Appayanna vs State

B.V. Pinto

This appeal is filed challenging the judgment dated 14.11.2005 passed by the Additional District and Sessions Judge, Fast Track Court - 4, Bangalore Rural District, Bangalore in S.C. No.. 151/2005 convicting the appellant for the offences under Sections 306 and 448 IPC and sentencing him to undergo R.I. for a period for 3 years for the offence u/s 306 IPC and pay a fine of Rs. 1,000/- and further sentencing him to undergo S.I. for a period of 3 months and to pay a fine of Rs. 250/- for the offence u/s 448 IPC with default clauses.

The case of the prosecution is that on 23.12.2004 at about 12.30 p.m., in the house of one ML Kumar at Arakere village of Hesargatta Hobli, Bangalore No. rth Taluk, the accused committed an offence of trespass by entering the house with intention of committing an offence, thereby, he is alleged to have committed offence u/s 448 IPC. It is further alleged that on the said date, place and time, the accused has poured kerosene on deceased Gowramma and set her on fire and thereby, he is alleged to have committed an offence Section 302 IPC. Alternatively, it is charged against the accused that the deceased Gowramma wife of M. Kumar committed suicide by setting herself ablaze and accused has abetted her to commit suicide by threatening her that he would tell the villagers regarding their illicit relationship, thereby, he is alleged to have abetted the commission of suicide by deceased Gowramma thereby, he has committed an offence punishable u/s 306 IPC.

The prosecution in order to prove the case has examined in all 20 witnesses and got marked Exs.P.1 to 20 and produced MOs. 1 to 4.

The defense of the accused was one of total denial. However, after hearing the prosecution and the defense, the learned Sessions Judge was pleased to convict the appellant and sentenced him as aforesaid. The convicted accused has filed this appeal.

Heard Sri B.V. Subramanya, learned Counsel for the appellant and Sri Sathish R. Girji, learned HCGP for the respondent State.

Learned Counsel for the appellant submits that there are two dying declarations recorded in this case as per Exs.P.8 and P. 11. The trial Court has disbelieved the dying declaration as per Ex.P.11 and has relied on Ex.P.8. He submits that Ex. P.11 was recorded on 25.12.2004 and Ex.P.8 was recorded on 24.12.2004. When the trial Court has disbelieved the dying declaration at Ex.P.11, there is no. thing on record to show that Ex.P.8 is a true version of the incident. He submits that in view of discrepancy between the 2 dying declarations, the trial Court ought no. t to have given any credence to Ex.P.8 and ought to have acquitted the accused. He further submits that Ex.P.8 does no. t contain any statement by the doctor stating that the deceased was in a fit condition to give a statement, but it contains only the signature of the doctor. Under the circumstances, he submits that the contents of Ex.P.8 should no. t have been based for the purpose of conviction. He further submits that all the relevant witnesses in this connection have turned hostile to the case of the prosecution and there is no. independent corroboration of the version of the deceased, as found in Ex.P.8. Hence, the appellant is entitled for an order of acquittal.

Sri Sathish R. Girji, learned HCGP on the other hand submits that Ex.P.8 coupled with the evidence of PW.9 Dr. Basavaraj Nayak, clearly establishes that when the deceased had given the statement as per Ex.P.8 on 24.12.2004 she was in a fit condition to give statement. Under the circumstances, the reliance by the trial Court on Ex.P.8 for conviction of the appellant does no. t call for interference. He therefore, submits that the appeal may be dismissed.

The prosecution in this case commenced with recording of the statement of the deceased Gowramma on 24.12.2004 at about 5 p.m., by Head Constable Kodandaramaiah of Rajankunte Police Station. In the said statement it is stated by the deceased that she is residing with her husband and she has got two female children aged about 10 and 8 years. She hails from Nelamangala Taluk. She is the first daughter to her father Hanumantharayappa and she was married to Sri M. Kumar about 11 years ago. On 23.12.2004, at about 1.30 p.m., when she was alone in the house, the accused came to her house and asked for money. She refused to give money and thereafter, she pushed him out of the house and thereafter, she told him to go out of the house and at that time, he told her as to how she could have courage to tell him to go out. She threatened him that if he does no. t go out, she will pour kerosene on herself and set fire on herself. Even then accused did no. t go out of the house and at that time, accused informed her that he will tell the villagers that she is kept by him and being unable to tolerate the said insult, since the accused gave trouble repeatedly she poured kerosene on herself and set fire on her and accused ran away. At that time her brother-in-law Paccharaja PW.3 brought her to Janatha Nursing Hospital and got her admitted to the said Hospital She has stated that accused is the cause of herself setting fire and hence, requested for action. The police registered the above case in crime No.. 153/2004 for offences punishable under Sections 323 and 448 IPC. Injured Gowramma was thereafter found to have sustained 80% of burn injuries and she was referred to Victoria hospital for further treatment and the Thasildhar PW.20 came to the Victoria Hospital and recorded a statement of Gowramma on 25.12.2004 as per Ex.P.11. The deceased had again stated that on the date of the offence, the accused had come inside the house and thereafter, asked for money. However, in the said statement she has stated that accused was holding the kerosene can and the kerosene fell on her body and thereafter, accused himself has snatched the match box and ignited the fire and ran away. At that time, Narayanappa and her brother-in-law Paccharaja came and informed her husband and thereafter, she was removed to the hospital at Doddaballapura and subsequently, brought to the Victoria hospital. The said statement has been recorded by the Thasiladhar and Taluk Executive Magistrate, Bangalore No. rth Taluk. Based on the above 2 statements give by the injured, the police have continued investigation and in the meantime, Gowramma succumbed to the injuries on 04.01.2005. After completion of the investigation, the police have filed charge sheet for the offence under Sections 448 and 302 and alternatively for offence u/s 306 IPC.

PW. I is the doctor at Victoria hospital who has stated that Gowramma was admitted in the burns ward of the hospital and she expired on 04.01.2005. He has issued intimation as per Ex.P.1 regarding the death of the deceased. PW.2 Narayanappa is the neighbour of the accused. He has stated that at about 2 ''0'' clock, he returned from the coolie work and at that time, people were gathered in front of the house of the deceased and she was found to have sustained burn injuries. PW.3 Paccharaj is the brother-in-law of the deceased Gowramma. He has stated that the Gowramma had sustained injuries on the date of the incident accidentally. PW.4 Nagraj Gowda, PW.5 Rangappa, PW.6 Venkataramanappa, PW.7 Ramaiah, PW. 11, and PW.14 have turned hostile to the case of the prosecution. PW.8 is the signatory to Ex.P.7 mahazar regarding inquest. PW.9 Dr. Basavraj Nayak is working in Janatha Nursing Home, Doddaballapur. He has stated that on 23.12.2004 at 4.00 p.m., deceased Gowramma was brought to Janatha Nursing Home with the history of burns. He has stated that deceased had sustained 80% of burn injuries and on 24.12.2004 police have visited the hospital and recorded the statement of the deceased as per Ex.P.8. In the cross-examination, he has stated that he has no. t mentioned in Ex.P.8 that the deceased was in a fit condition to give the statement. He has further stated that in the records of the hospital namely Ex.P. 10, it has been mentioned that the injuries sustained by the deceased was due to accidental fire. Ex.P. 10 is the case sheet pertaining to the deceased in which husband of the deceased Kumar has signed while admitting the patient. He has admitted that originally in Ex.P. 10, it was written as gas explosion which was striked of and it is written, as kerosene - Homicidal attempt by Appaiahyanna. It is also brought from the evidence of PW.9 that on the second page of Ex.P. 10 there is a correction regarding the history of the incident. PW. 10 M. Kumar is the husband of deceased Gowramma. However, he has been treated hostile by the prosecution. PW. 12 Puttappa, is the Police Constable who has carried the FIR to the learned Magistrate''s Court at Bangalore. PW. 13 is the doctor at the Victoria Hospital who has stated that he has endorsed in the statement given by the deceased Gowramma on 25.12.2004 stating that patient is in a fit condition to give statement as per Ex.P. 11 in which the Thasildhar has recorded the statement of the deceased Gowramma. In the cross-examination, he has stated that he has no. t made any entries in the case sheet about the patient being questioned by Special Execute Magistrate and about the recording of the statement by the Magistrate on 25.12.2004. It is also elicited in the cross-examination of PW. 13 that the parents of the deceased were present when the statement of Gowramma was recorded. PW. 14 is the daughter of the deceased. However, the Court has no. t examined her after putting preliminary questions. PW. 15 is the constable who has assisted in the apprehension of the accused. PW.16 is PSI who has registered the case in crime No.. 153/2004, on the basis of the statement of the injured as per Ex.P.8. PW. 17 Kodandramaiah is the head constable, who has been to the hospital at Janatha Nursing Home on 24.12.2004 and recorded the statement of Gowramma as per Ex.P.8. PW. 18 is Dr. K. Manjunath of Victoria hospital, who has conducted the post mortem examination on the dead body of the deceased and issued Ex.P.17 the post mortem report. PW. 19 is the Inspector of Police, who has conducted the part of investigation and filed the charge sheet in the Court. PW.20 is the Thasildhar and Special Executive Magistrate, who has visited the deceased on 25.12.2004 at the request of the Rajankunte Police and recorded the statement of the deceased Gowramma as per Ex.P.11. He has also questioned the parents and the husband of the deceased Gowramma during the inquiry. He has also stated that the Sub-Inspector of police was present, at the time of inquiring the deceased and recording Ex.P.11.

It is on the basis of the above evidence, the trial Court has held that the accused has abetted the commission of suicide by the deceased, basing on the statement of the deceased given as per Ex.P.8 which is treated as dying declaration of the deceased.

On a careful consideration of the entire material on record, it is seen that the deceased had given two divergent dying declarations. While in Ex.P.11 which is recorded on 25.12.2004 the deceased has stated that the accused had pulled the kerosene can and had poured kerosene on her and thereafter set fire on her by snatching the match box which was in her hand, whereas, Ex.P.8 which was recorded on 24.12.2004, she has stated that she herself poured kerosene on herself and had set fire. Both these Exs.P.8 and P.11 do no. t reconcile with each other and they have given divergent reason for the cause of injuries on the person of deceased Gowramma. On the other hand, Ex.P.10 the case sheet maintained in the Janatha Nursing Home, Davanagere clearly indicates that the first history given regarding the burns on the deceased Gowramma was by gas explosion, which has been striked out and subsequently the words kerosene homicidal attempt by Appayanna has been added. On a careful consideration on Ex.P. 10, it is clear that the husband of the deceased was present and his signature has been obtained on Ex.P. 10 - case sheet of the injured. On the back side of Ex.P10 that is, on page No.. 2, there is correction which indicates that word kerosene - poured has been overwritten on the words gas explosion and the said words are no. t signed by anybody. When this discrepancy was brought to the notice of Dr. Basavaraja Nayak PW.9, he has admitted that there is a correction on Ex.P.10 and that, the original history given was gas explosion. When there are 3 different reasons given for the cause of the injuries, on the deceased, one in Ex.P.8, the second in Ex.P.11 and third in Ex.P.10, it would no. t be prudent to believe one of them and hold the accused guilty. Even the husband of the deceased and the neighbours by name Narayanappa and brother-in-law of the deceased, who had first come to the scene of occurrence also have no. t given the clear evidence regarding the involvement of the accused. There is no. evidence on record to hold the involvement of the accused in this case. Hence, it is no. t safe to rely on the divergent statement of the deceased as per Exs.P.8 and P. 11, where different history is given regarding the injuries. Therefore, I am of the opinion that the benefit of this discrepancy in the 3 documents goes to the accused and accordingly, I hold that the accused is entitled for an order of acquittal and in that view of the matter, the accused succeeds in the appeal and the appeal is allowed. The order of conviction is hereby set aside and the accused is acquitted of the offence levelled against him. Bail bonds are hereby discharged and fine amount if deposited shall be refunded to him.