Chandrayya vs The State

K.N. Phaneendra, J.

The appeal is preferred by the appellant accused before the Trial Court in S.C. No. 27/2009 on the file of the I Addl. Sessions Judge at Gulbarga. The appellant is called in question his conviction and the sentence passed by the Trial Court sentencing him to undergo imprisonment for life and to pay a fine of R.5,000/- in default of payment of fine he shall undergo simple imprisonment for a period of one year.

The brief factual matrix that emanate from the records are that -

"The accused is no other than the husband of the deceased Jagadevi. They are the residents of Zapoor village. It is an undisputed fact that the said Jagadevi was given in marriage to the accused Chandrayya about 30 years prior to the incident. They were blessed with five children, out of them, three children died within a span of two years after their birth Revansiddayya PW.9 is surviving son of the accused and the deceased. It is alleged that the accused was addicted to alcohol and he had been illtreating and harassing the deceased by physically assaulting her everyday under the influence of alcohol. Inspite of that, she was pulling on the life with him. About 4 to 5 months prior to the incident, the accused has intensified the illtreatment on the deceased, for that reason she went back to her parental house and stayed there for a month. The accused again brought her back assuring that he would lead a good life with her with all love and affection after a Panchayat being held in the house of the father of the deceased. After coming back to the matrimonial home again they were pulling on their life inspite of some differences. In this background, it is specifically alleged that on 12.07.2009 at about 11:30 in the night hours the accused came back to the house in a drunken state of affairs and started abusing and assaulting the deceased. Hearing this galata the neighbours by name Revanasiddappa and Jagappa came and resolved the quarrel between husband and wife and thereafter husband and wife went inside the house. The son of the accused Revansiddayya (PW.9) slept near the door of the house. The accused again started quarrelling with his wife and abused her in filthy language. When she asked why he is again causing such inconvenience to her, but the accused stating that he would kill her on the day, poured kerosene on her and lit fire. The deceased started screaming for help. With the help of her son Revanasiddayya the witness Revanasiddappa and Jagappa have poured water on the deceased and extinguished the fire. Thereafter PW.9 Revanasiddayya informed the same to the parents of the deceased. They also came and later the deceased was shifted to the hospital. She survived for ten days but on 22.07.2009 she died in the hospital having succumbed to the burn injuries. The police on the basis of Ex. P4 which is the statement given by the deceased injured in the hospital registered a case against the accused at the initial stage for the offences punishable under sections 504, 323, 498A, 307 of IPC in Crime No. 160/2009 and began the investigation. During the course of investigation the death of Jagadevi occurred in the hospital, thereafter the offence under section 302 of IPC was included. After thorough investigation the police have submitted the charge sheet against the accused for the above said offences. The accused was also arrested on 22.07.2009 and since then he has been in judicial custody."

The Trial Court after securing the presence of the accused framed charges against the accused for the above said offences punishable under sections 498A, 323, 504 and 302 of IPC. As the accused chose to contest the proceedings his plea was recorded and trial was held.

The prosecution in order to bring home the guilt of the accused examined 24 witnesses as PWs.1 to 24 got marked the documents Exs. P1 to 18 and MOs.1 to 3 material objects.

The accused was also examined by the Court under section 313 of Cr.P.C, as the accused did not choose to lead any defense evidence, after hearing arguments, the Trial Court appreciating the oral and documentary evidence and the circumstances in the prosecution case ultimately held the accused guilty and accordingly sentenced him for the offence under section 302 of IPC. Before adverting to the main circumstances and the evidence of the prosecution witnesses, it is just and necessary for us bear in mind the evidence given by the witnesses before the Court.

PWs.1, 7 and 19 are the witnesses examined in order to establish the inquest proceedings under Ex. P1. PWs.2 and 3 Hanumanth and Krishna are the pancha witnesses to the spot panchanama at Ex. P2 under which the police have seized three materials objects MOs.1 to 3 which are burnt green saree, one kerosene box and one match box from the spot i.e. in the house of the accused. PW.4 Limbaji is the carrier of the first information report Ex. P3. PW.5 Haidarsab and PW.6 Shivaputra are the police personnels apprehended the accused on 22.07.2009 and produced him before the Investigating Officer. PW.8 and PW.12 Irayya and Nagayya are the brothers of the deceased and have supported the case of the prosecution with reference to the illtreatment by the accused to the deceased. PW.9 is the star witness to the prosecution Revanasiddayya who is no other than the son of the accused as well as the deceased who has also supported the case of the prosecution depicting as to what exactly happened on the date of incident. PWs.10 and 11 are the father and mother of the deceased, they have supported the circumstances soon after the incident being taken place and with regard to shifting the deceased to the hospital. PW.13 Ganapati is the person who handed over the body to the post mortem examination and thereafter handing over the dead body to the relatives of the deceased. PW.14 Yashavanthrao is the PSI who after coming to know about the incident rushed to the hospital and examined the victim, recorded the statement as per Ex. P4, proceeded to the spot and conducted spot mahazar as per Ex. P2 and also seized MOs.1 to 3. PW.15 Shashikala is another important witness to the prosecution who is working as Tahsildar during that period of time who recorded the dying declaration of the deceased as per Ex. P12. PWs.16 and 22 Jagappa and Revanasiddappa are the neighbours of the accused. Out of them PW.22 Revanasiddappa turned hostile to the prosecution. Portion of his statement is marked at Ex. PH. PW.16 has supported the case of the prosecution and with regard to the incident. PWs.17 and 18 Rajshekhar and Krishna are the residents of village Pala. They spoke about the panchayat convened between the accused and the deceased earlier to the incident. PW.20 Hanshchandra who is the Secretary of Harasur Gram Panchayat, has furnished the house extract copy marked at Exs. P8 and P9. PW.21 Dr. Ginsh conducted postmortem examination on the dead body of the deceased who has stated that the deceased suffered 95 to 98% burn injuries. He issued the post mortem report as per Ex. P13. PW.22 is Police Constable who carried the articles to the FSL and he also brought FSL report as per Ex. P16. PW.24 Nazirsab Mokashi is the CPI who investigated the case arrested the accused and submitted the charge sheet against the accused.

Out of the above said witnesses excluding the formal evidence of the witnesses the evidence of PWs.8, 9, 12,14, 15 and 21 are the important witnesses relied upon by the prosecution in order to bring home the guilt of the accused.

The learned counsel appearing for the accused has strenuously argued before this Court that though there is some evidence to show the presence of the accused on the spot and also incident being taken place. But there is lack of evidence so far as the intention of the accused in committing the murder of the accused. He further submitted that overall analyzing the materials on record, the incident must have taken place in a spur of moment and due to quarrel between the husband and wife resulting in provocation and enragement to the accused, the incident might have occurred. There is no preparation or premeditation by the accused to kill his wife inspite of differences, he pulled on with his wife for more than 30 years. Therefore, the surrounding circumstances even if it is accepted it will not fall under provision under section 302 of IPC. He further submitted that the Trial Court has not properly appreciated the oral and the documentary evidence on record and the sentence passed by the Trial Court is also disproportionate to the offence alleged to have been committed by the accused even accepting the entire case of the prosecution it will only fall under section 304(2) not under section 302 of IPC. Hence, he requests the Court to acquit the accused or to reduce the sentence for the offence under section 304(2) of IPC.

Countering this argument, the learned High Court Government Pleader contended that the evidence of the son of the deceased (PW.9) and other circumstantial evidence clearly disclose that, on that particular day, the accused had taken a decision to kill his wife. The surrounding circumstances clearly goes to show that he had such an intention and knowledge that his act would be sufficient to cause death of his wife. Therefore, the evidence placed before the Court by the prosecution abundantly makes it clear that the accused has committed the murder of his wife. The Trial Court has appreciated the oral and the documentary evidence in their proper perspective. There is no room for interference at the hands of this Court. Therefore, he pleads that the judgment of conviction and order of sentence passed by the Trial Court deserves to be confirmed.

Having heard the learned counsel for the appellant and the learned High Court Government Pleader appearing for the respondent-State, the only point that would arise for consideration of this Court is:

"Whether the Trial Court has committed any error in convicting the accused for the offence punishable under Section 302 of IPC and whether it calls for any interference at the hands of this Court?"

Now we will come back to the materials placed before the Court by the prosecution to find out as to whether the same is sufficient to draw an inference of guilt against the accused for the alleged offences. The prime document relied upon by the prosecution is Ex. P4 which is the complaint lodged by the deceased herself during her lifetime. We should bear in mind that the incident has occurred on 12.07.2009, she survived for a period of 10 days in the hospital and the evidence shows that she was in a condition to talk. PW14-Investigating Officer i.e., Police Sub-Inspector has categorically deposed before the Court that on 13.07.2009 he received telephonic information, that a lady was admitted to the hospital with burn injuries. Immediately, he rushed to the hospital, saw the injured-Jagadevi and examined her. She has stated before him as per the contents of Ex. P4 and he recorded her statement as per Ex. P4. Thereafter, he came back to be police station and registered a case in Crime No. 160/2009. He also further deposed that on 22.07.2009 he received the information about the death of the deceased-Jagadevi. Therefore, he converted the case for the offence punishable under Section 302 of IPC. In the course of cross-examination, not even a suggestion is made that the deceased-Jagadevi was not at all in a position to give any statement though it is suggested that this witness has not taken any opinion from the doctor on Ex. P4. Though it is suggested in the course of cross-examination that he has not visited the doctor before recording the statement of the lady but the suggestion has denied by him and stated that before recording Ex. P4 he confirmed himself with regard to her mental and physical status and thereafter, he recorded the statement of that lady. In the absence of any material to show that the deceased was not in a position to speak and to give any statement, the evidence of PW.14 cannot be disbelieved. Further added to that, as we have already stated that even after sustaining injuries and after Ex. P4 she survived for more than 9 days. In Ex. P4, she has categorically stated about the ill-treatment and harassment given by the accused and also as to what exactly happened on 12.07.2009. The learned counsel relying upon this document has categorically argued before us that even accepting the contents of Ex. P4 it shows that husband and wife both of them have quarreled with each other therefore, may be due to sudden provocation, the incident might have happened. On reading of contents of Ex. P4 in a meaningful manner, it only shows that, on that day the deceased asked only one question as to why the accused is causing inconvenience to her. Except the said statement, nothing is there to show as to how the accused provoked the deceased in order to take such a drastic step to pour kerosene on her and to lit fire.

In this background, the evidence of other witnesses also to be looked into to find out as to whether she was able to give such statement before the police. If we see the evidence of PW.9 for the limited purpose, he has categorically stated in his evidence that the deceased was admitted to the hospital and his mother was in a condition to speak. In the cross-examination of this witness, so far as that aspect is concerned, nothing is suggested with regard to the mental and physical condition of the deceased that whether she was not in a position to give such statement. Nevertheless, she died after 9 days of the incident. The contents of Ex. P4 can still be taken as dying declaration because it also depicts the cause of her death.

Apart from Ex. P4, evidence of PW.9-Revanasiddayya who claims himself to be the eyewitness to the incident has deposed before the Court that the accused had been in the habit of abusing and assaulting the deceased since long as he was addicted to alcohol. He has stated that, on the date of the incident, the accused started quarreling with the deceased, he poured kerosene and lit fire on her. At that time, he was sleeping outside the house and he heard the screaming voice of his mother and she was screaming that the accused has poured kerosene on her and lit fire. Immediately, he saw the accused (his father) running away from the house. He observed that his mother was on ablaze and she screamed for help, then, the neighbors came to that place and thereafter, they extinguished the fire. He intimated the incident to the parents of the deceased and they came and took the deceased in ambulance and shifted to the hospital and at that time, she was talking with them. PWs.10 and 11 who are the father and mother of the deceased also supported this portion of the evidence. Though their evidence is not of much significant so far as the incident is concerned, but they have spoken about the circumstance when they came to the house of the accused after receiving information from PW.9. They have deposed that their daughter having suffered burn injuries and was in position to speak. Particularly, PW.11 has stated that the deceased has told her that the accused has poured kerosene on her and lit fire. Therefore, the contents of Ex. P4 and the evidence of PW.9 get full support from the evidence of PWs. 10 and 11.

Coming back to the evidence of PW.9, in the course of cross-examination, it is elicited that he has given statement before the police and he has also stated before the panchayat with regard to the conduct of his father. Except some irrelevant questions, no relevant questions have been put in order to elicit the conduct of the accused on that particular day and as to why the quarrel took place between husband and wife. On the other hand, some effort has been made to show that the incident must have happened in an accidental manner by suggesting to this witness that their house has got only one room, which is a very small room and they kept the kerosene tin in the same room and they also cook food in the said room etc. Except putting these suggestions, no other materials have been placed before the Court that the incident has happened in the accidental manner or the deceased herself has poured kerosene on herself and lit fire. Therefore, though these suggestions have been made to these witnesses, but they are not sufficient to draw any inference either in favour of the accused or in favour of the prosecution. PW.9 being the son of the accused, there is no reason as to why he has to falsely implicate his father. He has already lost his mother and father is the lone person to take care of PW.9 who was aged about 14 years on the date of the deposition. Inspite of knowing all these things, PW.9 has deposed before the Court implicating his father. Therefore, absolutely, there is no circumstance or reason to discredit the evidence of this witness which clearly disclose the conduct of the accused on that particular day in pouring kerosene on the deceased and litting fire.

To amplify the above narrated circumstances, the prosecution has relied upon the evidence of two neighboring witnesses namely, PW.16-Jagappa and PW.22-Revanasiddappa. PW.22-Revanasiddappa has turned volte-face to the case of the prosecution. PW.16 has supported the case and he has deposed before the Court that on that particular day he was sleeping in his house, he heard the galata voice from the house of the accused at about 11.30 or 12.00 in the night. Immediately, he went to the house of the accused and saw the deceased on flames. Lot number of people were already gathered there. Accused was also there and he was pouring water in order to extinguish the fire. Thereafter, they shifted the injured to the hospital. Though this witness has spoken to about the presence of the accused in one sentence, he has stated that the accused was extinguishing the fire. PW.22-Revanasiddappa has not even stated about his presence at the spot on that particular day and he pleaded his total ignorance of the case of the prosecution.

The learned counsel though not cross-examined PW.16, but he relied on the portion of the evidence and submitted before us that accused was present and poured water on the deceased in order to save her life. If at all, he had any intention to kill her, there was no necessity to pour water to save her. But the said sentence is not at all supported by any of the prosecution witnesses nor even this sentence is suggested to anybody during the course of cross-examination nor in the statement recorded under Section 313 of Cr.P.C. the accused has stated before the Court as to what actually happened on that particular day between himself and his wife and whether he made any attempts to save the life of his wife. On the other hand, evidence of PW.9 and other witnesses namely, father and mother of the deceased clearly establishes that on that particular day, after the incident, the accused ran away from the spot. PW.9 has categorically stated that he saw his father running away from the spot after the incident. In the course of cross-examination of PW.9, this particular statement made by PW.9 has not been subjected to cross-examination, except suggesting that he has deposed before the Court due to tutored impact, by the grand mother and father, but the said suggestion has been denied by PW.9. Therefore, it is not the case of the prosecution that the accused was present on the spot on that particular day. PWs.5 and 6 police personnels have stated that after registration of the case, they were deployed for the purpose of searching the accused. They went in search of the accused. For so many days, they could not trace the whereabouts of the accused. But ultimately, on 22.07.2009, they were able to nab the accused and produced before the Investigating Officer. Therefore, the evidence of these two witnesses fully collaborates the statement of PW.9 that immediately after the incident the accused ran away from the place. Therefore, the stray sentence in the evidence of PW.16 cannot be made use of in order to topple the entire case of the prosecution which is otherwise proved accused ran away from the spot immediately after the incident. Therefore, the evidence of PWs.16, 9 and PW.14 clearly disclose that on that particular day, the incident has happened, the accused has poured kerosene and lit fire in order to kill his wife.

Apart from the above evidence, the prosecution has also relied upon the evidence of PW.15-Tahsildar who recorded the dying declaration of the deceased. PW.21 is the doctor who conducted the postmortem examination. PW.15- V. Shashikala, Tahsildar who deposed before the Court that on 13.07.2009 at about 9.05 a.m. she received written request from the police to go over to the government hospital to record the dying declaration of the injured. She went to the hospital along with her staff at 9.10 a.m. and she met the doctor and obtained physical and mental status of the injured and thereafter, she recorded the statement of the injured in question and answer manner and she obtained left hand thumb impression of the injured. It is also stated that she has also taken opinion of the doctor on the dying declaration itself. The said dying declaration is marked before the Court as per Ex. P12. Few questions have been put in order to amplify the evidence of this doctor eliciting that she has taken the opinion of the doctor by name Ali and she has also taken information about the treatment given to the injured by the said doctor. It is also elicited in the cross-examination that injured was not administered with any sedatives. In one sentence it is suggested that the deceased was not in a position to give any statement but nothing has been suggested as to how and in what manner the deceased was not in a position to give such statement. PW.15 a responsible government servant uninterested witness has categorically stated that prior to recording the statement of the injured under Ex. P12, she was fully satisfied on the basis of the information given by the doctor and also questioning the deceased that she was in a position to give such statement. Therefore, in the absence of any sufficient materials in the course of cross-examination of this witness and even in the absence of the evidence of the doctor, it would not in any manner belittle the evidence of PW.15 and also dying declaration Ex. P12. In this background, when the procedural aspects with regard to the recording of dying declaration are satisfactory, the contents of Ex. P12 play a dominant role.

In the dying declaration Ex. P12, the deceased has categorically stated that she was fit to give statement. She was admitted to the hospital by her brothers Nagayya and Irayya. On that particular day, her husband due to alcoholic influence caused inconvenience to her, assaulted her, poured kerosene on her and lit fire and she sustained burn injuries on all the parts of her body. The statement of the deceased is certified by the Doctor-Asif Ali stating that the declaration was read over and explained to the maker in the language known to her and admitted to be correct. This was certified not only by the doctor but also by the Tahsildar. So these circumstances clearly establishes that all the procedures for recording of the dying declaration has been strictly followed by PW.15 and there is no material to show that as to why the evidence of these witnesses have to be discarded. Therefore, the prosecution was able to establish that the deceased has given such dying declaration implicating the accused and that can be read as evidence before the Court.

PW.8- Irrayya and PW.12-Nagayya are brothers of the deceased. They have also supported the case of the prosecution. They have stated before the Court that the accused was addicted to alcohol and he always used to abuse and assault the deceased and he was demanding money from the deceased and she often informing this attitude of the accused to them. On the date of the incident, they came to know about the acts of the accused and they came to Japur village and saw the deceased having sustained burn injuries. Thereafter, they admitted the injured to the hospital and in fact, they have stated that the deceased has given statement before the police in the hospital. In the course of cross-examination, nothing worth has been elicited from the mouth of these two witnesses except suggesting and taking denial that earlier there was no panchayat and accused was not abusing or assaulting the deceased, but the witnesses have been deposing falsehood before the Court. It is not the case of these two witnesses that they are eyewitnesses or they in straitjacket manner implicated the accused. They have only stated about the conduct of the accused as well as deceased and relationship between them and it has been made use of by the learned Sessions Judge for the purpose of convicting the accused for the offences punishable under Sections 498-A, 504 and 323 of IPC but no separate sentences have been awarded to those offences. Particularly, for the offence punishable under Section 302 of IPC the Court has imposed sentence of life imprisonment. Therefore, there is no need for this Court also to go in detail with regard that part of evidence pertaining to those particular offences.

Looking to the above circumstances, now coming to the arguments of the learned counsel that the accused had no intention to kill the deceased. On overall analysis of the entire materials on record it shows that the accused was a drunkard and he used to abuse and assault the deceased and the same is evident from the evidence of PW.9. There is no evidence that on that particular day, he was so drunk and his senses were not within his control therefore, he committed such offences. Further added to that, according to Ex. P4, the quarrel took place between the deceased and accused on the same day soon prior to the incident was resolved by the neighbors and thereafter, again accused himself has started abusing the deceased and in that context, the deceased questioned the accused as to why he is causing inconvenience to her immediately, the accused got enraged and due to that enragement without any intention and knowledge he has done that act. When a person took a drastic step of pouring kerosene on his wife and litting fire, can it be said that without knowing the consequences of the act he has done that act? In order to establish this particular aspect there must be some foundational facts in the evidence of the prosecution witnesses particularly when the accused, the deceased were only there in the house and PW.9 was sleeping outside the house. Therefore, what exactly transpired between the husband and wife and what was spoken to by the deceased everything was well within the knowledge of accused and he is only the person who could have spoken the truth. But neither he has suggested any alternative story nor he has spoken to anything in the course of recording of statement under Section 313 of Cr.P.C, as to what exactly happened inside the house on that particular day. Therefore, without there being any such material, the Court cannot draw any inference that accused without any intention or without any knowledge has done that act in a spur of moment due to sudden enragement or due to sudden provocation. So far as this aspect is concerned, there need not be any preparation by the accused because in the house itself kerosene was available and also a match box, he need not bring those things from outside nor to prepare himself to commit the murder of his wife. But he has made use of the articles which were available in the house itself. Therefore, immediate action of the accused in taking kerosene, pouring kerosene on the deceased and litting fire itself shows that soon before the act he has prepared to do that particular act with the help of those articles. Therefore, we are of the considered opinion that the contention of the learned counsel though appears to be attractive but was not based on any foundational facts. Therefore, we are reluctant to accept the said argument of the learned counsel. Looking to the facts and circumstances of the case and the evidence placed before the Court, we are of the opinion that the Trial Court has not committed any serious error which calls for interference at the hands of this Court.

Therefore, the judgment of conviction and sentence passed by the Trial Court deserves to be confirmed.

The Trial Court has convicted the accused for the offences punishable under Sections 498-A, 323 and 504 of IPC and no separate sentences have been awarded as the accused was awarded with life punishment for the offence punishable under Section 302 of IPC. We also do not want to award any separate sentence to the above said offences.

With these observations, the appeal stands dismissed.