[\ TIlE HIGh CO RI 01 K \R\\ I AKA CfRCll I BI XCII \ I DHARW \I) I) TEE) FillS FH[ \y 1) E\\E t)1 PR I- S F \ I I I-IF HON’ BLE NIR [USTJCE K. SRJI1)1I \R RAO THF HQ\B1 F NIR IF STICE C RKK\IARAS\\ A\IY CRIMINAl. APPEAL. NO273S/2OO9 Bet w cc n: l)y anianna SI) KL11happa I tkkundi \a 40 eai, Ri \1a adi \ IIa und I)i t DI t K iF u In PL ) P u K t nit B l)hi. \‘ ad. Fhis ci imi nal appeal R prelel ied I 7 s. 74 2 of Cr Pf by the advocate har the dppellanl pra inc that thn lion ble Coui t na he pleased to call flit records in SC \ i. 1 3 1 /201 r from the file Of PrL Di’4i Lt Scions Judce Dhar ad, and set aside the ‘udgenetn lated’ 1 (UN pascti ‘n S(’ \o. J 3 1 fli r onvictilrn the appellant fr the oftence 1 Is 02 ot IPC and sentencing him to undergo iniprisonment for ide and to pay e of Rs. I 0,000/ in default of pa\ ment of tine, furthei to undergo Ri foi one eai for the said offtnce and aejtiit the appellant ot the tfence n itli hcli he has been Lon\ icted dud sentenc,ed, ‘l’his appeal coming on this da\ for final hearing. C R.Ku1na1a\\ amy J delL\ered the following: JiEN1 l hts ( Ilminal \rpeal o filed undet Section 7-h2 f CP C PI’l} lug to call tOT’ recOrdN in S(. \n. d I dgr ‘ i” 2(1— ‘,‘ ‘5 ( ‘\ ‘‘I() Li1’ ‘Lit a;p Ln rue uihahle ‘‘de’ Nec!c’u (I 0 3 2. One Rukmavva. wife of Dyamanna Kenchappa Lakkundi, aged about 38 years gave a statement before PW22-Vijay on 01.04.2007. She has stated in her statement that she was married to one Dyamanna Kenchappa Lakkundi about 15 years back and they have three children by name Majunath, 11 years, Renuka, 8 years and Siddappa 6 years. When the victim used to go for coolie work, her husband used to suspect her fidelity and also he used to abuse her saying that she does not know how to cook. That on 31.03.2007 accused - Dyamanna asked his wife to prepare Chapati with oil and two vegetable curries, for that she replied that there is no oil, then her husband scolded her and went outside. Again he came back at about 2.00 p.m. and abused her saying that she has not cooked food properly and took the kerosene oil which was in the plastic can and doused on her and by means of a match stick he lit fire. Then the victim fell on the ground. her body and thighs C-’ 4 wert burnt Fh reiatnn and neifhhour took hti to thi Iinpital. ‘ini.r. Ihere ia% no Do tor I1e ‘s as taken hack to th 1 1 ii •tdi 1 iji HtM I tlu%band I)amanna u’ed to pick up uuarrel on one nreteu oi the otlitc aying that if IH. vot foi tOOlk. work. he ttll meet other men. 1-k al’o used to coId bet sat3 ing that In. to not knox’ ) .ook proprI> and pour d kcroene on her and lit fire and attempted to kill het gac this taIement hetoic ut of Dr H Sh pa n ni md I 1.\l of the ‘ jetin: I s i i a Polic Statn’n i—gibtr’ted .t V I St .. .. 1[% •j it’ p4 3. ilie complainant PW’ ija i Ii pr ; 1 il-I. 2007 at about (16 01) p P i )‘ h-. - Stub 1npe ti’;. Na’ ‘l a:’Ufld 1 i ) oIi I C C’ a)ttl I%Iit 1. ii 4 -l ‘ it. h ‘c Ct 1 c \scused was haiassin; ihc. complainant b uspe tint he; 1mdelmt md miso n tht, ‘mound that slit.. he nn knw t c nt the t )oI pm p il’s Whn U mctmm uscd n o for c)Olmc work. accused un.d U 7 uspe” that ‘he ould talk ‘4 ith othem male person’ On 31 03 200 at ibout 14 00 horns accused picked up quumel witi thc ctmrn and pouied kerosene iii n icr bcdv and ct hit. thcmeb’s, tht accuscd i allcizcd to haic ommitted thc )t1enc. punishable under Sc Ho i 49H and 0 I Ind’ar Penal (nds 11 ç tor mndl’W 1W d 1 10 M I r I’ 6 7. PW2 — Suresh Fakkirappa lamar is also a panch witness and he has deposed that no panchanarna was prepared in his presence and he has also turned hostile to the side of prosecution. 8. PW3 — Ramachandra Laxmappa Hucchakenchannavar is an inquest pancha. He has deposed that he had seen the dead body, but he had not noticed the burns on the dead body and he does not know the cause of death. This witness has also turned hostile to the side of prosecution. 9. PW4 — Smt.Savakka Mallaoppa Rotti is the sister of deceased. She has stated in her evidence that Rukmawwa is survived by two sons and a daughter. CW7 - Manjunath is the elder son of Rukmavva. Rukmavva died due to the burn injuries about 1 year 7 months back at KIMS Hospital, Hubli. She sustained burns in her matrimonial house at Alagwadi. They were informed V I oer telephone b the nelghhou:% of the accused. Ihe’ ‘ient to klan’ adi upon receipt of the information and saw his sistem Rukmana ith bun injuries on her chest both arms and thighs She was taken to KIMS Hospital. Hubli She does not know hn Rukniana sustained burn injuries. She as not alied to act as pancha to the inquest panchanama, but her thumb impiession was taken on panchanama. She has also turned hostile to the side of proec ‘ition 10 PWS Manjunath Dyanianna Lakkundi is the son ot deceased lie states in his evidence that her mother died due to burn injuries about one year. 9 months di!O. He does not k,io j to ho et fire on bet. rue ‘elatinnship heteen his motliet ,nd tathc, ‘a’ toidial. Pus siti’ess aisti turncd luntjie t 1 ’i the id’ c’l j’flOst’ lit 11 ,,). A 8 11. PW6 — Veerappa Ningappa Takkadi is the neighbour and he has also not supported the case of prosecution. PW7 — Basappa Bhimappa Rangannavar is also a neighbour and he has also turned hostile to the side of prosecution. 11. PW8 - Dr. Shilpa is working as Associate Professor in the Department of General Surgery, K1MS, Hubli. She has stated in her evidence that since three years she was working as Associate Professor in the Department of General Surgery, KIMS, Hubli. Deceased Rukmavva wlo Dyamanna Lakundi was referred from Navalgund Government Hospital to KIMS, Hubli for further treatment on 01.04.2007. She admitted her as an inpatient. On II .05.2007 while undergoing treatment she expired at about 5.15 p.m. She had brought the entire case sheet pertaining to the admission and treatment of deceased Rukmavva consisting of 89 pages. It is marked at Ex.P8. She has further deposed that on the date of C, 9 admission of the patient i.e... on 01.04.2007, Naalgund Police had come to KIMS, Hubli at 5 0 p.m The aase a requi’.ition to gi’’ hei opinion as to the condition of patient in oidei to iecoid hei statement kccoidingl>, she examined the ictim and gae her opinion as she was conscious. oriented talking ielevantly hich is marked as Ex.P8(bb) Then. the Police Sub Inspector. Naa1gund Police Station recoided hei statement in her piesence trom 5 iO p m to 6 00 p m and it is marked as P9 and hei signature is marked at Ex.P9a). She Iuithei deposed that thumb impression of the patient as taken It is marked as Fx P9(b) She made in cndorstmc.nt or Lx P9 to the Ifect tb it thc st itemcnt a b r d i in it IF i. n and to I r titr c. dc Ct in i 1 ii mu rI 1 1 1uid I L s I k I E I0 that she never cooked proper food for him and that when they had the quarrel he alleged that she had kept old food for him. So he took a container containing kerosene and poured on her and lit the matchstick. She caught fire and fell down. While she was screaming. her son Manjunath and other persons came and took her to the hospital. This witness was cross examined at length by the learned counsel for defence. She has stated in the cross examination that she has not written in the case sheet the time when she was present and assisted the Police in recording the statement. Probably she was busy therefore she could not write the time in statement in Ex.P8 and Ex.P9. She denies the suggestion that at that movement of time there was no imminent danger to her life. It is true that within 24 hours it was unlikely to lead to her death. In this case the patient died due to septicemia. As the patient had suffered 55% burns, the exposed area had led to infection which has resulted in her death. The C- S 11 percentage of burns is assessed based on the rule of nine. i.e., both the ribs 9%, chest and abdomen each 9% (anteriorly and posteriorly), legs 9% (anteriorly and posteriorly) genitals 1%, head and face 9%. In this case assessment of burns was done by duty staff and later she also verified and found it correct. Except this nothing is elicited to discredit the testimony of this witness. 12. PW9 — Srishail Kallappa Madiwalar is the neighbour and he has turned hostile to the side of prosecution. PWIO — Laxman Siddappa Heggannavar and PW1 I — Shekhappa Yallappa Pujar are the residents of locality and they have also turned hostile to the side of prosecution. 13. PW12 - Smt. Manjavva Tippanna Minchalar is the sister of deceased Rukmavva. She has also not supported the case of prosecution. PWI3 - Vittal Tippanna Hadimani is the brother of deceased. He has 4 1 __1 r 12 also not supported the case of prosecution. PWI4 - Manjunath Gangappa Madangeri states that he brought the relatives of deceased Rukmavva in his vehicle from Chilmur in Ramadurg taluka to Alagawadi in Navalagund taluk, where she died. At that time Police conducted inquest panchanama. 14. PWI5 — Parashuram Yallappa Kale is the Police Constable who took photograph of the deceased. PWI6 — Basavaraj Shivappa Hugar carried the four sealed articles to FSL Bangalore. PWI7 — Venkataswamy is the Investigating Officer who gave requisition to add Section 302 of IPC in Crime No. 34/07 of Navalagund Police Station. 15. PW19 — Muttanagouda Giriyappagouda is the Doctor who conducted postmortem examination on the deceased Rukmavva. He has deposed that he received the requisition in form No. 146(1) and (2) which are marked I 13 at Ex.P.20 and Ex.P.21 by Police Constable Nt). 465 of Navalgund Police Station for postmortem examination of the dead body. The dead body is that of light brown complexioned moderately built, female, rigor mortis present all over the body. Peritonum and Mouth Pharynx and esophagus — IN tact and congested, Stomach and its contents: intact and congested — empty. No unusual smell present, Small and Large Intestine and liver were intact and congested spleen-intact. Burn injuries described are ante mortem in nature and constitute 40-45% of the total body surface area. Death is due to septicemia shock consequent upon burn injuries sustained. He issued postmortem report as per ExP22. There is no cross examination in so far as this witness is concerned. 16. PW2O — Yalagurappa Gundappa Divatager is working as Police Constable. He is the carrier of the original F.I.R. to the learned Magistrate and he handed over the same to the learned Magistrate. p w 14 17. PW2I — Shivabasappa Mahantappa Sandigawad has stated in his evidence that on 11.05.2007 he was incharge Circle Inspector of Police of Navalgund Circle and he took up further investigation of this case. He conducted inquest panchanama on 12.05.2007, recorded the statement and handed over the dead body to the relatives. 18. PW22 — Vijay Ashok Murgundi is the Police Sub Inspector. He was working from June 2006 up to April 2007 as Police Sub Inspector. Navalgund Police station. He has deposed that on 01.04.2007 when he was in the Police Station. ASI of Vidhya Nagar Hubli Police sent a fax message to the effect that a lady by name Rukmavva Dyamanna Lakkundi resident of Alagawadi is admitted to KIMS Hospital, Hubli with burn injuries. Immediately himself, Police Constable No. 470 and Police Constable No. 465 visited KIMS Hospital. The patient was admitted in the ward. He gave a requisition ‘A, 15 to the duty Doctor to ascertain whether the said patient Rukmavva was in fit condition to give her statement. His requisition is marked at Ex.P8(a) and his signature is marked at Ex.P8(c). On his request. the Duty Medical Officer namely Dr. Shilpa examined the patient and made an endorsement on Ex.P8(a) that the said patient was in fit condition to give her statement which is marked as Ex.P8(b). In the presence of PW8 - Dr. Shilpa, he recorded the statement of injured Rukmavva between 5.30 p.m. and 6.00 p.m. on 01.04.2007. He took signature of the duty Medical Officer - PW8. Ex.P9 is the statement recorded by him and he obtained the LTM of the declarant-patient. Ex.P9(b) is the LTM of the victim. 19. The injured in her statement has stated that her husband was suspecting her fidelity and on that ground he was abusing and assaulting her. He was also harassing her on the ground that she was not cooking the Li 16 food properly and on 3 1.03.2007 morning her husband asked to make chapatis but when she told him that there was no oil, her husband asked her to fetch oil from somewhere and went away and afternoon he returned home and picked up quarrel with her saying that she was not cooking properly and from a can he poured kerosene oil on her body and lit fire to her and when she was screaming, her son Manjunath poured water and extinguished the fire and her neighbours also gathered and shifted her to the Alagwadi hospital but since Doctor was not available, she was brought back home. On the basis of the statement given by the injured, he registered a case in Crime No. 34/2007 for the offence punishable under Sections 498(A) and 307 IPC against the accused and sent F.I.R. to the Court through Police Constable No. 586 which is marked as Ex.P23. On the same day. he visited the spot and drew spot panchanama and seized partly burnt blue coloured saree. half burnt blouse, half p 17 burnt red colour langa, a green colour plastic bottle with little kerosene in it. tinder panchanama Ex.P1. He subjected the properties to the property form. On the same day, he recorded the statements of PWs.5, 6, 7, 9, 10, 11.4, 12, 13 and 20. 20. On 07.04.2007, he apprehended the absconding accused at Alagawadi bus stand and brought him to the Police Station and arrested the accused and complied arrest formalities and produced him before the Court with remand application. He sent the seized articles for medical examination to the F.S.L. on 18.04.2007. On 18.04.2007 he handed over the case file to Police Sub Inspector - PW17 in view of his transfer. Though this witness was cross examined, he has denied the suggestions put by the learned defence counsel. ‘p 18 21. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused had denied incriminating evidence appearing against him. 22. The sum and substance of the finding of the trial Court is as under: The accused is charged for the offences punishable under Section 498-A of LPC. But there is no direct evidence in proof of this charge. In the cross examination of PW22. it is suggested to PW22 that since the accused was subjecting the deceased with ill treatment and harassment, being unable to bear the cruelty, Rukmavva herself poured kerosene oil on her and lit fire. This suggestion presupposes that the accused was subjecting the deceased to ill treatment and harassment during her lifetime in her matrimonial house. But there being no other clear and definite evidence establishing specific incident of cruelty and harassment, tt. ‘4 19 merely on the basis of such suggestion no finding could be recorded for the offence punishable under Section 498-A of IPC. Hence, there is no sufficient evidence to establish the guilt for the offence punishable under Section 498-A of IPC. However, in so far as the offence punishable under Section 302 of [PC is concerned, there is clear and convincing evidence establishing the guilt of the accused. Therefore the trial Court convicted the accused for the said offence. 23. We have heard learned counsel appearing for appellant as well as learned State Public Prosecutor for the State and perused the records. 24. It is the contention of learned counsel for the appellant that all the material witnesses have turned hostile. If proper medical treatment were given to the deceased, she would have survived. Therefore the offence may not fall under Section 302 of IPC and it may t. ‘P 20 fall under lessei offence Therefore. learned counsel appearing for appellant pras to modifs the lindin2 tecorded by the triil Court 25. On the othet hand, learned State Public, Piosecutor submits thu the case is b’tsed on dying declaration recorded by PW22 in the presence of the Doctor In In P8, the history furnished by the ictim re’eals that the alleged homicidal burns found on the injured victim on 31 03 2007 clearly points that homicidal death ot victim is caused at the instance of accused rhis aspect has not been challenged nor any iebuttal e’.idence is adduced in this regard 6 PW Vips hok ‘slur uidi hc. Pt c. II ui 1 I I c 1’ ) 1 ‘I e idence to the effect that since the ictim did not prepare proper food. accuscd poured kerosene oil on her body and stt fire to hei tonsequentI she sustained burn injuiies and subsequently she died due to septic.emia shock due to burn injuries The esidence ot PW8 Dr Shilpa and PWI9 Dr Muttanagouda Giriyappagouda, who conducted postmortem examination on the dead body of sictini and PW22 Vijay Ashok Murgundi. the Police cub lnspectoi who recorded the statement of ict’m clinchingly establish the guilt ot accused. fhough the contention taken by the learned defence counsel at this stage that it thc vic.tim ‘sa’ treatcd properly she would ha’, been ur ci ut u t dclcnc ha iot bcei roagh u urinc. tIn. uis t in c air rat n c II r 22 course of cross examination by the learned counsel it is elicited that the condition of the ictim was stable on the late of ‘ecoiding the statement 28. We hate carelully perused the eidence and al’o the finding recorded by the trial Court The learned SPP invited the attention of this Court to Fxplanation 2 01 Sec 299 of I.P.C which is extracted hereunder ‘Where death is earned by hndily injury the peron ho causes sut.h bodily injury shall be deemed to have caused the death although b resorting to proper remedies ‘md skilful treatment the death might ha’e been pies ‘nted’ ‘9 Tbc pier tha by hasrita urse ) pi pti eatmr I odx lasora )tt u Ii j J the find in e recorded by the trial Co urt is sound and proper and does not call for interference. Accnrdin] \\ e pass the fol!o\\ 1nT: ORDER This Criminal Appeal is dismissed. SdI 3UDGE sat 3UDGE 13V V