Karnataka High Court
Siril D'Souza vs State Of Karnataka on 28 November, 2012
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF NOVEMBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL No.1195/2008 (C)
BETWEEN:
Siril D' Souza s/o Rajali
D' Souza, 54 years,
Coolie work, R/o Kittanagadde
Village, Thirthahalli Tq.
Shimoga Dist. .. APPELLANT
(By Advocate Smt.Badrunnisa)
AND:
State of Karnataka,
R/by State Public Prosecutor,
High Court Buildings,
Bangalore-1. .. RESPONDENT
(By Sri.P.M.Nawaz, Addl. SPP)
- - - - -
This Appeal is filed under Sec.378(1) & (3)
of Cr.P.C. by the State to set aside judgment
and order of conviction dated 20.9.2006 passed
by Prl. Sessions Judge, Shimoga in SC No.37/2006
convicting the appellant/accused for the
2
offences for which they he has been charged in
accordance with law.
This Appeal is coming on for final hearing
this day, KEMPANNA J. delivered the following:
J U D G M E N T
This appeal by the accused is directed against the judgment and order dated 20.9.2006 passed in SC No.37/2006 by the Principal Sessions Judge, Shimoga convicting the appellant/accused for the offence punishable under Sec.302 IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1000/- in default to undergo RI for a period of six months.
2. The brief facts of the case are:
The accused was tried on the charges for the offences punishable under Sec.302 and 504 of IPC. It is alleged that on 31.10.2005 at about 12-30 p.m. near the gate in front of the house of deceased Philomina situated at Kittanagadde 3 village, Thirthahalli Taluk, accused committed murder of the deceased intentionally by setting her ablaze after dousing with kerosene and had also insulted the deceased by abusing in filthy language and had provocated to break public peace thereby committed the aforesaid offences.
3. It is the case of the prosecution that deceased Philomina is the younger sister of the accused. PW-4 Phelix D'Souza is the younger brother of the accused. Accused, his younger brother PW-4 and the deceased are all residing in their respective houses which are situated adjacent to each other at Kittanagadde village in Thirthahalli Taluk along with their respective families. Deceased being a widow was living alone in her house as her three married daughters and one son are staying in Bangalore and Mumbai respectively.
4
4. It is the case of the prosecution that there were differences between the accused and his deceased sister on the allegation that deceased was practicing witch-craft on the wife of the accused. On account of this, all was not well between the two. It is further the case of prosecution that on 31.10.2005 at about 12-30 p.m. accused came to the house of his deceased sister, thereafter picked up quarrel with her in respect of the witch-craft that she was practicing as against his wife. Hearing the said quarrel PW-1 came near the house of the deceased. At that time, accused doused her with kerosene and set fire to her. On account of the same, deceased sustained severe burn injuries and raised hue and cry and seeing the same PW-1 also called for assistance from the neighbours. In response to the same, PW-2 & 3 came near the house of the deceased. At that time, they saw the accused being present near the house of the 5 deceased and when PW-1, 2 & 3 tried to put off the fire, accused threatened them with dire consequences. Thereafter, accused left the place. Deceased was removed to JC Hospital, Thirthahalli by PWs-4, 5 & 6. After she was removed to the hospital, she was treated by PW-7 Medical Officer. He also sent intimation to the police station as per Ex.P-3. On receipt of the said intimation PW-10 PSI of Thirthahalli Police Station came to the hospital and on the way he also gave a requisition to PW-9 Taluka Executive Magistrate to come to the hospital and record the statement of the deceased. In pursuance of the same, PW-9 Taluka Executive Magistrate also came to the hospital by which time PW-10 had also reached the hospital. At the hospital PW-9 first recorded Ex.P-7 dying declaration of deceased who was under-going treatment after ascertaining from the medical officer who was on duty that she is in a fit condition to give her 6 statement. After completion of Ex.P-7, PW-10 PSI also recorded the statement of the deceased as per Ex.P-4 at the hospital. Thereafter he returned to the police station and on the basis of the same, he registered a case in Cr.No.149/2005 for the offences punishable under Sec.307 and 504 of IPC initially issued FIR Ex.P-12 to the jurisdictional magistrate and took up investigation. Thereafter he proceeded to the scene of occurrence, secured panchas PW-4 & 5 and in their presence he drew up scene of offence panchanama as per Ex.P-1 and also seized MOs-1 to 8. After completing Ex.P-1 he also drew up sketch of the scene of occurrence as per Ex.P-13 and recorded statement of PW-4 & 5. On the same day, Head Constable Thimmappa produced the accused before him along with his report Ex.P-4. He arrested him and on completion of arrest formalities got him remanded to judicial custody.
7
5. Thereafter, on the very day i.e., 31.10.2005 at about 8-30 p.m. he received an intimation as per Ex.P-6 reporting the death of deceased at the hospital on that day at about 7- 55 p.m.. On receipt of the said intimation, PW- 10 forwarded an additional report to the Jurisdictional Magistrate as per Ex.P-15 requesting to add Sec.302 IPC. Thereafter he handed over further investigation of the case to PW-11 the Investigating Officer. PW-11 taking over investigation, on 1.11.2005 proceeded to the hospital and there he held inquest over the body of the deceased in the presence of panchas PW-6 and others and drew up inquest panchanama as per Ex.P-2. Thereafter he also got the body subjected to post mortem examination by giving a requisition in response to which PW-8 medical officer conducted autopsy over the body of the deceased and issued PM report as per Ex.P-9. PW-11 thereafter continuing investigation 8 recorded the statements of the witnesses, obtained relevant documents from the concerned authorities including the post mortem report and on completion of the investigation submitted final report against the accused before the jurisdictional Magistrate. Learned Magistrate thereafter committed the case of the accused to the court of Sessions which in turn on receipt of the records, secured the presence of the accused framed charges as aforesaid to which the accused pleaded not guilty and claimed to be tried.
6. The prosecution in support of its case, in all examined PWs-1 to 11, got marked Exs.P-1 to 21 and MOs.1 to 8. Accused has not got marked any defence exhibits during the course of cross- examination of the prosecution witnesses.
7. After the closure of the prosecution evidence, the accused was examined under Sec.313 9 Cr.P.C.. He denied all the incriminating circumstances that were put to him found in the evidence of the prosecution witnesses. Thereafter he was called upon to enter on his defence and to lead any evidence that he may have in support thereof to which he submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
8. Learned trial Judge on considering the evidence and the documents on record, came to the conclusion that the prosecution has established the charge for the offence punishable under Sec.302 IPC and accordingly by his judgment and order convicted the accused for the said offence and sentenced him to undergo imprisonment for life and to pay fine of Rs.1000/- in default to undergo RI for six months. However, he having not found any evidence in so far as the charge for the offence 10 punishable under Sec.504 IPC, acquitted him of the said offence.
The accused/appellant being aggrieved by the judgment and order of conviction and sentence, is in appeal before this court.
9. Learned counsel for the appellant/accused assailing the impugned judgment and order contended that evidence on record reveals that the deceased had sustained 90% burns on her person as admitted by PW-7 medical officer. Trial court without appreciating the same has believed Ex.P-7 dying declaration recorded by PW-9 and first information Ex.P-4 recorded by PW-10 which in the circumstances of the case could not have been given by the deceased having regard to the degree of injuries that she had sustained. She further contended that in so far as PW-1, 2, 3 & 5 are concerned, they being interested witnesses, being neighbours of the deceased and in view of the deceased having 11 sustained 90% burn injuries could not have given any statement as projected by the prosecution, their testimony does not inspire any confidence to place any reliance on them, in as much as all of them have come to the scene of occurrence after hearing the hue and cry of the deceased. She further contended that the dying declaration Ex.P-7 recorded by PW-9 and also Ex.P-4 recorded by PW-10 has come into existence under surreptitious conditions and in the light of differences that existed between the accused and deceased, no reliance can be placed on the same. Trial Judge without appreciating this material on record has come to an erroneous conclusion that the prosecution has established that the accused is responsible for the homicidal death of the deceased which cannot be sustained and therefore a case for interference is made out.
10. Per contra, Mr.Nawaz, learned Addl. SPP supporting the impugned judgment and order 12 contended that nothing has been brought either in the cross-examination of PW-7 or PW-9 to discredit their testimony in respect of Ex.P-7 dying declaration recorded in the case by PW-9 Taluka Executive Magistrate. In this connection, he submitted that immediately after the occurrence Ex.P-7 has come into existence on the very day at about 3-45 p.m. which has been recorded on an intimation sent by PW-10 PSI. Ex.P-7 also bears the endorsement of the doctor indicating that deceased is in a fit condition to give her statement. He further contended that the evidence of PW-1 & 5 who have come to the scene of occurrence prior to the accused setting fire to the deceased is consistent and cogent. Their evidence clearly discloses that when they came to the scene of occurrence they saw the accused quarreling with the deceased and thereafter accused doused the deceased with kerosene and set fire to her. When they 13 intervened to rescue the deceased along with PW- 2 & 3 who also came, they were threatened by the accused with dire consequences. Their evidence has not been shaken in any manner in the cross- examination. Learned trial Judge on the basis of Ex.P-7 coupled with the direct testimony of PW-1 & 5 fortified by PW-2 & 3 has come to the right conclusion in holding that the prosecution has established the charge for the offence punishable under Sec.302 of IPC and therefore in the circumstances the impugned judgment and order does not call for any interference and requests this court to dismiss the appeal.
11. Having regard to the afore-mentioned facts, rival submissions, evidence and the documents on record, points that arise for our consideration are:
1. Whether the prosecution has established that the deceased Philomena has died an homicidal death?14
2. If so whether the prosecution has established that the accused is responsible for the homicidal death of the deceased?
3. Whether the impugned judgment and order of the trial Judge calls for any interference?
12. Re-Point No.1:
The deceased having died on account of sustaining burn injuries is amply established through the evidence of PW-8 Medical Officer who has conducted autopsy and has issued PM Report Ex.P-8. The deceased having died on account of sustaining burn injuries in the occurrence is also not disputed before us. It is further fortified from the inquest panchanama, evidence of PW-11 and punch witness PW-6. We find nothing in the cross-examination of these witnesses to discredit their testimony with regard to the deceased having died on account of the burn injuries sustained in the occurrence. As already pointed out homicidal death of the deceased on account of sustaining burn injuries is not 15 disputed. Therefore, having regard to the evidence as discussed above and the material on record, we hold that the prosecution has established that the deceased has died an homicidal death.
13. Re-Point No.2:
Prosecution in order to establish that the accused is responsible for the homicidal death of the deceased has placed reliance on the direct testimony of PW-1 & 5 coupled with PW-2 & 3 who came to the scene of occurrence immediately. Apart from the same, they have also relied upon Ex.P-7 dying declaration recorded by PW-9 Taluka Executive Magistrate and also the first information Ex.P-4 which has been recorded by PW-10 PSI immediately after recording Ex.P-7 by the Taluka Executive Magistrate at thehospital. The evidence of PW-9 reveals that on 31.10.2005 on receipt of a requisition from PSI of Thirthahalli police 16 station, he proceeded to the hospital and there he recorded Ex.P-7 of the deceased after ascertaining from the medical officer that she is in a fit condition to give her statement.
Ex.P-7 also bears the endorsement of the medical officer stating that it has been recorded in his presence and the deceased was in a fit condition to give her statement. It is further fortified from the evidence of PW-10 who has recorded Ex.P-4. His evidence shows that he received an intimation from the medical officer PW-7 as per Ex.P-3. He proceeded to the hospital. At the hospital after ascertaining that the deceased is in a fit condition to give statement, he took an endorsement on Ex.P-3 to that effect and thereafter he recorded Ex.P-4. In both Exs.P-4 & 7 deceased consistently has stated that it was the accused who set her ablaze after dousing with kerosene. In the cross-examination of PW-9 Taluka Executive Magistrate, PW-7 medical 17 officer in whose presence Ex.P-7 & Ex.P-4 was recorded, PW-8 who has conducted autopsy and PW- 10 PSI nothing has been elicited to discredit their testimony that Exs.P-4 & 7 is not the statement of deceased which has been recorded by PW-9 & 10 respectively. Apart from this, PW-1 who is the neighbour of the deceased and the accused who has no interest in either of them, has stated that on the date of occurrence while she was spreading clothes for drying, she heard some galata in the house of the deceased, after hearing the same she came to the house of the deceased, at that time she saw the accused threatening the deceased with dire consequences. Further her evidence also discloses the accused thereafter doused the deceased with kerosene and set fire to her. In the mean time, PW-5 arrived and she has also seen the accused dousing the deceased and setting fire to her. This evidence of PW-1 apart from being corroborated by the 18 testimony of PW-5 is also fortified from the evidence of PW-2 & 3 who claim that they came to the scene of occurrence immediately on hearing hue and cry of the deceased and when they tried to put off fire accused threatened them with dire consequences. In the cross-examination of these witnesses also nothing has been brought out to discredit their testimony. Evidence of these witnesses viz., PW-1 & 5 is also fortified from the recitals in dying declaration of the deceased which is at Ex.P-7 recorded by the Taluka Executive Magistrate on the very day of occurrence. Therefore, we are of the clear view that the evidence of the aforesaid witnesses coupled with the recitals in Ex.P-7 clearly establishes that the accused is responsible for the homicidal death of the deceased. Trial Judge on appreciating these materials, has come to the right conclusion in holding that the prosecution has established the charge leveled against the 19 accused. We do not find any justifiable reasons to take a different view than the one taken by the trial Judge as contended by the counsel for the appellant. As the findings of the trial Judge is based on facts and law, we do not find any merit in this appeal. Accordingly, it is dismissed.
Sd/-
JUDGE.
Sd/-
JUDGE.
R/261212