iN THE HIGH COURT OF KARNTAKA CIRCUIT BENCH AT DI-IARWAD DATED THIS THE 2ir DAY OF MARCH. 2011 BE FC) P.E THF.D HO ‘BLE• MR. JUSTICE V. JAGANNATHA.N BETWEEN: ABUTALIB, S/0 MUGDUMSABHSHARA AGED 27 YEARS, P/AT CHANAVAR, [IC)NNAVAR TALUK, KARWAR DISTRICT. APPELLiVT (BY SRLT.A.KARUMBA1AH. ADV -ABSENT) i\ND: STATE OP KARNATAKA BY H ONNAVAR POLICE. HONNAVAR POLICE TAT1ON, HONNAVAR TALUK. KARWAR DISTRICT. RESPOFOENT (BY SRI .ANANDKUMAR K NAVALGIMATH, HG OP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 CR.RC. BY THE ADVOCATE OR THE APPELLANT FOINST THE JUDGE\IRAT DT 30 3 05 PASSED BY THE 5.3.. PAST TRACK COURT-Ill, KARWAR, IN S..CAO.8/03 - CO T VICTING THE APPELLANT/ ACCUSED FOR THE. OFFENCE P/U S 307 OF IPC AND SENTENCING HIM TO DERFF -‘ U C E ‘ RS. I .000/- OR ID.. TO UNDERGO 53. FOR ONE YEAR. THIS APPEAL COMING ON FOR FINAL HEARING THIS \FrC—F’ 11 2 JUDGEMENT This criminal appeal is by the accused who has been convicted by the learned Sessions Judge for the offence punishable under Section 307 of IPC and sentencing him to undergo 7 years S.I. and to pay a fine of t1,000/-. 2. When the matter was called none appeared for the appellant and there was no representation. The appellant is on bail, as could be seen from the order sheet from 11.08.2005. Under the above circumstances, this Court left with no other alternative then to dispose of the matter after hearing the learned High Court Government Pleader for the State. 3. In arriving at this conclusion, this Court takes the assistance of the judgment of the Apex Court in the case of Bani Singh and Others vs. State of UP (1996) 4 SCC 720. The apex Court has held in the said case that the Appellate Court is not obliged to adjourn the matter if the appellant and his counsel are absent and the Court can dispose of the appeal after perusing the record and judgment of the trial ‘3 Cowi. rhe releant obscnatzon of the Apex (ourt in this regard an.. as under ‘It is the jut’ the 4pcllant r 1 his laMscr cmam pre s r r the tpp )intc d la iw nd plac t he n the appeal is posted for heaz ing ‘Ihis is the requironert if the Cock ‘n a plan renting of Sections 38a 386 of the C ode. The la does not enjom that dit court shall idjourn the c ist if both the appellant md his lawj,cr arc absent If the court does so as a matter ii prudent c or indulqeiic c it is a differeni matter but it sictlouiat adjc .irr the matter It an hspose of the appeal afte penn ng the re ord aad the j idgmcnt h tha ou’t If h ic tscl irj n cannot 5 r )P ) tii x.his 1 a 1 •jt f ii IIPCa 1 air lr f 3 4 Even if a i ase is dcc ided on meiits in the absence of the appell mt. the hiuhcr c urt rtn rrmrrJ tIu Situation if Flit-yr has beet’ . f tilurr of justice. This c ‘ul’ I app!’ , ‘1j. ;j iT1 . ‘‘c.c—. 1 j tFp re 1 i. ,p’j. t 1t for the c,L,vv,us N asO! that t the appeal nrnnot hi disposcd of ithuut flearizig tin ic-spc;nck nt )r Inc laver. the progress of the appeal would be halted. 4 Keeping the- aforesaid print iples in law. thic appe.iI is disposed ‘M tinath or’ merits 5. The prosecution ease in short is that. the ippellant herein had married he omplainant Ilibijahin’ (P W. 1) and their mamagc as took plate B years bat k. %fter the marriage, flu pptllant 4 s giv trouble ro his uk an beating 1e opdllan wa om ‘oolie ork a 4 usmr ‘ ft ‘4 • F lire asc C. J flit 1 iorsh 1 , e ., scars id tti. •t to 1nc )flSh fl a’ r em r • lit p . 5 a r ed t . n •r..’ 5 residing with two children at Valid village, where her mother also resides and the accused often visiting the complainant’s house and take away the money by beating her. The accused also used to stay with another women after coming back to native place from Dubai. On 20.08.2002 at about 9.15 p.m. when the complainant was in her house, the accused came there, after knocking the door and when the door was opened, the accused entered the house and asked his wife to provide food and also TV and when the complainant refused to do the same, the accused abused her in filthy language and told that he will put an end to her life and then took the kerosene can and poured on the complainant and set fire to her. Immediately, the complainant raised hue and cry and the neighbours, namely Adam and others came to rescue her and then they put off the fire and then complainant taken to the hospital and complainant sustained injury to her stomach, both the hands, neck and back. 6. The PSI Mr.Jagadish, who was the SHO of Honavar police station (P.W.7) received the information from it 6 tj’. fln erpr 1 vr’ Ilncpt i 1 fl right nq thc ,jype j, aiacl ;vriit t’t thr httij)’l.iI *:‘;nt ‘vith Pt. tic! •\,i intl .itzd jja in tnt rcquis non u flu duct’ r ann rc cc tic d thc si. lit I c iii .. Tilt snipl.tina:it s pe; ilc uiti c;llapl.iiiC I’’utrfl ii ‘lit’ complainant, the sifc of the ippc 11 mt hen in ‘shit’li a€s rc t ordt ii a 2 . .‘ u.ia . sa P31 dxcii .init’ to the pr’lic e s’ation and regisit red tht. ase igainsi I lit an ,ised •\lter rurnplr’ni.n tt tj’l( Ii1I’%IigUI)’1fl ah”h included rcc.ordir g the statement of thc itnc sscs and th’i ‘1 itt at br P.W 5 nd ‘ nUts rtng flit Tradleilal •il.ip—tt% NI Us 1. re 1Q ar 1 chuqc I’ cci un uhn’ ntd main t t c aprcl a in ‘0 u tA t’c. ‘ta”’SI’a 1 e :tfl r . ti..’, :V .tf IPC C I c s ‘1’ Fj a _— C’’!InI: ‘\a , ig.e’1 ‘s a’ ‘. f2.’r ! 1 ’i. ‘i.tii ‘in 1 ) ti I •“ C .. ... ‘as. 1 .t vs.: ‘ a’. •t .. •c’ . k ( • I” t V 1 • —. • ,,4 • I I, 7 brought home the guilt of the accused beyond all reasonable doubt by placing the evidence of P.W. 1 who is the complainant-injured supported by the neighbours and the medical evidence. The trial Court took note of the evidence of P.W.4 apart from P.W. 1 and also the medical evidence of doctor P.W.5, finally rejected the defence of the accused. The stand taken by the accused was that, he was employed in a hotel at Shikaripura, but to show that the accused was employed on the very date in the said hotel, no evidence has been placed by the accused and apart from that the trial Court also noticed that in the 313 statement, accused did not take any stand to the effect that, he was employed in the hotel at Shikaripura. Therefore, the alibi set up by the accused was also not believed by the trial Court. After carefully appreciating the entire evidence on record, learned trial Judge therefore was convinced that the prosecution case had been proved beyond all reasonable doubt and accused was convicted for the offence punishable under Section 307 and sentenced him as mentioned earlier. S 1 C’) I I ie It in1 Is qrr td luau C nirt (ac’ jr rn(,it Plc ad r br Ic uiic ‘r An andkt n w K Nu ,ilgi’naLF nrl lie! • ‘std t tie t\ (11(1 V it ‘111% s. il%r .tni iuctcenit n • it I hr tna’ 11. TIn.. %Ut)II11S”,l( ii ii tlit. kciiiitd high C C Lilt (roicrnmtnt Plc ad. r is that. thc prosctution hd% brought burnt the guilt ot tht n euct d bt und tll rtdsc)i1Ll)lc aouhr and the juclgtrne’nt ot tuaI (‘oliti 1q j) orrin md no inr bits bec n eonimitt d in tht trial Court an I therefort tht udgcment )f c mi. t on arid c tcni’e piscd d t’ Mt r..( 4 u1r( niv eat rfer, Ii’ r I I —‘ • ‘11:2 ‘‘ • fl •e ‘ t ,erp.j Fft.t c BUY i tdtr —il ii r s I ad 1St in r’W air — .1.1,!: .1,; it ;1 h . — ‘.;. ‘ . hi a’’ ‘c r’ 41 •I j,. ,.‘ r . , ,‘ ti.;” ._‘ i’’ — • -!;‘ . 1 . #1 1.’ aI i’’ r .11 ,, 1’ ji’S ‘ ‘ aS •) 1 C) thit Pitt tirtilar d€n in ‘hr vt’ IT _‘OU ‘ Tb .ft’ liSt (I C tk there n..! K” ,t knl titi S p.r tnf . ‘n ‘b.,i %h. s p1 tie — C hiI.It c r I liii tioth rs p Ut ii ‘ e inn’ t s’ r1d ‘hi th t iiyI I flit i ‘3H% t iS bi.i t)l’ifli’ intel ‘ P’td trn door and imniedi ueI not ii id the’ .ic used her husband w I st ui tug tn r id he am sidi an I asked tot iota and she gave him the taxi and then he askt’cl tor TV. which shc rciuscd lb it us’d tad i kci F tift c ci’ 1%. for vhu It, shy tulci that ish doni at take ta, hex and hex chiieiri n hi: him. There dftcxc,rds. tlir a:’t’uscci ni, ,utsith ird .i ar i ‘dc flcr iia rc t k iau N t t en n IT; lIlt (.11111 ret. H — —‘sa’jittd : At ; nfl wit’ v ;r i .ci .1’. ik c a t ii rr’ h—’ bini in ik ‘ Sec A uitr id ‘dthl (lb ii I afl’! t en P i sr.’,aItt 4 çs !‘u. ht.il’ t!a’’ •“ •J’1rn’.r% t•’eI tg r it. C IC c. it ( I’ . • I lit • t) < ‘I. U ‘‘ CI ‘‘ • I.’ L’ • • ‘. ‘, ,7•ri :i...,g_!. ..• I 3, I I . . I . .11 S I0 freed from the cluster and then she also removed the cloth in her mouth and her husband ran away from the house. P.W. 1 came out of house and asked one Sabira to help her. At that time, Sabira’s husband Adam came to her house, tried to pour the water to stop the fire and thereafterwords Sabira went the house and brought one chadar and it was put on the body of the complainant and then she was taken to the hospital. Police recorded her statement as per Ex.P1. 13. The above evidence of P.W. 1 has not been greatly shaken in the cross-examination and the said evidence is also supported by the evidence of P.W.4-Adam. He deposed in his evidence that he heard the sound coming from the house of the P.W. I and then he came into the house and saw the complainant being affected by fire and thereafterwords P.W.4 put a chadar on the complainant’s body and try to extinguish the fire. Thereafterwords, P.W.4 conveyed the news to the mother of the complainant and clothes of P.W. 1 were removed and new clothes were given to her. 1 11 14. The injury caused to the P.W. I is also established by the prosecution by examining P.W.5- Dr.Girishkumar who deposed in his evidence that the complainant was brought to the hospital in the early morning on 21.08.2002 and on examination she was found with burn injuries on her chest, stomach and anterior aspect of both the arms. He also stated that, complainant sustained injury to the extent of 35 to 45% and gave wound certificate as per Ex.P4 and gave his report as per Ex.P5 to the fact that, complainant is in a position to give statement and then the police who were present, recorded the statement of complainant as per Ex.P1. The doctor in his evidence deposed that, as the injury was more than 30%, it was likely to cause breathing trouble. In the cross examination of the doctor also, nothing is brought out to disbelieve his evidence. 15. The prosecution has also examined one pancha and police constable to show that the incident happened in the manner spoken by P.W. 1. P.W.2 is the pancha witness and he has deposed in his evidence that. when the panchanama was conducted in the house, he noticed burnt k 12 clothes of P.W. 1 and also kerosene can and in front of the house, he also noticed clothes lying and also cable wire found in the house and other clothes were lying in some other place. All these were taken by the police who conducted punchanama and Ex.P2 is signed as per Ex.P2(a),(b) & (c). 16. Thus, the evidence of aforesaid pancha and the material witnesses, goes to show that the prosecution has brought home the guilt of the accused beyond all reasonable doubt. To deny the prosecution case, accused has taken up the plea that he was being employed in a hotel at Shikaripura, but, no material was placed except producing the documents and none of the hotel persons were examined to show that, on the date the appellant was actually working in the hotel. Moreover, it is rightly observed by the trial Court that in the accused statement recorded under Section 313 of the Cr.P.C. the accused has not even whispered that he was not there in the house of P.W. 1 and on the other hand he was very much there in the hotel at Shikaripura, 1iunnga rhcrtt”r’ . tjp., p ca j’Lit e rn.ud n is ‘16’ ‘rec ptc I b the’ trial t’ur’ l’hus ii c artful c in nati n cd ‘it nt rc n iteria. 0 a” n’ ‘ ‘11 jnc I P V. I lx g sup it.d b P.i .4 and point itn ss P ipart Hum poller ulfwt’i dflfl the mc clical n idc pci ol the doctor 1’ V. a that. hit burn flJUTU s auscd U 1 ht chiiplaifl mt ‘.1% am ost .30 an I sh idS ic cnrJiiie1 b 1 nin troutil. in t)IeItI1in Thrirlc’r. tlit ac-i at the acrused ‘s notlnrg but an attempt b’ put an end p. his wife’s Ic Tht I1 ‘c ic t of he. appella it for it. ffer. punthabk urd Stitn (7 i. IPC ‘s th refor list €rd propct r rid C j c to ri ear khiIL r.;r. t•I tt :.a’ tr 1, np.•];,. j%. ..‘i:’t ir . . .. • S — .7 .. . . . 4 :1 rig i. V 1 •,( fl . ‘ , 1. .‘‘ • — ‘ 1 I. • • .; :‘ •&. ••... ‘ 13 the ‘pp’)t t U nn ti’. fiuh’ r sicli iril mi ne ‘ti tN ippe.aI is n tflc% c ar .(H’1 ‘i.I the ‘Iii flIei % s tid u’ :k4ct. I’, i’fl i.flU it Tiltict fl ‘r.ti UO2. .:jiisqt .iIi.,i’ a tFcr fat tuu c. Ic, ‘a iiii ill ‘1’t htor . dx. sc’nit-ntt n bc irclucid tram 7 cirs iii —? sears md t nhain jia tht tin ars’’&irit Ti’ Zit’o(i(’ unit ttk tine amount shall b paid to tht complainant ho is thc uk of :hc uppt ikant aid i i default C I n ient of finc trw apptll tnt shall undergo S I br a j)CF1’ ‘d uf •, months 1° The appeal is dinre.i in par • ‘iii’ te; th c f s mc u-c bcinv n iuctd ‘as af. rr nt intl hi’ r’c ,htr.soc s