Allowed

Swamy v. the State of Karnataka

Karnataka HC17 Jan 2022CRL.A/1919/2017

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court set aside the trial court's conviction and sentence under Sections 498A and 304 IPC. Relying on the dying declaration, the High Court found no evidence of harassment, dowry demand, or the accused's intent to cause death, holding the incident to be self-inflicted suicide.

What did the court decide?

The criminal appeal allowed; conviction and sentence set aside; accused acquitted; jail authorities directed to release the accused forthwith.

Swamy Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE M.G.UMA

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CRIMINAL APPEAL NO. 1919 OF 2017

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BETWEEN:

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SWAMY S/O BASAVARAJU AGED ABOUT 26 YEARS, R/O MULLURU VILLAGE, KOLLEGAL TALUK, KOLLEGAL DISTRICT (NOW IN J.C)

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...APPELLANT

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(BY SRI.A.N.RADHA KRISHNA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KOLLEGAL RURAL POLICE REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU - 560001.

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...RESPONDENT

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(BY SRI.K.NAGESHWARAPPA, HCGP)

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THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 26.10.2017 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) IN S.C.NO.48/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498(A) AND 304-I OF IPC.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The accused who is the husband of the deceased has

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filed the present appeal against the impugned judgment of conviction and order of sentence dated 26.10.2017 made in S.C.No.48/2013 on the file of the learned Additional District

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and Sessions Judge at Chamarajanagara (sitting at Kollegal) convicting the accused for offences punishable under Section 498(A) to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/-, in default to pay fine, to undergo S.I. for three months and for offence punishable under Section 304 Part-I IPC to undergo imprisonment for life.

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It is the case of the prosecution that the deceased

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Asha and accused were husband and wife; their marriage

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took place about five years prior to the incident and from their wedlock they have begotten two children. On 8.1.2013 at about 9.00 p.m., the deceased Asha is alleged to have poured kerosene in her matrimonial home with an intention to threaten her husband since he was an alcoholic and was harassing her physically and mentally and was not discharging/conducting himself responsibly towards the family i.e. his wife and children and used to spend all his earnings from fruit vending business in consuming alcohol. It is further alleged that on the date of the incident, when she had poured kerosene to threaten the accused, the accused provoked her to commit suicide and with an intention to eliminate her, he brought a kerosene lamp (which was lit) close to her body/clothes, even though he had the knowledge that she had already poured kerosone on her body/clothes and since kerosene being a petroleum product and highly inflammable and if the lamp comes in contact with the deceased/clothes she had worn would catch fire instantly and burn her. When

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the fire caught the clothes of the victim and she started screaming out of unbearable pain, the husband tried to put off the fire. Her parents rushed to the spot and upon noticing her severe condition, they immediately shifted her to Kollegala Government Hospital for first aid and the doctors therein referred her to K.R. Hospital, Mysuru for better treatment. On 9.1.2013, the Executive Magistrate(Tahsildar) recorded the statement of the victim based on which Crime No.6/2013 was registered against the accused for the offences punishable under Section 498A and 306 IPC. The deceased died on 14.01.2013 in the hospital. Thereafter, charge sheet was filed against the accused for the offences punishable under Section 498A and 304 of IPC. The jurisdictional Court committed the matter to the Sessions Court. The learned Sessions Judge framed the charge. The accused pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, it examined P.Ws.1 to 15 and got marked Exs.P1 to 16 and

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M.Os.1 to 3. The statement of the accused under Section 313

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Cr.P.C. was recorded. However, the accused denied all the incriminating evidences available against him and did not adduce any defence evidence.

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Based on the aforesaid pleadings, the learned

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Sessions Judge framed the following points for consideration:

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"1. Whether the prosecution has proved beyond all reasonable doubt that on 08.01.2013 at about 9.00 in the night, in Mullur Village, the accused being the husband of the deceased Asho ill-treated/harassed here physically and mentally (as usual and in this background) and thereby committed an offence punishable U/s. 498A IPC?

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Whether the prosecution has proved beyond all reasonable doubt that on the same day, time and place, the accused in furtherance of the said ill-treatment\torture and act of cruelty, brought a kerosene lamp (lit) and provoked/instigated her to burn herself, having full knowledge that she had poured substantial quantity of kerosene so as to cause death or such bodily injuries that could cause death and in the process and with an intention to eliminate her, the accused brought the kerosene lamp so close to her body that her clothes )which was already tainted/wet with kerosene) came in contact and caught fire instantly and thereby, the accused was guilty of having committed an offence punishable U/s. 304 IPC?

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What Order?"

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Considering both the oral and documentary evidence,

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the learned Sessions Judge has answered the points framed in the affirmative holding that the prosecution has proved beyond all reasonable doubt that on 8.1.2013 at about 9.00 p.m. in the night in the Mulluru village, the accused being the husband of the deceased ill-treated, harassed the deceased physically and mentally and thereby committed the offence punishable under Section 498A IPC and further recorded a finding that in furtherance of the said ill-treatment and act of cruelty, the accused brought a kerosene lamp and provoked/instigated the deceased to burn herself having full knowledge that she had poured substantial quantity of kerosene and caused her death and thereby the accused committed the offence punishable under Section 304 of IPC. Accordingly, the learned Sessions Judge has convicted the accused for the offences punishable under Sections 498A to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/-, in default to pay fine, to undergo

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S.I. for three months and for offence punishable under Section

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304 Part-I IPC to undergo imprisonment for life.

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Hence, the present appeal by the accused.

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We have heard the learned counsel for the parties

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to the lis.

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Sri.A.N. Radhakrishna, learned counsel for the

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accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the trial Court against the accused for the offences punishable under Sections 498A and 304 Part-I IPC is erroneous and contrary to the material on record and the same is liable to be set aside. He would further contend that the trial Court failed

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to note that the scribe, who recorded Ex.P1 the statement of the deceased/dying declaration, has not been examined and it is important to note that non-examination of the scribe is fatal to the case of the prosecution. The trial Court further failed to note that P.W.3 the father of the deceased has turned hostile

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and has not supported the case of the prosecution. The trial Court has failed to appreciate the case of the prosecution, more particularly, the evidence of P.W.3 who has turned hostile but only considered Exs.P1 and 4- the complaint and dying declaration and erroneously convicted the accused for the offences punishable under the Sections as aforesaid.

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It is further contended that with regard to the occurrence of the incident, there are two versions. According to Ex.P1, the incident took place in the kitchen, on the contrary, according to the other version, the incident took place at the living area. In the absence of any proof, the learned Sessions Judge was not justified in convicting the accused. He would further contend that in Ex.P1 the deceased has stated at Sl.No.13 that she herself has caused the burn injuries and P.W.1-Manjula has admitted in the crossexamination that Dr.Mohan-P.W.14 gave the fitness certificate, when her staff went to the chambers of P.W.14.

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There is absolutely no material to show the involvement of the accused in the homicidal death of the deceased.

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It is further contended that in the entire complaint-

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Ex.P1, there is no allegation of any harassment or demand for dowry to attract the ingredients of Section 498A. In the absence of any material document to prove the involvement of the accused, the trial Court is not justified in convicting the accused. He would further contend that P.W.3-father, P.W.6sister, P.W.7-mother, P.Ws.8 to 10-neighbours have turned hostile and have not supported the case of the prosecution. Therefore, the learned Sessions Judge was not justified in convicting the accused for imprisonment for life. The accused being he husband had tried to extinguish the fire is admitted by the deceased herself in Ex.P1 and the accused has already undergone seven years imprisonment and is having two children. Therefore, he submits that there is absolutely no case made out against the accused and this is a fit case for acquitting the accused.

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Per contra, learned High Court Government Pleader Sri.K. Nageshwarappa while justifying the impugned judgment of conviction and order of sentence passed by the trial Court contending that on the basis of Ex.P1, the case was registered under Section 498A and based on the complaint Ex.P4 by the father of the deceased Ex.P3, Section 306 IPC was included and after the death of the deceased in the hospital, Section 304 Part I of I.P.C. was included. He has further contended that when the victim poured kerosene, the accused should have protected her instead of provoking her to commit suicide which shows that with an intention to eliminate her permanently he had brought a kerosene lamp close to her body, even though he had knowledge that she had already poured kerosene on her body. Therefore, the learned Sessions Judge was justified in invoking Section 304 Part I of IPC and accordingly, sought to dismiss the appeal.

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In view of the aforesaid rival contentions urged by

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the learned counsel for the parties, the only point that would arise for consideration in the present appeal is:

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"Whether the trial Court is justified in convicting the accused for offences punishable under Sections 498A to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/-, in default to pay fine, to undergo S.I. for three months and for offence punishable under Section 304 Part-I IPC to undergo imprisonment for life, in the facts and circumstances of the case?"

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It is not in dispute that based on the statement of the deceased on 9.1.2013 the jurisdictional police at the inception registered the case in Crime No.6/2013 under Section 498A and based on the complaint Ex.P4 by the father of the deceased Ex.P4, Section 306 IPC is included and after the death of the deceased in the hospital and after investigation, the charge sheet came to be filed under Section 304 Part I of IPC. On careful perusal of Ex.P1, the statement

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of the deceased/dying declaration, it is clear that the statement was made when she was conscious and at Sl.No.13 to the question as to who caused the injury, the answer is "swathaha nane(myself) and the place where it happened, the answer is "in the kitchen". She has further stated in the dying declaration that she herself had poured kerosene on 8.1.2013 in order to teach a lesson to the accused and the accused had brought the lamp and thereby she suddenly caught fire. When she had caught fire, the accused-husband tried to extinguish the fire and thereafter her father and mother brought her to the hospital. By a careful reading of Ex.P1, it is clear that there is no serious allegation of any harassment both physical and mental or there was no demand for dowry by the accused. It is also not in dispute that out of the wedlock of accused and the deceased, two children were born and they had completed five years of marriage on the date of the incident. The complaint does not disclose any harassment prior to the incident. Except stating that he was a drunkard and used to

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spend all the money earned from the fruit vending business

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and only to teach him a lesson she had acted like that and on the date the incident occurred, absolutely, there is no material to prove that the accused had any intention to eliminate the deceased and none of the witnesses namely PW3-father, PW6sister, PW7-mother have whispered anything about the harassment nor P.Ws.8 to 10 who are the neighbors have whispered anything about the harassment or about

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commission of the accused.

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This Court being the appellate Court, it is relevant to reconsider the entire evidence of the prosecution witnesses and the documents relied upon:

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(1) P.W.1 who recorded the statement of the injured as per Ex.P1 supports the case of the prosecution.

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(2) P.W.2-Nanjunda, Head Constable, Kollegal Rural police

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station has given a request letter to the Tasildhar to record the statement of the injured. Accordingly, he has given request to the doctor to ascertain whether the injured was in a

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fit condition to give the statement. The doctor received the request and given the opinion that injured was fit to give statement and he supports the case of the prosecution.

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(3) P.W.3-father of the deceased who lodged the complaint as per Ex.P4 and witness to the spot mahazar. He has identified M.O.1-kerosene, M.O.2-lamp and M.O.3-burnt cloth piece of the deceased, but has turned hostile.

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(4) P.W.4-one of the panch witness to the mahazar Ex.P5 has not supported the case of the prosecution and has turned hostile.

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(5) P.W.5-Mahadevaswamy and P.W.6-Nagarathna, panch witnesses to the spot mahazar as per Ex.P5 and inquest panchanama as per Ex.P6 have not supported the case of the prosecution and have turned hostile.

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(6) P.W.7-Nagamma, wife of P.W.3 and mother of deceased, whose statement was recorded under Section 161 of Cr.P.C. as per Ex.P7 before the police has turned hostile.

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(7) P.Ws.8 to 10 who are neighbors and whose statements were recorded as per Exs.P8 to 10 before the police, also turned hostile and not supported the case of the prosecution.

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(8) P.W.11-Dr.Chandrashekara who conducted the post mortem on 14.1.2013 submitted a report as per Ex.P9 and opined that the burn injuries are about 75 to 80%. He has supported the case of the prosecution.

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(9) P.W.12-Police Constable who carried the articles M.Os.1 to 3 to the F.S.L. and has supported the case of the prosecution.

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(10) P.W.13-PSI and Investigating Officer based on the MLC intimation brought by the constable registered Crl.Misc.No.14/2013 on 18.1.2013 and instructed the ASI to go to the Tahsildar and record the statement of the injured in K.R. Hospital. Conducted the investigation and filed the charge sheet and has supported the case of the prosecution. (11) P.W.14-Dr.Mohan, who gave first aid on 9.1.2013 to the deceased to the deceased with the burn injuries and has

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admitted that the deceased informed him that when she attempted to commit suicide, she sustained the burn injuries and has supported the case of the prosecution. The doctor has recorded the statement and given the certificate that

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accused was in a fit state of mind to give the statement.

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(12) P.W.15-Incharge Additional Tahsildar who had conducted the inquest over the dead body on 14.1.2013 as per Ex.P6 and has supported the case of the prosecution.

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Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge has proceeded to convict the accused.

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It is the specific case of the prosecution that based on Ex.P1-statement of the victim, which subsequently considered as the dying declaration, that on 8.1.2013 at about 9.00 p.m. the deceased herself poured kerosene in her matrimonial home, only to threaten her husband, since he was not discharging his duties to the family properly and he was in

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the habit of consuming alcohol every day and he was neglecting both the deceased and their children. The accused provoked her to commit suicide with an intention to eliminate her and brought the kerosene lamp close to her body and as she had already poured kerosene on her body, she caught fire instantly. When she started screaming, her husband tried to extinguish the fire and thereafter she was brought to the hospital. The entire averments made therein clearly depicts that her statement was recorded by P.W.14-Doctor when she was in the fit state of mind. She has specifically stated in her statement as per Ex.P1 that the incident occurred in their house because of her own acts and when the statement was recorded she was conscious. She has further stated that she has done the said act to teach a lesson to her husband. When she was in the midst of the fire, her husband tried to extinguish the fire. Absolutely, there is no material to prove that he had any intention to cause the death and nor he was harassing her physically, mentally so as to attract the

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provisions of Section 498A and 304 Part I of IPC. The prosecution witnesses namely P.W.3-father, P.W.6-sister, P.W.7-mother, P.Ws.8 to 10-neighbours have not whispered anything against the accused to attract the provisions of Section 498A and 304 Part I IPC. Though P.W.3 filed additional complaint as per Ex.P4 reiterating the statement made by his daughter as per Ex.P1 he has not whispered anything about the harassment or cruelty meted out by the accused to his daughter nor any intention to cause the death of the deceased. These materials have not been considered by the learned Sessions Judge while convicting the accused for offences punishable under Section 498A and 304 Part I of IPC.

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On meticulous reading of the documents as per Ex.P1 and Ex.P4, it is clear that none of these documents or the evidence of the prosecution witnesses disclose the involvement of the accused, either physical or mental harassment or intention to eliminate the deceased. The material on record clearly depicts that it is the accidental fire

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which is self made by the deceased as admitted by her in the dying declaration at Sl.No.13 as already stated supra. In the absence of any evidence to prove the involvement of the accused to cause the homicidal death, the learned Sessions Judge is not justified in convicting the accused.

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The evidence on record as per Ex.P9 clearly discloses that the incident occurred because of self-immolation, only to teach a lesson to the husband of the deceased. It is also stated by P.W.14-doctor in the examination-in-chief that she sustained about 75 to 80% burn injuries and the same occurred when she tried to commit suicide and the same was informed to him. Nothing has been placed before the court to prove that it was at the instance of the accused. It is also not in dispute that though the incident occurred on 8.1.2013, the statement of the deceased was recorded only on 9.1.2013 and she died in the hospital on 14.1.2013, which do not probabalise that there is any involvement of the accused. It is also not in dispute that accused has been in jail for more than

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seven years. The entire materials on record clearly indicate that the prosecution has not proved the charge made against the accused beyond reasonable doubt. None of the witnesses nor the material documents depict about the involvement of the accused in the homicidal death of the deceased. The learned Sessions Judge has erred in recording the finding that the fact that the victim poured kerosene in his presence was just a triggering point for the accused to achieve his objective/his intention to eliminate her permanently and hence, it is a fit case to invoke provisions of Section 304 Part I IPC wherein the accused had both knowledge and intention to eliminate her permanently. This finding is perverse and without any basis. Neither Ex.P1-dying declaration, Ex.P4 Complaint of the father nor any of the prosecution witnesses have whispered about the intention of the accused thereby the very finding recorded by the learned Sessions Judge to invoke the provisions of Section 304 Part I IPC is without any basis and cannot be sustained.

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For the reasons stated supra, the point that arises

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for consideration in the present appeal has to be answered in the negative holding that the learned Sessions Judge is not justified in convicting the accused for the offences punishable under Sections 498A and 304 Part I of IPC in the absence of

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any evidence on record. The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is liable to be set aside.

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In view of the above, we pass the following:

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ORDER

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(i) The criminal appeal filed by the accused is hereby allowed.

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(ii) The impugned judgment of conviction and order of sentence passed by the trial Court dated 26.10.2017 made in S.C.No.48/2013 convicting the accused for offences punishable under Section 498(A) of IPC to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/-, in default to pay fine, to undergo S.I. for three

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months and for offence punishable under Section 304 Part-I IPC to undergo imprisonment for life, is hereby set aside.

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(iii) The accused is hereby acquitted for the offences punishable under Sections 498A and 304 Part I of IPC.

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(iv) The jurisdictional Jail Authorities are hereby directed to release the accused forthwith, if he is not required in any other case.

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(v) The bail bonds, if any, executed by the accused stand cancelled.

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(vi) The fine amount deposited by the accused (if any) shall be refunded to the accused forthwith.

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(vii) Registry is directed to send back the trial court records to the trial court with a copy of the judgment.

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Sd/JUDGE

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Sd/JUDGE

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*alb/-

Swamy v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Swamy v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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