Karnataka High Court
Obalesh S/O Yeguvdubbayappa vs State By Jagajeevanramnagar Ps on 26 March, 2008
Bench: K.Sreedhar Rao, Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26?" DAY OF MARCH, PRESENT: THE HON'E5LE MR. 3USTIC|Ej§.SREEf)Hi'.P§'_w»R)f\f) E ANO THE HON'BLE MR. .3PU-S_T1C.E'H1AwAOH.RA'HII§»;V :2 CRL. A. NO. IEPARS OE 2O'II5.T BETWEEN: . 1 OBALESH S/O YE'G'L1.fJOU.E€EAYAPIPAL . AGD ABOUT 32 YEARS g C/O THE. OIG OP' PRIS'.ON BANGAI_OR:E- CEN-TRAL PRISON BAN.GALQ_R'E~-':-_V I A ._ ...APPELLANT (VETSRIB.vi:;rPP'IN*'rO;---ADV» LEGAL AID) AND: 1_ E 'V 1 STATEPEY j'A1Gz=.3EvE.\}'ANRAI~/INAGAR PS ,- -BANGAL.QR'E"CITY REP, BY THE...S__.F' P OF HIGH COURT _ " I RESPONDENT (E3/I$RI"C_.H.JADHAV, S.P.P.) >1'-** T«HISv'f"'CRIMINAL APPEAL ES PREFERRED BY THE APPEI;LA1NT/CONVICT/ACCUSED THROUGH SUPRE)T., '--IL»'CE.NTRA'L PRISON, Bangaiore AGAINST THE JUDGMENT DT.6.-1»«O5 PASSED BY THE P.O., FTC-IV, BANGALORE, IN NO. 177/01 CONVICTING THE APPELLANT/ CONVICT/ACCUSED FOR THE OFFENCES P/U/S 302 OF IPC "I-AND SENTENCING HIM TO UNDERGO LIFE IMPRISONMENT 1». 'E I; 'K. 'K *5 AND TO PAY FINE OF RS.1,000/-, I.D. TO UNDERGO S.I. FOR 1 YEAR. THE APPELLANT/ACCUSED/CONVICT PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE, ETC., THIS APPEAL IS COMING ON FOR HEARING TE-.'.>I_S DAY, JAWAD RAHIM. 3., DELIVERED THE FOLLOWING:"*,_ JUDGMENT
By the judgement dated HQ6--O1--_,?;{'2OS'::~.,i:n'~::SC :77/2001 on the fiie of the ie-armed,'t,seis,s,iionssi:uaee~»ei'.a Judge, Fast Track Court, B.3i'ri-:_1_aioree.(jit\,r,V tI'vi'(:3_'i"'a:;T.',_l)QIIa_:'i"]tV'!'!3Ei7 been convicted for the offencegi:punishatfie'nunciger Section 302 IPC, against whici=i.._.h'*e_ isiiineagafi-eai,I.""~, _ 'i,,Tf'_1€ Vsiiebstance ofI'a'Hiegation against the accused as manifest froVm:',t'he'i»c.a'sAeg:'papers is:
_ TheD'a.cc'uSed-_ rn-artried Laxminarasamma and both Eived in a hoLis'e----«s'ituated at 11"' Cross, Padarayanapura, Bar'iga'Eo_re.,"'i~The accused was known to have harassed her .ar23_ci'IIperpe:t_ra.}ted continuous crueity. It is aiieged that he was ifiairassing her mentaiiy and physicaiiy. On, 27--10~2000 I heipcicked up quarrei with her and asked her to prepare food and when she requested him to give money to purchase [\ 'J provisions, he was so angry that he poured kerosene on her and set fire. As fire started enguifirig her, she_4vsc"r.ea~med and ran out of the house. The neighbor, PW1'é?=~3:::i§1a'viV.':ih_di-'Fiery uncle, heard her screams and imVn3»e>diatei'y'"rushed=.towairvds"._ house of the deceased. PW14 --V'Ravi"aridfher.'u'r2c'iVe:"'iJu't?1,off the fire and informed PW1, *th'e.._VmotherV'of tri'e"'d.e'ceaVsed with PW2, the father of the"deceas_e_d'}-..:_'
3. In the mea'nzwhi|e, thexyé"ai'so:'informed the poiice.
In response to whvich on duty rushed to the spot, victim in severe pain d'l_JM.¢ If t.«3x'T.,Ji§1i.g:rri!V'-- shifted her to Victoria Hospitai. __ 'ties-'pi_taI."the incident was informed to PW8--Gopai or1the'figrci§'d:§eVEté"enai police. The jurisdictional po|i'c§e"went to i:_he'spot on receipt of information and found
-?SinV%t';«._i\iarasamma present. He recorded the report b~;j"'--hV'er'iAV.re§arding the incident and immediateiy rushed to the Poii-Ce Station. A case was registered for the offence under Section 498-A and 307 ipc.
4. PW15-i\i.Hanumanthappa, Police Inspector, again went to the hospital and enquired from the Medicai §§'~i/ I1 charge beyond reasonable doubt and he was thus convicted, Against which judgement he is in appeal.
7. The Eearned counsel for appellant strenuously urged that the prosecution case is actuaily based.i:'o--.n"'--t'he circumstantial evidence. The learned trial jud'g----e more emphasis to the alleged sta»tern4ent.".o'ft' produced in evidence at Ex.P12. A.tco'ta*rt§g 'ito_Ai1i.rfn bereft of truth and full of rai:.ity,_ The'-answers by the' victim to the questions rai.s.eVdv._on_. ma't"eri.a_i points are factuaily incorrect. He"dra-'xysf()u.rtatt'e*ntion to the first questiVont"'iwiitAVhig regfa'i'd '"to:"-peri'o'(:i"' of marriage between the accusexdand the \i.'i'<.:ttini.._:i'Acti.ording to him, her statement is that she has marri'ed'~t_\iv'o--"nyears prior to the incident, but the of theV"'wvi«-tnesses is that the marriage had taken plalceag years before the incident. Referring to this partof the'i:'Ieu:idence he contends that once it is shown that '2__the statrement is factualiy incorrect then that evidence A be discarded as not truthful version of the incident. ' Secondly, he contends that the exact overt act attributed to J':
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(3 the accused has not been witnessed by any one, therefore, he contends that there is no material to convict him.
8. Per contra, Mr. S.B.Praveen, the learned Addl. SPP supporting the impugned judgement contendedti:-at"--tAhe dying declaration at Ex.P12 is endorsed Officers, which is authenticated and._it 'we' consider the statement of the dec'easejd*,'iVwh'ic_h it is the accused who had poL.i_fc--;dV kero'sene_ on_t'Iie'''dreceasedw ' and set fire. When such evyid.ence"'-.i.s ayai:-a.b|e;§the other evidence tendered by t'iie'yp.aifenf:tsiv is"'o.f_' .n'o'-_consequence. He wouidVvi"i'u'i'c-he: co5i:iten'd.':"thatimconéduct or the accused is important'.._ the appeal filed by the aDDei|ant.x"a. "
heard both sides and examined ' eyi'de_n'ce_''inf"supplementation thereto. 1.0.' the outset, it is to be noticed that the i.nci_dent-' had occurred in the house where the deceased and daicciised were the oniy occupants. The incident occurred in ~~-the evening at 5-00 PM when the accused is said to have *1 1 ! ls' Ex.P1 from PW1--Narasamma, PW8 -- Gopai, has proceeded to Police Station and registered the case in which he has not mentioned about dying declaration given by the deceased. Even during inquest, there was no mentéo.r]__'4--of":.d.yi'ng declaration, nor there is any mention in the sp_'otvjmai'iiaza_4r,"' which was conducted by PW8. By'this.he,Contendsivthatvilin i the presence of PW12 -~ Dr. i_i.C. r7ecor'd.i:n'g, of the dying declaration is unb'el.iVevab|e.'--- V'
14. We are unable to"ha'cc'e-Int this contention and the same has to be discounted fofthe_.-r_e'axs;oii_'_.that the Station House'rOffic~ef.:1Oftihfe"--fiof?7!VD!aina'nt"§5olice Station is not PW8 -- Gopl§3,v..,,,bdt., 'PWV1'i3""e«.#V'f'El}f'i%.:d"lV.i.urnanthappa. When PW15 is Inspectoriof. that'v._Pol-i_ce~--"Station, PW8 is Sub--Inspector of Povi'l._jC5'e the sarne------Police Station and working under him. I'néves.tig.atio'iii.1:inta case of this nature is done only by the seiiim Officer of the Police Station who is above the rank Police Sub-Inspector. Therefore, if the investigation A hVas"been done by PW8, it is only under the instructions of i>;W15, who is the Investigating Officer. The fact that PW8 -- Gopai registered a case and proceeded to the spot is an '"' E"?
9 indicative of the fact that he did so under the instructions of PWTLS. The dying declaration has been recorded.VVb:yi._the PW15 considering the necessity and urgency _ Therefore, PW8 -- Gopal could not have kno-was§:bout:fuArth,:er*«~. investigation done by the Investigati-mg? Cffihlcér,-éiwti-Q__ 'had taken charge of the investigaitioh in tlielcase VA
15. Besides, even d,u'ri'rig_:'iéinqi.-4'est,"i'ti'ie~"statement given by the witnesseséllreveali-vsithe',:fav§§%.'{,,,¢§ihich are similar to the statement. There is absolutely Vo_nVi"iQmaterial point regarding manner rred. However, 'as Ex.P12:V"'i.s vdyyi-n:gV...declaration, for reassurance we have_exam"i'ned thje s.an'ief Her statement was recorded in of ques'tio~--n--~«a'nd answer, in which the deceased has a'nsWered'l.a'iil.,:ou.estions consistently and sensibiy. She had in,_.such_ailisf«yering directly implicated the accused as the person who poured kerosene upon her and she has also revealed the reason for such violent act on his part. is-ndisputedly, she could not survive for long and has breathed minutes later. She was sensing her death. She lb was also expecting danger to her life. Such a person normally would not lie or implicate a person falsely. Due credence has to be attached to the staten'ientvg'i'i/Zen by person who are in anticipation of death. ?c_._as~e where the victim undoubtedly, was antici_pa,t_i_ngv'h.ei'._deathu and her version implicating termed as false statement 0VF.''[email protected].'f'*~c_:''' ' l V A l
16. Therefore, the direvrfwlngargratifofi given by the deceased sufficientglvfestaifiblish"t'ha'titis theaccused who poured keroseneon her. :».fir'e'to"'h€r'. The statement of !?>\/\!V1¥¥h"'I\i'a.F;<"f.'fSarn:fi1'a her_""h'u'sband PW2. -- Obalesh is also in'_s"u.ppor.tVof.MVtii.e"e:vj_dence and it shows that the deceased had"before~-,_he~.:"»fVdeath made statement that it is "Vv.V_'tnG[jaccuse.d who's--e-tifire. We have no hesitation to accept I the "sta'tenient'a.nd to act upon it. The trial court has rightly con'sider_edV'fa_nd attached due credence to those statement. ~.t7.~;_ The other evidence lead by the prosecution A sghfowgs that the accused had been harassing the victim and naedical evidence Show that the death was due to sufferance {/;u;:, of burn injuries on her. The death has been described as due to toxemia due to burn injuries as a result of pr~~i-rnarily burn injuries which are termed as cause for toxemi:a"-aLj'nrd'vvas toxemia has resulted in death, there is nexu:::.beVt~wVeen burn injuries and death with0ut""fhe«re intervening cause. Since the eviidience recbrded".ab..dve_ directly indicts the accused person; -iAih:oVVh:as"'set fire"
to the victim, the learned tria'i'*j.ij_:dg"Q,c,has 'ri'gh.tIy'jconvicted him.
18. We,fi'rivd_ the View taken by the'iV'tria'i resiultrv the appeal fails and the ju d genie nt 3 rn pug' ..Vcc.nj'fi..;~med. i sd/~ ..... EUDGE sd/r }UDGE