State vs Siddeshappa

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal, dated 9.11.2010, passed by the Fast Tract Court-II, Shimoga, in S.C. No. 83/2010 is appealed against by the State.

The respondent-accused was charged, tried and acquitted for the offences punishable under Sections 498A and 302 of IPC.

Case of the prosecution in brief is that respondent-sole accused is the husband of the complainant (P.W. 1) Smt. Dakshayanamma; a male child (Shivu) was born out the said wedlock; there used to be frequent quarrels between the complainant and the accused, inasmuch as accused used to suspect the fidelity of his wife-P.W. 1; during the interregnum, complainant-P.W. 1 came to know that the accused had married another lady even prior to his marriage with P.W. 1; however, no issue was born out the said first wedlock of the accused with another lady; the first wife of the accused was living in a different village; the first wife of accused also used to visit the matrimonial house of the complainant and in that regard there used to be quarrels between the complainant and the accused.

In the evening of 3.8.2009, once again quarrel took place between the accused and the complainant and having felt that accused would torture her, P.W. 1 took the child Shivu and went to the house of CW-10-Kenchappa (neighbour) and slept in his house; in the morning of 4.8.2009, P.W. 1 came to her matrimonial house wherein accused was sleeping; but, accused did not allow her to enter the house and told her to go out; consequently, the complainant went to her mother''s house along with the child Shivu; at about 9.30 a.m. the accused went to the house of mother of the complainant and took the child Shivu with him and came to his house; as he was angry with the complainant, he poured kerosene on the child and set him on fire; P.W. 6, C.Ws. 10 and 14 on seeing the incident raised hue and cry and informed about the same to P.W. 1; immediately, ambulance was secured; accused had also sustained severe injuries; the child as well as the accused were shifted to Mc. Gann Hospital, Shimoga at the first instance and thereafter to Kasturba Hospital, Manipal; during the course of treatment, the child Shivu succumbed to the burn injuries, whereas the accused was discharged from the hospital on 20.10.2009, i.e., after a lapse of about 2 1/2 months of the incident.

In the meanwhile, i.e., immediately after the incident, the complainant-P.W. 1 submitted a written complaint before P.W. 14 in Mc.Gann Hospital, Shimoga as per Ex. P1 who in turn came to Tunganagar Police Station and registered Crime No. 296/2009 against the accused; he sent FIR to the jurisdictional Magistrate as per Ex. P10 which reached the Magistrate at 7.40 p.m. on 4.8.2009; the police after completion of investigation laid the charge sheet against the accused for the offences punishable under Sections 498A and 302 of IPC.

In order to prove its case, the prosecution in all has examined 17 witnesses and got marked 12 Exhibits and 2 Material Objects. On behalf of the defence, no evidence is let in. The trial Court on evaluation of the material on record acquitted the accused by giving benefit of doubt in his favour.

Sri Chetan Desai, learned Government Pleader, taking us through the material on record and the judgment of the Court below submits that the trial Court is not justified in proceeding casually; it is a case of murder of the child aged about 2 1/2 years; since the accused himself has sustained injuries in the very incident, his presence on the spot cannot be disputed; the defence as put forth by the accused that it was the complainant and her sisters, etc., were responsible for causing the death of the child cannot be believed in view of the fact that it was the accused who was suspecting the fidelity of P.W. 1 and that P.W. 1 was loving her child. According to him, the material on record is sufficient to bring home the guilt against the accused.

Sri S.B. Pavin learned counsel appearing on behalf of the respondent per contra argued in support of the judgment of the Court below contending that the only eye witness who is examined before the Court has turned hostile; it is not in dispute that the accused was loving his son Shivu; P.Ws. 1 and 5 have clearly admitted that the accused did not have any grievance against the deceased child; though accused had a grouse against P.W. 1, the same cannot be made as a basis to convict him for the incident in question; the prosecution has suppressed the origin and genesis of the case, inasmuch as absolutely no medical records are produced pertaining to the accused though he has taken treatment in the hospital for about 2 1/2 months.

P.W. 1 is the wife of the accused. She has lodged the complaint as per Ex. P1. The said complaint was scribed by P.W. 17-Mr. Kumar. Thus, it is a pre-prepared complaint which came to be lodged by P.W. 1 before the Assistant Sub-Inspector of Police-P.W. 14 based on which crime is registered and investigation has taken place.

P.Ws. 2, 8 and 10 are the witnesses for scene of offence panchanama at Ex. P2.

P.Ws. 3 and 4 are the witnesses for inquest mahazar at Ex. P3.

P.W. 5 is the elder sister of P.W. 1. She also supported the case of the prosecution by deposing that the accused took the child with him in the morning of the fateful day and she came to know that the accused set the child ablaze after pouring kerosene. However, she is not the eye witness to the incident in question.

P.W. 6 is stated to be residing in the neighbouring house of the accused. She is the eye witness, but she has turned hostile.

P.W. 7 is the doctor who conducted the postmortem examination over the dead body of the child. PM report is at Ex. P5. The doctor has opined that the death was due to burn injuries sustained by the child.

P.W. 9 is the owner of the house wherein the accused residing. According to him, the accused was living as a tenant in the house in which the incident has taken place.

P.Ws. 11, 12 and 13 are the Police Constables, who participated in the investigation as per the directions of the superiors at different levels. It is relevant to note that P.W. 13 is the Police Constable who guarded the accused while he was in the hospital. He arrested the accused after his discharge from the hospital and produced before the concerned.

P.W. 14 is the Assistant Sub-Inspector of Police, who registered the crime based on Ex. P1. After the death of the deceased child, the provision was altered to Section 302 of IPC. He has conducted the investigation in part.

P.W. 15 is the Inspector of Police who took over the investigation from P.W. 14 and investigated the crime in part. Finally, P.W. 16, the Inspector of Police laid the charge sheet after completion of investigation.

P.W. 17 is the scribe of the complaint-Ex. P1. According to him, he scribed the complaint based on the request of P.W. 1.

It is the case of the prosecution that Ex. P1 came to be lodged by P.W. 1 before P.W. 14. The same was pre-written complaint. The complaint was scribed by P.W. 17. At the time of writing the complaint as per Ex. P1, there were about 10 to 15 persons as is clear from the evidence of P.W. 17, so also it is admitted by P.W. 17 that there is nothing on record to show that his shop is situated by the side of the house of the accused.

The complaint-Ex. P1 reveals that the incident is witnessed by C.Ws. 10 and 14 i.e., Kenchappa and Muniyappa respectively. They informed about the incident to the complainant and thereafter complainant proceeded to the spot. This version of P.W. 17 as found in the complaint is given go by completely by the prosecution during the course of trial. P.W. 1 did not whisper in her evidence about the presence of C.Ws. 10 and 14 at the time of incident. Per contra, she has deposed that P.W. 6 Shantamma @ Shantha came and informed her about the incident. The name of Shanthamma is not found in the complaint. From the aforementioned, it is clear that the names of eye witnesses are completely replaced during the course of trial. Absolutely no reasons are forthcoming as to why aforementioned two eye witnesses are not examined. So also, if really P.W. 6, who is eye witness to the incident had informed P.W. 1 about the incident, based on which information complaint came to be lodged, P.W. 1 would not have missed to state her name in the complaint. Therefore, prosecution has suppressed certain material facts from the beginning itself.

P.W. 6, the sole eye witness who is examined before the Court has turned hostile. She has deposed before the Court that she has not seen the accused on that day; however, she saw the child Shivu burning on the street and thereafter she went and informed P.W. 1. It is the case of the prosecution that P.W. 6 is the neighbour of the accused. If it is so, she would not have missed to state the presence of the accused had she been really present on the scene of offence. Curiously, as aforementioned, PW6 has deposed that she has seen burning the child in the street and not in the house of the accused.

P.Ws. 1 and 5 are the sisters inter se. Both were not the eye witnesses. They came to the spot only on being informed by P.W. 6. P.Ws. 1 and 5 have deposed that the accused took away the child with him in the morning of fateful day and thereafter he set the child ablaze after pouring kerosene. The alleged act of the accused pouring kerosene on the child is not witnessed by anybody. However, circumstances would reveal that the accused was present at the time of burning, inasmuch as he had also sustained certain burn injuries.

The prosecution has suppressed all the medical records relating to the treatment given to the accused. Though he took treatment for about 2 1/2 months, the prosecution did not venture to produce any medical record to show the treatment given to the accused. Despite the same, the defence was successful in getting the admissions from the witnesses to the effect that the accused has sustained severe burn injuries. The wound certificate of the accused discloses that the accused had sustained 40% of burns. The injuries are found on the left upper arm and left lower limb apart from the left portion of his body. He has suffered 40% of injuries which are first and second degrees. The doctor in the said wound certificate has stated that the injuries sustained by the accused are grievous in nature. Despite such severe injuries sustained by the accused, the prosecution did not venture to place the medical records before the Court. Thus, it is a clear case of suppression of material facts by the prosecution. It has not come with clean hands before the Court. This Court could not have given much importance for the suppression of medical records of the accused if the injuries sustained by him are minor in nature. Here is a case wherein the accused has sustained grievous injuries because of burning to an extent of 40%. He has taken treatment for about 2 1/2 months in hospital as inpatient. At least history recorded by the doctor during the course of admission of the accused to the hospital would have thrown some light on the case and would have helped the Court to arrive at a just conclusion.

Be that as it may, the fact remains that the accused has sustained grievous injuries on the left arm, left leg and left portion of his body. The child has sustained the burn injuries on the entire front portion of his body, but the child was not fully burnt on the back side of the body. In this context, the defence taken by the accused that the incident has taken place while the child was sleeping with the accused resting its head on the left arm of the accused, assumes importance. Though the accused has taken a specific defence that P.Ws. 1 and 5 and their relatives committed the murder of the child by pouring kerosene, the same cannot be accepted since it is highly unnatural and improbable. But the citus of the injuries sustained by the accused as well as the deceased child creates sufficient suspicion in the mind of the Court, more particularly when there was absolutely no reason for the accused to commit the crime as against the child as alleged.

P.Ws. 1 and 5 have emphatically admitted that the accused was loving the child. P.W. 1 has further admitted that the accused was very much happy after the child Shivu was burn, inasmuch as he did not beget any child from his first wife. Hence, absolutely no motive is forthcoming for the accused to commit the crime against the child. So also it is not the case of the prosecution that accused had any grievance that the child was not born to him; on the other hand, accused was loving the child Shivu.

Having regard to the totality of the facts and circumstances of the case, the trial Court has rightly concluded that the prosecution has not proved its case beyond reasonable doubt. It has also concluded that the prosecution has not come with a true story before the Court. Certain material factors appear to have been suppressed by the prosecution. In view of the same, on re-appreciation of the material on record, we find that the view taken by the trial Court is one of the possible views under the facts and circumstances of the case. We also agree with the view taken by the trial Court.

Hence, no interference is called for. Accordingly, appeal fails and the same stands dismissed.