IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 04111 I)AY oF AUGUST 2Q11 PRESENT THE HONIILE MR. 1 JUSTICE Il.[3ILLAPI’A AND THE HON’BLE MR. JUSTICE ARALI NAOARAJ CRIMINAL APPEAL No.1466/2007 BETWEEN: The State of Karnataka By C.P.I., Dharwad Rural. Appellant (By Sri V.M. Banakar. Addi. S.P.P.) AND: Sangappa t.u Sangumesh Veerapakshappa Ourukkanavar, Aged 20 years, 0cc. Coolie, R/o. Belligatti. Dharwad Dist rid Ruspondeni (By Sri 0 .A. Holevainnava r. Acivocat ic) This Criminal Appeal is filed U/s. 378(1) & (3) of Cr.P.C. by the State P.P. for the State praying that this Hon ‘ble Co ii ri may be plea sect to grant leave to file an appc al ioa nst tin 1 Juclgnn iii Ia’ I ).0’ ‘Ut) ii S.C No. in 2006 i’i. ili tilt nt ‘ii. I’:!. S J L)h.i ad. f’II’’IQ ‘ 1 ie rc sfl ‘it’l’ !!t • d f’r ‘1w ‘‘fit v punslablc ititi Sc tor’ 4i$ I 3O ct PC This Criti;in€ii ipne d ‘ ‘fl’!!It nit l.a ii’ tr’nu ‘his dat, Arab Nagnraj. •J , di in cred t hc following. JUDGMENT I his tpp a) is in tin c )mplain Iii Stcltc. in Si. scions Cast No. 35 2t)Un d rected agt Inst the impugned ,Jndmc’nt and Order of tIC quittal dated • pttsst ci ii) I he Salt! c. sslons Case in the learned Pri Sessions Juclpt. L)haru id (hi rc inaftt r referred 1’) .15 Trial Court for sh.’rt I. ,ierj 1 j lii IfltL ‘hr onlt a used thi. rt ii ol tin of ft nct s nick’ Sc i. I ins 1’ •‘ at.d jfl3 •.f l.P.( 2. Si rl • z. lic t.t.ts:ic H. the case of the prosecution - a- a) (‘rIn.r tc tctIl( C) It u ‘‘dsc’i I ‘I ..•2.3 :i’I .(i In :n t it sa:ue in “Sit ‘aiB’n. thc S (‘Cl itt I It c 1. . — iscd Smi. Shanina the Sifl0i)p Etc .sicled ‘)n u p.m. i p 14, the 1st r jt’, htlc t hr ,ajd rc’itnient in (o crnrnent Shire the dcc eased tI’it ti t Ll%u! It’ll lit ,iltcr.’rI hum I P C t ) thc )flL the flLht’l off. net S sccl c ‘I c itt LI ‘at . ; i).t I • 2 ,Ot) of Ithat .td Rut a! P.S. I’. ‘isIc rt I i” tist th’ rc’sp iident h •.f:.:. .. r St.1 11111% 4ts?. \ 1)11 iIit I)t%i5 tat I.x.I’1 St itt tilt III “I the dccc ut. t,I the at c usc”) (iS 11 .2n03 :tt ;th’)ut Ta Ink E’c’e,tt n c Mac dcn tsecI as under t iluspital. Dharu ad sth CLiflil)cC! ii. :1w hum ;i.It,ric fli1flt thc cit C tt%f’d “flint to thc offence undct Sculur, 31), under ertiun 30) 1 p ‘. \f’ez • fl’’L( I %tIl.tTIItt(’d ii’’!. ..i1’ ‘ I’arc,e - 4 b) The Trial Court framed the charge against the accused for both the said offenees and tried him. 3. The Trial Court. on appreciation of oral evidence of PWs. 1 to 19, Exs.P1 to P33 and MO Nos. 1 to 4. b its impugned 1 Judgrnent and C)rder, acquit ted the respondent-accused, of both the said offences. Therefore, the complainant-State has preferred the present appeal. 4. We have heard the arguments of Sri V.M. Banakar, the learned Addi. S.P.P. and Sri (I.A.Holevannavar. the learned counsel for the respondent-accused. Perused the impugned Judgment and Order of acquittal and also entire material found in the original records obtained from the Trial Court. ‘II 5. Learned AddI. S.P.P. fully submits that PWs. I to 6. through whose oral evidence prosecution has sought to prove the ill-treatment alleged to have been given by the accused to the deceased, have all turned hostile to the case of prosecution and Ex.P17. the dying declaration of the deceased does not disclose any such ill-treatment, and therefore, the prosecution could not prove beyond reasonable doubt the charge levelled against the accused for the offence under Section 498-A of l.P.C. He further contends that the prosecution through Ex.Pl7 dying declaration which came to be recorded by PW14 Taluk Executive Magistrate. has established that it was the accused who set the deceased on fire by pouring kerosene on her person and litting fire while she was in his house and thereby committed an offence under Section 302 l.P.C. but, the Trial Court committed serious error in acquitting the accused, of the said offence. While contending so, he submits that the present appeal 11 dLser c s to bt al ni. ed and ti 1t rc sp m Ic ni u C UsC d is ii iiiit to 1k C UiflIt ‘( 1 lot tI’t Sti (I 1 11(11 C o. Per contra, learned c OUfl%C I for the I CS!) )lldeflt ticcused st ronp1 contenLIs I 1 it proset utior hti s sought Li) prove or’ii dvi ng cirela ratic’n alleged to hat c’ been made b the det ca seci before PVt I Baisa aflt.(’t ta thi mother of thc dcc.. aScC1 and P k . I Kiiiappa, tlu. father of the dcc eased. hut both t hew witnesses despite t hcv being the parents ol the (tc’c eased. hate :int stippot ltd the case of th prosecution as to I ht orril ci ing declaration. He further ontc ads th a, Ex P1? thit h is said to itait c Iweii liii It u. g th L’ ra’ ion •f hit (leee€i%rCi . r(.( ( ci n PV 1 4 1 L1 K Exrew it e Magtstrat it I 20 p.m. o OS Ii .O im C) eXlstdn LI Ifl I t I’,’) it 1. s it I 1 5 I Ct I I I t bert fc,re. t 1i it i t owl “.1 q ri F’ I’ n’’’— ‘‘.11 tiir iT’c aicI .lct(iLifltt (f t!it (5I)ui !cfc lit .1’ 1 as(’(i i.f llulfi 1:11 s;i..1 I itt ‘t I c C’ thc rt cc ii c ii — — — Order of acquittal does not call for any interference in the present appeal. 7. Learned counsel for the respondent-accused further contends that as could be seen from Exs.P34(a) and (N in Ex.P34 the relevant entries in station house diary, pertaining to the date 08. 11 .2005 clearly disclose that the alleged statement ol the deceased which, accord to PWI7 P.8.1., was the basis for registering the crime against the accused cannot be accepted. While submitting so, he prays that the present appeal of the complainant-State be dismissed. 8. It is not in dispute that the deceased Smt.Shantavva was the legally wedded wife of the accused and her marriage with him was performed about three years prior to the incident. It is also not in dispute that the deceased sustained burn injuries at about 5.30 p.m. on 07.11.2005 while she was in the 41a house of tic ltLIs I, at I thcie ‘tcr, 1 ib ‘tat - p in. she ‘a .ulnii liii iii ti..rrnhij ni lIi,s:,:t.i it Dh.r .i’I fox the “at ‘ci at)’ tics anti hit ft. tiLt I SI a. S .tt LaIfll)4. I It) the said irs it rs ot: C1, ; .2i)’i., ‘ dIoit 1.1 •a i:. The n ideiwc of the prosecution it tic ssc % insofar as these fat Is arc a. tnc ci ntd. nas lrtia tint d unenali’ nxted. Besides this. Ex.P27 P.M. Report. issued In P.V .Ib Medical Offieci s ho conducted iulopsv on the dc ad iiodv of the clet. eased. elc—Ml rstu i)liSheS the karl that tilt’ hUt UcISULI died ci s ci result of bunt liii in it’s sustained 1)3 h”r at about 5.30 p.m. on 1i7. 11 .2005. Ci 1 \V Jti Shialingappa Yuhlapp’t i’ttiat ti-c A S I ot Dhai .ad Ruini P.S. has SIc ted sa I :s e ‘.iclence that on 07.11 2005 at a’ioul —15 ni w iii’c In ws 5.11 C) xi: hc s iid P.S ri flit d 1(1 ‘nit ‘.t ‘rt ii ( ‘il ljc,sit! L)I 1 at •k , ‘mi Sn.’ Si i’:’;ea ‘a \k Sang ipp at 13th it .1. agi ( he I rc sc in xii aS tibritti v ii’ tize s.’ie hi.snit I! ‘1: : ‘u n lie . is iht ij C 1 a. I ii S 1 ‘1 C — L) S. H. D. as to the receipt of said information Ex. P33(a) and then went to the said hospital, enquired with the Doctor as to the health condition of the patient, the doctor in formed him that the patient was not in a position to give her statement, and therefore, he returned to his P.S. and made entry in the S.H.D. to that effect. 10. This PW 19 ASI has further deposed that Ex.P32 is the requisition given by him to the Doctor requiring him to furnish the health condition of the deceased and Ex.P32(bj is the endorsement made thereon by the Doctor that the deceased was not in a condition to give her statement. He has further deposed that after returning to his P.S. he made necessary entries at Sl.Nos. 23 and 24 in the S.H.D., which arc marked as Ex.P33(a). On careful reading of the cross-examination of this witness it could he seen that nothing is brought on record to disbelieve this evidence in his examination-in-chief. Therefore, it is ems 10 a clear that thc deecascd tas admittcd in tin Ootcrnmcnt Hospital immcd atels aftcr she sustained burn injuries md that as c n 07.11.200%) at 8.10 p.m. sin iias not in i nition t mu hcr statemcnt. and therefore. her statement could not be recorded on that day. 11. PW1T P.S 1 has stated in his eiicknce that on 08.11.2005. the AM.!. Pujar (PWI9), orally reported to him that the deceased Smt Shantasva had been admitted in ()oernment Hospital, Dhariiad, with burn injuries and that she aas not in a position to give her statement as on 07 11.2003 1k has furthcr deposed that on 08 11 2005 at about ii ai a m. he (PWII) cnt to District Hospital. Dharwad and gavc his requisition to the Doctor requiring him to furnish his opinion %hctber tin deccastd q in a poslti)n t) abc hr statement and thu thi suid Dot toT pa t uk opiummuit as ptr P.z Pfl(a) on Ex P23 req n’sition that the dcc eascd wasno blct em tutict lii Iii tin I’ deposcd tha tic .rt an ‘n cc I C 1 ‘Iii s 1 t dc tot cit dlt)flUt I p iii. *1 ci S’t’ t h ti t11f tlt( t n c1 i %it on is pc r Es. PJ4 seukin h:% iaptn.I?! a% t . hut hit ‘hi derrcseci W*% thL In L’Itu I:’ ! %l er;r.t1a ‘h.,t tl..’’’.r L’.t’ 11% opinion in niakincz an entic,rsc. mew on E. P24 it ltx.P2 4(a) that shc. was abk to c n C hc r stan. mc nt 12. This PW 17 P.S.) has stated further I lint. then he sent i requisition to Ta) uk Exec’itit e Magistrcitc I)har ad (Pk 14) rc questing him to rec ord thc stntcmrnt of the deceased and the sicI Taluk Execut he Maigistrat e (‘TItM for sh’,rt I a flu i’i the anpi I LII ..nd reroidcd thc statt nient ci tlir citceastd s ‘r Ex PIT in tht presci cc. of in scil (PW I ) at d the Mcdic ii ()Iiietr 1/.. P\4 I 3 mcI ti i. bitt i hit’ s d sIitrrr ill ¶‘ as re’’t;rdt. d h’:i:,i’ :ni::rc S%tOfl ‘i in. .1 ‘Ct €flrc! vas ‘cike’i fill r b the TK\I 12 13. PW 14 Sri Nazeerahmecl Nadaf. the TEM has stated in his evidence thai on 08.11.2005 at about 1.05 p.m. he received a written requisition from the P.S.I. of Dharwad, Rural P:S. requesting him to record the statement of one Smt. Shantavva, who was admitted in the District Hospital and then he went to the said hospital, contacted Dr. K. Devendruppu (PW1S) and sought for his opinion about the health condition of the deceased Smt. Shantavva. He has further deposed that after the Doctor opined that she was in a fit physical and mental condition to give her statement, he recorded the statement of the deceased between 1 .20 p.m. and 1 .45 p.m. in question and answer form as stated by her. Ex.Pl7 is the said statement, the two thumb impressions of the deceased arc at Ex.P17(a), his signature on it is at Ex.P1 b) and his endorsement on the said statement is at Ex.P17(e;. 14. PWI5. Dr. Devendrappa, Senior Specialist in Civil Hospital has stated in his evidence -that on I’I, 0i.11.200 am it •a p in ti t dci eased cna’ Siiittin aas Itr..nLL ‘ the l ‘‘st, ii wiLl: 1! i of b in s atici she dS .ulrntt i d it. U ri!t”a I I ( I 4L lit tard cit LI tiiit E. P22 ‘s tic c1’ shi c t pc Ft it i 1) the sa Id cit rca %t’iI . lit’ has ftiri her ciepnsed that hen the dccc asccI u .is hi ‘,ught to i he hospital she w LS f:rst mcdicai1 camined In thc C astiiit Mt Lift ii Otfic Cr and then hi’ eNarni nec! I lie (leced set! 1w 1 tIm’it ‘ p m on 01.11 .200a. He has lurther cIt pcisecl Ill;ii oil I lie sum.’ dciv at about I I a ‘ m. h. ret I. ut ii ci requisition Irom the P.S I.. Dh.rs ad Rural P 8. as ‘r Ex. P23 recuii lug to furnish his opinion as LI) the hi alt ii condition (it tilt’ deceased. he trade ciii t ndor seinent on tlic said rt quisitioii as per itt P2J1a1 that the Icc cased! % Is not a Me to ti •‘ net SI at enlcn t . lie has ! ur i her ciepnscd that then alit r hc rc cc ivt d anothc icquisi V 1 Itx.P24 from Inc siic P ;n h I )Q( qui ‘no h ir tc l%L’ his ‘)pHIion abt.i.I til’ he.i:ni ecsrir!it i’’:i i)1 lflt’ dcc east i and hi qa e his ‘pinion s pet E P21(a) th it ‘is at 1 t’ (II t Li ci hi (It C I C 5 1 t 14 her statement. He has also deposed that the Taluk Executive Magistrate recorded the statement of the deceased between 1.20 p.m. and 1.45 p.m. in the presence of himself and said P.S.I. and Ex.P17 is the said statement, his signature on it is at Ex.P17(fl. 15. Placing strong reliance on the evidence of PWs. 14, 15, 17 and 19, learned Addi. S.P.P. contends that the said evidence is consistent as to PW14 Taluk Executive Magistrate recording the statement of the. deceased as per Ex.P17 in the presence of PWI5 Medical Officer and PW17 P.S.!. and the said statement clearly establishes that it was the accused who poured kerosene on her person and set her on fire, as a result of which she sustained burn injuries on 07/11/2005 and ultimately succumbed to the said injuries on 09.11.2005. and therefore the Trial Court, ignoring this consistent evidence, has erroneously acquitted the accused, and hence, impugned Judgment and Order of acquittal is ha ble to be set aside and the accused is r 15 liable to be convicted for the offence under Sect ion 302 l.p.C. 16. Learned counsel for the respondent-accused strongly contends that as could be seen from Ex.P34(a) the extract of S.H.D. dated 08.11.2005 the relevant entries therein clearly establish that by about 12 noon on 08.11.2005 Crime No. 172/2005 of Dharwad Rural P.S. was already registered on the basis of some information which disclosed cognizable offence against the accused herein, and therefore, the Constables were deputed for searching the accused. He further contends that relevant entry macfe at 2 p.m. Ex.P34(b) on that day also goes to show that the P.C. Nos. 479 and 583 were deputed to search the accused in his village. These entries clearly destroy the case of the prosecution as deposed by PW17 P.8.1. and PWI9 A.S.I. that the said crime came to he registered against the accused for the offences under Sections 498-A, 323, and 307 of l.P.C. at about 5.30 p.m. on 8/11/2005 on a 16 the basis of Ex.P17, the alleged dying declaration of the deceased, and therefore, considering all these facts and circumstances of the case in the background of the fact that all the material witnesses, including PWs.l and 4, who are none other than the parents of the deceased. have turned hostile to the prosecution, the Trial Court has rightly disbelieved Ex.Pl7, the alleged dying declaration, and hence the impugned Judgment and Order of acquittal does not call for any interference in this appeal. He also contends that Ex.P22 is the case sheet pertaining to the admission of the deceased with burn injuries on 07. II .2005 and this document clearly establishes that as per the history mcntioncd therein, the deceased was caught with fire accidentally while cooking in her house at about 6.30 p.m. on that day and therefore, the Trial Court rightly acquitted the accused. 17. Ex.P34 is the S.H.D. Relevant entries therein pertaining to 08. 11.2005 at the timings 12 noon and 2 p.m arc mar ke ci out ii i as Ex P 1(n) I hc se cnn it s cit ax h c si ablish that (‘rinw ‘Jo ) — QUa ni ii c s rid P.S. fli% .t!rt .,d rt tz;slrrrct ‘.etnrr ‘ flfl’ifl ‘)fl 1)8.11 .2(i05 i.e . Iwlnr. bx P17. the .slIrlfr’i st 1 iIeIi.e’i ‘‘I the dcc eased ci ing diet 1tratii,n c ime 10 bc recordi d If the said ci ixnt as r1 c th t’ is’c rcd ao iii si thc accused much en rlicr to I lit ret or cling of the alit g(’cl dying declaration. ii as the d tan 1)1 the prosecution to place on r t’eord 1 lit Ii i;rma t ion bat seti tifl hit I the said crime came •t) he reistercd agains’ the present accused Unless an informat it)n as gi en to 1 he polic c disclosing ecimmissioll ‘‘1 a cogniiahle nitence by the aecuseci I here e’,uld be no net .a%infl for the pout e t(; rcgistem liii’ said ci HOC b 12.00 noon on that. ci 1 a rhc’ hit t that thc c r’ sa tic Cm mint \o 2 200 oi ti c said P.S. c ame in iN. r(’t’i%tc red btt g• . nit dnd 1 fly i)’u11te nuIh1 51.1 bie%. ctepu ‘t ii sc.irch :r the €tt c ustd iii lilt ilI.i4t e 1 ti Pt si i’thsh that ti tiT as i dclini C I t ii iCrri ICE td th II 0. h cF disc C St 1 o’ b1. ‘c i t itt (is 18 committed b the accused. Therciore. we haive no alternative but to hold that the prosecution has suppressed the said information. 18. PWI9 A.S.l. has clearly stated in his evidence that on 07. 11 .2005 by about 7.45 p.m. alter he received telephone message from the hospital as to the admission of the deceased he went to the hospital after making entry in the S.H.D. and then returned to his P.S. and made entries in the S.H.D. as per Ex.P33(a) and (b) to the effect that when he visited the said hospital the Doctor on duty informed him that the dcceased was not in a position to give her statement. He has further deposed that he went to the hospital as directed by the P.5.1. viz., PWI7. Strangely enough PWI7 has stated in his evidence at pant No.5 that for the first time he came to know about the incident on 08.11 .2005 at about 11.55 n.m. and till then he was not knowing the deceased being admitted in the hospital on 07.11.2005. But it is the specific say of 1’) 4 PW 19 A.S.l. that the entries at Ex. P3.3(a) and (b) were made by the P.5.1. himself on 07. 11.2005. Thus, it is clear from the evidence of these witnesses that the P.5.1. had knowledge on 07.11 .2005 itself as to the deceased being admitted in the said hospital. 19. Further Ex.P34 original S.H.D. and Exs.P34(a) and (b) the relevant entries therein are got marked through PW 17 P.S.I. As observed by us supra, these entries clearly disclose that the Crime No. 172/2005 came to be registered against the accused herein before 12 noon on 08.11.2005 i.e., before recording of Ex.P17, the alleged dying declaration of the deceased. between 1.20 p.m. and 2 p.m. on 08.11.2005. 20. PW17 P.S.l. has made unsuccessful attempt in his further examination-in-chief recorded on 09.05.2007, that on 08.11.2005 at about 12 noon he informed the A.S.I. of his P.S. (PWI9) over wireless to sc curt thc prc sc i c ,f U c used in iitic pation of 1CUIStIc tioi Cit (cisc I \ S I P i ci if’1’ 1,j a’ idc dntr in S.H.L). si oi a’ C rimt % 1 ) 00 mcI thi 5 nd (fltT is EP3IG) I is t ckir ii t his explanation is on en b PW 1 1 in us 1w ther C XcifliiflcitiOt I I ci iC I as ii ..ittc I 4)1 tC is C C. arm ti C fact that the said ci in is it gistered n uc h earliei to the coming into c xistenc c ot x P17, thc allegi d cI ing dcelaration of tlic di ccased Sincc thc tO5(( utica his suppressed the I ji st i’lIormati,n re C ‘ ..cI in tt 1c S.H 0. before 11 noon on 03 11.100) based on hic h the said crime No 1?) 100 came to bt rcgistcicd IUcliflSt thc accused. wc are of th opinion that thc st itc mc nt at Ex P1, camc. into cxistcncc mdc r suspicious c iic umstanc ( s arid hc IC bit it i d i at bc e ci to bc ‘c1untir ‘tad tr iti Iii slatci c t I tie diii isccl I in It slitni is i )ftFcf tiittc E P ) c c4 cc a s tI i c dccdc tin iiTttdltC IC p 1 Iii tar ci h iti i j c I Ir i 21 also in the background of t he fact that all the prosecution witnesses, including PWs.1 and 4 who are none other than the parents of the deceased, have turned hostile to the prosecution, Trial Court rightly disbelieved the oral evidence of PWs.14. 15. 17 and 19 insofar as it relates to coming into existence of Ex.P17, the alleged statement of the deceased implicating the accused herein. For the reasons aforesaid, the present appeal of the complainant-State is hereby dismissed, as being devoid of merits. The impugned Judgment and Order of acquittal is hereby confirmed. Sd! JUDGE • Sd!- • JUDGE hnm/