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2020 DIGILAW 1421 (KAR)

Hanamant v. State Of Karnataka

2020-07-15

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This Criminal Appeal is directed against the judgment of conviction and order of sentence passed by the learned Principal District and Sessions Judge, Bagalkot, (herein after referred to as the 'trial Court'), in Sessions Case No.43/2016 dated 27.9.2018, wherein the appellant-accused No.1 has been convicted for the offence punishable under Sections 302 of IPC. 2. We have heard the learned counsel Sri. Vishal Pratap singh, for the appellant and the learned Additional S.P.P. Sri V.M. Banakar for the respondent-State through virtual hearings. 3. Though today this appeal has been listed for hearing on interlocutory application, with the consent of the learned counsel appearing for the parties, same is taken up for final disposal. 4. The genesis of the case of the prosecution in brief is that accused No.1 got married with the deceased Gangavva on 23.02.2015. Thereafter, she started living in matrimonial home. It is the case of the prosecution that accused No.1 was unnecessarily suspecting the character of the deceased and at the instigation of accused Nos.2 and 3 started ill treating and harassing the deceased. Accused Nos.2 and 3 gave provocation to accused No.1 to commit the murder of the deceased. Because of the abatement by accused Nos.2 and 3, accused No.1 on 11.3.2016 at 11 p.m., when the deceased was sleeping in the house, poured the kerosene and set her ablaze. As a result of the same, she suffered with burn injuries and subsequently she died on 16/2/2016. 5. On the basis of the complaint, a case has been registered in Crime No.49/2016. Thereafter, after the investigation, the charge sheet came to be filed. 6. The learned Magistrate after following the procedure, committed the case to the Sessions Court. Sessions Court took the cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 7. The prosecution in order to prove the case, got examined 35 witnesses, got marked 46 documents and 8 material objects. Thereafter, the statement of the accused were recorded under Section 313 of Cr.P.C. by putting incriminating materials as against them. They denied the said incriminating materials, but they have not led any evidence. After hearing both the sides, the trial Court passed the impugned order of conviction and sentence. Thereafter, the statement of the accused were recorded under Section 313 of Cr.P.C. by putting incriminating materials as against them. They denied the said incriminating materials, but they have not led any evidence. After hearing both the sides, the trial Court passed the impugned order of conviction and sentence. Challenging the legality and correctness of the said judgment, the appellant accused No.1 is before this Court. 8. The main grounds urged by the learned counsel for the appellant accused are that the judgement of conviction and order of sentence passed by the trial court is contrary to law material placed on record. It is his further submission that the material witnesses have not supported the case of the prosecution and they have been treated as hostile. Under such circumstances, the trial court ought to have acquitted appellant-accused No.1. It is his further submission that the door was latched from the outside and the prosecution has made out a case that immediately after ablaze, the deceased ran by opening the door up to the parent's house. That itself creates a doubt in the case of the prosecution. It is his further submission that the evidence of related witnesses which clearly goes to show that accused No.1 was cordial with the deceased and was looking after her well. Under such circumstances, the motive which is alleged itself fall to the ground and creates doubt in the case of the prosecution. It is his submission that the prosecution has drawn the presumption under section 106 of the Evidence Act (herein after called as 'Act') under the impression that the incident has happened within the closed doors and it is the appellant-accused caused the death. But the material goes to show that in the said house, it is not only the deceased and accused No.1 alone used to stay, but even accused No.2 was also staying there and even though that material was available, then under such circumstances, the trial court ought not to have drawn presumption and ought not to have observed that the accused has not rebutted the said presumption. It is his further submission that when the victim has been taken to the hospital, there is contradiction in the statement. It is his further submission that when the victim has been taken to the hospital, there is contradiction in the statement. In the first instance, she has been taken to the Government Hospital and she has been got admitted on 12.02.2016 at 12.10 p.m. But, the statement Ex.P1 has been recorded at Kumareshwar hospital at about 11.00 on 12.2.2016. That itself going to creates a doubt about she disclosing the said the fact. It is his further submission that the materials which has been seized by drawing a spot Mahazar also creates doubt in the case of the prosecution. Though there is no material against the appellant-accused No.1, the trial Court has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that when on similar facts and circumstances, accused Nos.2 and 3 have been acquitted, the same parity have been extended to accused No.1. On these grounds, he prayed to allow this appeal and to set aside the judgement of conviction and order of sentence and to acquit the appellant. 9. Per contra, the learned Additional SPP vehemently argued and submitted that though the material witnesses have not supported the case of the prosecution, PWS.-6 to 9 are the sisters and neighbourers. They have clearly stated about the presence of the accused in the house and when the presence of the accused is established and even in the evidence of PW-22, she has clearly stated that the accused was suspecting and used to harass the deceased and in that light, the alleged incident has taken place. It is his further submission that the spot of the alleged incident has not been denied by the accused during the cross examining the witnesses. That itself clearly goes to show that the alleged incident has taken place in the house of accused No.1 and even FSL report also clearly indicates the fact that articles seized from the house from the spot contain particles of the kerosene. Taking into consideration the said material, the trial Court has rightly drawn the presumption and has come to a right conclusion and has rightly convicted the accused. It is his further submission that accused Nos.2 and 3 are the only abaters and not the main offenders. Under such circumstances, the trial Court has rightly acquitted accused Nos.2 and 3 and convicted accused No.1. It is his further submission that accused Nos.2 and 3 are the only abaters and not the main offenders. Under such circumstances, the trial Court has rightly acquitted accused Nos.2 and 3 and convicted accused No.1. On these grounds, he prayed to dismiss the appeal. 10. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the Trial Court records. 11. To establish the case of the prosecution if got examined 35 witnesses. PW-1 is the mother and complainant, who has field the complaint as per ExP-1. PWs.-2 and 3 are the spot Mahazar panchas to Ex.P6. PW-4 is the inquest mahajar pancha to Ex.P7. PW-5 is the father of the deceased, he has to speak with regard to the harassment said to have been given to the deceased by the accused persons. PW-6 is the sister of the deceased. PW-7 is the another sister of the deceased. PWs.-8 to 12 are the neighbours. PWs.-13 to 20 are elderly persons who have advised the accused with reference to ill-treatment and harassment. PW-13, PW21 and PW-22 are the relatives of the deceased. All these witnesses have not supported the case of the prosecution, they have been treated as hostile. Though during the course of evidence, PWs-6 to 9 have deposed that on the date of the incident, the deceased was staying in the house of the accused. But that evidence does not indicate the fact that it is accused No.1 and the deceased alone were staying in the said house. In the evidence of PW-8, she has deposed that on that night, the accused persons were there in the house. That itself indicates the fact that it is not only accused No.1, but other accused persons were also there in the house. All these witnesses have not supported the case of the prosecution in sofaras suspecting the character of the deceased and causing any harassment to the deceased. In that light, the prosecution evidence is not sufficient to establish the fact that the accused by suspecting the character of the deceased used to illtreat and harass the deceased. 12. Admittedly, the present case rests on circumstantial evidence. In that light, the prosecution evidence is not sufficient to establish the fact that the accused by suspecting the character of the deceased used to illtreat and harass the deceased. 12. Admittedly, the present case rests on circumstantial evidence. In order to bring home the guilt of the accused on circumstantial evidence, al l the circumstances are to be l inked up with one another and then the Court wi l l be in a position to see the chain of events. If al l the important l inks in the chain of events have been establ ished by the prosecution then the case of the prosecution is said to have proved. Though prosecution has come up with a case that by suspecting the character of the deceased, all accused Nos.1 to 3 used to ill treat and harass the deceased and at the instigation of accused Nos.2 and 3, accused No.1 poured the kerosene and lit the fire. 13. It is well proposed preposition of law that when the entire case rests on circumstantial evidence, the motive is a very important aspect. If the motive itself has not been established, then under such circumstances, benefit of doubt has to be given to the accused. Even as could be seen from the wound certificate at Ex.P32 issued by PW26- the Doctor, immediately after the incident, the injured has been taken to the Hospital on 12.02.2016 at about 12.10 a.m. and evidence of PW26 clearly goes to show that she was conscious and she was in a position to speak. If that being the case, then under such circumstances, she might have given some history about the alleged incident. Thereafter, she might have been referred for better treatment for some other hospital. When it has been mentioned in Exs.P-32 that the said injuries were caused due to burn only, then under such circumstance, it will be the first document immediately after the alleged incident which has taken place. Whenever a person has been taken with the history of burn to the hospital automatically the hospital authorities will question the injured or the relatives who have brought the injured to about the history of the burns. But surprisingly, in the instant case on hand, in Ex.P32 no history has been mentioned with reference to how the burn injuries have been suffered by the deceased. But surprisingly, in the instant case on hand, in Ex.P32 no history has been mentioned with reference to how the burn injuries have been suffered by the deceased. Even as could be seen from Ex.P1-the complaint, it is in the form of narration. If a person has suffered with 77% of burn injuries and immediately she has been taken to the hospital, under such circumstances, it is not possible for her to give the narration as stated in the Ex.P1 that to when she will be medicated. 14. Be that as it may. Even the evidence of PW- 26 and other materials, produced it goes to show that she was conscious and was able to talk. When she was able to talk, the investigation officer ought to have requested the Taluka Executive Magistrate to record the dying declaration. May he has been kept away creates a doubt in the case of the prosecution. 15. Be that as it may. When all the material witnesses have not supported the case of the prosecution and they have specifically deposed that the accused was looking after the deceased well and he has not given any physical and mental cruelty. Then, under such circumstances, the trial Court ought not to have convicted the appellant-accused only on the ground that deceased died in the house of the accused and the accused has to explain under what circumstances, the deceased has suffered with injuries. Always the initial burden is there upon the prosecution to establish all the circumstances to connect the links beyond all reasonable doubt. 16. We are conscious of the fact that under section 106 of the Act, burden of proving a fact especially within the knowledge of a person is on that person. If the husband and wife are residing in a house and, if any unnatural death takes place, then under such circumstances, then the circumstances under which the death had occurred will be within the knowledge of the other person residing in the house. Then under such circumstances, he has to explain how the deceased had suffered that unnatural death. If the husband and wife are residing in a house and, if any unnatural death takes place, then under such circumstances, then the circumstances under which the death had occurred will be within the knowledge of the other person residing in the house. Then under such circumstances, he has to explain how the deceased had suffered that unnatural death. But in the instant case on hand, initially the prosecution has not established the said fact and apart from that, it has come on record that it is not only accused No.1 and the deceased have stayed in the said house, but even accused No.2 was staying in the same house and in that light also, if the facts and circumstances are taken into consideration, the provision of Section 106 of the Act will not be attracted. Burden shifts on the accused only prosecution proves its case, if it fails no question of rebutting. 17. On perusal of records and materials, though the alleged incident is said to have taken place in the house of the accused only, on the probabilities, it cannot be held that it is accused No.1 who has poured the kerosene and lit the fire. On perusal of the facts and circumstances of the case they indicate that immediately after the ablaze the deceased opened the door and has gone to the house of the parents, how she has not disclosed about the incident? Is a suspicious circumstance which will give raise to a reasonable doubt. Usually if a women has ran with ablaze to the parent house, definitely, they will definitely, question the same and she might have revealed the said fact. If the said fact has been suppressed by the prosecution, under such circumstances the benefit of doubt ought have been given to the accused. 18. We have carefully and cautiously gone through the judgment of the Trial Court. Though the trial Court has observed that the material witnesses have not supported the case of the prosecution and there is no material to show that accused Nos.2 and 3 have abated accused No.1 to commit the murder of the deceased, then under such circumstances, it ought not to have taken shelter under Section 106 of Act and ought not to have observed that the accused has not explained under what circumstance that the deceased caught with fire died a unnatural death. When the prosecution case itself creates doubt about the alleged incident as referred to above, then, under such circumstances, the presumption drawn against the accused under such provision and shifting of the burden on the accused is not proper. 19. In catena of decisions the Hon'ble Apex Court has held that the burden of proving the guilt of the accused beyond all reasonable doubt, is on the prosecution. But when the initial burden has not been discharged under such circumstance the trial Court ought not to have drawn the presumption and ought not to have held accused No.1 guilty of such offence. 20. Taking into consideration the above said facts and circumstances, we are of the considered opinion that the trial Court has committed grave error in convicting the appellant/accused No.1. In that light, the judgment requires interference at the hands of this Court. Taking into consideration the above facts and circumstances, we pass the following: ORDER The appeal is allowed. The judgment of conviction dated 27.09.2018 and order of sentence dated 28.09.2018 passed by the learned Principal District & Sessions Judge, Bagalkote in S.C. No.43/2016 is hereby set aside. The appellant/accused No.1-Sri.Hanamant S/o Ramanna Gayakawad is hereby acquitted of all the charges levelled against him and he has to be released forthwith, if he is not required in any other case. The jail authorities are directed to release him, if he is not required in any other case. Registry is directed to intimate the operative portion of this order forthwith through e-mail to the concerned jail authorities as well as to the Principal District and Sessions Court, Bagalkote to release the appellant/accused No.1- Sri.Hanamant S/o Ramanna Gayakawad, forthwith, if he is not required in any other case and send back the trial Court records. 21. I.A.No.1/2020 does not survive for consideration and the same is disposed of.