Nirmala Nagappa Doddawad Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C 1973., PRAYING TO PASS AN ORDER CALLING FOR THE RECORDS FROM THE TRIAL COURT, AND SET ASIDE THE JUDGMENT AND ORDER DATED 17.02.2020 PASSED BY THE SPECIAL JUDGE, CHILDREN’S COURT (PRL. SESSIONS JUDGE), BELAGAVI, AT BELAGAVI IN SESSIONS CASE NO.141/2018 CONVICTING THE APPELLANT/ACCUSED OF THE OFFENCE U/S. 302 OF IPC AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE FOR THE SAID OFFENCE.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, JUSTICE RAJESH RAI K , DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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This appeal directed against the judgment of conviction and order of sentence dated 17.02.2020 passed in Sessions Case No.141/2018 by the Special Judge, Children’s Court (Principal Sessions Judge) at Belagavi (hereinafter referred to as the ‘learned Sessions Judge’), whereby the learned Sessions Judge convicted the accused for the offence punishable under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) and sentenced her to undergo imprisonment for life.

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Briefly stated, the facts of the case are as follows:

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The complainant-PW.1 Shivappa Ramappa Barki is the father of deceased child Rajeshwari in the instant case. He was residing along with his wife and children at Hirebellikatti village in Bailhongal Taluk. The accused-Nirmala is the daughter-in-law of PW.1’s elder sister. About two months prior to the incident, PW.1 and his wife rebuked the accused as she had beaten their

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child Rajeshwari (deceased) as the child Rajeshwari had quarreled with the children of accused. Since then, the accused harboured animosity towards child-Rajeshwari, treated her discourteously and also used to threaten her. On 27.11.2017 at about 4:00 p.m., accused with an intention to burn Rajeshwari to death, took kerosene and match box and led Rajeshwari to the nearby cotton field bearing Sy.No.28 owned by PW.14Mallanagouda Ganganaika Patil under the guise of attending nature call. In the said spot, the accused doused her by pouring kerosene. As a result, Rajeshwari sustained severe burn injuries. On hearing the deceased crying, PWs.3, 7 to 10 and 15 rushed to spot and shifted the injured to BIMS, Belagavi. During the course of treatment, on the following day, the childRajeshwari succumbed to the burn injuries in the Hospital. Thereafter, P W.1 lodged a complaint against accused before the Doddawad Police Station as per Ex.P1 on 28.11.2017. On the strength of Ex.P1, PW.20-Police Sub-Inspector of respondentPolice registered FIR in Crime No.92/2017 against the accused for the offence punishable under Section 302 of IPC as per Ex.P21.

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Subsequently, PW.20-PSI apprehended the accused

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on 29.11.2017 and produced her before PW.22-Investigation

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Officer. Later, he conducted the investigation in the case, recorded the statement of material witnesses and drawn the relevant mahazars and after obtaining necessary documents from the concerned authorities, laid charge sheet against the accused before the committal Court for the offences punishable under Sections 302 and 506 of IPC.

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Post committal of the case before the Sessions Court, the learned Sessions Judge after securing the presence of the accused, framed charges against her for the offences punishable under Sections 302 and 506 of IPC and read over the same to her. However, she denied the charges and claimed to be tried.

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In order to prove the charges leveled against the accused, the prosecution in total examined 22 witnesses as PW.1 to PW.22 and marked 37 documents as Ex.P1 to Ex.P37, so also identified 9 material objects as MO.1 to MO.9.

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On completion of the prosecution evidence, the learned Sessions Judge read over the incriminating portion of the evidence of material witnesses to the accused as contemplated under Section 313 of Cr.P.C. However, the accused denied the same. Her defence was that she was falsely

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implicated. The accused neither examined any witness on her behalf nor marked any documents.

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After assessing the oral and documentary evidence, the learned Sessions Judge convicted the appellant/accused for the charges leveled against her and sentenced her as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal.

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We have heard the learned counsel

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Sri. S.P. Kandagal for the appellant and the learned Addl. SPP Sri. A.M. Gundawade for the respondent-State. We have also perused the records made available before us.

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The primary contention of the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Sessions Court suffers from perversity and illegality. The learned Sessions Judge has grossly erred while convicting the accused without duly appreciating the evidence and documents placed before him. He contended that there are no eyewitnesses to the incident of accused setting the deceased on fire. The prosecution examined PWs.3, 7 to 10 as eyewitnesses to the incident, among them PW.8 totally turned hostile to the prosecution case. PWs.7, 9 and 10 though

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supported the case of prosecution; according to them, the deceased child informed them that the accused set her on fire after pouring kerosene. In such circumstance, the evidence of these witnesses cannot be relied to prove the guilt of accused as the prosecution has failed to prove the oral declaration made by the deceased-child to these witnesses by placing cogent evidence. Further, he also contended that, the material witnesses i.e., PWs.7, 9 and 10 partially turned hostile to the prosecution case. Though PW.3 supported the case of prosecution, he had neither seen the incident nor was informed by the deceased about the accused at the spot of incident. Further, the relationship between PW.3 and accused was not cordial; as such, no credence can be attached to his evidence. He also contended that the recovery of incriminating articles at the instance of accused is not proved as provided under Section 27 of the Indian Evidence Act. The prosecution also failed to prove the motive for the commission of incident by the accused. In such circumstance, he prays to allow the appeal by setting aside the impugned judgment.

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Per contra , the learned Addl. SPP by supporting the impugned judgment inter alia contended that the cogent evidence placed by the prosecution proved the charges leveled

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against the accused beyond all reasonable doubt and the learned Sessions Judge appreciated the evidence in right perspective and convicted the accused and sentenced her appropriately. He further contended that the evidence of PWs.3, 7, 9 and 10 clearly establishes that the deceased child made an oral declaration to them about the manner in which the accused set her ablaze. In such circumstance, though the declaration was an oral one, the same evidentiary value has to be attached as that of written dying declaration. He also contended that, immediately after the incident, PW.15 visited the spot and shifted the injured to the Hospital in his car. During the course of treatment, the injured once again made statement before PW.3 about the act committed by the accused. PW.22 visited the scene of offence on 29.11.2017 and seized M.Os.1 to 9 under Ex.P8. Among these material objects, M.O.5-plastic bottle, M.O.6- seven match box sticks and M.O.7burnt match box sticks clearly establishes that the accused poured kerosene and set the child ablaze. PW.16-Doctor who treated the injured initially has stated that “he smelled the kerosene from the body of the deceased.” The learned Addl. SPP also contended that the evidence of PWs.1 and 3 categorically established the motive for the commission of

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crime by the accused. In such circumstance, the prosecution proved the charges leveled against accused beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective parties and also on perusal of entire evidence on record including the impugned judgment, the following points arise for our consideration:

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i. “Whether the judgment under this appeal suffers from any perversity or illegality?”

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ii. Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of IPC?”

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On careful perusal of the evidence and documents

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placed on record, in the instant case, the deceased child died due to “septicemia as a result of 80% superficial to deep antemortem burn injuries sustained”. PW.12-Doctor who conducted autopsy on the body opined accordingly in the post-mortem report i.e., Ex.P22. Additionally, the inquest panchanama drawn by PW.22 also reveals that the deceased child sustained deep burn injuries and as a result, she succumbed. It is pertinent to note that, PW.12-Doctor in the post-mortem report clearly observed that the burn injuries sustained by the deceased are

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ante-mortem. In such circumstance, the prosecution has proved beyond reasonable doubt that the deceased child succumbed due to ante-mortem burn injuries.

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To connect the accused to the death of deceased child, the prosecution predominantly relied on the evidence of PWs.3, 7, 9 and 10 i.e., eyewitnesses to the incident. On careful scrutiny of the evidence of these witnesses, PW.3 clearly deposed in his evidence that he had seen the accused taking the child towards cotton field belonging to one Mallangouda Patil and thereafter, on hearing the child cry, he himself and other eyewitnesses i.e., PWs.7, 9 and 10 rushed to the spot. They were informed by the child that the accused set her ablaze. PWs.7, 9 and 10 have deposed that, as soon as they reached the spot, the accused on seeing them, fled away from the spot by throwing the bottle and match box that was held by her. Thereafter, they called PW.15 to the spot and shifted the child to the Hospital in the Car of PW.15. The evidence of all these witnesses including PW.15 is consistent.

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It is the case of the prosecution that the accused has committed the murder of the child as PWs.1 and 6 i.e., the parents of the child had reprimanded the accused for assaulting

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the child i.e., the deceased and that she enraged by the same, was nourishing ill will against the child. To prove this circumstance, the prosecution relied on the evidence of PWs.1 and 6; both these witnesses have consistently deposed to that effect. Though the defence counsel cross examined these witnesses at length, nothing worthwhile was elicited from them to discard their testimony.

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The other circumstance relied by the prosecution is recovery of the material objects i.e., M.Os.5 to 7 i.e., plastic bottle, match box with seven sticks, burnt match sticks respectively from the spot. These material objects were seized under Ex.P8-spot panchanama. PWs.2 to 4 identified M.Os.5 to 7 and stated that those articles were seized by the Police from the spot. It is important to note that, PWs.7, 9 and 10 have stated in their evidence that they had seen, the accused running away from the spot by throwing away M.Os.5 and 6. Further M.Os.5 to 7 were sent to chemical examination and after examination, the FSL Officer issued a report as per Ex.P23, which shows that the kerosene residue was detected in M.O.5. The said report was marked through the Investigation Officer-PW.22. Hence, on collective reading of evidence of these witnesses, the prosecution has proved that the accused

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committed the murder of deceased child by pouring kerosene and setting her ablaze.

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Learned counsel for the accused vehemently contended that the oral dying declaration made by the deceased cannot be a basis for conviction of the accused since suspicion arises in the evidence of PWs.3, 7, 9 and 10. The Hon’ble Apex Court in the case of Laxman vs. State of Maharashtra reported in (2002) 6 SCC 710 held, the juristic theory regarding the acceptability of dying declaration be that oral or written.

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The Hon'ble Apex Court in the recent judgment rendered in the case of IRFAN @ NAKA Vs THE STATE OF UTTAR PRADESH in CRIMINAL APPEAL NOs.825-826 OF 2022 dated 23.08.2023, has held at paragraph No.62 as under;

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"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same.”

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Applying the above findings to the instant case,

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there is no reason for the parents of the deceased to lodge a

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false complaint against the accused and absolutely, there is no vengeance against the accused by PWs.7, 9 and 10 to depose against her by concocting a false story. Hence, we find no good grounds to disbelieve the evidence of PWs.3, 7, 9 and 10. The learned Sessions Judge rightly appreciated their evidence and rightly convicted the accused for the offences charged.

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On an overall appreciation of the evidence and circumstances discussed supra, in our considered view, the prosecution successfully proved the guilt of the accused beyond all reasonable doubt. In that view of the matter, interference in the impugned judgment is not called for. Accordingly, we answer point No.1 in the negative and point No.2 in the affirmative and proceed to pass the following:

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ORDER

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The Criminal Appeal No.100400/2024 is hereby dismissed .

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SD/-

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(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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HKV