paper distributer, the daily newspaper door to door, therefore the parents of the Meghana objected and refused and tried their level best to break up our love affair. Both we putforth before the parents of Meghana by Meghana the parents did not agreed, therefore both we were decided to run away from the house and to get married each other and accordingly on 9.2.2016 myself and deceased Meghana 62 SC NO. 858/2016 ran out from the house and stayed in resort at Doddahaladamara and thereafter we stayed one day in the resort and thereafter on the next day both we went to my parents house at Srirampurs and thereafter my father took me and deceased Meghana to the Srirampura police station on account of the complaint given by the father of deceased Meghana. The Srirampura Police Station the police officer by name Honnappa has compromised and he has specifically told to both the parents that both we are major in age and don`t go against our desire. The parents of deceased Meghana and if did not ready to perform our marriage to come out from their residence and marry each other. Therefore on that pretext and to discuss with respect of the same I had gone to the hosue of the deceased Meghana on 10.3.2016 and her father came to her place where she sits in their residence in the right and thereafter there was a discussion between her parents and me and deceased Meghana with respect of the performances of the marriage, but the parents flatly refused to perform the marriage of the deceased Meghana with me. The deceased Meghana that if she is going out of the house with me they will commit suicide therefore there was lot of fight took place between deceased Meghana and her parents. On account of the lot of altercation and conversation deceased Meghana distressed and said that don`t commit suicide on my sake of my issues inturn I will commit suicide. Lot of fight and altercation took place between us and finally she brought some petrol from the bedroom and tried to pour herself for which the parents and myself stopped to pour the petrol on her body, by that time she already poured the petrol on her body. Thereafter myself and her father tried to snatch the said petrol bottle by that time the said petrol was sprinkled on the first of the small lamp which was kept in the god`s mantap (Devara Mantapa) and suddenly the fire was covered her entire body including the entire room and simultaneously myself, parents of the deceased and sister of deceased were in fire due to the flame."
67. The prosecution in proof of offense under section 436 of IPC has to establish and basically prove there is 63 SC NO. 858/2016 mischief due to fire. Secondly, the person doing the mischief should have intention to cause or likely to have knowledge that the fire will destroy any building which is a human dwelling. In the case on hand the prosecution has placed evidence of PW.1 to 3 who have specifically deposed that the property number 39/2, second floor is the premises where PW1 to 3 were residing along with victim who succumbed to the injuries. The PW.1 to 3 have deposed in their evidence they are residing in the building situated in 2 nd cross of Sai Baba Nagar. In the cross examination, the residence of the witnesses in the building is undisputed. Furthermore, in the cross examination of PW.1 in page 18 the existence of the premises has been got elicited as follows ...¸ÀzÀj zÁR¯ÉAiÀÄÄ WÀl£ÀÁ ¸ÀݼÀzÀ ¸ÉÌZï ªÀÄ£É £ÀA.39/2PÉÌ ¸ÀA§A¢ü¹zÁÝVgÀÄvÀÛzÉ JAzÀÄ ¸ÁQë UÀÄgÀÄw¹zÀ ªÉÄÃgÉUÉ CzÀ£ÀÄß ¤.r.1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. £À£Àß ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è ºÉýgÀĪÀAvÉ £À£Àß ªÀÄUÀ¼ÀÄ ªÀÄ®VzÀÝ eÁUÀ ¤.r.1gÀ £ÀPÉëAiÀÄ°è vÉÆÃj¹gÀĪÀ 'J' ¨sÁUÀzÀ°è ªÀÄ®VzÀݼÀÄ JAzÀgÉ ¸Àj. J ¨sÁUÀzÀ ¥ÀPÀÌzÀ°è vÉÆÃj¹gÀĪÀ 'qÀ§Æè å ' J£ÀÄߪÀ ¨sÁUÀ £É®¢AzÀ PÀlÖqÀzÀ vÀÄ¢AiÀÄ ¨sÁUÀzÀªÀgÉUÀÆ EgÀĪÀ SÁ° ¥Áå¸ÉÃeï JAzÀgÉ ¸Àj. ¸ÀzÀj ¥Áå¸ÉÃeï ¸ÀĪÀiÁgÀÄ JgÀqÀƪÀgÉ Cr CAvÀgÀ«zÉ JAzÀgÉ ¸Àj. £ÀPÉëAiÀÄ°è AiÀÄĦ JAzÀÄ §gÉ¢gÀĪÀ ¨sÁUÀªÀÅ ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀÄ §Äå°ØAUï £ÀA.38PÉÌ ¸ÉÃjzÁÝVzÀÄÝ, £ÁªÀÅ ªÁ¸À ªÀiÁqÀĪÀ ªÀÄ£ÉUÉ ¸ÉÃjzÀÝ®è JAzÀgÉ ¸Àj. ¤.r.1gÀ°è vÉÆÃj¹gÀĪÀ ºÁ¯ï JA§ eÁUÀzÀ §® ªÀÄƯÉAiÀÄ°è zÉêÀgÀ ¥ÀÇeÉUÉAzÀÄ ªÁqïðgÀÆ¨ï ªÀiÁrPÀÉÆArzÉÆÝ JAzÀgÉ ¸Àj. £À£Àß ªÀÄUÀ¼ÀÄ 64 SC NO. 858/2016 ªÀÄ®VzÀÝ ¥ÀPÀÌzÀ QlQ ¸Éè Ê rAUÀ «AqÉÆà JAzÀgÉ ¸Àj. ¸ÉÊrAUï «AqÉÆêÀ£ÀÄß Væ¯ï£À M¼À¨sÁUÀPÁÌzÀAvÉ C¼ÀªÀr¹zÁÝgÉ JAzÀgÉ ¸Àj. AiÀÄĦ JAzÀÄ vÉÆÃj¹gÀĪÀ ¸ÀݼÀzÀ°è ¥ÀPÀÌzÀ ªÀÄ£ÉUÉ ºÀwÛPÉÆAqÀÄ ºÉÆÃUÀ®Ä PÀ©âtzÀ Væ¯ï¤AzÀ vÀAiÀiÁj¹zÀ ¸ÉÖÃgï PÉøÀ£ÀÄß C¼ÀªÀr¸À¯ÁVzÉ JAzÀgÉ ¸Àj ......page 18 of evidence of pw1 Similarly in the further cross examination of PW.1 at page 21 has deposed. The PW.1deposed, got up after hearing shout from outside his room. The PW1 deposed he called for help from inside the house. In the chief examination of this witness at page 4 deposed as he heard shouting sound he came out of the room and saw Deepak in the window, was standing and told the complainant, and his family members did not give any importance to his love and he was holding 1520 liters petrol can. At that time his wife and daughter came and all of them started crying for help. At page 6 this witness deposed as per exhibit P1 he has specified that accused stated that, the complainant and his family members did not give value to the love of the accused towards victim, he had poured petrol and lit the house on fire. In the cross examination at page 21 this witness has deposed he does not remember whether Medical Officer questioned him how he suffered injuries. The PW1 deposed further he was in a concious state of mind when he was in Victoria hospital and was able to speak. At page 22 this witness admits when he heard sound and came out from 65 SC NO. 858/2016 his room the main door and Dewan in L shape the fire was burning and later entire house was engulfed in flames. This witness deposed the fire was burning from main entrance upto varanda in `L' shape. After that his wife came out and at that time his second daughter was not, out of her room. It has been specifically suggested in page 23 that accused along with this complainant and wife and daughter tried to douse flames then only they have suffered injures is denied by the complainant. In page 24 the witness deposed as he heard sound, he came out from his room, he removed slightly the window door. It has been specifically denied as the accused was inside the house the question of running away and escaping there was no scope, this witness denies. At page 25 this witness denies he does not know who has written in the hospital that it is an accidental thermal burns.
68. The PW.2 in her evidence deposed about her residence as that of PW.1 in page 4. This witness deposed on 11.3.2016 accused came to the house and poured petrol and lit fire. This witness also deposed that on hearing a sound she opened the door and in the hall Meghana was burning, the window panes were broken and near the window Deepak was holding one can and he told as they have not valued his love they all have to die and tried to run, by that time entire house was engulfed in fire. This witness specifically deposed petrol was also poured outside the house and fire was there even burning her leg and also 66 SC NO. 858/2016 engulfed entire hall but it does not enter room and they have shouted through window of the room and fire did entered even the second room where her another daughter was sleeping and she also suffered burn injuries to hand and legs and it was difficult to breathe due to smoke. This witness also suffered burn injuries to both hands, and became unconscious. Similarly, her husband was also engulfed in fire, and gradually became unconscious. This witness has turned hostile in part. After cross examination she identifies MO.1. In her cross examination this witness in page 10 gives particulars about the house how it is situated. This witness in page 18 of her cross examination admits exhibit D2, 3 and 4. This witness in page 19 admits about exhibit D.1 and situation of the premises. This witness gave explanation about exhibit D.1 and passage. This witness deposed in page 21 the date of the incident when she came behind her husband, her second daughter was standing near the door of the room by that time window glasses were broken. This witness at page 22 deposed she heard shouting .............PÀÆUÁrzÀ zÀsé¤ AiÀiÁgÀzÀÄ JAzÀÄ ºÉüÀ§ºÀÄzÀÉà JAzÀgÉ, ¸ÁQëAiÀÄÄ ¸ÀAd£Á, ªÉÄÃWÀ£Á ªÀÄvÀÄÛ ¢Ã¥ÀPïgÀªÀgÀ ªÀÄÆgÀÄ zÀsé¤UÀ¼ÀÄ PÉý¹zÀݪÀÅ JAzÀÄ £ÀÄrzÀÄ ¸ÀAd£Á¼À zÀsé¤ §ºÀ¼À ¸ÀàµÀÖªÁV PÉý¹vÀÄÛ J£ÀÄßvÁÛgÉ. ±À§Ý PÉýzÀ vÀvïPÀëtzÀ¯Éèà £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ gÀƫĤAzÀ ºÉÆgÀUÀqÉ §A¢zÉÝÃªÉ JAzÀgÉ ¸Àj.
Page 22 of PW 2 evidence 67 SC NO. 858/2016
69. This witness at page 24 deposed accused was standing in the staircase of the adjacent building as on 26.9.2017 evidencing. This witness in page 25 deposed she has not given statement to the Medical Officer of Victoria Hospital that she had suffered accidental thermal burns. At page 26 this witness deposed she was conscious in St. Johns Hospital and gave statement before the doctors and she stated to the doctors that Deepak had come to their house and poured petrol and started fire .
¸ÉAmïeÁ£ï D¸ÀàvÉæAiÀÄ°è UÁAiÀÄUÀ¼À §UÉÎ ªÉÊzÀågÀÄ «ZÁj¹zÀÝgÀÄ ªÀÄvÀÄÛ D PÁ®PÉÌ £À£ÀUÉ ¥ÀædÕÉ ¸ÀªÀÄ¥ÀðPÀªÁVvÀÄÛ. D ¸ÀAzÀ¨ÀsðzÀ°è ªÉÊzÀåjUÉ ¢Ã¥ÀPï J£ÀÄߪÀ ªÀåQÛ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ ¥ÉmÉÆæÃ¯ï ¸ÀÄjzÀÄ ¨ÉAQ ºÀaÑzÀÝjAzÀ F jÃwAiÀÄ ¸ÀÄlÖUÁAiÀÄUÀ¼ÁVªÉ JAzÀÄ ªÉÊzÀågÀ §½ ºÉý¢ÝÃgÁ J£ÀÄߪÀ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ ºÉýgÀĪÀÅzÁV £ÀÄrAiÀÄÄvÁÛgÉ.
Page 26
70. In page 27 also PW2 further deposed she has specifically mentioned before the doctor that Deepak had come to their house and poured petrol and lit fire. This witness in page 10 of her cross examination on 11.3.2016 at 12:00 AM accused had poured petrol and lit fire and he was standing outside the window has been deposed is her answer.
71. The PW.3 in her examination has specifically deposed about the premises in first page and in page 4 deposed at about 12:00 AM she heard shouting of her sister, she came out of her room at that time hall was 68 SC NO. 858/2016 burning and her sister was also suffering burn injuries and the fire spread even to her room and beside the window accused was standing holding a can and he stated "you have not given value to his love and they have to die" and he went away. Later her father came to her room, and they called for help.
72. In the cross examination of this witness in page 16 this witness admits they were residing in 2nd floor as per exhibit D.1 it is situated. This witness in page 18 has admitted specifically regarding the situation of the premises.
¤.¦.2gÀ°è ¤±Á¤¸À¯ÁVgÀĪÀ 13, 14 ªÀÄvÀÄÛ 15gÀ°è PÁtĪÀ ¥sÉÄÁÃmÉÆÃUÀ¼À°è £ÀªÀÄä ªÀÄ£ÉAiÀÄ QlQAiÀÄ Væ¯ïì¤AzÀ ºÉÆgÀUÀqÉUÁzÀAvÉ ¤AwgÀĪÀ ªÀåQÛUÀ¼ÀÄ ¸ÉÖÃgï PÉÃ¸ï ªÉÄÃ¯É ¤AwzÁÝgÉ JAzÀgÉ ¸Àj. ¸ÀzÀj ¸ÉÖÃgïPÉÃ¸ï ¥ÀPÀÌzÀ §Äå°ØAUïUÉ ¸ÉÃjgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. ¸ÀzÀj ¸ÉÖÃgïPÉøïUÀÆ £ÀªÀÄä ªÀÄ£ÉAiÀÄ QlQUÀÆ £ÀqÀÄªÉ CAvÀgÀ«zÉ JAzÀgÉ ¸Àj. ¸ÀzÀj CAvÀgÀ £É®ªÀÄlÖ¢AzÀ PÀlÖqÀzÀ vÀÄ¢AiÀĪÀgÉUÀÆ EzÉ JAzÉgÀ ¸Àj. ¸ÀzÀj ¸ÉÖÃgïPÉøï¤AzÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ QlQAiÀÄ£ÀÄß ªÀÄÄlÖ®Ä DUÀĪÀÅ¢®è ºÁUÀÆ QlQAiÀÄ §½ ¤®è®Ä AiÀiÁªÀÅzÉà ¸ÀÞ¼À«®è JAzÀgÉ, ¸ÁQëAiÀÄÄ QlQ PÀ¼À¨sÁUÀzÀ°ègÀĪÀ ¸ÀdÓzÀ ªÉÄÃ¯É ¤AvÀÄPÉƼÀî®Ä ¸ÀݼÀ«zÉ J£ÀÄßvÁÛgÉ.
Page 18 of PW3 evidence
73. The PW3 in page 19 admits by the time she came out to hall her father and mother had come there. The PW3 admits the main door is beside the room where they were sleeping. The PW3 deposed near the main door there was fire burning. The PW3 in page 20 deposed that when she 69 SC NO. 858/2016 was shifted to nearest house, she was conscious and even her father and mother were also conscious. First, she along with her father were shifted to Victoria hospital and then to St. Johns Hospital. The PW3 specifically deposed she was able to speak when she was taking treatment and at St. John's Hospital she became unconscious. This incident is also specifically mentioned and reported before the Medical Officer in Victoria Hospital and even at St. Johns Hospital that Deepak has poured petrol and lit fire.
74. These witnesses PW.1 to 3 are the material witnesses. These three witnesses have consistently deposed that fire has been lit by accused. However, PW. 1 to 3 have deposed the accused was seen in the window and a can in his hand. PW.3 has specifically admitted in her cross examination as noted supra at page 18 that there is a space in between staircase and window and this witness to this specific suggestion that the window cannot be reached and person cannot stand by the side of the window as there is open space she deposed there is a sajja below the window. On going through the voluntary statement recorded by the IO as per exhibit P.36 it has been specified that on the night at about 12:00 AM in the 20 liter plastic can as accused came on Honda Active KA 50 N 6549, he brought the petrol to the house of Meghana, No. 39/2, 2 nd cross, Sai Baba Nagar, Bangalore and he saw the window was open beside which Meghana was sleeping and as he decided to kill her he poured the petrol from the window and lit fire and 70 SC NO. 858/2016 Meghana suffered burn injuries and the fire further extended to Sanjana who was sleeping beside her as they shouted father and mother have come and they also suffered burn injuries. Accused believed they are all dead by the time as victim were shouting for help, of the neighbors, they brought him and informed the police. In fact to consider this aspect this court considers the photographs, material objects, documents placed on record. Exhibit P.2 the photograph number 13 discloses the window from which petrol has been allegedly poured through the window the staircase of the adjacent house is able to see, to consider the aspect of the accused was standing in the window he can be seen by holding water can as there is a gap of one and half feet. There is no possibility of standing in between the window and the neighbor house staircase. The PW.3 has explained that a person can stand on the sajja of the window below the window seen in exhibit P.2 photograph. Further exhibit D.1 is shown to the PWs and they have admitted the situation of the house. Ongoing through exhibit D.1 there is a passage in between the window and the staircase is admitted by all material witnesses and IO. There is a space of measuring 0.8 meters from ground floor to fourth floor similarly. The PWs have not specified in which window the accused was visible holding the can. On going through exhibit D.7 photographs especially exhibit 5, 6 and 7 height from window sill from the first floor there is a gap of approximately six feet.
71SC NO. 858/2016 Therefore, if the evidence of PW.3 is accepted accused is standing on the sajja and seen in the window and holding a can only seeing the face of accused itself will not be possible considering the sajja is about five feet below the above window. However, if we consider the evidence of PW.3 in chief examination in page 4 she has deposed fire was spread to the room where PW.3 was sleeping beside the window accused was standing and holding can. If this is accepted that in comparison with exhibit D.7 it goes to main door that means accused was standing beside the main door and as per exhibit P.2 beside the main door even the window is also lit with fire up to 2 and ½ height even main door is also burnt partially from outside up to half portion from below is visible in exhibit P.2 photo number 4. The window seen at photo number 5 towards western side. The PW.1 has deposed in page 4 of his evidence the fire was burning in `L' shape when he came out of the room, in page 4 he has specifically deposed accused was standing outside his house. £Á£ÀÄ PÀÆVzÀ ±À§Ý PÉý ºÉÆgÀUÉ §AzÀÄ £ÉÆÃrzÁUÀ ¢Ã¥ÀPï ªÀÄ£ÉAiÀÄ ºÉÆgÀUÀqÉ QlQAiÀÄ §½ ¤AwzÀÄÝ, £ÀªÀÄä ¦æÃwUÉ ¨É¯É PÉÆnÖ®è D PÁgÀt¢AzÀ ¤ÃªÀÅUÀ¼É®ègÀÆ ¸ÁAiÀĨÉÃPÀÄ JAzÀÄ ºÉüÀÄwÛzÀÝ£ÀÄ.
In Page 4 of pw1 evidence
75. And in cross examination at page 18 PW.1 admits the suggestion made about the situation of the premises. If the evidence of PW.1 is considered when accused is 72 SC NO. 858/2016 standing outside the house means it comes to the beside the front door window. However, .if the evidence of PW3 is considered it specifies accused was seen in the side window which is towards western side of the house. The house is opening towards North. As per exhibit P.1 other than the upstairs towards the west of house no. 39/2 there is no access directly to come over to house no. 39/2 and access towards 39/2 is only through downwards from the north side. When accused is holding the can beside the staircase window as visible from PW.1 and 2 then at the time of seizer the can and the matchbox wereinfront, the main door i.e., beside the main door and window where chappal stand was also burning as per evidence of other witnesses who has given how the situation was when came there after hearing the shouting of PW1 to 3. The aspect of whether accused was standing outside the main door or at the adjacent property number 38, there is material contradictions to consider the aspect of where the accused was actually standing. There is no any another intervening access from the main door of 39/2 to the place where the accused was seen by PW.1 to 3 as per exhibit D1. The voluntary statement of accused if considered as recorded by PW.27 who has specifically deposed where in it is recorded if the voluntary statement is to believe as per exhibit P.36 it has been specified by the IO as narrated by the accused that from that window accused spilled petrol on the victim first who has succumbed and from that window only he sprayed 73 SC NO. 858/2016 over entire house. However, PWs have deposed as soon as PW.1 came out of the house he saw it was burning in `L` shape from the window up to main door. However in the entire prosecution case as the outside door was locked from inside and glass pane were intact the fire has spread to the main door and the chappal stand and also the cushion chair which were even as per exhibit P.4 which were in front house of complainant burnt. Therefore, on going through the material on record either accused have climbed down from the main door which is the access to the stairs of no.38 and then once again climbed up the staircase of the adjacent house number 38 and he may be seen in the window. The possibility of spreading of petrol from window as per exhibit P.2 and burning from grill window up to main door in L shape from the main door there may be illusionary pouring petrol. The damage caused to the main door is visible from exhibit P.2 photograph no 4, which definitely discloses that the fire has occurred when the main door was either open or the accused was inside is the argument of the defence counsel find some clinching material. The accused was seen out of the house after the argument started between them and heated argument and then victim tried to selfemulate and by that time fire broke out from the lamp from the pooja partition gives some support from the photographs placed by the prosecution. It is a fact that there is no direct access from house number 38 to house No. 39 in any manner as visible from exhibit D.1.
74SC NO. 858/2016
76. At the same time as the M.O.1 can being seized in front of the house of the complainant the standing of the accused holding the can will be infront of the house No.39/2 which will be directly visible from the room from which the complainant came out after hearing the sound. In fact the photographs placed by the prosecution points out in front of the house No.39/2 the front door from bottom to up to 3 feet it is slightly burnt. Similarly, the catching of fire to the chappal stand and the water can M.O.1 being twisted as seized and placed before court is due to heat probabalises. Therefore the defense statement i.e., the reply given by the accused during statement U/s 313 of Cr.P.C finds support. The suggestions made to the prosecution witnesses that accused was inside the house premises and they were trying to douse the fire by hands by snatching the M.O.1. At that time the petrol had sprinkled all over the house and the blast occurred due to lamp in the Devara Mantapa (Pooja Shelf). On going through the Ex.D.2 photograph No.8 the pooja shelf is intact up to 4 feet from bottom and from the lamp and above it is burnt gets support from the prosecution case to the defense taken by the accused.
77. With regard to offence punishable under Section 326 of IPC this court basically relied on the evidence of PW.1 to 3 who are injured witness. The learned PP argued the PW.1 in his evidence has specifically deposed in page No.4 and 5 of evidence that PW.1 suffered burn injuries 75 SC NO. 858/2016 along with the PW.1 his wife suffered burn injuries to her hand, face and also she suffered suffocation due to smoke. Infact his wife lost conscious. Similarly his 2 nd daughter also had fallen in the room being burned and unconscious. The PW.1 has burn injury to his hand and face and similarly his younger daughter had also suffered burn injuries to her Eye, hand and face and they were shifted in ambulance namely his wife and Meghana to Victoria hospital and later he and his 2nd daughter Sanjana were shifted to Victoria hospital. In St. John Hospital his wife and daughter were further shifted for ICU. Later as there was no ICU available the wife of PW.1 complainant along with himself were shifted to Gurushree Hospital. Both his daughters were treated in St. John Hospital onwards. In the cross examination of PW.1 at page No.18 admits Ex.D.1 the situation of the house and entire spot. Further PW.1 gives explanation where he was and his daughter normally sleeping. In page No.2 specifically deposed where the victim were shifted and whether they have given statement before the Medical officer how the incident happened, witness replies he does not remember whether the doctor enquired about how he suffered burn injuries. This witness deposed he was conscious and able to speak but his wife was not able to speak. This witness admits in page No.22 that there was no fire in the entire house. But it was burning in 'L' Shape from the Diwan cot to main door. In page No.23 this deposes accused was also present along 76 SC NO. 858/2016 with accused they tried to dowse the fire, in the same incident all of them suffered injuries including accused. The witness replies if the accused never entered the house. PW. 1 has deposed that to prove the ingredients of offence punishable u/sec. 326 of IPC that accused caused grievous hurt by means of any instrument which used as a weapon of offence and secondly accused has knowledge that it is likely to cause death or by means of fire by which it is deleterious to .... then he will be answerable for the punishment provided under Sec. 326 of IPC which may extent to 10 years or shall also be liable to pay fine. In the case on hand the prosecution to prove the ingredients of offence in the evidence of PW. 1 to 3 in the examination in chief they have constantly deposed at page 6 accused with an intention to kill had poured petrol and he has lit fire. In the evidence of PW. 2 this witness in page 4 deposed when she came out of the room on hearing shouting of her daughter she found accused has poured petrol and had lit fire and in his hand there was a can and he has uttered as the family members of victim did not gave value to his love they all have to die. By the time fire spread to the entire house. This witness deposed petrol was poured even outside the house and even the fire was burning leg of the accused and fire was burning her daughter who was sleeping on the deewan and fire had also spread to another room where her 2nd daughter was also sleeping and 2nd daughter`s hands and legs were also burnt. By that time she was unable to 77 SC NO. 858/2016 breath properly and she had also suffered burn injuries to her both hands and she beadme unconscious. Her husband also suffered burn injuries to face and he was also struggling to breath. This witness has turned hostile that the accused was standing in the window, he was seen holding a can and she observed accused, he had stated that ;
¤ÃªÀÅ £ÀªÀÄä ¦æÃwUÉ ¨É¯É PÉÆqÀÄwÛ®è ¤ªÀÄä£É߯Áè ¸Á¬Ä¸ÀÄvÉÃÛ£É. gÁà ¥Áè¹ÖPï PÁå£ï£À°è ¥ÉlÆæïï£ÀÄß vÀAzÀÄ ¤ªÀÄä ªÀÄ£ÉAiÀÄ QlQ ªÀÄvÀÄÛ ¨ÁV°£À ¸ÀA¢AiÀÄ°è ¥ÀÉmÉÆæÃ¯ï ¸ÀÄjzÀÄ ¨ÉAQ ºÀaÑgÀÄvÉÃÛ£É ¤ÃªÀÅ ¸ÀªÀð£Á±ÀªÁV JAzÀÄ PÀÆUÁqÀÄvÁÛ ¸ÀÞ¼À¢AzÀ ¥ÀgÁjAiÀiÁzÀ£ÀÄ
78. This hostality has been admitted by her in her chief examination . This witness in her crossexamination in page 21 she admits about pooja cupboard beside the deewan and as per Ex.P. 2 photo No. 10 the main door was not damaged, she has replied that main door was damaged . Police have tied thread and made it stand. This witness deposed in page 22 that when she came alongwith her husband their 2nd daughter was standing in the door of her room and the window glasses were broken. This witness deposed that front door was burning. This witness deposed she heard first daughter`s sound and accused Deepak and she heard sound of her 2 nd daughter clearly. This witness deposed the accused was not standing behidn the window , but he was standing on the stair case of the adjacent building.
78SC NO. 858/2016
79. The deposition of this witness that he was standing on the adjacent stair case of the building contradicts with evidence of PW.1. Therefore whether accused was standing in the stair case of adjacent building that PW. 1 to 3 have seen or whether he was seen in the window adjacent to the main door holding can in his hand. The intention of the accused to cause grievous hurt or having knowledge that with his conduct it would result in grievous hurt cannot be inferred directly since the accused as per his statement given in 313 (5) of Cr.P.C. that he was inside the house as there was altercation and heated exchanges between the victim and her father , victim threatened that she will self immolate and as such she poured petrol on herself and that they tried to douse the fire which was caused due to the pooja cupboard spreading to Deewan where victim was sleeping, all of a sudden the fire broke from the lamp and the victim and other 2 persons namely parents of the victim suffered similar burn injuries to their hands and accused also suffered fire injury to his hands and leg and accused was inside the house is the claim.
80. Infact the prosecution though has brought the case that the accused poured petrol from the window where the victim was sleeping on the Deewan, if that is the place from which the petrol was poured there is no chance of petrol spreading to the house in `L` shape as deposed by 79 SC NO. 858/2016 PW. 1. Infact the PW. 1 has deposed even front door and also front window side inside the house were burning as such he could not open the main door. PW. 2 deposed accused had poured petrol from the main door window also, the main door as such fire was burning. Infact the accused has contended victim poured petrol on herself, as such all of them tried to pacify her and the can in which petrol was brought was snatched by the accused and father of the victim and it has been turned outside by the accused, at that time blast occurred, fire spread to the entire house. All these 3 material witnesses deposed when the blast occurred PW. 1 to 3 they have deposed that they were present in the spot. But their specific answer in the cross examination that they came after hearing the sound of her daughter as deposed by PW. 2. PW. 2 deposed that she heard cry of her daughter victim Meghana and also Sanjana and even cry of accused Deepak simultaneously. Therefore PW.1 to 3 present and accused had an intention to cause grievous hurt or burn injuries to PW.1 and 2 and as such he poured petrol from outside cannot be considered as a material proof since the accused never expressed his intention to cause grievous hurt to parents of the victim. Infact it is the defense of the accused that victim tried to self immolate when parents of the victim refused to entertain the prayer of the victim to give victim in marriage to the accused. At this juncture this court on observing the photographs the other portion in the hall, the pooja room , 80 SC NO. 858/2016 deewan and main door and window, there is soot seen on the wall. Infact as per page 13 the aquarium beside the pooja cupboard and books kept are not at all burnt, they are intact. Therefore, the fire has started in `L` shape as contended by PW. 1. father of victim finds support from the material placed on record. Similarly the computer table seen inEx.P. 2 photo No. 6 , LCD of the monitor has been melted. However the adjacent books and other materials scattered are not burnt. Moreover, the paper books, the system and the draw in the computer table are not at all burnt. This discloses the burning of the same has occurred only above the level of more than 3 feet and but not below that. The washing machine upper portion is burnt is visible in photograph No. 11. If the aspect of intentional causing fire mischief to teach lesson to the family of the victim Ex.P. 30 the statement given before medical authority at Gurushree Multi speciality hospital the history of incident has been shown as per Ex.P.30 homicial burning on 12.3.2016 at about 12.45 am and the time has been corrected. Infact on going through the MLC of PW. 2 placed on record Ex.P. 29 wherein at page 3 it has been mentioned in the inpatient case record history of assault resulting in burn injuries to face and both hands, patient was first taken to St. Joh`ns Hospital after first aid, sent for Gurushree Hospital is noted. In the case record at page 12 the notes, It has been noted on 12.3.2016 at about 11.00 am when the patient was examined while Doctor on duty, it is noted `accidental 81 SC NO. 858/2016 thermal burns around 1.00 pm yesterday night when a person poured petrol lighting the house and it has been further noted patient was not aware by that time what happened till she was shifted to the hospital.
81. In the discharge summary draft prepared in writing at page 77 of Ex.P. 29. It has been noted that accidental thermal burns to face, hands, patient was conscious, oriented, vitals were stable, the history of patient when brought to the hospital. However in the Discharge Summary in the same record at page 115 it has been written as history of assault resulting in burn injuries to face and both hands. Further in the same record in between page 104 and 105 the St. John`s Hospital written intimation as there was unavailability of ICU bed referring PW. 2 for treatment , it has been noted on 12.3.2016 history of assault resulting in burn injuries to face and both hands. The record of the Medical Officer of PW. 2 Ex.P. 29 and 30 actually contradicts with case record maintained in Gurushree Hospital. Ex.P. 30 speaks about homicidal burns, Ex.P. 29 contents as noted supra there is contradiction in the case record. The consultation notes differ from the Discharge Summary, it has been specifically noted in a consultation note that the injured Anupama PW. 2 was not aware what has happened till she was shifted to hospital. PW. 2 in her evidence has deposed while she was in the house due to short of breath she became 82 SC NO. 858/2016 unconscious. Therefore the medical record has been tailored after the incident and death of the victim, the notes made at the first instance actually differs from the notes made after death of the victim. The argument of the learned counsel for accused that family of the victim were not at all intending to punish the accused at the first instance, therefore they did not disclose the incident as per the I. Os papers. After the death of the victim they were forced by the IO to implicate the accused as a person, perpetrator resulting in the incident and as such the entire case is tailor made to implicate the accused to make believe accused having knowledge that his act will cause grievous hurt to the victims and that may result in serious injuries to the family of the victim has been botched up seems a reasonable prayer. Therefore this court on the basis of the material placed by the prosecution that accused was intending to cause actual hurt or grievous hurt to all the family members so as to threaten them for not honoring his love has not been brought up by the prosecution as per the case of the Investigating Officer. The Investigating Officer in his crossexamination has specifically deposed that he had no any intention to investigate with regard to love affair of the accused and victim . He has specifically answered he did not felt it reasonable so as to bring out the accused and victim who succumbed to injuries were in actual love in the present case before filing charge sheet. However PW. 27 explained one Honnappa was working in 83 SC NO. 858/2016 his Police Station and to the suggestion that Honnappa is the material in getting compromise the family of both victim and accused, which is not within the knowledge of the I.O. and he has not even attempted to know about the same which is very crucial to prove either the guilt of the accused or the hostality between the accused, grudge against the family members of the victim who had succumbed to the injuries.
82. Infact as per the charge sheet it makes direct allegations against the accused, it is mentioned to cause death of all persons and also victim as such he has poured petrol and lit the house on fire. Under these circumstances the burning of the building is undisputed. However in the present case the situation of the house and pouring petrol and that too spilling as per the burning house found by PW. 1 there is no any chance of spilling the petrol from the remote window and setting the house on fire could be imagined. Under the circumstances prosecution though has placed material to prove the house was on fire and fire burning when the eye witnesses PW. 1 to 3 saw and found accused was outside the house, however exactly the accused was seen beside the front door holding can in his hand contradicts with the admissions of PW. 2 in cross examination that accused was seen in the staircase of the adjacent house No. 38 and he is observing from the side window of the house where victim and PW. 1 to 3 were 84 SC NO. 858/2016 residing. Hence there is no any direct nexus to the accused having mensrea to cause actual grievous hurt or having knowledge that his act of setting the house on fire would result in death of the victim. Infact there is no direct evidence to show the link, the accused really is responsible for fire mishap, since the material placed by the prosecution mainly the photographs and the explanation offered by the accused that the fire was started from the pooja cupboard and the damage caused in the house as per Ex.P. 2 photograph finds some support. Therefore, the eye witnesses have deposed with regard to seeing the accused and also the house being burning and even the victim was burning , their statement given before the Medical Officer as per Ex.P. 12 to 15 finds no corroboration with the prosecution case that accused had intention to cause death or grievous hurt to all the family members of the victim. Even Ex.P. 10 the medical record of the victim who succumbed to the injuries disclose there is also history of homicidal attempt resulting in burn injuries when patient`s house was set on fire by outsider in a close room, the history wherein correction has been made from assault to homicidal attempt. Thereafter, the attempt made by the Medical Officer is whether it is given by the patient is ruled out since in the same it has been noted patient was not able to talk. The patient was brought by one Harish who had informed about the same. Therefore, whether it is homicidal attempt or assault contradicts. However, as noted in 85 SC NO. 858/2016 Ex.P.11 the patient Sanjana who was brought in St. John`s Hospital the patient was about to talk and she has informed the Medical Officer that it is homicidal attempt resulting in burn injuries. Patient was at home sleeping, house was set on fire by outsider. This aspect Ex.P.11 actually contradicts with notes made in Ex.P. 13 by the Medical Officer where it has been noted history of homicidal burn by pouring petrol and lighting fire to house by a known person and wherein accidental thermal burns noted alongwith other information, victim, the PW. 1 and 2, has been stricken out and it has been written as fire lit by known person and it has been noted Srirampura police have brought PW. 3 wherein it has been noted patient is in a shock and unable to speak in Ex.P.13. However when she was in St. John`s Hospital she was able to speak. This aspect in the evidence of PW.3, in her crossexamination she asserts that she has specifically stated before the Medical Officer that accused was standing in the adjacent staircase and she reported before the Medical Officer and she had specifically mentioned the name of the accused Deepak is responsible to set the house on fire. From this aspect all material placed by the prosecution actually contradicts with the medical record. When the victim has specified that Deepak is responsible for setting house on fire then the noting made by PW. 14 in medical record as explained by the Doctor in page 5 of evidence, it has been stated by the police and another person Santhosh who 86 SC NO. 858/2016 accompanied the victim , it goes against the prosecution case. Therefore, the evidence of PW.3 has been contradicted by the medical record of the prosecution. Therefore the accused alone being responsible in causing grievous hurt cannot be inferred from this material. Therefore as contended by the defense the family of the victim half heartedly after the death of the victim, as per the instructions of the IO accused has been implicated, sounds reasonable. Therefore, this court at this juncture on the basis of the material on record the ingredients of Sec. 326 of IPC has not been substantially placed and proved is my firm view. Accordingly point No. 1, 4 and 5 are answered in negative.
83. POINT NO. 2 ; Regarding 307; The prosecution to prove the ingredients of offence punishable under Sec. 307 of IPC basically prosecution case is, as the accused was prevented from marrying victim deceased by the parents of the victim , accordingly with an intention to kill them accused poured petrol in the house of the victim and set it on fire with an intention to kill or with an intention to cause hurt to PW. 1 to 3 i.e. PW. 1 Natraj, his wife Anupama and daughter Sanjana. The prosecution has basically relied on the evidence of PW. 1 to 3. As discussed supra while discussing the evidence of PW.1 specifically at page 4 has deposed that PW.1 heard cry of his daughter Meghana in the hall who was sleeping beside the window in the hall, 87 SC NO. 858/2016 when PW. 1 came out of the room accused was standing near the window , he had specifically mentioned accused stated they have not given value to his love as such all of them to die, accused holding 1520 liter can, PW. 2 and 3 also came there at the same time with PW. 1, they all raised alarm. The neighbors rushed and they had broken the window and sprinkled water from outside to douse the fire. Firstly PW. 1 was taken outside. Secondly his younger daughter was also taken out and they went to the house of owner and afterwards the wife of PW. 1 who was unconscious and also daughter who had been unconscious in the room shifted away. PW. 2 and victim deceased were shifted in Hoysala vehicle to hospital and afterwards PW. 1 and 2nd daughter Sanjana were shifted in Ambulance to Victoria Hospital.
84. PW. 1 in his crossexamination dated 11.8.2017 at page 16 deposed they have instructed victim not to talk with accused till marrying accused and this fact is also informed to accused. This witness admits both the accused and victim had reported before ASI Honnappa that they cannot live separately. In page 21 of the crossexamination of PW. 1, he has deposed in Victoria hospital whether they have stated about how the incident happened before the Medical Officer, witness replies, he cannot recollect. This witness admits he was fit enough to give statement before the Medical Officer , but his wife was not fit. Similarly this 88 SC NO. 858/2016 witness deposed he has not stated before Medical Officer in St. John`s Hospital about the incident, he replies he cannot recollect. This witness to the suggestion made in page 23 that the victim herself tried to self immolate by pouring petrol then fire was catch from the pooja cupboard as the lamp lit catched fire. This witness denies they tried to put off fire and in that incident the accused also suffered burn injuries to his both legs; witness replies the accused never entered the house. The aspect of suggestion made to PW.1 that the fire was started from lamp and accused also tried to put off the fire alongwith others, his answer that accused never entered the house. But other aspects that fire was lit from the burning pooja lamp is specifically denied.
85. This witness in page 25 to the specific question that in Victoria Hospital and St. John`s Hospital who had reported about the accidental burn injuries , he replies he does not know who has given instructions. This witness to the specific suggestion as victim was very much depressed by the conduct of PW. 1 and wife expressed will commit suicide and they have not expressed anything before the neighbors or before the Medical Officer, about accused doing overt act, this witness denies to the specific suggestion that ;
¤ªÀÄä ªÀÄUÀ¼ÀÄ ¤ªÀÄä ºÁUÀÆ ¤ªÀÄä ¥ÀwßAiÀÄ ªÉÄÃ¯É ¨ÉÃeÁgÀÄ ºÉÆA¢ DvÀäºÀvÉå ªÀiÁrPÉÆArzÀÝjAzÀ DgÉÆæ ªÉÄÃ¯É AiÀiÁªÀÅzÉà «ZÁgÀªÀ£ÀÄß ¥ÀæxÀªÀĪÁV aQvÉì ¥ÀqÉAiÀĪÁ PÁ®PÉÌ ªÉÊzÀågÀ §½ ºÁUÀÆ 89 SC NO. 858/2016 £ÀªÀÄä ¸ÀºÁAiÀÄPÁÌV §AzÀ £ÉgɺÉÆgÉAiÀĪÀgÀ §½AiÀÄÆ ¸ÀºÀ ºÉýPÉÆArgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¤ªÀÄä «Ä¸ÉÖÃPï¤AzÀ ¤ªÀÄä ªÀÄUÀ¼ÀÄ DvÀäºÀvÉå ªÀiÁrPÉÆArzÀÄÝ, D PÁgÀt¢AzÀ «PÉÆÖÃjAiÀiÁ ºÁUÀÆ ¸ÉAmï eÁ£ïD¸ÀàvÉæAiÀÄ ªÉÊzÀågÀ §½ DPÀ¹äPÀ ¨ÉAQ zÀÄgÀAvÀ (DåQìqÉAl¯ï xÀªÀÄð¯ï §£ïðì) JA§ÄzÁV ºÉý §gɹzÉÝÃªÉ JAzÀgÉ, ¸ÁQëAiÀÄÄ £ÀªÀÄä£ÀÄß ¸ÁªÀðd¤PÀgÀÄ ºÁUÀÆ ¥ÉǰøÀgÀÄ D¸ÀàvÉæUÀ½UÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÀÄÝ D jÃw AiÀiÁgÀÄ ºÉý §gɹzÁÝgÉÆà UÉÆwÛ®è J£ÀÄßvÁÛgÉ.
86. Further in the entire evidence of PW. 1 he has not specifically deposed that accused had intention to kill all the family members, other than the words specifically mentioned that accused uttered that `all of you have not given value to his love as such all should die`.
87. In page 4 he deposed how the incident had happened. This witness deposed accused holding a can and he utterred words `you have not given value to his love, you all shall die`. After uttering these words he tried to ran away. The PW. 2 witness deposed in page 7 of her evidence , that in Gurushree hospital police had come she had given statement in the presence of doctors. PW. 2 witness deposed accused had no any belief on them that they will give their daughter to him in marriage. With this mis understanding, in a hurry he had done the act. In support of her evidence as discussed supra in Ex.P. 29 and 30 there is contradiction to that effect. The statement given by PW. 2 before the Medical Officer causing burn injuries is due to assault as mentioned in Discharge Summary placed on record.
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88. In the crossexamination of PW. 2 in page 18 this witness has deposed that due to fear of the accused her daughter though reported that accused is pressurizing to marry him, she has not at all stated anything in the house. This witness specifically deposed within one month period from 9.2.2016 to 11.3.2016 they have not made any complaint against the accused. This witness in page 18 and 19 admitted Ex.D.2 to 4 photos wherein the accused and family members PW. 2 and 3 were seen appearing to be cordial. In page 20 of her crossexamination this witness has admitted situation of the premises and the gril of the window. This witness in page 21 last four lines and page 22 of her crossexamination deposed by the time she came out of the house window glasses were broken, she deposed the main door was burning, she heard voices of her 2 nd daughter , deceased and also Deepak shouting for help. This witness deposed accused was standing near the stair case of adjacent house. But not in the window as deposed by PW. 1 and PW. 3. This witness deposed and admitted in page 24 that access to the stair case of the adjacent house is not available from their house, but it is separate. This witness deposed by admitting she was unconscious at the time of incident and she got conscious only when she was trying to be shifted in Hoysala vehicle and she deposed she was semi unconscious and does not know who had shifted her to hospital and she regained conscious only in Hoysala vehicle. She was taken to Victoria Hospital, she admitted 91 SC NO. 858/2016 that she stated before the Medical Officer that she suffered burn injuries due to accidental burns. She deposed she was shifted to Bharthi Nursing Home and from there to Marthas hospital and from there to St. John`s Hospital and lastly to Gurushree hospital. She deposed as she suffered injuries due to setting fire by accused Deepak she deposed she had given statement and she had full conscious when she was in St. John`s Hospital. This witness deposed she had given statement before Gurushree hospital that Deepak is responsible for the incident. In the entire evidence of PW. 2 in chief examination she has not specified that accused had intention to kill them. When she has been cross examined by treating her hostile she deposed accused poured petrol and set the house on fire and this witness has admitted the suggestion made by prosecution that after setting the house on fire he uttered `you all perish and ran away.`
89. The learned counsel for accused argues there is no consistent evidence of PW. 1 and 2 that accused had intention to kill all the family members of PW. 1 to 3. Infact PW. 2 deposed accused being disturbed that the victim will not be given in marriage to accused he had done this act.
90. In the evidence of PW. 3 in the crossexamination dated 16.11.2017 she admits her sister Meghana and Deepak are friends is admitted. This witness admits in page 6 and 7 of her crossexamination that accused and victim 92 SC NO. 858/2016 were very close, they have left the house taken on rent and went to some other place. She admits Deepak was studying in Sheshadripuram college, after knowing this her sister also joined the same college. This witness though deposed her sister was sharing her feelings, but specifically her sister was not expressing about deep love with the accused. She also admits in page 8 of her crossexamination that accused and victim were moving together and this fact has come to the knowledge of the family members through known persons even though phone calls. This witness in page 18 deposed that on 9.2.2016 victim has been forcibly taken by the accused and he has misbehaved with her as reported to the witness by her mother when she returned from the police station. This fact actually contradicts with admissions of PW. 1 and 2 in page 16 of PW. 1 cross examination the daughter of PW. 1 (victim) has refused to come to the house of the complainant, but she insisted to go alongwith accused. Therefore, accused was misbehaving with the victim cannot be considered as argued by the learned counsel for accused finds some support from the evidence of prosecution witnesses PW. 1 to 3 that the question of blackmail made by the accused on the victim cannot be inferred as the evidence of PW. 1 to 3 contradicts with regard to relationship of the accused with the deceased. PW. 3 has deposed about Ex.D. 1 that the window of the bed room No.2 is not situated on the eastern side of bed room No.2 is not present, but it is towards the passage 93 SC NO. 858/2016 in front of house No. 39/2 is present, is the explanation given by this PW. 3.
91. On going through the material on record and the documents placed by the prosecution and accused , the prosecution case is that the complainant has given statement before the IO, after getting treatment at about 6.30 am had given statement to the police in the presence of Doctor Medical Officer, on the basis of the same offence punishable u/sec. 307, 436 of IPC are invoked. Later on 17.3.2016 I.O registered crime for the offence punishable u/sec. 302 of IPC after victim Meghana succumbed to the injuries. Infact PW. 2 Anupama has also given similar statement before the Medical Officer at Gurushree hospital, it has been reduced in writing by one WPC 9925 who had submitted before the IO . The complainant given statement on 12.3.2016 at about 6.00 am in the hospital. PW. 1 has specifically stated in the complaint the accused poured petrol to kill them and as such police have to take appropriate action.
92. The IO during the course of investigation has specifically mentioned while recording further statement even in the remand application dated 7.4.2016 accused acted being suffering from fits. However the medical records which is summoned by the Magistrate on 12.7.2016 disclose the NIMHANS Medical Officer who examined accused on 20.3.2016 has recorded the UTP 2404 94 SC NO. 858/2016 Deepak , he was diagnosed to have adjustment disorder plus seizure disorder plus burn injury in both foot and it has been advised he needs admission for evaluation in multi speciality hospital in view of co morbidities, regular dressing and he has referred to psychiatrist at Victoria Hospital. Therefore, the remand application contents actually contradicts the observation of the Medical Officer and the IO has come to wrong conclusion that accused is not suffering from seizure . Infact the MLC produced by the Jail Superintendent dated 12.3.2016 is the MLC which has been placed by the defense as per Ex.D. 8 . However Ex.D. 8 differs from Ex. P.16 . In Ex.P. 16 the patient has been examined at 3.50 am and he has been brought to the hospital at about 3.40 am. It has been noted the burn injuries have been suffered after setting fire to house by pouring petrol on 12.3.2016 at about 12.00 am at No. 39/2, Saibaba nagar as per Ex.P.16. However as per Ex.D. 8 the history is shown as epileptic and he is on medication lavopel and the history of burn as patient has sustained burns last evening on both feet and left hand, the time of admission especially when the accused brought and medical treatment given at about 3.50 am , the MLC received by Jail Superintendent should have tallied with Ex.P.16 rather Ex.D.8.
93. Infact on going through the remand application of IO dated 12.3.2016 the IO has mentioned that accused has 95 SC NO. 858/2016 stated before the police that he had brought petrol and poured through window and also in entire house and set on fire when victim is started shouting, her sister who was also sleeping by the side of victim also started shouting, then parents came there and they also suffered burn injuries and let they die is the shout made by the accused and he was caught hold by the police. In the remand application it has been specifically mentioned in page 4 by the IO the accused to escape from police custody and to misdirect the investigation had behaved being affected by fits and acted as if not well. Infact in the remand application itself the remand has been made upto 24.3.2016 by the jurisdictional Magistrate at about 4.00 am when accused produced from police in home office namely by HC 3221 and ASI Ramu of Srirampura P.S. and accused submitted no ill treatment, he has been medically examined, as such remanded to judicial custody by 24.3.2016. If the remand order passed by the Magistrate in the remand application dated 12.3.2016 at about 4.00 am is to be considered the accused has been examined as per Ex.P.16, if Ex.P. 16 is to be believed being the earlier one then the issuance of MLC as per Ex.D.8 when the accused was in the JC being remanded upto 24.3.2016 then the question of examining the accused at about 9.35 am as per Ex.d. 8 and also the unexhibited report of Jail Superintendent as per the prosecution before the Magistrate as on 18.9.2016 the MLC attached therein is similar with Ex.D.8. Therefore Ex.D.8 actually contradicts 96 SC NO. 858/2016 with Ex.P.16.
94. Ex.P. 16 the noting of burns after setting fire to a house if at all informed by the accused at about 3.40 am then the accused suffering from epileptic as noted in Ex.d. 8 , which actually corroborates with medical record copies submitted by Jail Superintendent on 18.9.2016 corroborates with Dr. B.M.Suresh consultant of Unit 6 at NIMHANS dated 20.3.2016. Therefore in the case on hand the medical record itself seems botched up. Under the circumstances the citations relied by the learned counsel for accused based on the evidence and last seen theory relied by the learned PP in 2012 (7) SCC 646 the eye witnesses being seeing part of chain of circumstances is to be considered though seems reasonable, with regard to accused being present at the scene of offence the presence of the accused can be corroborated based on the citation relied by the learned PP.
95. In the case on hand the hostality of witnesses is not present so as to disbelieve the evidence of witnesses. In this regard the learned counsel for accused has relied on citation in 2021 (5) KCCR 1052 the Hon`ble High Court of Karnataka has observed in para 16,20,24 and 26 the prosecution has to prove the chain of events to consider last seen theory. If this court proceeds in furtherance of the citations relied by the prosecution and last seen theory relied by the defense and even in another citation of 97 SC NO. 858/2016 Hon`ble High Court of Karnataka reported in 2019 (4) AKR 81, AIR online 2019 KAR 1007 in para 22 and 23 the Hon`ble High Court of Karnataka has considered the neighbors who shifted the victim wife to hospital and not accused as alleged by prosecution the trial court observes that 92% of body is burnt though as per medical record it is 70%. This material observation of the facts wrongly by the trial court will result in benefit of doubt to the accused is the observation.
96. In the case on hand as discussed supra the medical record placed by the prosecution and the remand application obliges this court so as to consider accused has been examined at about 3.40 am only. However this particular record/register in MLC is not available to any person even to Superintendent of Prison who had collected MLC as placed by defense I.e Ex.D. 8. Infact PW.15 had examined the accused has deposed in chief examination he is present under whose supervision accused has been examined for burn injuries. In his crossexamination this witness deposed who has written Ex.P. 16 cannot be given information on this day and This witness deposed in page 5 of his crossexamination dated 21.3.2016 specifically stated that information given by accused is written and his junior has written the same. He was on duty on 12.3.2016 upto 8.00 am and after 8.00 am who was on duty he does not give particulars. This witness admits specifically there 98 SC NO. 858/2016 will be one outpatient record, same will be issued as the certified copy. Infact on going through Ex.P. 16 it is the MLC issued for the Consulting Room No. 10 having token No. 13, however as per Ex.D. 8 there is mention of Consulting Room No. 10, but the token number is 23. Therefore on going though MLC concerning token No. 23 has not been produced by the prosecution before the court. Under the circumstances this court by considering the evidence of PW. 1 to 3 being eye witnesses cannot come to the conclusion that the I.O has followed due procedure while preparing the charge sheet and charging the accused for alleged offence. Under the circumstances the evidence of IO wherein he has specifically refused to answer the defence the specific question with regard to his course of investigation concerning love affair, the actually goes against the spirit of conducting fair investigation. This court by following the decision of Hon`ble Supreme Court of India in C.A No. 628/2005 in case of G.Parashwanath vs. State of Karnataka dated 18.8.2010 the duty of the IO is not discharged as per requirement in burn injuries case. It has been observed by Hon`ble Supreme Court of India in para 17 what are the procedures to be followed, as follows.
17. The another circumstance sought to be relied upon by the prosecution is that the deceased wife was alive and conscious when she was set on fire and it was not probablized by the appellant that when the house caught fire the deceased inhaled carbon monoxide due to which the deceased had died and subsequently they were burnt in the fire which had engulfed the house. The post- mortem report of deceased Chethana shows the following important features -
99SC NO. 858/2016 "Body is in a pugilistic attitude, (ii) smell of Kerosene emanating from the body, (iii) swollen tongue protruding out of the mouth,
(iii) blood stained find oozing from nostrils,
(iv) head hair is almost singed over the left half of the head and some short hair is left over the right half of the head and back, (v) heat ruptures over the abdomen at places have exposed the peritoneum, (vi) skull, vertebrae and brain congested, (vii) larynx & trachea congested with presence of soot, (viii) pericardium & heart contains current jelly blood clot, (ix) Large contains bright red blood
(x) Peritoneum congested, (xi) stomach is empty, (xii) Liver is congested, (xiii) 4th degree burn present on face, back of trunk and lower half of left leg whereas 5th degree burn on the trunk and limbs."
It is also important to note here the statement of Taluka Magistrate made on 15.5.1993 wherein he had categorically stated that "at the time of investigation, and from the circumstances of the spot and from the report of the medical examination of the bodies, it is revealed that both the deceased were made to stop breathing and thereafter, kerosene was poured on them and they were burnt."
The post-mortem report of deceased child Mahaveer reveals the following important features-
A. i) Body is in a pugilistic attitude, (ii) smell of kerosene emanating from the body,
(iii) intestine protruding out, (iii) heat ruptures present over the trunk and limbs,
(iv) head hair is almost singed, (v) skull, vertebrae and brain congested (vii) larynx & trachea congested with presence of soot,
(viii) pericardium & heart contains current jelly blood clot, (ix) Large contains bright red blood
(x) Peritoneum congested, (xi) stomach is empty, (xii) Liver is congested, (xiii) 5th degree burn present on body except on back of trunk whereas 6th degree burn on both the knees, wrist & right ankle.
B. Opinion in post mortem regarding death of Mahaveer is;-
100SC NO. 858/2016 "...burns are homicidal in nature, precipitated by Kerosene"
In the report made under Section 174 Criminal Procedure Code following facts were noticed regarding position of the dead bodies, extent of burns and materials recovered from the scene of incident -
"(i) Re' position of bodies:-
Dead bodies were found in dressing room (first room). Child's head was resting towards Chethana. Head of the body was resting on half filled wheat bag. Fingers of the body was burnt.
(ii) Re' Extent of burn in the room:-
The investigation report shows that the northern, eastern and southern side of the room had the impact of flames. The bodies were found near the southern side of room. Western side of the room did not have any impact. An iron bucket and steel mug were found near the bodies, which were smelling of kerosene oil.
(iii) Re' items seized during investigation:-
Apart from other things a bucket and mug smelling of kerosene, a used matchstick found near the main door of house, door planks, near the main door outside, a brass and steel door latch on which the words Phillips/Lever is written and appeared to have been broken by pressure."
97. In the case on hand the IO as per the spot mahazar Ex.P 4 the forensic experts have collected 10 items from the spot. In the list of witnesses examined before the court the Expert who visited the spot and examined by collecting the sample from the spot has not been made as witness. This lacuna by relying on the above citations and also the citations of counsel for accused and even citations relied by the prosecution does not inspire to consider that the alleged offence punishable u/sec. 307 alongwith other offences punishable u/sec. 436 and 326 of IPC there is 101 SC NO. 858/2016 lacuna in the investigation so as to bring home the guilt of the accused by placing the available material before IO who withheld the expert opinion which has been basically relied by the prosecution. This aspect definitely creates doubt in the mind of the court to consider that though the prosecution has placed material witnesses namely neighbors who have rushed to the spot immediately after incident namely PW. 4,5, the other witnesses namely PW 7 to 11 who have deposed about the catching of the accused who has been seen in the vicinity immediately after the alleged offence being committed, therefore as per the defense the presence of the accused is specifically undisputed. The accused has made attempt to explain he is not responsible for setting fire to the house. In this regard as there is material contradiction in the medical evidence itself to consider as per the prosecution case the fire incident happened, there are some missing links which directly shows how the petrol has been poured in the entire house premises as per the eye witnesses evidence which burn in `L` shape or else, as per the materials placed on record namely photograph No. 4,7,11 and 12 distinctly shows that the fire incident though being not disputed but how it has been started has not been satisfactorily explained by the prosecution is my firm view.
98. In the case on hand PW. 1 to 3 have specifically deposed that accused has stated `you have not valued my 102 SC NO. 858/2016 love as such you all shall die`. This statement of PW. 1 to 3 is constant with the prosecution case. However PW. 1 to 3 are actually not eye witnesses. As per the prosecution case itself they are the persons who immediately rushed to the spot after the fire incident. It is unfortunate that the deceased victim who had suffered burn injuries was unable to speak at the time of admission or even after. Further this court on going through Ex.P.12 the MLC of Victoria Hospital it is specifically noted that victim, suffered 60% thermal burn injuries as per the note made in MLC at page 34 it is noted. Ex.P. 12 wherein it is noted the victim has suffered accidental burn injuries and it is also specifically noted the exact details are not available. This person is the first person who has been examined and victim was brought by Srirampura police, In column No.9 it has been shown as police constable, but the name of the police constable has not been specified therein. Infact in Ex.P. 13 the patient being examined at 1.50 am even five minutes after Ex.P. 12 patient has been examined. The same accidental thermal injuries has been striked out by the Medical Officer and in that place it has been mentioned as homicidal burns by pouring the petrol and lighting fire to the house by known person. There in it has been noted patient in shock and unable to speak. Therefore if that aspect is considered the person who brought the patient Sanjana to hospital, Sanjana has not been accompanied by Srirampura police but she has been shifted to the hospital in Ambulance 103 SC NO. 858/2016 alongwith PW. 1. The PW. 3 in her evidence has deposed she was conscious and able to talk when she has been taken to hospital. This piece of evidence of PW.1, finds support in the Wound Certificate issued concerning this patient by the St. John`s Hospital where she has been subjected for treatment. However the MLC which has been marked concerning St. John`s Hospital Ex.P. 9 discloses patient was accompanied by one Harish and victim has suffered alleged history of homicidal attempt resulting in burn injuries. This aspect actually contradicts with evidence of PW. 3.
99. Infact Ex.P.11 the inpatient record disclose that Sanjana was able to speak as per Ex.P.11. Ex.P.11 read with Ex.P. 9 actually corroborates with evidence of PW.3.
However Ex.P.13 contradicts the evidence of PW.3, the question of accidental burns or homicidal burns stands on different footings. They cannot be matched being on the same footing. Under the circumstances the I.O has not conducted the investigation as per manual. The I.O has tried to implicate the accused to answer, whether it is unfortunate incident or deliberate incident done by the accused or as per Ex.P. 10 and 11 it is homicidal attempt, the explanation offered by the prosecution are not sufficient to answer this court to consider the ingredients of offence punishable under Sec. 307 of IPC being established as per the mandate of law. Hence this court is satisfied to answer 104 SC NO. 858/2016 all these point No. 2 in negative.
100. POINT NO.3; Regarding Sec. 302; The prosecution in order to prove the ingredients of offence punishable u/sec. 302 of IPC has basically relied on the evidence of Pwl 1 to 3 who are the eye witnesses to the incident and the persons who rushed to the spot immediately . Further has placed reliance on the evidence of PW. 22 and 23 Santhosh and Uma respectively, the independent witnesses are being examined namely owner of house Balamurli as PW. 6, one M.P Saravana as PW. 7, one Venkatesh examined as PW. 8, one Dilip examined as PW. 9 and one Thirumala examined as PW. 10 who is the Manager of Satya Service Station from where the accused allegedly petrol has been purchased. One Krishna is examined as PW. 11. PW. 6 to 11 have consistently deposed immediately after the incident they rushed to the spot where they found accused who was trying to move away from the burning house by getting down from the staircase of house No. 38, the persons who came to the spot namely Krishna who have stopped the accused from running away from the spot. PW. 24 Ranganath the retired ASI deposed that he was working in Srirampura police station and on patrolling duty of Hoysala on 12.3.2016, while moving on receiving specific information from control room about fire incident he immediately rushed from the place where they were on round to the spot and found one person was trying 105 SC NO. 858/2016 to run and this witness had caught hold the person who is none other than the accused before court. The PW.24 deposed he handed over him to the personal who came from his police station to the spot.
101. In the case on hand the prosecution directly points to the accused being the perpetrator who had poured petrol in the house from the window and caused fire incident. Secondly the pouring of petrol was so that it has fallen on the victim when the premises was set on fire, she caught fire and was burnt upto 53% as per Ex.p. 10 which also corroborates with Ex.P. 12 which shows approximately about 60% burns. The prosecution has placed the photographs Ex.P. 2 series, Ex.P. 3 series wherein it discloses the burn injuries suffered by the victim.
102. The prosecution has placed the inquest mahazar drawn in the hospital after the death of the victim. Ex.P. 8 PM report is placed which discloses the victim has suffered burn injuries and the injuries actually corelates with Ex.P. 8 and 10. The photographs Ex.P. 3, the Ex.P. 12 MLC register extract maintained in Victoria Hospital, Ex.P. 29 wherein history of burn injuries sustained by PW. 2 is arising out of the assault resulting in burn injuries.
103. Infact in Ex.P. 10 it has been noted as alleged history of homicidal attempt resulting in burn injuries when patient was set on fire by outsider in a closed room.
106SC NO. 858/2016 The injuries shown in Ex.P. 10 the details that the assault resulting in burn injuries disclose the patient has suffered burn injuries to face, both fore arms, both feet on the front side, on the rear side patient has suffered burn injuries to back, entire back burnt, both hips, thigh and also heals. Learned PP argues the inquest mahazar drawn and the evidence of the family members of the victim and Ex.P. 31 is not seriously disputed. The death of the victim is not disputed. Secondly prosecution has to link the accused to the cause of death or having nexus to the cause of death. In this regard the defense has taken up specific stand that accused was present in the premises before the incident as per his 313 explanation. Infact this 313 (5) statement submitted cannot be considered as a material link to prove the accused to the incident. Further the explanation offered therein about the presence of the accused is definitely supports the prosecution case though statement u/sec. 313 (5) of Cr.P.C. cannot be considered as a material proof on behalf of the prosecution. However the prosecution is able to place corroborative , substantial material evidence. The learned PP argues the evidence of the parents of the victim , sister of the victim directly points towards death of the victim is due to the burn injuries to the face, the death of the victim due to the burn injuries is not disputed by the defense also. The contention of the defense is self immolation. It is not the prosecution case, then it is the duty of the accused to explain how the victim tried to self 107 SC NO. 858/2016 immolate and give explanation against the case of the prosecution. This argument of learned PP seems reasonable one.
104. The learned PP submit the evidence of the PW. 1 to 3 are direct and PW. 6 and 7 have specifically deposed that they brought out of the house who are the victims who suffered burn injuries , victim deceased could not be shifted by lifting her, but she has been wrapped in a bed sheet who was unconscious and they took her in the Hoysala vehicle which was brought by the police to the place of incident immediately. The police personal namely PW. 24 who was incharge of the Hoysala vehicle deposed that they shifted victim deceased in Hoysala vehicle to Victoria Hospital alongwith another injured person PW. 2 who was also unconscious, in Hoysala and rushed to Victoria Hospital. Therefore there is chain of link namely death of the victim is only due to the burn injuries finds specific and substantial proof.
105. Infact PW. 21 is the person who signed the inquest mahazar. In the crossexamination of PW. 21 nothing has been elicited so as to make the witness being not a reliable one. It has been specifically suggested to the witness, this witness know the parents of deceased and he is also working in the shop of PW. 1. This witness also identified the accused who used to wander all around the shop of PW. 1 some time. This witness has voluntarily went 108 SC NO. 858/2016 there on coming to know about the incident and he had admitted about signing Ex.P. 31. it has been explained by this witness he had not went to the hospital, the inquest being drawn. He has specifically denied Shashikiran and Divya alongwith this witness were summoned by PW. 1. Therefore this independent witness has deposed about the death of the victim and that too witness has suffered burn injuries due to petrol being poured by the accused. This establishes the death of the victim.
106. Learned PP argues in the evidence of PW. 10 who is also the independent witness who has specifically deposed as he was working as cashier in Satya Service Station on 12.3.2016 morning one person had purchased 2 liters of petrol by paying Rs. 136/ in a water can. Though this witness fails to identify the accused which is after a lapse of 2 years while giving evidence before court this non identification by this witness is not a fatal one. Infact the witness has replied to the specific suggestion that accused was the person who purchase the petrol , witness has deposed the person was thin. It is natural conduct of a person not able to identify a person who had visited once and purchased petrol in water can after lapse of 2 years. This error is to be considered and it is not adverse to the prosecution case. In the crossexamination of this witness he has reiterated his words and there is no any suggestion made so as to discredit the evidence of this witness. Learned 109 SC NO. 858/2016 PP argues the death of the victim is due to the burn injuries. To prove the same PW. 15 Dr. Varlakshmi who registered MLC is examined, further the Doctor of St. John`s Hospital who issued intimation to police is examined as PW. 19, one PW. 18 is the fire station personal examined alongwith Ex.P. 8 document is placed. The document is palced Ex.P. 23 which discloses the fire incident did happened. Infact PW. 16, 20 Medical Officers are being examined. Infact as per the defense accused did also sustained burn injuries. In that regard the Medical Officer who treated the accused is also examined as PW. 12, further the PW. 15 and 16 and Doctor who issued intimation about the burn injuries to the victim .
107. PW. 15 has been once again recalled by the defense. Even then nothing has been elicited so as to discredit the evidence is placed by the prosecution to prove the victim succumbed to injuries in fire incident. The evidence of IO PW. 27 specifically prove the prosecution case and there is no missing link to prove the nexus, the accused to the incident. There are persons who rushed to the spot after the incident. Therefore in all probabilities for the death of the victim accused is alone responsible. Further immediately after the incident the accused had uttered `you all shall die since you have not given value to my love.`, as deposed by PW. 1 to 3 accused had an intention to kill. Therefore it can be inferred from the 110 SC NO. 858/2016 material without any reasonable doubt that the accused alone is responsible for the incident.
108. The learned counsel for accused submitted at the first instance the accused was in deep love with the victim, there is no any doubt in the mind of the accused that victim was also in deep love with the accused. The prosecution witnesses namely PW. 1 to 3 are being extensitvely cross examined considering the relationship between the accused and the victim. There are specific admissions have got elicited from the mouth of the prosecution witnesses PW. 1 to 3. The learned counsel for accused submit in the evidence of PW. 1 to 3 in the cross examination in page 11 dated 11.8.2017 last 3 lines deposed as his daughter got admission in Sheshadripura college, they heard from known persons through telephone that accused and victim were moving together. This witness deposed in page 12 that after coming to know about the same he talked with parents of the accused and directed him not to do same. It is brought to the court notice at page 16 of crossexamination of PW. 1 witness deposed specifically after return from Dodda aaladamara resort on 10.2.2016 the victim daughter of PW. 1 has refused to come with PW.1 from police station. The learned counsel for accused argues in the police station they have specifically promised to both accused and victim that they will perform their marriage. The suggestion made that the victim and 111 SC NO. 858/2016 accused were in love and they have informed that they cannot live, without each other is admitted by the witness PW. 1 . PW. 1 in his crossexamination has specifically deposed about Ex.D. 2 and 3 photographs shown in page 19 of his crossexamination as witness admitted the photographs are being marked. It has been specifically suggested to PW. 1 in page 22 on the date of incident after 10.30 p.m accused was inside the house, PW. 1 has denied. This witness denies he had threatened both accused and victim if they have insisted for marriage and if victim go with accused PW. 1 will commit suicide is specifically questioned;
CgÉÆæ eÉÆvÉ ªÀÄzÀÄªÉ ªÀiÁqÀ¢zÀÝgÉ vÁ£ÀÄ §zÀÄPÀĪÀÅ ¢®èªÉAzÀÄ ¤ªÀÄä ªÀÄUÀ¼ÀÄ ¤ªÀÄä eÉÆvÉ w½¹zÀݼÀÄ JAzÀgÉ, ¸ÁQëAiÀÄÄ £ÁªÀÅUÀ¼ÀÉà ªÀÄzÀÄªÉ ªÀiÁqÀĪÀÅzÁV D±Áé¸À£É ¤ÃrzÁUÀ D jÃw ªÀiÁvÀ£ÁqÀĪÀ ¸ÀAzÀ¨Àsð GzÀ㫹gÀ°®è J£ÀÄßvÁÛgÉ. In page 23 he further admits in the police station he had promised that he will give victim daughter to the accused in marriage. The learned counsel for accused argued in page 16 of crossexamination of PW. 1 he has stated different version that PW. 1 has promised in the police station that he will negotiate with his wife and daughter and he made promise about the marriage , he replied he instructed the accused not to talk with his daughter till marriage.
109. The learned counsel for accused also brought to 112 SC NO. 858/2016 court`s notice page 25 of crossexamination of PW. 1 where it has been specifically suggested that due to the mistake of PW. 1 only he lost his daughter. The learned counsel for accused also brings to court`s notice crossexamination of PW. 2. This witness admitted Ex.D. 1 to 3. Further in page 11 of crossexamination of PW. 1 last 3 lines is drawn to court`s attention.
110. PW. 2 further admits she had received information from neighbors that accused and victim were moving very closely. This witness further admits in page 12 the specific suggestion as per advise of her husband the father of the accused vacated the premises and went to Nagendra block . Similarly they also moved from residence within 6 months. This witness specifically admits in page 12 that due to the pressure of her daughter they got admission to Sheshadripura college only. In page 18 of her crossexamination PW. 2 deposed that victim had insisted to be left alongwith Deepak in the police station, but she did not agreed to come alongwith her parents from the police station. Witness volunteers she was in fear of the accused. They have not complained against the accused within this period from 9.2.2016. this witness. This witness specifically admits in page 18 and 19 of her cross examination about Ex.D. 2 and 8 photograph No. 21, accused was very near to the victim , as such he suffered some injuries, she denies. This witness deposed in page 30 113 SC NO. 858/2016 after the incident she has specifically stated before police that her daughter and Deepak are very close and it would be odd in the eye of others, therefore they tried to change the house is admitted.
111. The learned counsel for accused argues as per the Wound Certificate of accused Ex.P. 16 which discloses accused has suffered injuries in the same incident. However the IO and even as deposed by PW. 24 Ranganath the accused was in the police station till he shifts all the victims to the hospital and when he returned to the police station he has been informed by the IO to get medical attention to the accused . The injuries suffered by the accused are also similar to that of injuries suffered byPW. 1 to 3. The wound certificate namely Ex.P. 11 and Ex.P. 16 , 17, 18 and 19 discloses including the accused all the persons have suffered burn injuries to both hands and legs. PW. 1 has suffered burn injuries to face. Similarly PW. 2 has also suffered burn injuries to face, forehead, nose, cheek, PW. 3 sister of victim suffered injuries to her, both hands and leg.
112. The learned counsel for accused submit the voluntary statement of the accused is concocted document, in the voluntary statement it has been recorded by the I.O that accused specifically mentioned he has poured petrol from the window adjacent to the deewan and the petrol spread in the entire house and as he lit the fire from 114 SC NO. 858/2016 passage the accused has also suffered burn injuries to his hands and spilled over petrol on his knee and ankle. However the explanation of the prosecution when he is in the adjacent building stair case and window adjacent to the stair case how the water can and matchbox are being found in front of the house of the victim. Therefore there is a missing link to prove whether accused was near front door or near adjacent building stair case, there is contradiction. Infact the prosecution has failed to give explanation how the main door up 3 feet and adjacent window alongwith main door being burnt upto 3 feet and even chappal stand in front of the house of the victim. This gap in the prosecution case does not makes it clear that accused is a perpetrator. The learned counsel for accused submits in the entire prosecution case it is specific case of the prosecution that accused poured petrol from the window. However how the fire in front of the house has occurred, the prosecution not ready to give any explanation.
113. Secondly the injuries sustained by the accused has not been substantially explained by the prosecution. Therefore there are missing links in the prosecution case is the argument. The learned counsel for accused brings to court`s notice the ciations namely 2018 ( 15) SCC 725 and AIR 2021 SC 2342, ILR 2021 Kar 1170.
114. The learned counsel for accused submit though the facts in those cases may be different , in the decision of 115 SC NO. 858/2016 Hon`ble Supreme Court of India in 2018 (15) SCC 725 the grounds are to be seen very carefully and there should be no any room for suspicion based on the evidence of key witnesses of prosecution. The inferences of drawing beyond reasonable doubt should be substantially in all probabilites be direct and the court is duty bound to assess the evidence of the witnesses. Considering the circumstances of the case particularly and it is not a hard and fast rule that if accused is present in the scene of offence, he shall be convicted straight away as held In AIR 2012 SCC online 2342. Therefore the procedure for evaluation of evidence specified by Hon`ble High Court of Karnataka in the above citation definitely aids to the accused. Infact in this case as brought to the court`s notice there is missing link to the fore with the explanation of the prosecution why the seized articles Mos and the match stick were not burnt in the house of the victim, though there was petrol in the water can as there occurred blast in the house and fire ball has been created then the water can with some petrol in the can cannot withstand the blast definitely it will be blown out and entire petrol in the can will definitely be evaporated. Secondly the fire in front of the house of the victim and burning of the petrol makes it clear either when fire incident happened the main door of the house No. 39/2 should have been opened and it has been closed later, or else at the time of fire all the persons namely PW. 1 to 3 alongwith victim being present in the same spot as the injuries on all these persons 116 SC NO. 858/2016 alongwith victim are similar. Therefore the suggestion makes it clear that there is reasonable doubt being created to prove the accused is not guilty of the offence alleged.
115. The learned counsel for accused submit by bringing to the court`s notice the citation in AIR 2021 SCC online 2342, the prosecution failed to prove that there was discord between the accused and victim at that time. The evidence of PW. 1 to 3 definitely points to the same, even the other material witnesses examined before court namely PW. 22,23 have also deposed in the crossexamination that accused and victim were cordial. Infact Ex. D. 2 to 4 and 5 discloses that there was cordiality between the accused and the victim. Infact the IO has been cross examined specifically in this regard. The answer given by the IO that he did not felt it necessary to probe into the cordiality or love between the accused and the victim. The attempt of the IO is not fair and open so as to bring before the court and place all the materials for proper appreciation. The conduct of the IO is to hide material facts though there are no any incriminating circumstances and the overtact done by the accused and are missing IO wants to have punishment to the accused.
116. The learned counsel for accused submit as per the ILR 2021 KAR 1170 the Hon`ble High Court of Karnataka has observed that in case of offence punishable u/sec. 302 of IPC the correct approach of the court should 117 SC NO. 858/2016 be to assess the evidence in appropriate manner. The evidence or proof available in criminal case "fouler the crime higher the proof". This aspect and the observation of the court makes it very clear that specifically to prove the ingredients of offennce punishable under sec. 302 of IPC should be on higher pedestal than the mere placing some material just to link the accused to the alleged offence.
117. This court On going through the material on record and the argument on both sides it is petinent to note that the accused was in the spot is not in dispute. The prosecution case is that the accused was not in inside but he is outside the house and from there poured petrol from outside and caused fire. The accused has stood firm in his statement made u/sec. 313 (5) of Cr.PC in writing that accused was also inside the house. The victim`s parents actually did not agree for the marriage of the accused with the victim and this enraged the victim. Secondly the parents of the victim had threatened the victim that they will commit suicide if she insists to marry the accused. There was no any occasion that accused having no feelings towards the victim, but either to kill her and her parents, there is no illwill and as such accused had made preparation to kill them had brought petrol to the house of the victim is a falsehood is the submission of the accused. This court on going through the entire documents and material placed on record Ex.P. 16 MLC wherein how the 118 SC NO. 858/2016 accused has sustained burn injuries has been noted. It has been noted as the accused has suffered injuries when he set the house on fire by pouring petrol, if the same is considerd with Ex.D. 8 and the report submitted by Superintendent of Jail annexed therein is similar to Ex.D.8, wherein it has been noted the accused has suffered burn injuries history is noted as epileptic on levipol drug 500 mg, there is no mention how the victim suffered burn injuries. In the bottom it has been noted history of burn injuries at 12.00 am and the injuries on hand and also the wound suffered therein noted as No. 1,2,3 in the MLC .
118. The Superintendent of Jail has also submitted the entire medical record of the accused as summoned by the court as on 19.9.2016 wherein the accused has been examined on 15.3.2016 at about 12.00 pm as per the jail authority request at Victoria Hospital, that it has been noted therein OPD alleged history of accidental thermal burns on 12.3.2016 at about 12.30 am early morning hours at Saibaba nagar 4th cross, when the patient allegedly poured petrol on his legs when girl friend at her residence, when petrol spread under the refrigerator causing burn by fluid in the fridge following which patient escaped from the spot. Even the history of the record probablizes that accused was inside the house. If this fact of accused being inside the house is considered the entire note made there in is to be considered as it is. Therefore fire incident has 119 SC NO. 858/2016 happened as per the prosecution that accused poured petrol from window by standing on the window sill and the stair case of the adjacent house is unacceptable one. Further accused has given statement u/sec. 313 (5) of CrPC that when the parents of the victim did not agreed for the marriage of the accused with victim and they warned that they will commit suicide, then victim was enraged and she took the petrol can and poured petrol on herself, later due to the fire in the lamp in the pooja stand accidental fire occurred and it turned into the tragic incident. At that time accused snatched the petrol can and brought out outside the house. Then all of them suffered injuries sound some what reasonable one. Since the victim had allegedly poured petrol on herself. Ex.P. 10 if compared with same as if she had water can in her hand and she poured on herself it is probable that a person if pours any fluid on themselves they can pour on the face and it can spill over on both hands and also as the flow of the fluid which can be inflammable will definitely come down from the back and also backside of the hand and entire back portion of the thigh and legs and ankle the same may soak seems reasonable. Infact this court on going through the photograph Ex.P. 3 the burn injuries suffered by the victim actually to the face of the victim has been burnt which may be compared to other parts of the body when the back portion of the body of the victim is injured substantially and the pattern in which the sketch prepared under 120 SC NO. 858/2016 Ex.P.12 and photographs similar burn injuries found and the burn injuries to the back portion of the victim as per Ex.P. 3 photo No.1 they are all superficial burn injuries are having margin specifically then the margin and the burns shown the victim has suffered accidental burn injuries to her fact and back portion and both hands.
119. At this juncture if we consider the injuries suffered by the victim, as per the prosecution case on going through Ex.P. 2 photograph No. 5 the window photograph discloses it is a aluminum frame is in open mode and slide has been open. If we consider the adjacent house stair case photograph No. 3 of Ex.P. 2 the stair case is at a certain hight approximately about 1 ½ to 2 feet from the window. In straight line. Therefore if a person stand on the stair case of the other house and similarly placed his one leg on the window sill the height will be more, then a person cannot stand unevenly. Moreover as per the photograph it is clear that window straight to the stair case is actually closed. Under the circumstances to pour petrol in the house it is to be poured from the left hand side corner and a person cannot stretch from the stair case as there is a separate cement closure which comes to the stair case below the hand rail. Therefore if going through Ex.P. 2 photograph No.5 the prosecution case that pouring petrol from outside is improbable one is my firm view.
120. Further this court on going through the Ex.P.2 121 SC NO. 858/2016 photograph No.3 the entire upper portion of the house being burnt and the photograph also disclose the lower portion of the main door upto 3 feet is burnt, if the main door is closed then the fire inside the house burning the upper portion only as per Ex.D. 2 photograph No. 3, even Ex.P.2 photograph 11 and 12 are concerned there are no damages , only upto 3 feet from the floor with regard to burning of the premises or articles seen therein. However fire is above the 3 feet level. This fact contradicts with the photograph Ex.P. 2 phtograph, the burning of the main door from below only but not above, therefore the aspect explained by the accused before the Medical Officer that he tried to douse the flame accordingly he sustained burn injuries may be a probable one. However the fire has not been at one instance. We can gather from the facts that petrol is a volatile substance and highly inflammable substance. When the petrol is open to air it will turn into gaseous form . The explanation offered by the accused what has transpired before the incident that parents of the victim threatened that they will die by committing suicide and there was verbal spat between the victim and the parents, it has prolonged for certain period and then suddently fire broke from the lamp lit in front of photograph in the pooja shelf has engulfed into fire seems reasonable. However the accused has made attempt that the first part of fire i.e. as per his own version before the Medical Officer which is to be if accepted as true even the door was open and accused 122 SC NO. 858/2016 tried to threaten victim he suffered burn injuries as explained before the Medical Officer seems a probable one. Under the circumstance accused has suffered burn injuries only to his lower portion of the body and as the accused came out of the house and as the portion which was wet so as the petrol is highly inflammable one the front door , the chappal stand and window alongwith front door has suffered damaged due to fire ball incident happened seems reasonable one. Infact the fire started from refrigerator and the same has been stated by the accused before the Medical finds support from the damage caused in the premises since as per photograph No. 4 Ex.P.2 fire has been started not once but it has impacted twice. The explanation offered by the accused that accused is not a perpetrator, but when the parents of the victim threatened that they will commit suicide, victim took the petrol can and poured on herself and then fire started due to the pooja lamp is a reasonable explanation. To consider the extensive damage to the house , in the case on hand the accused defends that he is not a perpetrator and having no any mensrea to commit the murder finds support from the fact and the documents placed on record by the prosecution itself.
121. In this case on hand under what situation petrol can came to the spot has been explained by the accused before the Medical Officer. Infact as per the discussion made supra the purchase of the petrol by the accused from the 123 SC NO. 858/2016 petrol bunt finds support from the evidence of PW.10 who has deposed that on 11.3.2016 in the morning one person had came with water can and 2 liters of petrol has been sold to him for Rs. 136/. This aspect specifically thrown light on the purchase of petrol made by the accused. However this witness has specifically deposed he cannot identify the accused , as such for that portion he has been treated as hostile. In the crossexamination this witness admits he cannot remember all the persons who came to the petrol bunk. Further he has specified some persons will purchase petrol in bottle or such other things for their necessity. If this evidence is considered and documents placed in this regard , it supports rather defence, but not prosecution that the accused is the perpetrator who attempted to do overtact. This court on going through Ex.P. 10 wherein it has been noted that alleged history of incident is homicidal attempt resulting in burn injuries and the corrections has been made by the Medical Officer therein in the history and it has been noted that one Harish did accompanied the victim. Infact in the case on hand there is no any person by name Harish is examined. Further as per the charge sheet there is no any person by name Harish is found. The Medical Officer has specifically noted that it is a homicidal burn, this aspect as argued by the counsel for the accused destroys the prosecution case that it is a culpable homicide rather homicidal simplicitor. Further in the 2nd page, it has been noted by the Medical Officer history is assault 124 SC NO. 858/2016 resulting in burn injuries. In Ex.P. 11 also in the column it has been noted as homicidal resulting in burn injuries. However this aspect actually contradicts with Ex.P. 12 which is the MLC medical record it has been registered at the first instance when the Srirampura police have brought the victim. It is mentioned only as accidental thermal burns and details not known to the police. Further in Ex.p.13 it has been noted as homicidal burns by pouring petrol and lit fire by a known person. The evidence of PW. 3 shows she has specified that she has given the name of the person as accused, before the Medical Officer. However the noting made therein in Ex.P. 12 and 13 and specifically in Ex.P. 14 and 15 are all vary.
122. This court by relying on the citation of Hon`ble Supreme Court of India how the burn injuries are to be assessed. The Hon`ble Supreme Court of India has observed as per the modi jurisprudance in para 10 to 17 of its judgment and the damage caused to the tissue , it is to be assessed while appreciating the facts. The Hon`ble Supreme Court of India in Crl.A. No. 628/2005 in case of G.Parshwanath vs. State of Karnataka at page 11 has observed how to appreciate the facts concerning burn injuries and how the inference can be drawn should be based on the facts rather on inference. In the case on hand the facts placed by the prosecution is there is attempt to commit culpable homicide. However medical evidence 125 SC NO. 858/2016 directly disclose though it is a homicidal burn injuries , whether the culpability is present from the facts is not sufficient enough to infer that accused alone is responsible for resulting in incident.
123. In the case on hand this court on going through Ex.P. 8 the PM report disclose victim was not able to breath so far no type of intake, the pipe of cathedral has been inserted through throat in her mouth and there are blisters and tissues are observed. The facial and body hairs are burnt, the death has occurred due to septicemia as a result of burn injuries, the diagram showing the burn injuries on the victim, in sketch prepared by the Medical Officer in Ex.P.8 disclose victim suffered 53% burn injuries , this aspect of burn injuries actually corelates with Ex.P.12 wherein the MLC recorded by Medical Officer has noted once again all the burns suffered by the victim. The sketch prepared by the Doctor who conducted the P.M report coincides with sketch. Therefore when the accused is not responsible for the burn injuries of the victim then it is to be explained by the prosecution in what manner the victim suffered fatal injuries.
124. In the case on hand this court has to pass its further findings on the defense which has specifically explained under which circumstance the incident happened. It is the case of the defense that it is a suicidal attempt made by the victim who poured petrol on herself 126 SC NO. 858/2016 when PW.1 refused to give her in marriage to the accused. Infact at this juncture if we go through Ex.P. 2 photograph No. 5 the deewan and the curtain of the deewan has been entirely burnt. Ex.P. 5, 13 and the specifically photograph No.1 the deewan upper portion is burnt, but the lower portion is intact. This aspect discloses the petrol is spread on the surface of the deewan. If a person as per the prosecution case pours petrol from outside from the window as per Ex.P. 2,5,6 he can pour to only one portion that too on the left portion of the window which is visible, as other side window closed visible from Ex.P. 2. If the entire deewan is to be burnt in a similar position either petrol should have been poured on the deewan entire surface, similarly this aspect is not possible from a person tries to pour petrol from outside and when the half portion of the window being closed. Therefore, in all probabilities the person inside the house if tries to pour petrol then they can pour the petrol evenly as seen in Ex.P. 2 photograph No. 2 and 5. Infact PW. 1 has specifically deposed that he came out from his room on hearing the sound he found ball of fire was burning he saw and which was burning in `L` shape from the front door towards deewan and upper side and his daughter was engulfed in fire. If this aspect is considered a person pouring petrol from outside cannot do the same as per the prosecution case.
125. Per contra if this court considers the material 127 SC NO. 858/2016 placed on record with regard to accused has brought petrol has been proved by the prosecution. However by relying on the medical record of the accused submitted before the Medical Officer the MLC noted therein disclose accused tried to threaten the girlfriend, he had brought petrol. In the incident when the accused is not directly responsible to the culpable homicidal, but the material placed on record points that the accused has brought petrol to the house of the victim is established. Though the prosecution fails to prove the ingredients of offence punishable u/sec. 302 of IPC the material placed on record are sufficient to consider the bringing of the petrol to the house of the victim is definitely an overtact. In this case by considering the medical record of the accused the report sent by the Medical Officer alongwith letter to Superintendent of police disclose the ingredients of offence punishable u/sec. 302 of IPC has not been proved by the prosecution. But the material on record definitely points to the ingredients of offence punishable u/sec. 306 of IPC. Under these circumstances the chain of events disclose that the accused had brought petrol to the house of the victim and this court on the basis of the material can consider when the victim try to self immolate the petrol was inside the house and injuries suffered by the victim points directly when she has tried to pour petrol on herself though there is no any specific incident of lighting fire the fire was started from the pooja cupboard has been proved by the defense based 128 SC NO. 858/2016 on the material on record. Hence the ingredients of offence punishable u/sec. 306 of IPC are very much present in the case on hand. Under the circumstances the accused bringing petrol to the house this amounts to abating the suicide or homicide which has occurred in the present incident. Hence this court found even the ingredients of offence u/sec. 306 of IPC rather 302 of IPC being proved by the prosecution. Accordingly this court answered that the ingredients of offence punishable u/sec. 306 of IPC are found on the basis of the material on record and the discussion made supra. Considering the material the accused is responsible for the burn injuries of the victim though he is not a perpatrator who committed the offence punishable u/sec. 302 of IPC. But abetted the victim to self immolate , hence committed offence punishable under Sec. 306 of IPC before this court.
126. In the case on hand on the basis of the discussion made while discussing point No.1 the ingredients of offence punishable u/sec. 440 of IPC has not been proved by the prosecution is the firm view of this court. The accused is not responsible for the fire incident which is definitely an accidental burn, the fire started from the pooja cupboard is proved by the defense. Under the circumstance the accused cannot be saddled with the punishment and convicted for the offences punishable u/sec. 436, 440, 307, 302, 326 of IPC.
129SC NO. 858/2016
127. The prosecution in the present case has placed sufficient material to prove the victim succumbed due to the accidental burns/self inflicted burns which is known only to the victim. Infact at the time of victim suffering burn injuries how it started, the prosecution has failed to prove accused is responsible for the fire. However the prosecution is able to place the material that the fire incident did occurred to which the petrol is brought by the accused is established beyond reasonable doubt is the firm view of this court. Infact there is homicide which is established by the prosecution by placing corroborative, cogent material and substantial evidence. The accused has specifically stated in his 313 (5) statement that he is not responsible for the death of the victim. The defense is able to prove the accused is either has not started the fire or it is the responsibility of the accused concerning the homicidal death of the victim. It is pertinent to note that on the basis of the above discussion the allegation of assault as per the prosecution case has not been established. In the case on hand the prosecution is able to place that the victim had succumbed other than the culpable homocide, it is homicide as per the medical record Ex.P.10 which disclose homicidal attempt. Under the circumstances as noted supra though accused is not responsible for the offence punishable u/sec. 302 of IPC he has definitely facilitated by bringing petrol to the spot ie house No. 39/2. Under the circumstances definitely the accused is answerable to the ingredients of offence under 130 SC NO. 858/2016 Sec. 306 of IPC being definitely placed by the prosecution. Hence this court is of the opinion that accused failed to prove that he has not abated the homicidal death of the victim.
128. On going through the citations of Hon`ble Supreme Court of India in 2022 (SCC) online SC 1399 in case of Md Anowar Hussain vs. State of Assam, on following the citation the accused in the present set of facts is answerable for the offence punishable u/sec. 306 of IPC. In the above case it is held;
12.7. The case of Trimukh Maroti Kirkan (supra) as relied upon by the High Court and referred to by learned counsel for the respondent carry at least one significant feature akin to the present case. Therein, the accused was charged of the murder of his wife; there had been allegations of ill- treatment of the deceased-wife by the accused-husband; and though the victim had been killed by strangulation, the information given to her parents was that she had died on account of snakebite all in the village were also told that the deceased had died on account of snakebite. After taking note of the facts of the case, this Court exposited on the principles governing the assessment of circumstantial evidence, the operation of Section 106 of the Evidence Act, and the effect of want of necessary explanation or giving of false explanation by the accused, inter alia, in the following passages: -
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
*** *** *** 131 SC NO. 858/2016
14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions10
-- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh11.) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.......
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
*** *** ***
21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court."
...........In the case of Sabitri Samantaray v. State of Odisha: 2022 SCC OnLine SC 673. In that case based on circumstantial evidence, with reference to Section 106 of the Evidence Act, a 3-judge bench of this Court noted that if the accused had a different intention, the facts are 132 SC NO. 858/2016 specially within his knowledge which he must prove; and if, in a case based on circumstantial evidence, the accused evades response to an incriminating question or offers a response which is not true, such a response, in itself, would become an additional link in the chain of events. The relevant part of the enunciation by this Court reads as under: -
"19. Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events."
........17. Fact of the matter remains that all the aforesaid facts and factors, which ought to be in the knowledge of the appellant, are either not clarified or the explanation given by the appellant turns out to be false. Hence, in the given set of facts and circumstances, the legal consequence is that such omission coupled with such falsehood indeed provide additional links in the chain of circumstances.
18. Thus, the sum and substance of the matter is that the falsehood cooked up by the witnesses (regarding illness and hospitalisation of the victim) and readily accepted by the appellant coupled with the undischarged burden of Section 106 of the Evidence Act provide such strong links in this matter that the chain of circumstances is complete, leading to the conclusion on the guilt of the appellant beyond any doubt.
19. The other submissions, as regards the doubts on site plan (Ex. 3) or on the date of arrest of the appellant or about the place from where the dead body was carried to the police station, have only been noted to be rejected. The IO, PW-7, has categorically established that he had drawn the plan (Ex. 3) at the site and the same could not have been removed out of consideration merely because of the curable fault that it was not annexed with the charge-sheet. The date of arrest also loses its relevance because the material fact remains undeniable that the appellant was not found at the place and the area of his dwelling house and had admittedly gone to Nidanpur, as stated by himself in his statement under Section 313 CrPC. In our view, the place from where the dead body was picked up to be carried to the police station, has hardly any bearing in the present case because the only other place suggested by the appellant in league with the witnesses PW-1 to PW-6 had been the hospital where the victim was allegedly admitted. Such a suggestion has been found to be false to the core. In any case, the dead body was indeed carried to the police station and the IO made the inquest report (Ex. 2) at the police 133 SC NO. 858/2016 station itself.
20. Taking all the aforesaid facts and circumstances together, it is not a case where the motive could have played any decisive role nor it had been a case where two views were possible. Equally, the present case had not been of conviction on suspicion alone. Therefore, the other decisions cited by learned counsel for the appellant do not call for much dilation in the present case.
21. For what has been discussed herein above, this appeal fails and is, therefore, dismissed.
This court even by following the citation in 2022 (4) KCCR 3233(SC) Nanjappa and another vs. State of Karnataka. This court by following the para (A) of the Evidence Act, the burden of proof is on the prosecution and shifting of burden in the present set of situation is definitely fallen on the accused. Infact the prosecution is able to establish the presence of the accused and act or omission of accused resulting in the incident. In the decision of Hon`ble Supreme Court of India 2022 (4) KCCR 3233 (SC) the facts specifically differ. However in this case the facts definitely and directly establish the responsibility of the accused . Further the had knowledge that such a inflammable substance if brought would definitely or in all probablity may result in disaster incident. Hence the ingredients of offence punishable u/sec. 302 of IPC being not established by the prosecution, the lessor offence ingredients of section 306 of IPC though is not charged is established. Accordingly point in respect of Sec. 302 of IPC is answered partly in affirmative.
134SC NO. 858/2016
129. POINT NO.6: In the light of finding on above points, this court proceeds to pass the following: ORDER In exercise of power vested with this Court U/Sec.235(2) of Criminal Procedure Code, the accused is convicted for the offence punishable u/sec. 306 of IPC.
In exercise of power vested with this Court U/Sec.235(1) of Criminal Procedure Code, the accused is acquitted for the offence punishable u/sec. 436, 307, 302, 326 and 440 of IPC.
Call on for hearing on sentence for the offences punishable u/sec. 306 of IPC.
(Dictated to the JW in open court, transcript thereof is corrected , signed and then pronounced by me in the open court on this the 22nd day of December, 2022.) (Rajesh Karnam K) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
135SC NO. 858/2016 27.12.2022 ORDER REGARDING SENTENCE Heard both sides. The learned PP submits the court has come to the conclusion convicting the accused for the offence punishable u/sec. 306 of IPC though the case of the prosecution is of 302 of IPC allied with other offences as per the charge sheet. The prosecution feels the accused being convicted for the offence punishable u/sec. 306 of IPC as per the ingredients the maximum punishment is 10 years imprisonment with fine. Accordingly court can impose adequate sentence.
The learned counsel for accused submits the accused is acquitted of all the offences other than offence punishable u/sec. 302 of IPC. The court by considering the defense is pleased to convict the accused only for lesser offence punishable u/sec. 306 of IPC, in the decision of our Hon`ble High Court of Karnataka in 2008 (4) KLJ 398 DB and 2016 (3) KLJ 568 DB the Hon`ble High Court of Karnataka in both cases where accused was convicted for the offence punishable u/sec. 302 of IPC reduced the conviction 302 of IPC to 304 (2) of IPC and given set off as per section 428 of Cr.PC and the period of sentence undergone by the accused therein has been given set off to the sentence imposed. In 2008 (4) KLJ 398 DB it is held and the counsel has relied on Head Note A. INDIAN PENAL CODE, 1860, Sections 302 and 498-A - Punishment for murder and husband or relative of husband of a woman subjecting her to cruelty - Demand of money by accused - husband - When deceased refused, accused assaulted, tired her hands and legs, doused kerosene and set her ablaze - Deceased died on account of septicemia and 136 SC NO. 858/2016 septicemia shock - Dying declaration discloses that her husband caused burn injuries - Dying declaration and evidence of PW. 2 and PW. 3 convincingly establishes that accused was at scene when deceased was found ablaze - Trial Court convicted accused for offence under Section 302 of the Indian Penal Code - Superficial burn injuries caused constitute 2nd degree burn to an extent of 67% - according to medical opinion all burn injuries may not be fatal unless effect of causing death but coinciding factors like septicemia causes death , it cannot be said that in such a situation that injuries are intentionally caused which causes death in ordinary course
- provisions of Part II under Section 304 attracts - Period of sentence served by accused is imposed as sentence - accused entitled to benefit of set off under Section 428 of the Criminal Procedure Code, 1973.
In the instance case, the superficial burn injuries caused constitute 2nd degree burn to an extent of 67%. According to medical opinion the septicemia and septicemic shock are the intervening cause for the death. The medical opinion expressed by authors Jahala and Raju discloses that all burn injuries may not be fatal unless they are several and extensive. It is said some times poisonous contents in the drugs administered get digested in the blood with toxic effect of causing death ..... The requirement of law insists that the injury should be intentional. The bodily injuries should have been caused which has the effect of causing death in the ordinary course. As noted above, in the medical opinion the burn injuries are not necessarily fatal always. If the burn injury has no direct effect of causing death but the coinciding factors like septicemia causes the death, it cannot be said that in such a situation that the injuries are intentionally caused which causes death in the ordinary course. If the death is on account of the intervening and coinciding factors, the case does not come within the purview of 3 rd category of Section 300 of IPC and that the provisions of Part II under Section 304 of the IPC attracts. ...
In 2016 (3) Kar LJ 561 (DB) in case of Chandran vs. State of Karnataka 137 SC NO. 858/2016 it is held;
(A) INDIAN PENAL CODE, 1860 Sections 498-A , 302 and 304 - Code of Criminal Procedure, 1973, Section 374 (2) - Cruelty, murder of wife, by assaulting and throwing a stone on her by accused -husband - Sole child eye-witness - Ocular testimony and medical evidence- Held, prosecution case mainly resting on eye-witness of PW. 20 (son of first wife of accused ), aged 9 years - That accused used to suspect fidelity of deceased- On the night of incident assaulted her with club, hit her with stone, causing a number of injuries - Witness cross-examined, but nothing worthwhile elicited- Thereby, assault by accused stands proved
- However, post-mortem report of doctor (PW 6) that weapons allegedly used are unlikely to cause such injuries-And likely to occur when victim was pushed and subsequent fall on stone - Further, another doctor (PW 13) giving opinion, while one injury was grievous, the other injuries were simple - Deceased informing doctor that he assaulted his wife - Concurrent findings -opinions of doctors, tallying, corroborating with each other-On considering entire material, held, that accused had no intention to commit murder, but pushed victim to ground after assaulting - accused needs to be convicted for offence under Section 304 of IPC -Conviction for offence under Section 302 set aside.
Accordingly in this case the accused is in JC since 12.3.2016 till date. The period of 6 years 10 months 15 days. Therefore the accused is innocent and not present as on date of alleged incident. He is aged only 21 yeas and he has spent major portion of sentence that may be imposed even for the offence punishable u/sec. 306 of IPC more that 50%. therefore being guided by the citations accused may be given set off for the imprisonment already undergone. Accused may be released is the prayer.
On going through the material on record and on hearing both the prosecution and the counsel for the accused it is pertinent to note that in the evidence of prosecution witnesses PW. 1 has specifically deposed that due to the burning of the house which he has got on 138 SC NO. 858/2016 rent he has to compensate the owner by paying the compensation of about Rs. 2 lakhs. Similarly the prosecution witnesses have deposed about the damage caused to the premises which is evident from the record. Secondly as per the discussion made supra this court has come to the conclusion that there is no overtact done by the accused at the time of incident of fire. As per the defense it is accepted it is an accidental fire. Accordingly considering the young age of the accused and further medical record placed concerning the accused namely report made by the Superintendent of Jail wherein the Medical Officer as discussed in the judgment Dr. Suresh B M has found on 20.3.2016 the accused is suffering from adjustment disorder, seizure disorder. However as submitted by learned counsel for accused , accused has not been further got any medical attention as per the opinion of the Medical Officer at NIMHANS for his suffering. Considering this aspect this court is satisfied on the basis of the entire material on record and order of conviction passed by this court for the offence punishable u/sec. 306 of IPC, this court proceed to pass the following;
ORDER Acting under Section 235(2) of Cr.P.C. the accused is sentenced to undergo rigorous imprisonment for 6 years and pay fine of Rs. 20,000/-. In default of payment of fine he shall under go further imprisonment for 6 months, for the offence u/sec. 306 of IPC.
The Mo's are ordered to be preserved till the appeal period is over.
139SC NO. 858/2016 Office is directed to furnish free copy of the judgment to the accused forthwith.
Send conviction warrant accordingly.
The period of imprisonment undergone by the accused during trial for the period of 6 years is given set off as per sec. 428 of Cr.PC.
The amount of fine deposed shall be remitted to State Exchequer.
LXIX Addl.C.C. & Sessions Judge, Bengaluru.
140SC NO. 858/2016 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW 1 Natraj
PW 2 Anupama
PW 3 Sanjana
PW 4 Sampath kumar
PW 5 Suresh Babu
PW 6 Balamurli
PW 7 Mp Sharavanan
PW 8 Venkatesh
PW 9 Dilip
PW 10 Thirumalesh
PW 11 Krishna
PW 12 Dr. Betti Alben
PW 13 Dr. Nagaraj
PW 14 Dr. Varalakshmi
PW 15 Dr. Channakeshava
PW 16 Dr. Sridhar
PW 17 Yashodha S
PW 18 K.Doddaiah
PW 19 Sajid
PW 20 Dr. Deevish
PW 21 Chandrashekar
PW 22 Santhosh
PW 23 Uma
PW 24 MR Ranganath, SI
PW 25 Manjula
PW 26 Basavarahy KM, ASI
PW 27 RP Anil , PI
141
SC NO. 858/2016
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.2&3 Photos
Ex.P.4 Mahazar
Ex.P.5 Photo
Ex.P.6 portion of statement
Ex.P.7 Statement
Ex.P.8 PM report
Ex.P.9 Wound certificate
Ex.P.10to15 MLC register
Ex.P.16 OPD
Ex.P.17&18 Police intimation
Ex.P.19 Wound certificate
Ex.P.20 Wound certificate
Ex.P.21 Requisition
Ex.P.22 Report
Ex.P.23 Register book
Ex.P.24 Document
Ex.P.25 Wound certificate of Anupama
Ex.P.26 Wound certificate of Nataraju
Ex.P.27 & 28 Requisition
Ex.P.29 MLC extract
Ex.P.30 Photo copy
Ex.P.31 PM report
Ex.P.32 Report
Ex.P.33 FIR
Ex.P.34 &35 Acknowledgement
Ex.P.36 Voluntary statement
Ex.P.37 Report
Ex.P.38 to 40 Requisition
Ex.P.41 Study certificate
Ex.P.42 Letter of Bapuji College
Ex.P.43 Reply of Principal
Ex.P.44 Death Summary of St. John`s hospital
Ex.P.45 Requisition
Ex.P.46 FSL report
Ex.P.47 Sample seal
142
SC NO. 858/2016
LIST OF MOS MARKED;
MO.1 20 liter can
MO.2 to 8 7 Cotton pieces
MO.9 Curtain piece
MO.10 Pillow cover
LIST OF WITNESSES EXAMINED FOR ACCUSED :Nil LIST OF DOCUMENTS EXHIBITED FOR ACCUSED :
Ex.D1 Sketch
Ex.D2 to 7 Photos
Ex.D8 MLC extract
LXIX Addl.C.C. & Sessions Judge,
Bengaluru.
143
SC NO. 858/2016
22.12.2022
Judgment dictated and pronounced in
open court, vide separate order.
ORDER
In exercise of power vested with this Court U/Sec.235(2) of Criminal Procedure Code, the accused is convicted for the offence punishable u/sec. 306 of IPC.
In exercise of power vested with this Court U/Sec.235(1) of Criminal Procedure Code, the accused is acquitted for the offence punishable u/sec. 436, 307, 302, 326 and 440 of IPC.
Call on for hearing on sentence for the offences punishable u/sec. 306 of IPC.
Call on 23.12.2022 (Rajesh Karnam K) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
144 SC NO. 858/2016 27.12.2022 ,,,,