(‘RL.\.No. 172’) 2007 .1. IN THE HIGH cC )I’RT OF KARNVflKA T CTR( bIT BF.’%C.ILDHRWI) I)U1’D IHISTIIF3O D4Y )F N(VIMBFI )O’O ThE ‘l’flBLL .JK..ILSIICL .u.SBHAhIl AM) TT4E HON’BLE MR.JUSTIC E B.V PiNTO CRL k.Ni) 17)9,2007 BWIWEF,N: 13ASAVARAJ S, 0 HLJLUGAPPA kC3ED ABOUT 47 YEARS VADDARA CASTE Rg() NEAR PC flflApk4 \IATH. SIRIJGUPPk E3FUAPY D1STRK’l IPPF1 I 4NT sIW SRI TI R HOC )U (A %lIc 1.9 CR1AE.. D ANTt ThE Vjfl,TT ( C.. IRUG .j’f’A PC La ‘ , r.y’ SLRI. T G’JPT’A P ‘1Ci •-I ‘‘ iW $‘T R.FAT’. f,T;L %Pj’. 1 14L ,‘l A I I rIY ,141’ A(( $L”’ 14 LA IEr’E.N I RAS.\6 Ilij VI1J inqjr ç’.’ ‘v ;‘ E T1 LE 1 •Fu C I I t I A”i N’ I... C .. 2 (;s._. ..‘ P S’L’’ R rIP ‘•1 I .. t;EL 1 _Ar —f \ , j *1 )(fl C’ NIrhiN; 4 1-tiM “ IF’’ F • Pt a ‘‘t i. cF I ‘.‘ ‘ r - 4 r All 1 ft CRL..A.No. 1729/2007 :2: JUDGMENT This appeal is filed by the accused in S.C.No.191/2006 on the file of the Presiding Officer, Fast Track Court-I, Bellary, dated 25.08.2007 wherein the accused-appellant herein is convicted of having committed the offences punishable u/ss.504 and 302 IPC and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default to pay the fine to suffer further rigorous imprisonment for one month for the offence punishable u/s 504 of IPC. Further, he was punished to suffer rigorous imprisonment for life and to pay a fme of Rs.5,000/- and in default of payment of fine, the accused shall suffer further rigorous imprisonment for one year for the offence punishable under Section 302 of IPC. The period of detention undergone by the accused person during the enquiry and trial is ordered to be set off against the substantial sentence imposed on the accused person as per Section 428 of Cr.P.C. CR.L.A.No.l72).2OO7 2. The material facts of the case leading up to this appeal with reference to the ranks of the parties before the sessions court are as follows: The aceused/ appellant herein stood charged before the trial court on the accusation that on 28.10.2001 at 2.30 p.m. in the house of the accused which is near Roddappa Math at Siruguppa, demanded the amount from his wife Hussainamma for consuming liquor by abusing her in filthy language using the works ‘Le Middaraguttida Sule’ and insulted and provoked her to commit the breach of peace and thereby the accused committed the offence punishable u/ss504 of IPC and that the accused. on the above said date, time and place demandccl the amount from his wife namely Hussainamma for consuming the Ii uor and wlien she did not fulfill his demand, with a.n inter tion to kill her pou.red ].cero.s.ene on her and set her on fire and due to the burns she succun. bed to the injuries on 29.1020Ol at Qfl orn CRL.A.No.1729/2007 :4: ‘—a in VIMS hospital, Bellary and thereby he committed an offence punishable u/s. 302 of IPC. 3. It is the case of the prosecution that Hussainamma was the wife of the accused and they have two children namely PW-1 Hulgemma and PW-4 Dodda Basavaraja. It is the case of the prosecution that the accused was addicted to consumption of alcohol and, was demanding money from his wife for gratifying his need to consume liquor and abusing and threatening his wife. It is the further case of the prosecution that on 28.10.2001 at about 2.45 p.m. when Dr.Mahantappa Shabadi was on duty in the hospital, the injured by name Hussainamma and her daughter Hulgemma were brought to the hospital for examination and treatment. Emergent treatment was given to the injured Hussainamma and immediately thereafter at about 2.45 p.m., intimation was sent to the PSI as per Ex.P.10. The PSI, Sri.G.Harisha on receiving the intimation as per Ex.P.l0, went to the hospital and (‘RI ,ANo,I729 2007 :3, sa both the injured and inquired PW 8 whether Hussainamma was in a position to give statement and since the Medical Officer who attended to the injured said that the statement of Hussainamma could be recorded, he recorded her statement/complaint in the presence of DrMahantappa Shabadi. Hussainamma has stated in her statement that she was married to the accused about 20 years ago and that they have got four children, Since 4 to 5 years, her husband was living on the income earned by her children and he was addicted to drink alcohol and demanding them to pay money On the date of incident at about 2 30 p m hile herself her husband and Hulgemma crc n the house her husband started quarrelling for payment of he oohe amount for rnsum n hquo a she xpi sed her bilit t p a a I a n pa I e I eh Id xp h i Vised used r t I CRL.A.No.I 729t2007 :6: kerosene oil and lit fire to her and she started burning. She came out of the house and asked PW- 1 Hulgemma to extinguish fire. In that process, PW- 1 also sustained burn injuries on her hands and right side of her neck. Thereafter, Hussainamma was shifted to the hospital along with Hulgemma. Thereafter, PSI came to the hospital and she gave her statement as per Ex.P. 10. On the basis of the said complaint, PW- 16 returned to the police station and registered the case in Cr.No. 195/200 1 for the offences punishable u/ss. 307 and 504 of IPC and sent the FIR as per Ex.P. 19 to the jurisdictional court and copy of the same to his superiors. On the same day, he gave a requisition to Taluka Executive Magistrate for recording the dying declaration of Hussainamma. On receipt of the requisition, the Taluka Executive Magistrate PW-10 went to the hospital and again made enquiry with PW-8 as to whether Hussainamma was in a position to give the statement and when the doctor said that Hussainamma was in a position to give statement, he CRLA.No. I 729t2007 :7: recorded the statement of Hussainamma in the form of question and answer wherein she has clearly stated that her husband poured kerosene on her and lit fire to her and that her husband was demanding money for drinking liquor and since amount was not paid, he poured kerosene and lit fire. The said statement was recorded as per Ex.P.13 in the presence of Dr.Mahantappa Shabadi Math. In the said statement, the doctor has certified that Hussainamma was in a fit condition to give the statement and certified the same under his signature. Thereafter, PW- 16 secured the presence of panchas and PW- 1 Hulgemma and in their presence conducted the Spot Panchanama and during the panchanama he seized the articles M.Os. 1 to 4 being half burnt match stick, half burnt match box, plastic can and half burnt piece of saree under Ex.P.8. On the same day, recorded the statement of PWs-2, 3 and 11. He along with his subordinates searched for the accused. But could not trace the accused. On 29. 10.2001, they received a wireless C’RLANo. 1729/2007 :8: message stating that Smt,Hussainamma who was undergoing treatment in the VIMS hospital died at about 6.00 am, The wireless message received from the PSI is marked as Ex.P,20. Thereafter, he submitted a requisition to the court for alteration of the charge from Section 307 to 302 IPC and sent the modified FIR. On the same day, he conducted inquest panchanama over the dead body of Hussainamma in the presence of PWs7 and 14 as per Ex,P,9, He got the post mortem examination of Hussainamma conducted through PW9 as per Ex,P, 14. However, the investigation was handed over to Sri.Chinnappa, Dv.S.P,PW7. PWJ.7 verified the investigation already conducted. He sent the seized articles to FSL. He received the FSL report as per Ex.P,22. Afte.r completing the investigation, he filed the charge sheet against the accuse.d showing him as absconding. On 2.0.11.2006 the accused was arrested by CPI by name Maligi and produced him before the court Charges were C nst b’ ng c CRLA.No,1 729/2007 punishable u/ss.504 and 302 IPC The accused pleaded not guilty and claimed to be tried. The prosecution in all examined PWs-i to 17 and got marked Ex,P.i to Ex,P22 and the articles seized were marked MOs. 1 to 4. Statement of the accused u/s 313 of the Code of Criminal Procedure was recorded, On behalf of the accused, no oral or documentary evidence was produced and the defenc.e of the accused was that Hussainamma suffered accidental death and that a false case has been filed against him, The trial court after considering the contentions of the learned counsel appearing of the parties and appreciating the oral and documentary evidence on record by order dated 25.08.2007 convicted the accused of havn committed offences nunishable u/ 55.504 and 302 1PC and sentenced the accused as aforesaid. Being aggrieved by the said judgment and conviction, the accuse has flreferIed this appea. rn CD CD -j CD :4 CD CD 0 CD CDr CD CD CD -I0 CD 0 CD CD CD >4 CD ) 0 cs rn ) Q t < 0 C) 0 CD CD a g R I CD 9CD r C 0t CD IID ) + CD 3 D 4 D) 0 CD CD .4 0 CD C) CD 3 C) CD CD CD 1) C) v Lr CD CD p * CD CD 0r 44 5: :i 0 CD r0 0 0 CD Z 0 CD 0 CD 4 * r+ 0 CD C) CD $D CD f) CD CD CD I CD CD CD 0 0 * 0 CD 0 ‘‘ CD 0 CD * c CD CD CD CD CD CD’. CD0 0 0 CD N — CD CD N N) N N N CD N N N -; - 0 N -- N N N- N N) N N c% N Ci) (N N . c. N CD - N - CD CD 0 CD CD N .. N N — N N D:D N- N N CD j N- CD N CD N N N 0 N N N N N) N c) N N. N N CD N- o N CD N 9 N-CDCD CD N N N. N .. N N N . (. — CD C N N N cTQ N N N N N N N- N N- CD q N N N 9 a N- N 0 X N N- N %• < N N- N N N N . N- N 9 N <C N N- N N . N N N N 9 N N N ,. 0 0 N • N- N 9 < N a N N N N — N- N . N N 0 N H — N . .. N N N •. N N N N- N .. N N N N N N- N N N- N * N N . N N N N N N N N N N $ 9 N, N - c N N N9 9 —, . N N N N N- N N- N N- N N N CD <,,< N N . N- N N- . N N N N, N . N N N- 0 CD’ N N- N N- N- .. - N N — . N CD N .. N 9.j No 9 NN- N- N C N N N N- CD. (1 N N- N- CD N N a N 0 N . 9 cT N- N 0 0 N N N N N N N N 9 9 N N- N- N- N N ... — N- N- N N < N 0 N N N N- a, N N N N N . N N N N- N- N C N S N < r N- N- ÷ N- N- N- N , ., ..: , N N- N N C N- C’ N N N N- N N N- N CR1 .A\oJ 729 2007 12 Point No.U We answer that he finding of the trial court is justified, Point Noii In vix it our answer tu Point No i), tiìc appeal is 1able to be dismissed as per the final oider. 8 We have given our careful consideration to the contention of the learned counsel appearing for the parties and scrutinized the matereial on rcord The piosecution is relying upon the evidence of PWs I to 1 7 and also the documentar evidence ExPi to ExP.22 and M,OsJ to to bring home the guilt of the accused PW I is th daughtet of Hussainamma 9h has ft posed n her xarnmati n ir C hu f th a ft c c cused is rer lathr ad Hussat amma 5 ci otlar I) i au V /°‘V s 1i d bio wr atd sIari W sfr ih n 53 kors V s 3 t ‘. ar a u s Hr n iagt r as ihe ri: a a \CutS ak Fk n er arraa us raI a a1i hi: ar Is rail hrr I h CRLANo. I 79!2OO7 13 her mother was doing coolle work. her elder brother was doing masonry work and that about six years hack (witness examined on 5. O62OO7) her mother died at Bellary Hospital due to burn injuries sustained by her in their house. On the date of the incident, her father had returned back to the house at about 12 noon and she had gone to watch TV. in her neighbours house And that her mother was preparing food and her brothers had gone for their work, After hearing the noise from her house, she hurriedly returned back and saw here mother caught fire and she extinguished fire and in that process she also sustained burn injuries on her hands and neck, At the relevant point of time her father had gone out of th.e house in order to bring amount from others. Thereafter, herself ard her mother were shifted to the hospital by their neighbours. She does not know in which manner and how her mother caught fire since he was in the house of her neighhours. The witness has turned hostile in support of the case of the prosecution a.boul- the uresence CRLA,No. 1729/2007 of her father and nothing has been elicited in her cross examination to support the case of the prosecution. However, the evidence of P\V 1 would show that Hussainamma was her mother and on the date of the incident the accused and Hussainamma were in the house and her father had gone to bring money would support the case of the prosecution. 10. PW2 is the neighbour to the accused and he has stated that himself and accused are neighbours. About six years back Hussainamma was shifted to the Government Hospital. Bellarv for treatment and on the next day she died, And that he did not know how and in which manner Hussainamma had sustained burns, He has stated that neither he witnessed the incident nor gave the statement before the noliceHence, he has turned hostile and permitted to be cro.ssexamined by SPP Nothing has been elicited. in his crossexami.nation to support the case of the prosecutio.n and there±ore his CR) A.No 1729 2007 Ia: evidence is not helpful to prove the case of the prosecution. ii PW 3 is also the neighbour of the iccused and deceased Hussainamma and he has stated in his evidence that he came to know that Hussainamma sustained burns at the time of preparing food and that he has neither witnessed am incident nor gave the statement before the police arid permitted to be cross-examined by the SPP Nothing has been elicited in his cross eAamination to support the case of the prosecution I’ PW 4 is the son of iccuseci and Hussainamma Hc has stited tWit wits mod cr as doing :oolie ‘. ork and that nis father as in the habit of consuming liquor. boit sn i ears ba’. her rno’lwr Hussainamma died ciuc i’s burn irijurics t)t lilt dat’.. ‘I the incident Lt aba t f,.(it) •,r 6 ‘tsj ifttr n’ rig to knoi that I- s moflic-r lStuittbUfli I iSi. c i di td i t ’spt 1 - noç c ‘ i .1- eq 0’ r i; ‘S tr F 4) 4) ‘C I B c m 7) - a m fr ‘a z Cd 4) ‘V 4) 0 4) 04 ‘0 — ‘a : • • ‘S S 2 ‘S 4) t ‘4 4) 4) Sc ‘ ‘4 a o I, -q a Bc 0 2 0 It) a 4) 0 4. B •S C C4 ‘S 2 B 0 cu i’ CRL.A.No. 1 729’2OO7 17 14. PW6 is the panch for the Spot Mahazar, PW-7 is the panch for inquest panchanama. Both have not supported the case of the prosecution but were true as nothing has been elicited in their crossexamination to prove the case of the prosecution. 15. PW-8 is the Medical Officer who was present at the time of recording the statement as per ExP, 11 and Ex.P.13. PW8 has clearly deposed in his evidence about the fact that PWs1O and 16 recorded the statement of Hussainamma in his presence and that Hussainamma was in a position to give statement. 16 PW-9 is the Medical Officer who conducted the post mortem examination over the dead body of Hussainamma between 3.05 p.m. and 4.00 p.m. on 29.10.2001 and he has spoken to about’: the e.xtemnal injuries sustained on the body of Hussainamma and has stated that he noticed all, internal organs intact and cone‘:SQ He has stated that the death w ‘ 1 co to (‘RI 4.No.1729 2007 :18. htpovnlumic shock resulting from bum injuries sustained ova 93° to 98 of bodc surface Accordingh, he has issued the post mortem report In his rross examination he has stated that it accidentally kerosene fails on a lady while preparing the food and she comes into contact with fire, can cause the injuries noticed and mentioned in ExP.14 17. PW 10 is the Taluka Executive Magistrate who has recorded the statement of Hussainamma as per ExP 13 8 PW 11 is the icighboui )f the accused and hc 4d5 a ich or thc mquc He ias 1 fl supported tin ase of the orcse uor ard thirefor In is trcitcd i hostilc I ) CRLA.No.1729,2007 ‘1 :19: and he has identified his signature as per Ex.P. 17 (a) on the report and he has denied the suggestion that he has filed a false report as per the instructions of his Superior Officers. 20. PW-13 is the neighbour of accused who has turned hostile and has not support the case of the prosecution. She has been examined as a panch to the inquest and her evidence is not helpful to the case of the prosecution. 21. PW-14 is also panch for Ex.P.9 inquest. He has also not supported the case of the prosecution and he has turned hostile. 22. PW-15 is the Medical Officer who examined Hulgemnia and noticed that the injuries were simple in nature. He has issued the wound certificate as per Ex.P. 18. The evidence of PW- 15 would clearly support the evidence of PW- 1 that she extinguished fire from the body (‘RI ANo 1729/2007 of her mnther Huoinamma and in the meanwhile she also sustained some injuries hich is corroborated by the evidence of PW 15 and Ex P 18 the certificate issued by him ‘3 PW 16 is the PSI and PW 17 is the CPI who have narrated the facts of the case. 24 It is clear from the above said material on record the prosecution is left with the statement of Hussainamma as per ExP. 11 and Ex P.13 to bring home the guilt of the accused It is ell settled principle that dying declaration which is admissible u/s 32 can form the basis for ‘onviction if it is found to be truthful and reliable and njured was in a position to give statement It is clear tori the c idenc o PW 1 tI a he has lear dep cd r id c n aioif i 1W3 a F r ti spta r code c CRLANo. 1729/2007 21 evidence On perusal of ExP11, it is clear that Hussainamma has narrated the incident that the accused poured kerosene and set fire to her and she came out of the house and her daughter Hulgemma extinguished fire and thereafter she was shifted to the hospitaL PW8 who was a Medical officer and who was present at the time of recording the statement of Hussainamma as per ExP. 11 has clearly deposed in the crossexamination that he sent intimation as per EcP. 10, PSI came to the hospital and the deceased was in a position to give statement and he examined her and said that she was in a position to give statement and therefore her statement as recorded Nothing has been elicited in the cross examination of PW 8 to disbelieve his e idence that Ex P 11 was recorded in his presence or to shox that Hussainamma xas not in a p sitio t i i in I h e ii in n I ronwnuon of th learned counsel for the appellant that 1k ssa am na a not in postt n g e tate ent aiiig rtgard t, rue fact that sue ad sitsinined in CRLA.No. 1 7292007 98% injuries. It is clear from the contents of Post Mortem report and evidence of PW-9 that the deceased had sustained 95 o tO 98% burn injuries on the body surface and nothing has been elicited in the cross-examination of PW-8 to disbelieve his evidence that Hussainamma was in a position to give statement and his certificate Ex.P. 12 is wrong and therefore the statement of Flussainamma which has to be treated as dying declaration as per Ex.P, 11 is true and the same is shown to be truthful and reliable, However, in addition to Ex,P, 11, PW- 16 sent a requisition to PW- 10 Taluka Executive Magistrate and he has also recorded the statement of Hussainamma after ascertaining from PW-8 as to whether she was in a position to tive statement as per Ex.P, 13 which is in the form of qr.estion a.nd answer wherein she has implicated her husband as the person who pourect kerosene and set fir•••e on her. She has stated that since she did not give the amount for drinking alcohol, her husband poured kerosene and set fire which is clear from ExP 13 which r CR1 ANoi 729 2007 23 bears the signature of the Medical Officer as per ExP. 13 (a) and PW 8 has clearly orroborated the same and has stated that Taluka Fxecutn e Magistrate enquired him as to whether Hussainamma as in a position to give statement and he found her fit and thereafter the Taluka Executive Magistrate recorded the statement as per ExP, 13 and he has endorsed about the fact which bears the signatul e as per Ex P 13 (b) on Ex p i 3 and nothing has been elicited in the crossexaniination of PW 8 to disbelieve that Hussainamma was in a position to give evidence and certificate given b PW 8 is wrong Both thc statements )f Hussainamma as per ExP 11 and Ex p 1 3 arc c ogent rnd nsistent as thc hav implic atcd her rusband as ii c person ho pourcd kerc scm. nd set firc an p b t c vi Ic rc PV ar C C I i I ) C C CRL.A.No. 1729/2007 d :24: for having committed the offence punishable u/ss.504 and 302 IPC. Accordingly, on re-appreciation of the evidence as referred to above, we fmd that the finding of the trial court that the prosecution has proved the guilt of the