1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 8 TH DAY OF DECEMBER 2010 PRESENT THE HON’ BLE MR. JUSTICE V.G. SABHAHIT AND THE HON’BLE MR. JUSTICE B.V. PINTO CRIMINAL APPEAL No.675/2007 BETWEEN: NINGAPPA GOVINDAPPA NAGAM MAN NAVAR, Sb GOVINDAPPA NAGAMMANNAVAR AGE:30 YEARS, 0CC: AGRICULTURIST RIO HALAGEITI TALUK RAMADURG DISTRICT: BELGAUM. APPELLANT. (BY SRI MALLIKARJUN S. MASALI, AMICUS CURIAE) AND: STATE OF KARNATAKA BY RAMDURG POLICE STATION, BELGAUM, REP., BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE 560 001. RESPONDENT (BY SRI A.R. PATIL, LEARNED ADDITIONAL STATE PUBLIC PROSECUTOR) * 2 CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF ThE CRIMINAL PROCEDURE CODE BY THE ADVOCATE FOR ThE APPELLANT AGAINST THE )UDGEMENT DATED 19.02.2007 PASSED IN S.C. No.219/2002 ON ThE FILE OF ThE PRESIDING OFFICER, FAST TRACK COURT, RAMADURG, CONVICTING ThE APPELLANT / ACCUSED No.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A OF IPC, 302 OF IPC AND SENTENCING HIM TO UNDERGO R.I. FOR ONE YEAR AND PAY A FINE OF Z 1,0001= FOR ThE OFFENCE PUNISHABLE UNDER SECTION 498-A READ WITH SECTION 34 OF IPC., IN CASE OF FAILURE TO PAY ThE FINE AMOUNT, HE SHALL FURThER UNDERGO R.I. FOR ONE MONTH AND FURThER SENTENCING HIM TO UNDERGO R.I. FOR LIFE AND PAY A FINE OF 1,000/- AND IN DEFAULT, R.I. FOR ONE MONTH FOR THE OFFECE PUNISHABLE UNDER SECTION 302 OF IPC, SO FAR AS ACCUSED No.1 IS CONCERNED, BOTh SENTENCES SHALL RUN CONCURRENTLY. ThIS CRIMINAL APPEAL COMING FOR HEARING ON THIS DAY, B.V. PINTO 3., DELIVERED THE FOLLOWING: 3 JUDGEMENT This appeal has been filed by accused No1 in Sessions Case No219/2002, challenging the judgment dated 19O22O07 passed by the Presiding Officer, Fast Track Court, Ramadurg, convicting accused No1 — appellant herein for the offence punishable under Section 302 of the Indian Penal Code and further convicting him for the offence punishable under Section 498-A read with Section 34 of LPC, along with accused Nos2 and 3 and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of 1,000!- and in default of payment of fine, to undergo further rigorous imprisonment for one month for the offence punishable under Section 498-A read with Section 34 IPC, and further sentencing him to undergo rigorous imprisonment for life and to pay a fine of 1,000/ and in default of payment of fine, to undergo rigorous imprisonment for one month for the offence punishable under Section 302 of IPC. The Fast Track Court has ordered that both the sentences shall run concurrently 7 .4 4 2. The case of the prosecution Is that accused No.1 — Nlngappa Govlndappa Nagammannavar Is the husband of the deceased Laxmi. It is alleged that accused No.1, being the husband of deceased Laxmi and accused No.2 — Kamalawwa and accused No.3 — Sadeppa Govlndappa Nagammanavar, being the mother and younger brother of accused No.1 respectively, subjected LaxmI to cruelty by willful conduct, which was of such nature as was likely to drive Laxml to commit suicide and thereby, he Is alleged to have committed the offence punishable under Section 498-A of IPC. It Is further alleged that accused No.1 committed murder of the said Laxmi Intentionally on 20 th March 2002 at about 11 a.m. in his house situate In Halagatti village by setting her person ablaze by pouring kerosene on her and thereby, he Is alleged to have committed the offence punishable under Section 302 of IPC. The offence came to be registered on the basis of the statement recorded by the Police of the victim — Laxml in the hospital. It is stated In the said complaint by Laxmi that accused No.1 and herself were In love with each other and they had married with each other a I 5 against the will of their family. It is stated in the complaint that after about one year, the parents of the deceased got their marriage registered and after the marriage, she had been to the house of her husband. In that house, her mother-in-law, father-in-law and brother In-law were residing together with him. After some days, her mother-in-law and brother-in-law started harassing her stating that she belonged to some other caste and they were abusing her. Her brother-in-law had assauited her for about two or three times and on account of the same, herseif and her husband — accused No.1 were living separateiy. In the mean time, she became pregnant and gave birth to a female chlid. However, about one and a half month after the birth of the said child, her husband started quarrelling with her stating that she had given birth to a femaie chiid and had not given birth to a male child. She had Informed the said fact to her neighbour - Nagammannavara Satyawwa Badu, who had come and advised her husband not to ui-treat her. The complainant has further stated that as on the date of the inddent, i.e., 20.03.2002 (Wednesday) at about 5 a.m., when she woke 6 up her husband and asked him to go to field for work, he abused her stating that she had given birth to a female child and he would not go to work, for which, she also abused him. Thereafter, the quarrel went on till about 10 a.m. Thereafter, at about 11 a.m., her husband, who had gone out, returned to the house and held her both hands and poured kerosene on her with his right hand. He dragged her near the kerosene lamp and thereafter, he lit fire to her saree. Her saree started burning and she raised hue and cry. At that time, her husband locked the door of the house from outside and she had sustained injuries by the said fire. Thereafter, her neighbours — Venkappa (PW.17) and Nagammannavar Badu came to the spot and tried to put off the fire by pouring water. The said information was given to Shekawa Choukad, her mother (PW.4), who came to the place of occurrence and they shifted her in an auto-rickshaw to the Ramadurga Hospital. She had sustained burn injuries on her face, chest, stomach, hands and legs. She has stated that her husband — accused No.1 had attempted to kill her and requested for action. The said statement was recorded by S 7 PW.25 - Madlvalappa Sankada, P.5.1. Ramadurg Police Station as per Ex.P26. PW.22 — Dr. Ningappa Basavanthappa Bannigidada has attested the said statement of Laxmi, the deceased and he has endorsed In the said Ex.P26 to the effect that the said statement was recorded before him on 20.03.2002 at 4 p.m. in his presence and he has signed the said statement. On the basis of the said statement of Laxmi (Ex.P26), case was registered by P.S.I. (PW.25), Ramadurga, in Crime No.29/2002 for the offence punishable under Section 498- A read with Section 34 of IPC. On the same day I.e., 20.03.2002, the Tahsildar was Informed by the P.S.I., Ramadurga about the incident. Since Tahsildar had been to Belgaum on office work, PW.14 — Maillkarjun Hiremath, Deputy Tahslldar, Ramadurg, arrived at the hospital and recorded the dying dedaration of the injured Laxmi In the case as per Ex.P15 . It Is stated by Laxmi before PW.14 — Deputy Tahsildar that her husband — accused No.1 held both her hands and dragged her near the kerosene lamp and set fire to her saree. Further, PW.22 - Dr. Ningappa Basavantappa Bannigldad has given first aid to Laxmi and 8 he has Issued a wound certificate as per Ex.P24 and has made entry In the M.L.C. register about the injuries sustained by Laxmi and the first aid given to her as per Ex.P25. It Is the further case of the prosecution that Laxmi, the deceased succumbed to the injuries and died on the same day. Thereafter, P.5.1, (PW.25) has sent intimation to the Court for adding Section 302 of I.P.C., to the earlier F.I.R. transmitted to the Court. PW.24 — Deepak Nishakanth Shettannavar, Deputy Superintendent of Police has conducted investigation in the case. Thereafter, he has filed the charge-sheet against all the accused persons. After securing the presence of the accused before the Court and framing the charge against the accused, the prosecution In order to prove the case, has examined in all 25 wItnesses and has got marked Exs.P1 to P35 and produced M.O. Nos.1 to 9. The defence of the accused was one of denial and accused No.1 has got marked Ex.D1, being the PS. form of Laxmi, the deceased. After hearing the prosecution and the defence, the learned Sessions Judge, by judgement dated 19.02.2007, was pleased to hold that accused Nos.1 to 3 are guilty of 6 9 offence punishable under Section 498-A read with Section 34 IPC., and accused No.1 was further guflty of offence punishable Section 302 IPC., and imposed sentence on them as stated above. 3. Being aggrieved by the said judgement of conviction and sentence passed by the Fast Track court, accused No.1 has filed this appeal, whereas, accused Nos.2 and 3 have not filed any appeal challenging their conviction for the offence punishable under Section 498-A read with Section 34 I.P.C. 4. During the hearing of this appeal, it was observed that accused No.1 - appellant herein had not engaged any counsel. In view of the fact that the appellant was secured by us by issuing warrant on 30.1L2010 and he did not choose to engage any counsel even though two days time as sought for by him was given to engage a counsel, Sri Mallikarjuna S. Masali, the learned counsel was appointed as amicus curiae to present the case of the appellant by order dated 06J22O1O. 1 10 Accordingly, we have heard Sri Malllkarjuna S. Masall, amicus curiae for the appellant and Sri AR. Path, the learned Addi. State Public Prosecutor for the respondent. 5. Sri MallikarJuna S. Masall, who is appointed as amicus curiae in this case submits that the evidence of the witnesses Is not Inspiring confidence In the mind of the Court. PWs.17 and 18, neighbours of Laxmi, the deceased and accused No.1 and who were the witnesses to speak regarding the ill-treatment meted out to Laxmi by accused No.1, have turned hostile to the case of the prosecution. Similarly, PWs. 6 and 8, who are also neighbours of the accused have not supported the case of the prosecution. Further, the eiders of the village - PWs.9 and 10, who were instrumentai in getting accused No.1 married with the deceased Laxml after elope, have not supported the case of the prosecution. Therefore, the learned counsei submits that the entire case of the prosecution rests on the evidence of the neighbours of Laxmi, the deceased and accused No.1 and there Is no Independent witness to support the case of the prosecution. Under the ‘p 11 circumstances, he submits that the order of conviction passed by the learned Sessions Judge is liable to be set aside and the appeal may be allowed. 6. On the other hand, the learned Additional State Public Prosecutor appearing for the State submits that the material on record, more particularly, two written dying declarations: one made by Laxml, the deceased, before the P.S..I., Ramadurg (PW.25) and the Doctor (PW.22) and the other dying dedaration made by her before the Deputy Tahsiidar (PW.14) and also her oral dying declaration made before her mother (PW.4) and her brother-in-law (PW.5) amply corroborate that it is the accused and the accused alone, who has set fire to Laxml, the deceased. Therefore, the finding of the learned single Judge that accused No.1 has committed the murder of Laxmi, the deceased on the date of the Incident, has been clearly establIshed by the prosecution. He, therefore, submits that the order of conviction passed by the learned SessIons Judge may be confirmed and the appeal may be dismissed. 12 7. After having gone through the material on record and also the submissions made on either side, the points that arise for our determination in this appeal are: 1. Whether the judgement dated 19.02.2007 passed by the trial Court convicting accused No.1 — appellant herein for the offences punishable under Sections 302 and 498-A read with Section 34 of IPC and sentencing him, Is justified? 2. What order? We answer the above points for determination as follows: - Point No.1 : In the affirmative Point No.2 : as per the final order for the following : REASONS 8. Out of the 25 witnesses examined by the prosecutIon, PWs.1 to 3, 6 to 10, 17 to 19 have turned hostile to the case of the prosecution. Therefore, we are left with the evidence of the other witnesses. 4 13 9 PW.4 — Shekavva Choukad Is the mother of Laxmi, the deceased. She has stated before the Court that Laxmi, the deceased and accused No.1 — Ningappa Govindappa Nagammanavar were loving each other and they had left the village for about 15 days. With great difficulty, they secured them and after continued negotiations with the elders, they had performed the marriage of their daughter with accused No.1 at the Sub- Registrar’ s office at Ramadurga. After the marriage, her daughter went to the house of the accused and about three months thereafter, there was no quarrel between them. Subsequently, accused No.1 started quarrelling with her daughter. Her daughter gave birth to a female child. Their caste is different from that of the accused. On account of the caste difference, the accused Nos.1, 2 and 3 were assaulting and abusing her daughter. Her daughter was telling the harassment given by the accused. Her daughter was doing tailoring work. They gave a sewing machine for her livelihood. Twice, she requested accused No.1 to treat her daughter properly. The accused No.1 did not heed to her request and abused her. After one month I 14 of the birth of the child, she had gone to Ramadurg to collect salary. While returning to Halagatti, one Walikar told her that her daughter sustained bum injuries. She went to her house to inform her family members. There was nobody in the house. Then, she went to Bank in their village. Her family members were not in the Bank. Thereafter, she went to her daughter’ s house along with PW.5 — Basappa Haul and she saw that her daughter was crying as she had sustained bum injuries and she was asking for water. She asked her daughter about the incident. Her daughter asked her to take her to the hospital. When she gave water, her daughter told her that her husband — accused No.1 had set fire to her. Then, she called the elders and shifted her daughter in an auto rickshaw to the Government Hospital at Ramadurg. It Is in her evidence that the Tahsildar and P.S.I., were present in the hospital. They asked her to take her daughter to Hubli for further treatment. Police Constable also accompanied them to Hubli Hospital. They went in a Jeep. Doctor of K.M.C. Hospital declared her daughter dead. Thereafter, P.S.I. of Ramadurga came to Hubil hospital and prepared 15 the panchanama and when he enquired about the cause of death, she told what her daughter had suffered. After post mortem examination, the dead body was given to her. She has Identified the marriage certificate of her daughter as per Ex.P2. In the cross-examination of PW.4, It is elicited that accused No.1 is uneducated and father of accused No.1 had no land and was working as a watchman in the land of Doctor of BiligI. Accused No.2 was working on daily wages. Accused No.1 — Ningappa was working In the land of Mallappa Halemani of Kilabanur on weekly wages. The said Mallappa Halemani is a professIonal agriculturist and he grows sugarcane. It Is further elldted that Lakshmi had studied up to 6 th standard. It is elidted that a female child by name Pushpa is born to her daughter through accused No.1 and the said grand daughter is in the custody of accused No.1’ s father and studying in Anganawadi school. It is further eIidted that she has not convened panchayat regarding the assault on her daughter by accused No.1 — Ningappa and accused No.2 — Smt. Kamaiawwa. She has also stated that she has not met any elders, who negotiated her daughter’ s 4. 16 marriage to inform about the harassment given by accused No.1 to her daughter — Laxml. It is elldted that she did not tell accused No.2 — Kamalavva or father of accused No.1 about the harassment given by accused No.1 to her daughter. She has denied the suggestion put to her that she Is deposing falsely before the Court and that she has not enquired the people, who assembled In the house of accused No.1 regardIng the cause of death of her daughter as she was in a Bank on the date of the Incident. It is elicited in her cross-examination that P.S.I. and Doctor enquired her daughter In the hospital about the cause of death and they have recorded the statement of her daughter. It Is also elicited that PW.14 — Deputy Tahslldar was also present in the hospital and he has recorded the statement of her daughter. 10. PW.5 — Basappa Haili is the brother-in-law of Laxmi, the deceased and husband of sister of the deceased. He has also stated before the Court that accused No.1 married the deceased after loving her and thereafter, the village elders and parents of Laxml and 17 accused No.1 got together and got the said marriage registered. After the said marriage, Laxmi, the deceased went to the house of accused No1, resided with him and she became pregnant and in the meantime, the accused were harassing Laxmi regarding her caste and were abusing her stating that accused No.1 should not have married Laxmi, Thereafter, his sister-in-law gave birth to a female child and after the birth of the female child, they were insulting her stating that she should have given birth to a male child. About four and half years prior to the date of his deposition, one Venkappa came and informed them that Laxmi had suffered burn injuries. Thereafter, they immediately went to Halagatti and informed the elders, who had negotiated for the marriage. Thereafter, they went to the house of Laxmi and saw that she had suffered burn injuries. She was speaking. There was kerosene oil can and half burnt artides in the house and when they enguired Laxmi, she stated that her husband and mothertn-law poured kerosene and thereafter they set her to fire and closed the door and went away. Immediately they shifted her to the Government Hospital 18 at Ramadurg. The Doctor advised them to take her to Hubli hospital. Police had come to the hospital and they had enquired regarding the cause of her death. Laxmi gave her statement and signed the said statemenL Lakshmi was sent to Hubli along with the Police and on the way, Lakshmi was alive. However, by the time she reached Hubli Hospital, she had succumbed to the injuries Thereafter, postmortem examination was conducted. He has given statement to the Police. In the cross- examination of PW5, it is elicited that since both the accused No1 and Laxmi, the deceased jointly informed them that they would like to marry each other, they had arranged the marriage after their elope by loving with each other. It is also elicited that the marriage has not taken place according to the customs of their caste. It is further elicited that about two to three months prior to the delivery of the child, the accused were ill-treating Lakshmi and the said fact was informed to them through his mother-in-law. He has denied the suggestion that whatever he has stated before the Court has not been stated by him before the Pohce 19 IL PW.11 — Dr. Jagadeesh has stated before the Court that from August 1998 to 2002, he was working as Lecturer, Forensic Medical Science, A.I,M.S, Hubli. He has stated that on 2L03.2002, he received requisition from P.SI. to conduct postmortem examination over the dead body of Laxmi, wife of Ningappa Nagammanavar and he conducted the postmortem examination between 2:00 pm. to 3:00 p.m He has opined that there were superficial to deep burnt injuries over the face, neck, chest, upper abdomen, back of mid and lower abdomen, genital, both upper limbs, both lower limbs, except axillae, cubital forss, palms, poplideal, fossa and fores of feet. He has stated that the injuries sustained by Laxmi, the deceased were 75% to 80% and he has issued the postmortem examination report as per ExP8 He has opined that death was due to shock as a result of burn injuries sustained. Nothing has been elicited in his cross examination to disbelieve his evidence 12. PW12 - Budivant was working as Police Constable at Ramdurg Police Station He carried the dead 20 body of Laxmi and handed it over to her relatives. In that regard, he has given report in the Police Station as per Ex.P10. 13. PW.13 — Basayya is the Police Constable, who has taken the photographs of the scene of occurrence i.e., the house of Laxmi, the deceased in different parts. The said photographs are marked as Exs.P11 to P14 and the concerned negatives are marked as per Exs.P11(a) to 14(b). He has given statement before C.P.I., that plastic can is visible in Ex.P14. 14. PW.14 — Mallikarjun is the Deputy Tahsildar of Ramdurg Taluk, He has stated that on 2O03.2002 at about 3:35 p.m, he received requisition from P.S.I., Ramdurg to record the dying declaration of injured Laxmi, who was admitted in the Government Hospital, Ramdurg, with the history of burns. He has further stated that on that day, Tahsildar had been to Belgaum and he was in charge Tahsildar and in the absence of Tahsildar, he used to do the work of the Tahsildar entrusted to him. On 21 receipt of the requisition, he reached the hospital and at that time, relatives of Laxmi, the deceased and others were present. She was kept on the table and Doctor was also present and he asked her relatives to go out of the room. He had carried dying declaration proforma along with him. He enquired the victim Laxmi, who was made to sleep on the table. He asked her as to whether she was in a position to give statement and she answered in the affirmative. Then he asked her as to whether she was in a position to talk, for which, she replied in the affirmative. Then he asked her as to where she was kept. The injured Laxmi answered that she was in the Government Hospital. When he questioned the injured as to who had brought her to the hospital, she replied that she was brought in an autorickshaw to the hospital by her mother and mother’ s brother and she has further stated that the autorickshaw broke down on the way and she was brought in another vehicle. When he (PW.14) asked the injured as to who was the assailant, she to’d him that her mother-in-law, brother-in-law and husband iW-treated her and poured kerosene on her and set her to fire. She also told him the 22 name of accused No.1. As she was leading life with her husband, she told the name of her husband as the assailant. When he asked the injured Laxml as to how she had sustained the injuries, she told that in the morning, when she called her husband for break-fast, he abused her and pulled her hand and poured kerosene on her and set her on fire. When he asked about the weapon used, she told him that ‘kerosene benki kolli’ was used. When he asked the injured as to on which parts of the body, she was assaulted, she told that kerosene was poured on her body and she showed the burn injuries sustained on her face, hands, legs and waist. She has further stated that her husband pulled her both hands, poured