(Prayer: This CRL.A. is filed under Section 374(2) of Cr.P.C., praying to set aside conviction and sentence dated 16.06.2012 passed by the II-Fast Track Court and sessions judge, Hassan in S.C. No. 95 of 2011 convicting the appellant/accused for the offence punishable under sections 498-A and 302 of IPC.)
1. The case of the prosecution in brief is as follows:
The Complainant is the father of the deceased. He has stated that his daughter married the accused on 25.05.2002 at Arakalagudu Taluk. They have two sons aged 07 and 04 years. That his daughter always complained about the harassment being meted out to her. That on 15.01.2011 at about 11.00 p.m., one Dharmakumar called him and stated that his daughter was caught on fire, due to pouring of kerosene and therefore, she was being shifted to the hospital at Hassan. He was unable to get any vehicle to go to Hassan, since he was residing at Heeralli Koppalu, Arakalagudu Taluk, which is about 15 kilometers from the place of the incident. In the morning, at about 6.00 a.m., he and his wife went to the Hassan Government Hospital and saw their daughter. She had suffered about 90% burn injuries. She was conscious. The complainant was confident that his daughter would survive and thereafter, normal matrimonial ties would continue. Thereafter, his four year old grand son informed him that the accused had poured kerosene and lit the deceased on fire. Subsequently, his daughter died on 21.01.2011. After the death of his daughter, the case was registered in Cr.No.24 of 2010 of Arakalagudu Police Station and investigation was taken up. On completion of investigation, the charge-sheet was laid against the accused, for the offences punishable under Sections 498-A and 302 of the Indian Penal Code.
2. In order to prove its case, the prosecution examined 26 witnesses and marked 18 exhibits along with four material objects. The defence marked Exhibits No.D1 and D2, which are the marked portions of the statements of PW No.11 and 19.
3. The accused pleaded not guilty and claimed to be tried. By the impugned judgment, the accused was convicted for the offences punishable under Sections 498-A and 302 of IPC. The appellant/accused was sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.3,000/-, in default to pay fine, he shall further undergo S.I. for three months for the offence punishable under Section 498-A of I.P.C. He is also sentenced to undergo simple imprisonment for life and to pay a fine of Rs.5,000/- in default to pay fine, to further undergo S.I. for five months for the offence punishable under Section 302 of I.P.C. Both the sentences to run concurrently. Aggrieved by the same, the present appeal is filed.
4. Sri.R.B.Deshpande, learned counsel appearing for the appellant contends that the impugned order is bad in law and requires to be interfered. That the order of the Trial Court is perverse in misreading the evidence on record and has wrongly convicted the accused. That there is substantial delay in lodging the complaint. That no medical records have been produced to substantiate the case of the prosecution. That the reliance placed on the evidence of the child, is mis-placed. There is no material to indicate that it was the accused who poured kerosene on the deceased and lit her on fire. Hence, he pleads that the appeal be allowed by acquitting the accused.
5. On the other hand, Sri.Vijayakumar Majage, learned Additional Special Public Prosecutor disputes the same. He contends that the delay, if any has been substantially explained by the prosecution. That the non-production of the medical records pertaining to the treatment of the appellant is inconsequential. The eye witness has seen the incident. The doctor who conducted the autopsy, supports the case of the prosecution, that the death is caused because of burning. Hence, it is pleaded since there is no perversity and misreading of the evidence by the Trial Court, the appeal may be dismissed by confirming the judgment of conviction and sentence.
6. Heard learned counsels and examined the records.
7. (a) The first contention of the learned counsel for the appellant is based on delay.
(b). He contends that according to the case of the prosecution, the incident took place on 15.01.2011. The complaint was lodged on 22.01.2011. There is an unexplained delay of almost six days in lodging the complaint. That even in terms of the case of the prosecution, after the incident occurred, the deceased was firstly treated at the Hospital at Arakalagudu. Thereafter, at Hassan and subsequently, at Victoria Hospital, Bengaluru. In the entire process of six days, there is no explanation as to why the complaint was not lodged. Therefore, this effects the root of the prosecution case.
(c). The same is answered by the learned S.P.P., who contends that the delay has been satisfactorily explained by the prosecution. The evidence of the eye witnesses who speak about the previous harassment being meted out to the deceased by the accused are PWs-5,6,7,8 and 19. PW-5 is the brother of the deceased; PW-6 is the father; PW-7 is the mother; PW-8 is the sister and PW-19 is Panchayathdar. They have all spoken about the harassment being meted out to the deceased. Notwithstanding such harassment meted out to the deceased, no complaint was lodged to the Police against such acts being committed by the accused on the deceased. The complainant and his family members were always hopeful that the dispute would be sorted out amicably and the harassment would come to an end and hence, they did not lodge any complaint. Reliance is also placed on the complaint of the father-PW.6. The father of the deceased has narrated that notwithstanding the earlier harassment being meted out deliberately, they did not lodge any complaint hoping that the matter would be settled and his daughter would live a normal life. Even when she was in the hospital, when he saw his daughter with 90% burn injuries, he was still under the hope that she would recover and thereafter normal life would be led by both of them. It is for this reason that the complaint was not lodged immediately after the occurrence of the incident.
(d). Having considered the contentions, we are of the view that the prosecution has explained the delay, if any, in lodging the complaint. This is not a stray case of harassment being meted out to the deceased. The evidence of PWs No.5 to 8 and 19 would indicate the previous harassment being meted out to her and no complaint was lodged in that regard. The same is not disputed by the learned counsel for the appellant. It is yet another case of harassment being meted out to the deceased. The attitude of the father and relatives appears to be consistent in that even though she was harassed earlier, no complaint was lodged. When the present incident occurred, no complaint was lodged. Therefore, the possible explanation by the complainant for not lodging the complaint is just, honest and reasonable. Therefore, we do not find that there was any deliberate delay in lodging the complaint in terms of Ex.P4. Therefore, the contention of delay in lodging the complaint cannot be accepted.
8.(a) The further contention is that the incident having taken place on 15.01.2011, there are no medical records at all produced by the prosecution until she died on 22.01.2011. Thereafter, autopsy was conducted, which indicated that the death was due to septicaemia as a result of burn injuries sustained by the deceased. The non-production of the medical records is fatal to the case of the prosecution. It is not only one but three hospitals that the deceased was taken for treatment. There is not even a single piece of paper to show that medical treatment was given to the deceased. Therefore, suppression of the medical records would render the prosecution case to be doubtful.
(b). The same is countered by the learned Additional S.P.P. to contend that mere non-production of the medial documents does not render the prosecution case to be doubtful. The evidence of the eye witness PW-4 as corroborated with the evidence of PW-3 would clearly indicate that kerosene was poured on the deceased which thereafter was dowsed by PW-3. Subsequently, she was shifted to Arakalagudu hospital for treatment. The autopsy report would clearly indicate the burns sustained by the deceased. Therefore, the prosecution has been able to establish that the death was caused due to burn injuries sustained by the deceased. Therefore, mere non-production of the medical records is inconsequential.
(c). On considering the contentions, we have re-examined the evidence of PW-3 and PW-4 with reference to the injuries caused. Their evidence would indicate that the father of PW-4, namely the accused, poured kerosene on the deceased and lit her on fire. Immediately, thereafter, PW-3 came to the scene of the offence and dowsed the fire. Therefore, the prosecution has been able to establish that it was the accused who poured kerosene on the deceased and lit her on fire. The same is supported by the evidence of the doctor who conducted the autopsy in terms of PW-22. He has stated that the extent of injuries sustained by the deceased and that the death was caused due to septicaemia as a result of burn injuries. Therefore, when the cause of the injuries has been narrated by PW-4 and the same is corroborated by the evidence of PW-3 and the doctor, who speaks about the nature of the injuries on the deceased, which caused her death, we are of the considered view that mere non-production of the documents would not vitiate the case of the prosecution.
9. It is further contended that the evidence on record would clearly indicate that the deceased was in a position to speak for six days. Inspite of the same, her evidence has not been recorded. No statement of hers has been taken. Therefore, the case of the prosecution cannot be accepted.
10. On the otherhand, the learned Addl.SPP contends that the evidence of PWs-5, 6 and 7 are contrary. They have clearly narrated that the deceased was unconscious and therefore her statement could not be recorded.
11.(a). PW-5 in his cross-examination at one stage has stated that the victim was in a position to speak. However, in the subsequent portion of the cross-examination, he has denied the suggestion that the victim was conscious and in a position to speak. Therefore, a stray sentence in the said evidence cannot be accepted to conclude that the victim was conscious and in a position to speak.
(b). PW-6, the father of the deceased has also denied the suggestion in the cross-examination that the victim was in a position to speak.
(c). PW-7 has also stated in the cross-examination that when the victim had come to the hospital, she had lost her conscious.
(d). Therefore, in view of the aforesaid evidence, we have no hesitation to hold that the deceased was not in a position to speak and therefore her statement has not been recorded.
12.(a). It is further contended that in terms of the evidence of the doctor, PW-22, he has narrated that the death of the deceased was due to septicaemia in terms of his report vide Ex.P12. In support whereof, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of B.V.Kavatakar and another Vs. State of Karnataka reported in 1994 Supp(1) SCC 304 to contend that even though the offence is under Section 302 of I.P.C, based on the evidence that the death was due to septicaemia, it was brought down to a lesser offence under Sections 326 read with 34 of I.P.C. Therefore, it is pleaded that the same be extended to the appellant herein.
(b). The same is disputed by the learned S.P.P. who contends that the facts of the case are not applicable to the case on hand.
(c). We have considered the judgment at length. What could be seen from the judgment is that the deceased therein died as a result of septicaemia secondary to injuries and peritonitis and that the deceased succumbed to the injuries after five days Herein, even though the deceased succumbed to the injuries after six days does not mean that the offence could be reduced to that punishable under Sections 326 read with Section 34 of I.P.C. instead of conviction under Section 302 read with Section 34 of I.P.C. The evidence of the eye-witness herein would clearly indicate that kerosene was poured on the deceased by the accused. The medical opinion is that the death is due to septicaemia as a result of the burn injuries sustained. Therefore, when the medical evidence corroborates with the evidence of the eye witness, we are of the view that the said judgment would not be applicable to the case on hand. Merely because the death occurred later on as a result of the burn injuries, it cannot be reduced to a lesser offence punishable under Section 326 read with Section 34 of I.P.C. Otherwise, in every case of burn injuries, where death occurs on a subsequent date, every offence would have to be reduced from Section 302 to Section 326 of I.P.C. Therefore, we are of the view that it would be inappropriate to compare the facts of the aforesaid case to the facts of this case.
13. PW-4, being an eye witness, he Trial Court posed questions to the witness to satisfy itself with regard to the competency of the witness. Having been satisfied with the witness, that he can render evidence, the same was recorded as that of PW-4 who is none other than the child of the accused and the deceased. He was aged about 4 years on the date of the incident. He has narrated that as on the date of the incident, his father had consumed alcohol and assaulted his mother and poured kerosene on her and lit her on fire. She started screaming. He has further stated that her Aunt, PW-3 came there and drowsed the fire. Nothing worthwhile is elicited in the cross-examination that requires any consideration.
14.(a) It is further contended that the evidence of the alleged eye witness in terms of PW-4 cannot be accepted. That the evidence of PW-3 does not support the case of PW-4.
(b). We have considered the evidence of PW-4. All the suggestions were denied. The eye-witness had clearly stated with regard to the accused having poured kerosene on the deceased and lit her on fire. The evidence of PW-3 is corroborated to that of PW-4. PW-3, Aunt of PW-4 has narrated in the evidence that she heard the cry of the deceased and went to her house and saw that the deceased had caught fire and she immediately dowsed the fire by pouring water. However, she has further stated that the relationship between the accused and the deceased was cordial. In view of such a statement being made, she was treated hostile by the prosecution and cross-examined by the learned S.P.P. However, in so far as the evidence of PW-3 is concerned, the same requires to be accepted to the extent of she supporting the evidence of PW-4 to the extent of entering the house of the deceased, seeing her on fire and thereafter dowsing the fire. Therefore, to this extent, the evidence of PW-3 supports the evidence of PW-4. Under these circumstances, in View of lack of any Worthwhile cross-examination, we have no hesitation to accept the evidence of the eye witness PW-4 as corroborated by the other eye witness PW-3.
15.(a) The further contention is that the evidence of the father PW-6 cannot be accepted. The averments made in the complaint is hear-say. PW-6, the father of the deceased has stated that he received information from one Dharma Kumar with regard to Pouring of Kero
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sene on his daughter. Therefore, it is contended that this Dharma Kumar was whom as a charge–sheet witness has not been examined. Non-examination of Dharma Kumar would render the case of the prosecution fatal. (b). The same is disputed by the learned S.P.P. that it was not necessary to examine him. (c). On hearing learned counsels, the non–examination of Dharma Kumar the person who informed the complainant about the incident cannot be said fatal to the case of the prosecution. Even otherwise, the complaint is only with regard to the factum of having heard about the incident. Based on the injuries being caused on the deceased and the related evidence, the Trial Court has convicted the accused, which is based on the evidence of the eye witness and as corroborated by PW-3. Therefore, mere non-examination of Dharma Kumar would not render the prosecution case to be suspicious. 16. For the aforesaid reasons, in our view, the Trial Court has rightly appreciated the entire evidence on record. We do not find any perversity in the findings recorded by the Trial Court, based on the evidence of the eye witness, PW-4 and also of PW-3. The evidence of the doctor that the death is caused due to septicaemia due to burn injuries supports the evidence of the eye witness, PW-4. Under these circumstances, we do not find any illegality committed by the Trial Court, which requires interference by this Court. Consequently, the appeal being devoid of merit, is dismissed. The judgment dated 16.06.2012 passed by the II-Fast Track Court and Sessions judge, Hassan in S.C.No.95 of 2011 convicting the appellant/accused for the offence punishable under Sections 498-A and 302 of I.P.C. is affirmed.