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Prosecution has failed to provide evidence 498(A) and 302 Set Aside

 

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ON THE 07TH DAY OF DECEMBER, 2017

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

AND

THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA

CRIMINAL APPEAL No.669 OF 2012

BETWEEN:

NARASIMHA NAIK
S/O LATE MAGGU NAIK
AGED ABOUT 38 YEARS
R/O K.V.THANDYA,
MADABAL HOBLI, MAGADI TALUK. … APPELLANT

(By Smt : BUDRANNISA, ADVOCATE)

AND:

STATE OF KARNATAKA
BY MAGADI POLICE STATION
RAMANAGARA DISTRICT.
REPT. BY GOVT PLEADER,
HIGH COURTS BUILDINGS, BENGALURU CITY. … RESPONDENT

(By Sri: VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR )

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 24.03.2012 PASSED
BY THE DISTRICT SESSIONS JUDGE, RAMANAGARA IN
S.C.No.62 OF 2008 – CONVICTING THE APPELLANT-
ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTIONS
498-A 302 OF THE INDIAN PENAL CODE. APPELLANT-
ACCUSED IS SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF 3 YEARS AND TO PAY A
FINE OF RS.5,000/-, IN DEFAULT TO UNDERGO FURTHER
SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS, FOR
THE OFFENCE PUNISHABLE UNDER SECTION 498(A) OF
THE INDIAN PENAL CODE. APPELLANT-ACCUSED IS
FURTHER SENTENCED TO UNDERGO LIFE IMPRISONMENT
AND TO PAY A FINE OF RS.10,000/-, IN DEFAULT TO
UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD
OF ONE YEAR, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC. BOTH SENTENCES SHALL RUN
CONCURRENTLY. THE APPELLANT PRAYS THAT HE MAY BE ACQUITTED.

THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:

JUDGMENT

The case of the prosecution is that the deceased and the accused are husband and wife. They were married about twelve years prior to the date of the incident. They had two sons through the marriage as PW.3 and PW.10. That ever since the date of marriage, the accused and his family members were ill-treating the deceased, asking her to bring more dowry. The accused was unemployed. The deceased was eking out her livelihood by selling tea in a shop. The deceased would constantly inform her parents about the ill-treatment being meted out to her by the accused.

2. The deceased revealed to him the ill-treatment being meted out to her. On 21.08.2007, the complainant, namely, the father of the deceased, had gone to Magadi to see his daughter. In that connection, she was sent to her parental home on many occasions. On 27.08.2007, the accused picked up a quarrel with his wife, alleging an illicit relationship with a stranger and also demanded additional dowry. On the same day at 7.00 p.m., when the complainant went to answer the call of nature, the accused poured kerosene over the deceased and lit her on fire. When the complainant returned home, he saw his daughter growling with pain. He took her to the Government Hospital in Magadi wherein the Doctors advised him to take her to a larger hospital. On the following day, the deceased was shifted to Victoria General Hospital. Five days thereafter, on 31.08.2007, she succumbed to her injuries at about 8.30 p.m. Based on these averments, a case was registered in Crime No.130 of 2007 for the offences punishable under sections 498(A) and 302 r/w. section 34 of the Indian Penal Code against the accused and three others. However, the other three accused were not sent up for trial. In order to prove its case, the prosecution in all examined 15 witnesses, marked 11 exhibits along with three material objects. The accused pleaded innocence and claimed to be tried. By the impugned order, the accused was convicted for the offence punishable under section 498(A) of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5,000/- and in default, to undergo further simple imprisonment for a period of six months. He was also convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life, along with payment of fine of Rs.10,000/- and in default, to undergo further simple imprisonment for a period of one year. Aggrieved by the same, the appellant-accused has filed this appeal.

3. The learned counsel for the appellant contends that the Trial Court totally misread the evidence and material on record. That the so-called eye-witnesses PW.3 and PW.10 are the minor children of the deceased. Their evidence cannot be accepted by the Court. That the deceased succumbed to her injuries five days after the incident. There is no explanation for the delay. That the prosecution has not produced any medical records to substantiate their case. Hence, she pleads that the appeal be allowed by acquitting the accused.

4. On the other hand, learned Additional State Public Prosecutor, disputes the same. He contends that the evidence of the two eye-witnesses, who are none other than the children of the deceased, is sufficient to convict the accused. They have deposed against their own father. Until and unless the accused has committed the said offence, they would not have led any such evidence. Furthermore, the delay in filing the complaint has been satisfactorily explained. That by itself, is not sufficient to disbelieve the case of the prosecution. Under these circumstances, he pleads that the appeal be dismissed by confirming the order of the Trial Court.

5. Heard learned counsels and examined the records.

6.(a) PW.1 is the complainant. He is the father of the deceased. He has lodged a complaint with the Magadi Police Station on 01.09.2007 at about 8.30 a.m. He has stated in his evidence that on the date of the incident, he was in the house of his daughter. At the relevant point of time, he has gone out of the house, to answer the call of nature. By the time he returned home, he was shocked to see that his daughter was burning. He immediately took her to the Magadi Government Hospital and on the following day, she was referred to Victoria Hospital, Bengaluru. After five days of the incident, she succumbed to the injuries. After her death, he reported the incident to the police in terms of Ex.P1. He has stated that the deceased was doing petty business near Kalya Gate and was maintaining the entire family. PW.1 was assisting his daughter. The accused was unemployed and was addicted to alcohol. He used to ill-treat her, both physically and mentally.

Nothing worthwhile has been elicited in the cross- examination to dislodge the evidence of this witness.

(b). PW.2 is the mother of the deceased and the wife of PW.1. She has stated that at the time of marriage, Rs.20,000/- cash and three tholas of gold were given to the accused as dowry. A few years after the marriage, the couple shifted their place of residence to Jyothi Nagara, Magadi. Two children were born out of the wedlock. After about six months to one year after the marriage, the accused started ill-treating the deceased for additional dowry. She learnt that on the date of the incident, when her husband went out of the house, the accused had poured kerosene on the deceased and lit her on fire. On receiving the news, she rushed to Victoria Hospital, Bengaluru and enquired with her daughter. The deceased revealed to her that the accused set her ablaze by pouring kerosene on her.

In the cross-examination, the suggestion that while setting fire for the purpose of heating water using kerosene, the deceased accidentally caught fire and died as a result of the same, has been denied by the witness.

(c). PW.3 is the son of the deceased. His elder brother is PW.10. He was aged ten years on the date of the incident. Therefore, the Trial Court asked questions to the witness to assess his competency to speak of the incident. Having been satisfied, oath was administered to him and his statement was recorded. He submits that PW.1 and PW.2 are his maternal grandparents. PW.10 is his elder brother. That he was studying in Magadi Government School. His father was working in a quarry while his mother was running a kirana shop. There used to be frequent quarrels between his parents. The accused used to ill-treat his mother without any justifiable cause. Under the intoxication of alcohol, he used to quarrel with her. The entire family was looked after by his mother. His maternal grandparents used to advise the accused, but even then the ill-treatment continued. On the date of the incident, at about 8.00 or 8.30 p.m., while he was in the house studying in room, a quarrel ensued between the deceased and the accused. Thereafter, the accused poured kerosene on the deceased and set her on fire. On seeing the incident, the witness screamed for help. The neighbours rushed therein and tried to put out the fire. Thereafter, PW.1 shifted the deceased to Magadi Government Hospital and later on to Victoria Hospital.

In the cross-examination, nothing worthwhile is elicited to disbelieve the evidence of this witness.

(d). PW.10 is the other son of the deceased and the elder brother of PW.3. He has stated that the accused was addicted to vices, like drinking alcohol, playing cards etc. He was constantly beating his mother. That about four years ago, at about 7.30 p.m., on account of the previous quarrel, the accused poured kerosene on the deceased and lit her on fire. When he made a commotion, the neighbours came and tried to extinguish the fire. Thereafter, the deceased was shifted to Magadi Hospital and from there to Victoria Hospital.

Nothing worthwhile has been elicited in the cross- examination to disbelieve the evidence of this witness.

7. The evidence of the remaining witnesses, in our considered view, is not relevant to establish the case of the prosecution or to support the case of the defence. It is suffice, if we deal with the evidence so far as the eye- witnesses PW.3 and PW.10 are concerned. Both the witnesses speak very clearly about the manner in which the incident occurred. That the accused poured kerosene on the deceased and lit her on fire. It is the contention of the learned counsel for the appellant that, even if the evidence of the eye-witnesses is to be believed, the incident took place at around 7.00 p.m. on 27.08.2007. The deceased died on 31.08.2007 at 8.30 p.m. The complaint was lodged only on 01.09.2007 at 8.30 a.m. Therefore, she contends that the delay has grossly affected the prosecution case. That unless the said delay is explained, the prosecution case cannot be accepted. Learned Additional State Public Prosecutor defends the delay by contending that in the complaint itself, it is narrated that there was hope that after the incident, things would work out well between the accused and the deceased and therefore, the complaint was not lodged immediately after the incident.

8.(a) Having considered the rival contentions, we are of the view that the prosecution has miserably failed to explain the delay in lodging the complaint. The reason assigned is that the complainant was under the bona fide hope that things would be sorted out between the accused and the deceased. However, in his evidence, PW.1 has stated that there was constant harassment for dowry and his daughter – the deceased, was being ill-treated by the accused. The ill-treatment did not reduce at all, even though two sons were born. It continued time and again. In view of the evidence of the complainant – PW.1 itself, it is difficult to accept the hope of the father that after the incident, things would become normal between the deceased and the accused.

(b). Furthermore is the fact, that the deceased succumbed to the injuries on 31.08.2007 at about 8.30 p.m. Around twelve hours thereafter, the complaint has been lodged on 1.9.2007 at 8.30 a.m. There is no explanation for this delay by the prosecution. Even if the plea of the prosecution that PW.1 expected the relationship between the deceased and the accused would improve is to be accepted, why did PW.1 keep quiet for almost twelve hours even after the death of the deceased, has not been brought on record. Therefore the delay raises substantial doubt on the prosecution case.

(c). Even in terms of the evidence of PW.2 – the mother of the deceased, she has stated that the deceased informed her of the incident and the manner in which the accused poured kerosene and lit her on fire. Even this material was suppressed. It came to the fore, only after the deceased succumbed on account of her injuries.

(d). PW.1 has stated in his complaint that the deceased informed him of the cruelty being meted out onher by the accused and also that the accused had poured kerosene on her and lit her on fire. Therefore, this was within the knowledge of PW.1 on the day the incident took place. He has kept quiet for five days until the deceased succumbed to her injuries and one day thereafter, has lodged the complaint. The unexplained delay of almost six days, renders the prosecution case as being doubtful.

9. Furthermore, the prosecution has failed to produce any medical records in order to show the treatment given to the deceased either at the Magadi Government Hospital or at the Victoria Hospital, Bengaluru. Immediately after the incident occurred, the deceased was shifted to the Government Hospital at Magadi. No material is produced with regard to her admission or treatment. On the next day, she was shifted to the Victoria Hospital at Bengaluru. Furthermore no medical records with regard to her admission or treatment have been produced. Therefore, it is difficult to accept the case of the prosecution as to whether even such an incident took place at all. We have no hesitation to conclude that based on the available material, the prosecution appears to have deliberately suppressed this important piece of evidence. Therefore, the same would run against the case of the prosecution.

10. PW.6 is the Doctor who conducted the post mortem examination of the deceased. He has narrated the burn injuries sustained by the deceased. But the evidence does not support the case of the prosecution that the burns were as a result of pouring of kerosene. He has only stated that the deceased had sustained burn injuries. Therefore, even to the extent of the evidence of the Doctor, there is no evidence to indicate that the deceased succumbed to her injuries as a result of kerosene being poured by the accused on her. Therefore the medical evidence also does not support the prosecution case.

11. The contention of the learned Additional State Public Prosecutor is that the evidence of the eye-witnesses PW.3 and PW.10 is sufficient to prove their case. We have considered the evidence. PW.3 and PW.10 are the sons of the deceased. Even if their evidence is to be accepted, the same is not sufficient to prove the case of the prosecution that it was the accused who committed the offence. The evidence of PW.3 and PW.10 necessarily would have to be corroborated by some sort of other evidence which the prosecution has failed to provide. Therefore, purely based on the evidence of the eye-witnesses namely PW.3 and PW.10, who are minors, the conviction would not be sustainable against the accused.

12. Therefore, in view of the failure of the prosecution to offer reasonable reasons for the delay in lodging the complaint and suppression of the medical records by the prosecution, we are of the view that the case of the prosecution cannot be accepted. There is no straw of evidence that could implicate the accused. On reconsidering the entire evidence and material on record, we have no hesitation to hold that the Trial Court has committed a perversity in misreading the evidence and has wrongly convicted the accused. The Trial Court, in our considered view, misdirected itself in giving undue importance to the evidence of PW.3 and PW.10. Such appreciation of the evidence of PW.3 and PW.10 is misconceived. There is no definite evidence led in by the prosecution in support of its case. There is substantial delay of six days in lodging the complaint. Medical records have been suppressed by the prosecution. Even the evidence of the Doctor who conducted the post mortem report does not support the case of the prosecution of death due to burns due of kerosene. For all these reasons, we are of the view that the judgment of conviction dated 24.03.2012 and the order of sentence dated 26.03.2012, passed by the District Sessions Judge, Ramanagara in Sessions Case No.62 of 2008 requires to be set-aside.

13.(a) Hence, Criminal Appeal No.669 of 2012 filed by the appellant – accused Sri.Narasimha Naik is allowed.

(b). The impugned judgment of conviction dated 24.03.2012 and order of sentence dated 26.03.2012, passed by the District and Sessions Judge at Ramanagara, in Sessions Case No.62 of 2008 is set-aside.

(c). The appellant – accused – Sri.Narasimha Naik is acquitted of all the charges levelled against him. He shall be set at liberty forthwith in this case, if not required in any other case/s.

(d). Registry is directed to intimate the operative portion of this order to the Jail Authorities at Central Prisons, Parappana Agrahara, Bengaluru.

         Sd/-                                 Sd/-
        JUDGE                                JUDGE

Bss.


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