Karnataka High Court
Hanumantharayappa vs The State Of Karnataka on 26 July, 2022
Bench: K.Somashekar, Pradeep Singh Yerur
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.2007 OF 2016
BETWEEN:
Hanumantharayappa
S/o. Sannakadurappa
Aged about 34 years
A.K. Colony
Pavagada Town
Tumkur District - 561202.
...Appellant
(By Sri. Erappa Reddy .M - Advocate)
AND:
The State of Karnataka
By Pavagada Police
Pavagada
Tumkur District - 561202
Rep. by SPP
High Court, Bengaluru.
...Respondent
(By Sri. Vijayakumar Majage - Addl. SPP)
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This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, praying to set aside the order
of conviction and sentence for offence punishable under
Section 302 IPC, passed by the IV-Addl. District and
Sessions Judge, Madhugiri on 17.10.2016 in
S.C.No.81/2013 by allowing this appeal.
This criminal appeal coming on for dictating
judgment this day, K. SOMASHEKAR .J., delivered the
following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the IV Addl. District and Sessions Judge, Madhugiri S.C.No.81/2013 dated 17.10.2016, thereby convicting the accused for the offences punishable under Section 302 IPC, 1860. The appellant in this appeal is seeking intervention to consider the grounds urged in this appeal and consequently to set aside the judgment of conviction rendered by the trial court for the offence 3 under Section 302 IPC and to acquit the accused from the offence that he was charged.
2. Heard the learned counsel Sri.Erappa Reddy M for the appellant/accused and the learned Additional SPP for the State. Perused the judgment of conviction and order of sentence rendered by the trial court in S.C.No.81/2013. The said judgment of conviction rendered by the trial Court in S.C.No.81/2013 consists of the evidence of PWs.1 to 18 and Ex.P1 to 17 inclusive of MOs.1 to 7 and photographs of the deceased at Ex.D1.
3. The factual matrix of the appeal is as under:
It transpires from the case of the prosecution that appellant who is arraigned as accused was having an illicit relationship with the deceased - Kuppamma who was deserted from her husband Murugesh, since many years. Accused is alleged to have pledged gold jewellery belonging to the deceased and when the deceased asked him to get it released, some tussle took place in between 4 the accused and deceased. However, since the deceased was pestering him to get it released at the earliest, accused decided to eliminate her. As a result, he doused kerosene over her person and set her ablaze. Due to that she sustained burn injuries and was taken to hospital for treatment but did not survive. Consequently, she died on 31.12.2012 at around 2.20 a.m. in the night hours. Based upon her statement at Ex.P13, criminal law was set into motion by registering FIR at Ex.P23 for the offences punishable under Section 302 of IPC. The incident took place on 27.12.2012 at around 10.00 p.m. in the house of the deceased -
Kuppamma since she had asked the accused to return the jewellery which was pledged by him in Muthoot Finance Company. As a result of that accused who is paramour of the deceased - Kuppamma, assaulted her and doused kerosene on her and set her ablaze. Due to that she sustained burn injuries and succumbed to 5 burn injuries at Victoria Hospital, Bangaluru on 31.12.2012 at around 2.20 a.m. in the night hours.
4. In pursuance of the statement of the complainant at Ex.P13 which was given in the presence of the Doctor / PW-9, the same has been recorded by PW.15 - Kumaraswamy being the ASI. Based upon her statement, criminal law was set into motion by recording FIR at Ex.P23. Subsequently, case was taken up for investigation by the investigating officer, who thoroughly investigated the case and during investigation, he secured photographs of the deceased at Ex.P1, drew mahazar at Ex.P3, inquest report at Ex.P4, secured post mortem report at Ex.12, seizure mahazar at Ex.P14, wound certificate at Ex.P20 relating to the accused and even election I.D card of accused at Ex.P19 and the voluntary statement of accused at Ex.P25. These are all the material documents secured and also recorded statements of witnesses keeping in view the provision of Section 173(2) of Cr.P.C and 6 thereafter charge sheet was laid against the accused before the committal Court. Subsequent to passing of committal order as contemplated under Section 209 of Cr.P.C. by following the requisite provisions of Cr.P.C., the case was committed to court of Sessions for trial. Accordingly, the case in S.C.No.81/2013 has been registered by the Court of IV Addl. District and Sessions Judge, Sitting at Madhugiri in Tumakuru District. Subsequently, the Trial Court, heard the arguments of learned Public Prosecutor and the Defence Counsel relating to the charges framed against the accused for the offence under Section 302 of IPC 1860. The accused did not plead guilty but claimed to be tried. Accordingly, plea of the accused was recorded by the trial court and the same reflected in the material relating to framing of charge. Subsequently, prosecution let in evidence of PWs.1 to 18 and got marked documents at Exs.P1 to 27 so also got marked MOs.1 to 7.
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5. Subsequent to closure of evidence on the side of prosecution, statement of the accused came to be recorded under Section 313 Cr.P.C. for enabling the accused to answer to the incriminating evidence. However accused declined the truth of the evidence adduced by the prosecution so far. Accordingly, it was recorded but the accused did not come forward to adduce any defence evidence as contemplated under Section 233 of Cr.P.C. Accordingly, it was recorded.
6. Subsequent to closure of evidence on the part of the prosecution, the Trial Court heard the arguments advanced by the prosecution and the defence counsel for the accused. PW.1 - Dhanalakshmi is neighbour as well as relative of the deceased. PW.3 - Muniswamy is the panch witness at Ex.P3. Mahazar was drawn by the investigating officer in the presence of the panch witnesses. PW.8 - Dr. Ankith, is the Doctor who issued death memo at Ex.P9. PW.9 - Dr.Mahesh, had got 8 admitted the injured - Kuppamma and in his presence the statement at Ex.P13 was recorded, which is termed as dying declaration after the death of deceased. Ex.P13 was recorded by PW.15 - Kumaraswamy being the ASI. PW.12 - Sheshadri is investigating officer who conducted the investigation and laid charge sheet against the accused. PW.14 - G.Mallaiah is the Manager of Muthoot Finance Company and through him documents at Exs.P15 to 18 were got marked. PW.16 - Marimallaiah is panch witness in whose presence panchanama was drawn and MOs.1 to 6 were secured. PW.17 - Dr.Jeevanprakash is the Doctor who provided treatment to the accused who sustained burn injuries and issued wound certificate at Ex.P20. PW.18
- Ramakrishna is the investigating officer in part who conducted some investigation relating to the case in FIR at Ex.P23. These are all the evidence let in by the prosecution, which evidence has been appreciated by the trial Court. The burn injury inflicted over the 9 person of the deceased - Kuppamma at Ex.P12 which is the post mortem report was got marked with consent of the public prosecutor and defence counsel. The trial Court having been convinced with the evidence on the part of the prosecution relating to the offence punishable under Section 302 of IPC, rendered conviction judgment for the aforesaid offence sentencing him to undergo life imprisonment and to pay a fine of Rs.10,000/- and in default of payment of fine amount, to undergo S.I for 1 year. It is this judgment of conviction and order of sentence rendered by the trial Court that has been challenged under this appeal by urging various grounds.
7. Learned counsel for the appellant has taken us through the evidence of PW1 - Dhanalakshmi and PW.2
- Lakshmi who are said to be eyewitnesses to the incident and these witnesses have been subjected to examination on the part of the prosecution relating to 10 the death of the deceased - Kuppamma. PW.1 has specifically stated in her evidence that even though is alleged to be paramour of the deceased - Kuppamma, he is the one who had doused kerosene and set her ablaze, which had resulted in burn injuries also on his left arm as per the wound certificate at Ex.P20 issued by the doctor. The said injuries were caused due to the fact that the deceased - Kuppamma after being set ablaze, caught hold of the accused firmly. As a result of that, accused also sustained burn injuries on his left arm. However, the evidence of PW.1 - Dhanalakshmi and PW.2 - Lakshmi are contrary. In that, PW-2 in her evidence has stated that the accused / appellant had sustained burn injuries on his right hand. Whereas the Wound Certificate discloses that he sustained burn injuries over his left arm and frontal forearm. PW.17 - Dr. Jeevanprakash issued wound certificate at Ex.P20 relating to accused who sustained burn injury on his left arm. Thus, the medical evidence and the evidence 11 of PW-2 / Lakshmi are contrary to each other. But the trial Court has failed to consider these discrepancies and rendered conviction judgment relating to offence punishable under Section 302 of IPC.
8. The second limb of the argument advanced by the counsel for appellant is that the judgment of conviction and order of sentence rendered by the trial Court against the accused manifestly appears to be arbitrary and also perverse wherein evidence of the prosecution has not been properly appreciated as per relevant provisions of the Indian Evidence Act, 1872. Evidence let in on the part of the prosecution is contrary to the evidence on record. The wound certificate at Exhibit P20 does not mention the age of the injuries alleged to have been sustained by the accused in order to prove that the said injuries were sustained at the time of the incident. On that count alone, the 12 impugned judgment of conviction rendered by the trial Court requires intervention and is liable to be set aside.
Further, PW-9 / Dr. Mahesh has admitted in his cross-examination the photograph of deceased at Exhibit D1, which discloses that the deceased sustained burn injuries to her lips and mouth. When her lips and mouth were severely burnt, the allegation that deceased had given statement stating that the appellant / accused had doused kerosene on her and set her ablaze, also cannot be believed completely. It is further contended that the Trial Court ignored the glaring discrepancy and contradictions in the evidence on the part of prosecution witnesses namely evidence of PWs.1 and 2 who are the eye witnesses. Therefore, on that ground also it requires intervention of the judgment of conviction and order of sentence rendered by the trial court.
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9. Lastly, learned counsel has taken us through the evidence of PW.15 / ASI Kumaraswamy who was subjected to cross-examination wherein he had admitted in the presence of the Doctor / PW-9 that the deceased had sustained burn injuries of 70% to 80%. But he did not obtain a certificate from the Doctor that the deceased was in a fit condition to give her statement at Ex.P13. The said circumstance would create suspicion and doubt as regards the statement of the deceased. The entire case is based on circumstantial evidence, which creates suspicion and also doubt about the statement of deceased - Kuppamma at Ex.P13. On that ground also the conviction judgment rendered by the trial Court requires intervention.
PW.4 - Kiran is child witness being the son of the deceased who was subjected to examination. Though he was thoroughly examined, but nothing worthwhile has been elicited regarding the incident and he has not at all deposed about the appellant being present in the house 14 and as regards of the appellant setting her mother ablaze by dousing kerosene. The complaint statement at Ex.P13 is the important, but medical evidence given by declarant - Kuppamma. Ex.P13 runs contrary to the evidence of her own son - Kiran and more so, that accused was frequently visiting her house and there was an illicit relationship between them after her husband deserted her. Even this PW.4 - Kiran has been subjected to examination on the part of the prosecution but he did not withstand the statement which was recorded by the investigating officer. His evidence runs contrary to the contents of Ex.P13. Even PW.4 does not state in his evidence specifically that the accused was frequently coming to the house consisting of himself and his mother deceased - Kuppamma and even the allegation that his mother - Kuppamma was doused with kerosene by the accused and set ablaze. But the trial Court failed to consider the evidence and rendered conviction judgment for the offence punishable under 15 Section 302 of IPC. Further, there is also no material evidence on record relating to pledging of the jewellery of deceased Kuppamma at Exs.P15 to 18. In the absence of specific evidence on the part of the prosecution relating to the motive factor for the incident, it should be taken that the same has not been established by the prosecution. Even on that count also it requires intervention and consequently, learned counsel seeks to set-aside the conviction judgment and to acquit the accused for the offence under Section 302 of IPC, 1860.
10. In controvert to the contentions taken by the learned counsel for the appellant, learned Addl. SPP for the State has taken us through the evidence of PW.15 who is the material witness who has recorded the statement of complaint of Kuppamma as per Ex.P13 and subsequent to her death it was termed as dying declaration. The prosecution has examined CWs.4, 6 and 11 as PW.10 to 13 and they are the material 16 witnesses to the document at Ex.P14 under which the burnt shirt of the accused was marked at MO.7. This burnt shirt of the accused has been recovered and produced from his house. But the said PWs.10 and 13 have turned hostile to the case of the prosecution. These witnesses have deposed in their evidence about seeing the accused and MO.7 - burnt shirt at police station and also having seized by drawing a mahazar. The mahazar was conducted by the investigating officer
- Sheshadri, which reveals the established link that MO.7 - burnt shirt of the accused was seized in his presence by the investigating officer by drawing mahazar. PW.4 - Kiran is none other than son of the deceased - Kuppamma and he is the child witness. Ex.P4 - inquest report was conducted by the investigating officer in the presence of the PW.1. This witness did not support the case of the prosecution in entirety. Even PWs.4 and 5 did not withstand the version of their statements. But death of the deceased 17 was definite by sustaining burn injuries over her person which is reflected at Ex.P12 which is the post mortem report issued by the Doctor who conducted autopsy over the dead body. But with the consent of the learned public prosecutor and defence counsel the same has been got marked. But fact remains that the contents of Ex.P13 dying declaration given by the deceased was recorded by PW.15 - Kumaraswamy. Based upon her complaint at Ex.P13, criminal law was set into motion by recording FIR at Ex.P23. Accused sustained burn injuries on his left arm and he took treatment from PW.17 - Dr.Jeevanprakash, who issued wound certificate at Ex.P20. Accused and deceased had illicit relationship and accused was frequently visiting the house of the deceased who was a dejected woman. Her family consisted of herself and PW.4 - Kiran. PW.14 - G.Mallaiah is the Manager of the Muthoot Finance Company at Pavagada wherein the accused being the paramour of the deceased - Kuppamma is said to have 18 pledged the jewellery belonging to her. PW.14 has supported the case of the prosecution and given evidence that the accused had pledged a pair of ear studs and hangings with their company and they had given Rs.6,000/- to the accused and they had taken his signature at Ex.P16 to 19 for having pledged the gold articles with Muthoot Finance Company. PW.14 had identified the accused and stated that he had pledged gold jewellery. But this PW.14 had been subjected to cross-examination relating to the evidence of Ex.P15. On perusal of Ex.P15, it indicates that accused had pledged the above said jewellery on 06.06.2012 for Rs.6,000/-. Even this witness was subjected to examination at length. But PW.16 has been subjected to examination relating to Ex.P3 of mahazar said to have been conducted by the investigating officer who has deposed about seizure of MOs.1 to 6. This witness even though stood for cross-examination but he did not see how many rooms were there in the house of the 19 deceased i.e. scene of crime. Normally the panchas will be secured by the investigating agency and in their presence mahazar would be conducted by the investigating agency and they would not survey the house to move all those things in the scene of crime. It is not material for taking into consideration but deceased - Kuppamma and the accused had illicit relationship and on the fateful day, i.e., as on 27.12.2012, accused entered the house of the deceased. Deceased - Kuppamma insisted the accused to return her gold jewellery pledged by him, as a result of which there was tussle in between the accused and deceased. Out of anger, accused doused kerosene over the person of the deceased and set her ablaze. As a result of that she sustained burn injuries which reflected in the post mortem report at Ex.P12. Subsequent to registration of the crime and based upon the statement of complaint given by the deceased at Ex.P13 the investigating agency investigated the case and also seized MO.1 - 20 Kerosene can, MO.2 - Match box, MO.3 - Burnt sari, MO.4 - Petticoat, MO.5 - Sweater of the deceased. PW.1 who is the eyewitness to the case of the prosecution relating to the incident and also being neighbour of the deceased who has partly supported the case of the prosecution. However, regarding the material details she has supported the case of prosecution by deposing that deceased - Kuppamma is kept mistress of the accused and they had an illicit relationship. She has also stated that accused had pledged the gold jewellery of the deceased - Kuppamma. When Kuppamma asked to return the jewellery, accused assaulted her and further in order to eliminate her he doused kerosene over the person of the deceased and set her ablaze, as a result of which deceased sustained burn injuries and due to burn injuries inflicted over her person, she died. Initially, she was shifted to Pavagada Government Hospital in order to provide treatment and later one Chinna who is the brother of deceased shifted her to 21 Victoria Hospital, Bengaluru to provide better treatment to save her life. But she succumbed to injuries on 31.12.2012 at around 2.20 a.m. in the night hours. These are the evidence that have been let in by the prosecution to prove the guilt of the accused. But PW.17 being the doctor who provided treatment to the accused has deposed that accused sustained burn injuries on his left arm since he had come into contact with the deceased when she held the accused firmly. In support of the case of the prosecution, PW.17 has been subjected to examination relating to the wound certificate at Ex.P20 issued by him which indicated injuries said to be caused on 27.12.2012. But accused was apprehended from the hospital when he was taking treatment for the burn injuries to his left arm. If really burn injuries were not sustained by him after setting deceased - Kuppamma on fire, the accused himself would not have gone to the hospital and taken treatment. However, PW.17 has supported the case of 22 prosecution relating to wound certificate of accused at Ex.P20 is not in dispute. But in fact, it is not the case of the accused that deceased herself had set on fire or accidentally caught fire and he tried to rescue her and in that process he caught fire and got burnt. Moreover, if he was rescuing the deceased, both his hands would have been burnt and not just one hand. Thus, the medical evidence of this witness also corroborates theory of the prosecution. The entire case of the prosecution rests upon circumstantial evidence. The evidence of PW.15 / ASI who recorded statement of complaint at Ex.P13 of deceased - Kuppamma in the presence of doctor while she was under treatment at hospital and he had returned to police station and based upon her complaint at Ex.P13 criminal law set into motion by recording FIR. But initially FIR has been recorded for the offence punishable under Section 307 of IPC, 1860 but after her death, offence under Section 302 has been invoked. No doubt in the cross 23 examination of the accused he has stated that may be deceased had sustained 80% burn injury over the person but it does not mean that she was not able to give statement relating to the narration of burn injuries. Degree of burns means gravity of burns and the depth of burns. Hence, even a person who has suffered 80% burns can speak if it is first degree or even second degree burns. Nothing worthwhile has been elicited in the prosecution and on part of defence counsel. Especially it is not suggested to the doctor himself that deceased had second or third degree burns going deep into organs making the injured incapable of speaking. Her statement narrates as to how she had sustained burn injuries indicated in the post mortem report issued by the doctor at Ex.P12. These are all the evidence let in by the prosecution to prove the guilt of the accused. Therefore, if the entire evidence is to be taken on record, the only inference that can be drawn is that with an intention not to return jewellery of deceased which he 24 had pledged and raised loan from Muthoot Finance and with an intention to kill the deceased, the accused doused her with kerosene and set her ablaze. As a result of that she sustained burn injuries and also she gave statement of complaint at Ex.P13, which after her death was termed as dying declaration.
In the instant case, prosecution has proved all ingredients of offence under Section 302 of IPC, 1860 and rightly accused has been convicted by the trial Court. Therefore, it does not call for interference and more so, grounds urged by the appellant / accused does not have bone of contention to call for interference and there are no warranting circumstances for intervention. On all these premise, learned Addl.SPP for the State seeks for dismissal of the appeal as being devoid of merits.
11. In the context of the contentions made by the learned counsel for the appellant / accused by referring 25 to the evidence stated supra and so also the counter arguments by the learned Addl.SPP for the State based upon the contents of Ex.P13 of the statement of complaint initially and after death of deceased termed as dying declaration, but deceased - Kuppamma being declarant had given statement before PW.15 who is ASI in the presence of PW.9 who is the Doctor and where she was in a medically fit condition to give her statement that accused was frequently visiting her house and also they had illicit relationship. On the fateful day she asked accused to return her gold jewellery which was pledged by him in Muthoot Finance Corporation. Then tussle took place in between accused and deceased then accused doused her with kerosene and set her ablaze. As a result of that she sustained burn injuries and also succumbed to injuries on 31.12.2012 at around 2.20 a.m. in the night hours. 26
12. In this regard, it is relevant to refer to the concept of mens rea. Mens rea is an essential part of deciding whether an act is culpable or not. Mens rea displays specific intent by the accused for the commission of the crime for which he is charged. The accused must be proven to have knowingly committed the crime, and had full knowledge of their actions and must have malafide intent towards the victim. Mens rea is also used in some civil suits, requiring the defendant to have been aware of the repercussions of their actions for a civil liability to arise, but usually, the Actus Reus takes precedence in cases of civil liability.
13. In the instant case, accused and deceased had illicit relationship and accused was frequently visiting the house of the deceased whereby she was a dejected woman. Since the deceased asked him to get the pledged gold jewellery released, a tussle took place between accused and deceased. Accused intended to 27 eliminate her and he doused kerosene over her person and set her ablaze, due to which she sustained burn injuries. It also taken into consideration to conclusively to prove the guilt of the accused in terms of reasonable doubt. Actus Reus can also be the omission of an act, by omitting to do something that the accused knows he is bound by duty or law to do.
14. In this regard, it is relevant to refer to the definition of Section 300 of IPC, 1860 which reads as under:
"Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily 28 injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
15. If we analyse the definition under Section 300 of the IPC, culpable homicide is considered as murder if:
o The act is committed with an intention to cause death.
o The act is done with the intention of causing such bodily injury for which the offender has knowledge that it would result in death. o The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, this would amount to murder.29
The ingredients of murder relating to cause of death, there should be an intention to cause death and such bodily injury which is likely to cause death or the act must be done with the knowledge that the said act is likely to cause the death of another.
16. In the instant case, it is relevant to refer to Section 299 of IPC, 1860 relating to culpable homicide -
"whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
17. In Explanation 1 it is stated that - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
30Explanation 2 - where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
18. The word homicide is supposedly derived from latin where "homo" means man and "cida" means killing. Thus, homicide means the killing of a man by a man. Homicide can be lawful or unlawful. Culpable homicide is punishable by law and is further divided into two categories:
(i) Culpable homicide amounting to murder
(ii) Culpable homicide not amounting to murder.
The difference between murder and culpable homicide is intention. If the intention is present the crime is said to be committed under Section 300 of IPC. If the intention is absent, then the crime is dealt under section 304 of IPC. Based upon the circumstance and 31 evidence let in by the prosecution in detail but ultimately domain is vested with the trial Court to appreciate the evidence under Section 3 of Indian Evidence Act, 1872 relating to proved, not proved and disproved. However, keeping in view of submission made by the learned counsel for appellant and also vehement submissions made by learned Addl.SPP for the State based upon the evidence of the prosecution adduced so far, it is relevant to refer to the reliance in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra (2013) 6 SCC 770 wherein the Hon'ble Supreme Court addressing the issues in para 68 has held that "in the result, we allow this appeal but only to the extent that instead of Section 302 IPC the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II of IPC and sentenced to undergo rigorous imprisonment for a period of five years. The 32 fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered."
19. In the instant case, it is also relevant to refer to the reliance in the case of Satish Narayan Sawant vs. State of Goa (2009) 17 SCC 724, wherein the Hon'ble Supreme Court has addressed issues in a greater extent relating to concept of Section 302 to Section 304 Part II of IPC relating to conviction altered from Section 302 to Section 304 part II and sentence of seven years imprisonment imposed. It has been extensively addressed in para 40 and 41 and it is held that "it is trite law that Section 304 of Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as it likely to cause death."
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20. The Hon'ble Supreme Court in the case of Ghansham Dass vs. The State (Delhi Administration) (1978) 3 SCC 391 has held that "Section 300 Exception 2 - deceased entering shop of accused to dissuade him from building a wall regarding which there were already disputes leading to a criminal case, deceased entering at midnight for such purpose but unarmed, stabbing of deceased by accused with a dangerous weapon, accused guilty of exceeding right of private defence of property." In para 12 it is held that "in the circumstances, we feel that the conviction under Section 302 and the sentence for imprisonment for life cannot be sustained. We find the appellant guilty of an offence under Section 304(1) and sentence him to imprisonment for five years. To this extent the appeal is allowed."
21. In the instant case, deceased Kuppamma and accused developed an illicit relationship since many years which is reflected in the theory of the prosecution 34 and even reflected in her complaint statement at Ex.P13. But based upon the statement of complaint the criminal law was set into motion by recording FIR. But after her death it was termed as dying declaration. If the concept of the relationship of 'paramour' in between deceased and the accused is taken into consideration, it is relevant to refer to the reliance in the case of Latel vs. State of Chattisgarh (2001) 9 SCC 135 wherein the Hon'ble Supreme Court has held, "Section 300 Exception II and Section 304 Part I - Upon deceased entering the field in possession of accused-appellant and commencing to plough the land, appellant attacking the deceased with tabbal as a result of which deceased falling down on ground becoming unconscious but even thereafter appellant continuing his assault resulting in his death - according to the doctor, deceased sustained two head injuries which resulted in fracture of parietal and occipital bones and that those injuries were sufficient in the ordinary course 35 of nature to cause death - held, appellant assaulted the deceased in exercise of right of private defence of his property but while doing so he exceeded his right in inflicting the fatal head injuries - hence, conviction under Section 304 Part I and sentence of 10 years RI upheld."
22. It is also relevant to refer to Section 3 of the Indian Evidence Act, 1872 wherein the domain is vested with the trial court to appreciate and scrutinize the evidence. It is the duty of the Court to scrutinize the evidence carefully and see that there is acceptable evidence. The Court should adopt cautious approach to convict the accused based on circumstantial evidence. Even the concept of evidence of eye witness - the evidence of eye-witness cannot be disbelieved merely because such witness has not reached in a particular manner. This was addressed by the Hon'ble Supreme Court in the case of Motiram Padu Joshi vs. State of 36 Maharashtra (AIR 2018 SC 3245). Having examined all the eyewitnesses even if other persons present nearby, not examined, the evidence of eyewitnesses cannot be discarded, courts are concerned with quality of evidence in a criminal trial. Conviction can be based on sole evidence if it inspires confidence. The same has been addressed in the case of Sheelam Ramesh v. State of Andhra Pradesh (AIR 2000 SC 718). Where there are material contradictions creating reasonable doubt in a reasonable mind, such eye witnesses cannot be relied upon to base their evidence in the conviction of accused. It was held in the case of Nathia v. State of Rajasthan (1999 Crl.LJ 1371).
23. In the instant case, the entire case is based upon circumstantial evidence and so also, the evidence of PW.4 - Kiran who is none other than the son of deceased - Kuppamma. The prosecution has given more credentiality to his evidence and so also, the 37 evidence of PW.15 - ASI relating to recording the initial statement of complaint as per Ex.P13. But after that she was shifted to Victoria Hospital where she succumbed to injuries and thereafter her statement was termed as dying declaration. Ex.P12 is the PM report issued by the Doctor who conducted autopsy over the dead body of deceased - Kuppamma and opined that cause of death was due to septicaemia, as a result of burn injuries sustained. Therefore, the medical evidence relating to Ex.P12, PM report issued by the Doctor, must be looked into to arrive at a proper conclusion as regards serious offence of Section 302 of IPC. But the medical evidence corroborated with ocular testimony, medical evidence is to be proved by the prosecution that in view of the injuries inflicted on him, the deceased had died. Even in case of circumstantial evidence, motive factor bears an important significance. Motive always locks-up in the mind of the accused and sometimes it is difficult to unlock. People do not act wholly without 38 motive. The failure to discover the motive of an offence does not signify its non-existence, but scrutinize evidence cautiously.
24. In the instant case, even though the entire case is based upon circumstantial evidence, but the law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy three tests:
1) the circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused;
3) circumstances taken cumulatively should form the chain complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 39
25. These circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence also. There is no reason to differ from the conclusion reached by the trial judge, whereas the evidence of the eyewitness if disbelieved, and if it is found that the weapons recovered were not stained with human blood, there remains hardly any circumstance against the accused to connect them against the crime. But it is not possible to uphold the conviction of the appellant on wholly unreliable and limping evidence. But the evidence must be clinching and must clearly implicate the accused persons are cause for infliction of injuries on the injured and the eyewitness account must corroborate with the medical evidence. In the said case, 40 the eyewitness sharply contradicted with each other with regard to the identity of the person who dealt the fatal blow on the person of the deceased with a deadly weapon. It was held that this was a vital discrepancy that could not be ignored on the part of prosecution and hence the accused was acquitted of the charges levelled against them, relying on the evidence available in the record, and by properly appreciating the same.
26. In the instant case there was concept of paramour between deceased - Kuppamma and accused. This illicit relationship was since years prior to her death by sustaining burn injuries. The incident took place on 27.12.2012 as on the fateful day there was some tussle between accused and deceased and in a fit of anger, the accused doused kerosene on her person and set ablaze as a result of which she sustained 80% burn injuries and she was taken to Government Hospital, Pavagada and thereafter shifted to Victoria Hospital where she died as on 31.12.2012 at 2.20 a.m. 41 in the night hours. However, the entire case is based upon the circumstantial evidence and also based upon her statement at Ex.P13 which was termed as dying declaration. Even the dying declaration made by deceased should be tested under Section 32 of the Indian Evidence Act, 1872. But the evidence must be clinching and clearly should implicate that the accused was cause for infliction of injuries on the injured and it must corroborate with medical evidence by subjecting to examination the material witnesses to prove the guilt.
27. Section 32 of the Indian Evidence Act is where the cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. In respect of admissibility of dying declaration, there can be no dispute that dying declaration can be the sole basis for conviction, but however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker 42 thereof must be in a fit medical condition to make it. The said issue was extensively addressed by the Hon'ble Supreme Court in the case of Waihom Yaima Singh v. State of Manipur, 2011 Crl.LJ 2673. Further, the dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. Further, it should not be result of tutoring. This issue was also addressed by the Hon'ble Apex Court in Nanhar v. State of Haryana, (2010 Cr.LJ 2450).
28. In the instant case, Ex.P13 the statement of complaint given by deceased - Kuppamma after her death was termed as dying declaration. But it should be tested in accordance with the relevant provision of Section 32 of the Indian Evidence Act, 1872. Regarding 43 reliability of dying declaration, if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in conviction of the accused. This issue was addressed by the Hon'ble Supreme Court in the case of Bhajju v. State of Madhya Pradesh (2012) 4 SCC 327. These are all the reliances referred relating to the instant case and so also, causing for the death of deceased - Kuppamma whereby the accused who is paramour doused kerosene over the person of deceased and set ablaze as a result of which the deceased sustained burn injuries and succumbed to death while under treatment at Victoria Hospital. But insofar as the circumstantial evidence and the status are concerned in a case of circumstantial evidence, the onus lies on the prosecution to prove the 44 complete chain of events which shall undoubtedly point towards the guilt of the accused.
29. Insofar as conviction on the basis of child witness, in the instant case PW.4 - Kiran who is none other than son of deceased - Kuppamma and this child has given evidence on the part of the prosecution. But it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction only if the same is credible, truthful and is corroborated by other evidence brought on record. The corroboration is not a must to record a conviction, but as a rule of prudence, if the court thinks it desirable to see that corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness who is 45 competent and whose version is reliable. The said issue has been addressed in a judgment of the Hon'ble Supreme Court in the case of Shivasharanappa v. State of Karnataka (AIR 2013 SC 2144).
30. Insofar as domain vested with the Court to scrutinize evidence - the Hon'ble Supreme Court in the case of State of Gujarat v. Gandabhai Govindibhai (2000 Cr.LJ 92 (Guj)) has held that it is the duty of the Court to scrutinize the evidence carefully and to see that acceptable evidence is accepted. In the instant case, PW.4 - Kiran who is no other than the son of deceased Kuppamma and even though he is child witness and also to be termed as eye witness to the incident but this witness did not withstand to the version of his statement and his evidence is contrary to the contents of the complaint statement of deceased - Kuppamma which is termed as dying declaration based upon which the criminal law was set into motion and 46 the investigating officer took up the case for investigation and thoroughly investigation has been done and charge sheet was laid against the accused for the offence punishable under Section 302 of IPC, 1860 and more so, the case was ended in conviction which has been challenged under this appeal wherein it requires scrutinizing the entire evidence in its entirety to arrive at a conclusion whether there is any perversity or non-application of mind by the trial Court while rendering the conviction judgment against the accused. But Section 134 of the Evidence Act, 1872 relating to number of witness and even merits of the statement where it is well known principle of law that reliance can be based on the solitary statement of a witness, if the court comes to the conclusion the said statement is the true and correct version of the case of the prosecution. This issue was extensively addressed by the Hon'ble Supreme Court in the case of Raja v. State (1997) 2 Crimes 175 (Del).
47
31. Relating to the requirement of number of witness, law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, we can classify the oral testimony of a single witness as (i) wholly reliable, (ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. It is extensively held in the case of Lallu Manjhi v. State of Jharkhand (AIR 2003 SC 854).
32. Keeping in view the aforesaid reasons as well as findings and so also, the reliances insofar as the 48 appellant who has been convicted by the trial Court for the offence under Section 302 of IPC, the point is whether the accused is deserving for reducing the offence to Section 304 Part II of IPC instead of Section 302 of IPC. But it is based upon the evidence of the prosecution adduced so far and also based upon the evidence elicited by the defense counsel. The accused is in incarceration even after being held conviction by the trial Court for almost all 6 years 5 months 4 days. Therefore, it is suffice to hold that the period of incarceration undergone by the accused shall be termed as service of sentence in respect of conviction for the offence under Section 304 Part II of IPC, 1860 in the given peculiar facts and circumstances of the case, which would meet the ends of justice. However, the trial Court has sentenced to pay fine of Rs.10,000/- and that fine amount shall be enhanced to Rs.50,000/-. In default of payment of fine amount the accused shall undergo SI for a period of two years for the offence 49 punishable under Section 304 Part II of IPC. The entire fine amount shall be paid to PW.4 - Kiran who is the son of deceased - Kuppamma keeping in view Section 357 inclusive of Section 357A of Cr.P.C. relating to payment of compensation in terms of rehabilitation even if the case ended in conviction or ended in acquittal or ended in discharge. In view of the aforesaid reasons and findings, we proceed to pass the following:
ORDER The appeal preferred by appellant / accused under Section 374(2) of Cr.P.C. is hereby allowed in part. Consequently, the judgment of conviction and order of sentence dated 17.10.2016 rendered by the trial Court in S.C.No.81/2013 is hereby modified convicting the appellant/accused for the offence under Section 304 Part II of IPC instead of Section 302 of IPC. The appellant/accused is sentenced to pay fine of Rs.50,000/- instead of Rs.10,000/-. In default of payment of fine 50 amount, the appellant/accused shall undergo SI for a period of two years.
The fine amount of Rs.50,000/- shall be paid to PW.4 - Kiran, S/o deceased Kuppamma in view of Section 357 inclusive of Section 357-A of Cr.P.C. relating to payment of compensation in terms of rehabilitation even if the case against accused ended in conviction/acquittal/ discharge. Accordingly, it is observed.
The accused is in incarceration for a period of almost 6 years 5 months 4 days. Therefore, the period of incarceration undergone by the accused shall be termed as service of sentence for the offence under Section 304 Part II of IPC to meet the ends of justice.
Registry of this Court is directed to forward a copy of the operative portion of the judgment to the Superintendent of jail authority, Central Prison, Parappana Agrahara, Bengaluru City where the accused is housed 51 with a direction to set him at liberty forthwith, if he is not required in any other case.
In pursuance of the order passed in this judgment, the accused shall deposit a total fine amount of Rs.50,000/- before the trial court, in accordance with law.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE RJ/DKB