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2017 DIGILAW 385 (KAR)

Venkatesh Hanumanthappa v. State

2017-02-07

ANAND BYRAREDDY, K.SOMASHEKAR

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JUDGMENT : Anand Byrareddy, J. Heard the learned counsel for the appellant and the learned State Public Prosecutor. 2. The accused is in appeal questioning the conviction for offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC' for brevity) having been sentenced to life imprisonment and imposition of fine. 3. The facts leading up to this appeal, are as follows: The accused was married to one Bosamma and they had two children by the marriage. They had been married for ten years. But however, for about two years prior to the complaint, it transpires that there was discord between them and that the appellant was suspecting the fidelity of his wife and he was ill- treating her. It transpires that on 20.11.2011, the accused had quarrelled with his wife on the ground that she was having an illicit affair and this altercation was witnessed by the daughter of the appellant. On the next day about 07:00 a.m., when the appellant was about to leave for work, he had asked his wife to pack lunch for him and since she had refused and had told him to pack lunch for himself, he is said to have lost his temper and shouted at her as follows: “XXXXX” and immediately had picked up a can of kerosene and had poured the same on her and set her on fire and she did manage to get out of the house along with the children. It transpires that Chandrappa and Mallamma, the neighbourers of the appellant had sought to put out the fire. But, by then she had been severely burnt on her face, chest, stomach, both hands and back. It is in this background that her brothers-in-law Nagaraj, Pompapathy, and her uncle, Kumara Swamy had arrived there on the information reaching them about the incident and had got her admitted in Sandur Hospital. On the basis of the statement of the victim, a case was registered in Crime No.78/2011 against the appellant for the offences punishable under Sections 498A and 307 of IPC at the initial stage and thereafter, Section 302 of IPC was invoked, after her death. On the basis of the statement of the victim, a case was registered in Crime No.78/2011 against the appellant for the offences punishable under Sections 498A and 307 of IPC at the initial stage and thereafter, Section 302 of IPC was invoked, after her death. In the course of investigation, a dying declaration of the complaint was said to have been recorded by the Taluk Magistrate in the presence of a Medical Officer and after further investigation and recording of statements of the relevant witnesses etc., charges were brought against the accused to which he had pleaded not guilty and claimed to be tried. 4. The prosecution had examined 19 witnesses and marked several documents and material objects in support of the case. On the basis of which, the Court below had framed the following points for consideration: "1. Whether the prosecution proves beyond all reasonable doubt that on 20.11.2011 at about 10:00 p.m. within the jurisdiction of Kudligi police station in the house of accused at Somalapura village, accused - husband of Smt. Bosamma, subjected her cruelty physically and mentally by abusing her in filthy language, suspecting her fidelity and thereby committed offence punishable under Section 498-A of IPC? 2. Whether prosecution further proves beyond all reasonable doubt that on 21.01.2011 at about 07:00 a.m. in the house belongs to accused situated at Somalapura village, accused with an intention to commit murder of his wife Bosamma, poured kerosene on her body and lit fire to her and caused her death on 03.02.2012 at 04:00 p.m. due to burn injuries at Government Hospital, Sandur and thereby committed an offence punishable under Section 302 of IPC? 3. What Order?" The Court below held the above points in the affirmative and sentenced the appellant for the aforesaid. It is that which is under challenge in the present appeal. 5. The learned counsel for the appellant would urge several grounds to the effect that the witnesses examined P.Ws.4 to 8 would indicate that the prosecution has tried to improve its case through the evidence of those witnesses. Therefore, it would create a serious doubt, as regards the factual aspects of the incident which itself would be a ground on which the judgment impugned ought to be over turned. Therefore, it would create a serious doubt, as regards the factual aspects of the incident which itself would be a ground on which the judgment impugned ought to be over turned. It is also pointed out that are contradictions and improvements which have been over looked by the Trial Court and therefore, it is yet another ground on which the judgment ought to be set aside. In this regard, the learned counsel seeks to take this Court through the evidence of the said witnesses to point out the infirmity. 6. It is further pointed out that P.Ws.7 and 8 who are cited as eye-witnesses had failed to support the case of the prosecution and they had been treated as hostile witnesses which is completely over looked by the Trial Court. It is further pointed out that the case of the prosecution as to the immediate cause for the alleged commission of murder by the appellant was that he had been provoked by the victim refusing to pack lunch for him and therefore, the reaction on the part of the appellant could not be termed as being one with intention to murder, but was a spontaneous reaction which could not be construed as a preplanned cold blooded murder. This aspect of the matter has been completely over looked by the Trial Court. 7. One other significant ground that is urged as that the incident had taken place on 21.01.2011 and the victim had died as on 03.02.2012 and therefore a clear 75 days after the incident. The cause of death has been shown as "septicemia as a result of the burn injuries" that she had suffered. According to the post-mortem report, it is pointed that she was under treatment and from 02.02.2012 she had refused any kind of treatment and with great difficulty, she had been kept alive by the doctors and ultimately she had died of cardiopulmonary arrest due to anaemia and septicemia with ante-mortem burns. Therefore, it is contended that though she had developed complications and had died of cardiac arrest and septicemia, more than ten weeks after she had sustained 40% burn injuries which in a relative sense, is not of such a serious magnitude and would have survived if not for her refusal to undergo treatment. Therefore, it is contended that though she had developed complications and had died of cardiac arrest and septicemia, more than ten weeks after she had sustained 40% burn injuries which in a relative sense, is not of such a serious magnitude and would have survived if not for her refusal to undergo treatment. It is pointed out that the death caused was remote to the actual injury sustained on account of the acts of the respondent, even if the same could be accepted as true. Therefore, an extreme punishment of life imprisonment for the offence punishable under Section 302 of IPC was not warranted and hence, he seeks the appellant be acquitted in respect of the said alleged offence. 8. The learned State Public Prosecutor however would emphasize and stress the circumstance, namely that the young daughter of the appellant had witnessed the incident and it was clinching evidence which could not be over turned, notwithstanding that P.Ws.7 and 8 had turned hostile and had not supported the case of the prosecution. Therefore, the appellant being visited with the extreme punishment cannot be faulted and hence, seeks that the judgment of the Court below be confirmed. 9. On a close consideration of the facts and circumstances and on an examination of the record, it is seen that the fact that there was a homicidal death cannot be denied. The circumstances in which the victim had sustained injuries is also satisfactorily established. The only question is whether the death was on account of the injuries and directly so. As pointed out by the learned counsel for the appellant, the victim had suffered about 40% burn injuries to her body and it is not unusual for victims who have suffered such magnitude of injuries to recover and survive. But for the fact that the victim had refused treatment after a point of time, as recorded in Ex.P6/the post-mortem report, the victim might have survived. In which event, the appellant could not have been prosecuted for the offences punishable under Section 302 of IPC, at the worst, he would have been punished under Section 326 of IPC. This aspect of the matter has not been taken into account by the Trial Court. In which event, the appellant could not have been prosecuted for the offences punishable under Section 302 of IPC, at the worst, he would have been punished under Section 326 of IPC. This aspect of the matter has not been taken into account by the Trial Court. The fact that the victim had survived for many days, after she had withdrawn from treatment in spite of best efforts of the medical faculties, where she was admitted, the cause of death cannot be squarely pinned on the act of the accused. If this circumstance is taken into account, the seriousness of the evidence alleged against the appellant would certainly get diluted. 10. The fact that the appellant and the victim were married for 10 years and had two children would lead to an inference that the couple were entering into a phase of life where temper would run thin and at a slightest provocation, it would lead to acrimony, as was the case in the present instance. There is evidence on record to show that the appellant and the victim had quarrelled previous night of the incident and to fuel that emotional disturbance when the appellant had called upon the victim to pack his lunch, she had retorted that she would not do it, had thrown the appellant into a fury and he has acted out of a burst of passion which was an extreme overt act, but no doubt provoked. Therefore, where the victim had refused treatment, has lead to her ultimate death and not really the injury caused by the appellant. 11. We find support for this opinion from an earlier decision of this Court rendered in Criminal Appeal No.1948/2005 in State of Karnataka v. Srinivas dated 29.11.2010, wherein in similar circumstances, the State having filed an appeal against acquittal of the accused, Division Bench of this Court has opined thus: "18. In the present case, the bodily injury caused by the accused was not the only cause for the death of the deceased. It was infection leading to septicemia was the cause for the death. This was due to the positive act on the part of the deceased by withdrawing herself from the medical treatment by getting herself discharged against medical evidence, besides failure on her part from taking further treatment. Therefore, the present case does not fall under Explanation 2 to Section 299. This was due to the positive act on the part of the deceased by withdrawing herself from the medical treatment by getting herself discharged against medical evidence, besides failure on her part from taking further treatment. Therefore, the present case does not fall under Explanation 2 to Section 299. Having regard to the facts and circumstances of the case, we are of the opinion that the act committed by the accused though was the remote cause for death of the deceased, it does not fall under anyone of the circumstances falling under Section 300 of IPC, as such it does not amounts to murder punishable under Section 302 of IPC. Under these circumstances, the accused cannot be held guilty of offence punishable under Section 302 of IPC. The act committed by the accused, in our opinion also does not fall within any of the exceptions of Section 300, IPC to constitute as culpable homicide not amounting to murder punishable under Section 304, Part I or Part II of IPC. The evidence on record, clearly indicates that the accused had no intention of causing death of the deceased nor causing bodily injury which is likely to cause death. However, the evidence on record clearly establish that the accused by his act of pouring kerosene and setting her on fire had caused grievous hurt within the meaning of Section 320, IPC. Therefore, in our opinion the learned Sessions Judge ought to have convicted the accused for the offence under Section 326, IPC. There is no convincing evidence with regard to charge under Section 498-A of IPC. Therefore, the judgment of acquittal for the said charge does not call for interference." 12. Therefore, it can be said that on a similar token of reasoning, the appellant can at best be punished for an offence punishable under Section 326 of IPC and could not have been imposed the extreme punishment of life imprisonment for the offence punishable under Section 302 of IPC. Consequently, the appeal is allowed in part. The appellant is convicted for an offence punishable under Section 326 of IPC. The judgment insofar as the offence punishable under Section 498A of IPC, is confirmed. However, it is noticed that the appellant has been in custody for about five years and two months. Consequently, the appeal is allowed in part. The appellant is convicted for an offence punishable under Section 326 of IPC. The judgment insofar as the offence punishable under Section 498A of IPC, is confirmed. However, it is noticed that the appellant has been in custody for about five years and two months. Having regard to the said fact and in view of the incident having occurred on 21.11.2011 and the period of custody undergone, in our opinion, the ends of justice would be adequately met by sentencing the accused to the period of imprisonment that he has already undergone. Accordingly, the accused shall pay the fine imposed on him and in default to undergo simple imprisonment for three months. The judgment of the Court below is set aside in terms as above.