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The State Of Karnataka vs Sri. Shivu S/O Rajappa Vaddar on 24 March, 2014

Karnataka High Court The State Of Karnataka vs Sri. Shivu S/O Rajappa Vaddar on 24 March, 2014Author: A.S.Bopanna & Gowda

:1:

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

Dated this the 24th day of March 2014 Present

THE HON’BLE MR.JUSTICE A.S. BOPANNA

and

THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA Criminal Appeal No.2734/2013

Between:

The State of Karnataka,

Reptd. by Kuduchi Police

Station, Belgaum. …Appellant (By Sri. K.S.Patil, HCGP)

And:

Sri. Shivu, S/o Rajappa Vaddar,

Aged about 33 years,

Occ: Coolie work,

R/o Bandhi-Harlapur. …Respondent (Respondent – served)

This appeal is filed under Sections 378(1) & (3) of Criminal Procedure Code seeking to grant leave to the appellant to file the appeal against the order of acquittal of respondent/accused in S.C.No.71/2012 dated :2:

26.03.2013 and be set aside the judgment and order of acquittal of respondent/accused passed by the Fast Track Court, Koppal, in S.C.No.71/2012 and further to convict and sentence the respondent/accused for which they have been charged in accordance with law. This appeal coming on for Admission this day, A.S. Bopanna, J, delivered the following: JUDGMENT

The State is before this Court assailing the judgment dated 26.03.2013 passed in S.C. No.71/2012. The Court below, after considering the evidence available on record, has arrived at the conclusion that the charge alleged against the accused has not been proved beyond reasonable doubt and has accordingly acquitted the accused.

2. Heard the learned Government Advocate and perused the appeal papers. We have also perused the records received from the Court below. :3:

3. The fact that the deceased is the wife of the accused and that their marriage had been performed about 11 years back is not in dispute. Presently, the crime registered in No.92/2012 against the accused is for the alleged offences under Sections 498A and 307 of the Indian Penal Code. Subsequently, on the death of the wife of the accused viz., Smt. Radha, the allegation of having committed the crime under Section 302 of IPC was also included. The prosecution, in an attempt to bring home the guilt, has examined as many as 17 witnesses as P.Ws.1 to 17. The documents at Exs.P.1 to 22 were marked and M.Os.1 to 3 were also exhibited. A portion of the statement of PW-9 before the Police is marked as Ex.D1.

4. The Court below, while analysing the evidence, has referred to the statement of each of the witnesses. Considering the nature of analysis made by the Court below, we have also taken into consideration the :4:

evidence tendered which has been referred to by the learned Government Advocate. The material witnesses in the instant case are P.Ws.5, 6 and 7, who are stated to have reached the spot on learning about the incident. Though they had recorded their statement before the police, they have resiled from the same when they have been examined in the Court and, therefore, they have been rightly treated as hostile. Though they were subjected to cross-examination nothing material has been elicited. Therefore, their evidence would not enure to the benefit of the prosecution. The ASI, who had recorded the complaint and registered the case, has been examined as P.W.11. He has, no doubt, narrated the manner in which the incident had been reported to him and he has been cross-examined at length and he has also stated about the deceased Smt. Radha having been referred to Munirabad Hospital, but he was unable to say who was the SHO. P.W.8 is the doctor. The doctor, who is examined, has also spoken with regard to :5:

the injuries suffered by the accused himself in the incident wherein he had burnt both his hands. The said evidence becomes relevant in a circumstance where the allegations against him is of having burnt his wife Radha to death, but it is seen that he himself has suffered burn injuries. The other witness whose evidence is to be taken into consideration is of P.W.9, who is none other than the mother of the deceased. The evidence on being referred to in detail will indicate that there are contradicting statements made by the said witness. It is also relevant to notice that when the offence alleged against the accused is that he had caused the death of his wife Radha by pouring kerosene and lighting fire, that too eleven years after marriage and having three children, the motive is very important. The mother of the deceased, at the first instance, had stated that the accused had resorted to such act since he had doubted the character of his daughter, but subsequently, tendered a statement that there was a :6:

demand for dowry and therefore, there was cruelty. In a circumstance of the present nature where the accused is alleged to have burnt his wife and when there is also evidence on record that he himself had suffered burn injuries and when from the spot of occurrence, the deceased was immediately shifted to the hospital in an ambulance, the motive plays a very important role and on that there is contradictory statement by PW.9, the mother of the deceased. In such circumstance, if the motive as alleged was that he had caused death of his wife as he had suspected her character, there should have been sufficient evidence to come to the said conclusion. On the other hand, P.W.9 herself, though initially stated so, had subsequently stated that the death was caused as the dowry demand had not been met. Further, in her cross-examination, she admits that at no point of time earlier she had stated these facts to any other person. In such circumstance, the evidence of P.W.9 was rightly disbelieved by the Court below. :7:

5. The other circumstance, which remains for consideration in the instant case, is with regard to the manner in which the complaint had been taken into consideration for the purpose of carrying out the investigation. At the first instance, the complaint was, in fact, the statement of the deceased, which was made on 11.05.2012. However, the same had not been recorded for the purpose of initiating the case. Subsequently, on 12.05.2012 at 12.45 p.m. the complaint was once again registered by the Police Sub- Inspector which was treated for the purpose of registering the crime. In the circumstance, though the complaint having been made by the deceased could be treated as the dying declaration, a doubt is created by the other evidence as to the manner in which, belatedly, such statement is stated to have been recorded. That aspect has also been looked into by the Court below and the manner in which the complaint has been registered :8:

belatedly has also been taken into consideration as one of the circumstances which would create suspicion in the mind of the Court and would create a doubt with regard to the version of the prosecution.

6. Therefore, in the present case, when the material witness have not supported the case of the prosecution and when P.W.9 viz., the mother had made divergent statement with regard to the motive and also had admitted that the allegation as made against the accused has not been stated by her to any other person and in the present case when the accused also suffered injuries in the fire incident which had occurred, regarding which P.W.8 had spoken to, certainly, it would raise a doubt as to the motive alleged and the accused having committed the crime. When such a doubt has arisen, the benefit of doubt certainly has to be given to the accused. If this is kept in view and the judgment of the Court below is taken into consideration :9:

in the background of the evidence that is available, certainly, the acquittal recorded by the Court below does not call for any interference.

Accordingly, the appeal being devoid of merits is dismissed. The records be remitted to the Court below. Sd/-

JUDGE

Sd/-

JUDGE

Kms

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