Karnataka High Court
Narayan S/O Bovi Nagappa vs The State Of Karnataka on 7 March, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH 2017
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2760/2013 (C)
Between
Narayan S/o Bovi Nagappa
Age: 27 Years, Occ: Agriculture,
R/O. Yerradammanahalli, Tq: Kudlagi,
Dist: Bellary
... Appellant
(By Smt. Deppa Dandavate, Advocate)
And
The State of Karnataka,
Represented by State Public Prosecutor,
Bench Dharwad.
... Respondent
(By Shri V.M.Banakar, Additional
State Public Prosecutor)
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure seeking that the judgment and
order passed by the II-Addl. Sessions Judge, Bellary in Sessions
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Case No.42/2006 dated 13.09.2011, wherein the above named
appellant has been convicted for the offence punishable under
Section 449-A of the Indian Penal Code and sentence to
undergo rigorous imprisonment for life and imposed fine of
Rs.25,000/- and further shall be punished for life for the offence
punishable under Section 302-A of the Indian Penal Code and
fine of Rs.25000/- be set aside and appellant be acquitted.
This Criminal Appeal coming on for hearing this day,
K.Somashekar J., delivered the following:
JUDGMENT
Hear the learned counsel for the appellant and the learned Additional State Public Prosecutor.
2. It is the case of the prosecution that on 09.05.2005 at 12:00 mid night, at Yaradamanahalli Village, within the jurisdiction of Gudekote Police Station, the accused had trespassed into the house of one Smt.Durugamma (deceased), when she was sleeping with her son Honnur swamy, in order to kill her, had poured kerosene over her and threw a lighted match stick at which she had suffered severe burns all over her body. Later she had died after 29 days, while she was under :3:
treatment in Kudligi Government Hospital. Pursuance to a dying declaration given by the deceased, which is at Ex.P-13, a complaint was said to be registered and the First Information Report was recorded, as per Ex.P-14 for offences punishable under Sections 449 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). Thereafter, the Investigating Officer took up the case for investigation. During the course of investigation, the Investigating Officer recorded the statement of witnesses and also conducted mahazar in the presence of panch witnesses and laid the charge sheet for the aforesaid offences. The accused stood trial and pleaded not guilty, and claimed to be tried. Accordingly, the plea of the accused was recorded separately.
3. In order to prove the guilt against the accused, the prosecution in all examined P.Ws.1 to 17, got marked Exs.P-1 to P-21. On the contrary, the accused in support of his defence, examined one Dr.Yogananda Reddy, as D.W.1. After closure of evidence on behalf of the prosecution, the accused was examined under Section 313 of the Code of Criminal :4: Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity). His defence was one of total denial.
4. Based upon the charge, the Court below framed the following points for consideration, which are as follows:
1. Whether the prosecution proves that, on 9th May 2005 at 12-00 mid night at Yaradamanahalli Village within the jurisdiction of Gudekote Police Station, accused has trespassed in to the house of deceased Smt. Durgamma, when she was sleeping along with her son, in order to commit an offence of murder, thereby committed an offence punishable under Section 449 of the IPC?
2. Does the prosecution proves that, on the same day, time and place, accused poured with kerosene over Smt.Durugamma despite her protest, threw lighted match stick on her, set ablaze, who died on 8-6-2005 at 12-
mid night with burnt injuries, thereby committed an offence punishable U/s.302 of IPC?
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3. What order?"
5. Subsequently, the Court below heard the arguments advanced by the learned Public Prosecutor for the State and the counsel for the accused and convicted the accused and imposed a sentence of imprisonment for life for the offence under Section 449 of the IPC and to pay a fine of Rs.25,000/- and also sentenced him to imprisonment for life for the offence under Section 302 of the IPC and to pay a fine of Rs.25,000/-. It is this which is under challenge in this appeal.
6. The learned counsel for the appellant during the course of arguments has contended that the judgment and order passed by the Court below is contrary to the law and evidence on record and facts of the case and the conviction and sentence are liable to be set aside. It is further contended that the Court below has not taken into consideration the material contradictions and omissions in the evidence of the prosecution witnesses and twisted the case in favour of the prosecution which has resulted in miscarriage of justice. :6:
7. It is further pointed out that the Court below had disbelieved the evidence of the D.K.Pattar i.e., P.W.13, who is the Head Constable of Gudekote Police Station and who recorded the statement of the deceased Duragamma, as per Ex.P-13, had not recorded physical and mental condition of the patient as indicated by the Doctor before taking the statement and submitted that the evidence of P.W.13 is suspicious.
8. The learned counsel for the appellant has further contended that the learned Sessions Judge has not properly scrutinized the dying declaration with care. That the dying declaration is dictated by interested persons and the learned Sessions Judge ought to have scrutinized Ex.P-13 critically before accepting it. Because the deceased was not in a condition to speak and to give a dying declaration, as per Ex.P-13, as she had suffered more than 80% burn injuries, as stated by the Doctor.
9. It is further pointed out that the Court below convicted the appellant only on the basis of the evidence of :7: P.Ws.11 and 13. Except these witnesses, no other witnesses had supported the case of the prosecution.
10. It is further pointed out that as per Ex.D-1, i.e., inpatient case sheet, while admitting the patient deceased Durugamma, it was mentioned and stated before the Doctor, Yoganand, that while cooking food she had sustained burn injuries all over her body and the case sheet if it is to be believed the death of deceased was accidental. And not by the accused setting fire and this aspect of the matter has not been analyzed by the learned Sessions Judge and in convicting the accused.
11. It is further pointed out that when there is an apparent discrepancy in the two dying declaration, it would be unsafe to convict the accused. It is further pointed out that the dying declaration is not a deposition in a Court and it is neither made on oath nor in the presence of a Doctor and its credence cannot be tested by the cross-examination. Therefore, the learned counsel for the appellant contended that the Court :8: below has erred in convicting the accused and the evidence led by the prosecution requires to be considered and prayed for acquittal of the accused, as the prosecution has not placed corroborative, cogent and acceptable evidence to probabilize that the accused poured kerosene over Smt.Durugamma, the deceased and threw a lighted match stick in order to commit her murder.
12. On the other hand, the learned Additional State Public Prosecutor has strenuously contended that the prosecution though examined several witnesses and also got marked several documents, in order to prove the guilt of the accused and the Court below having convicted the accused, as per the dying declaration given by the deceased, Durugamma, and though P.Ws.11 and 13 have been subjected to cross- examination by the defence counsel, nothing has been elicited to disbelieve the statements of these witnesses for the prosecution.:9:
13. The learned Additional State Public Prosecutor further contends that there are no justifiable grounds as urged in this appeal which calls for interference with the judgment of the Court below and the same shall be maintained by dismissing the present appeal.
14. In the above light, it is relevant to state that the deceased, Durugamma who was married had been abandoned by her husband. Subsequently, she along with her son, Honnur Swamy were residing together. He did not support the case of the prosecution to any extent and the same is plain from his evidence. It is further noticed that P.Ws.5, 6, 7, 8 and 9 have been examined by the prosecution to prove the guilt of the accused. But these witnesses have not supported the case of the prosecution to any extent. They have given a go-by to their versions which are at Exs.P-5, P-6, P-7, P-8 and P-9.
15. It is further noticed that Ex.P-1, the seizure mahazar conducted by P.W.17, the Investigating Officer, in the presence of P.Ws.1 and 2. They did not endorse the facts : 10 : narrated in the mahazar which was conducted. It is further noticed that Ex.P-2, the inquest panchanama conducted by P.W.17, the Investigating Officer in the presence of P.W.3 and nothing has been elicited by him and all these witnesses have been subjected to cross-examination by the prosecution to prove the guilt against the accused. But none of the witnesses have supported their versions and did not support the case of the prosecution.
16. It is further noticed that the evidence of P.W.11, the Doctor, who conducted autopsy over the body of the deceased and issued the postmortem report as per Ex.P-10, that the deceased sustained burn injuries which was the cause for her death. It is further noticed that the evidence of P.Ws.11 and 13 runs contrary to the evidence of P.Ws.5, 6, 7, 8 and 9, as these witnesses have given a go-by to their versions, of their statements during the course of investigation, which was recorded by P.W.17, the Investigating Officer. The statement of these witnesses also runs contrary to the facts narrated in Ex.P- 13, the dying declaration of the deceased, Durugamma, which : 11 : was recorded by the Head Constable, in the presence of the Doctor.
17. However, at a cursory glance of the evidence of the prosecution putforth, it is seen that the prosecution has failed to putforth corroborative, positive and acceptable evidence to probabilize that the accused had entered the house of Durugamma, while she and her son were asleep. And that he had poured kerosene on her and set her ablaze. And as a result of which she had sustained severe burn injuries which is indicated at Ex.P-10, the postmortem report issued by P.W.11, the Doctor. The evidence stated above has not been considered by the learned Sessions Judge in a proper perspective. Considering the evidence of P.Ws.11 and 13 and also the dying declaration given by the deceased, Durugamma, the Court below has come to the conclusion that the prosecution has proved the guilt against the accused. But unless corroborative evidence was available the same was not conclusive. Apart from the evidence of P.Ws.11 and 13, no other evidence has been putforth by the prosecution to prove the guilt of the : 12 : accused. Therefore, it can be said that the evidence which is placed by the prosecution does not evoke the confidence of this Court, that the prosecution has proved the guilt against the accused beyond all reasonable doubt. Therefore, for the aforesaid reasonings and findings, we are of the opinion that there is substance in the contention of the counsel for the appellant. It calls for interference with the impugned judgment.
18. In the result, we proceed to pass the following:
ORDER Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 13.09.2011 passed by the II Additional Sessions Judge, Bellary in Sessions Case No.42/2006 is hereby set aside. The appellant is acquitted of the charges levelled against him and the accused-appellant shall be set at liberty forthwith, if he is not required in any other case.: 13 :
The operative portion of the Judgment shall be communicated to the concerned Jail authorities, forthwith for immediate compliance.
Sd/-
JUDGE Sd/-
JUDGE Rsh