Mallesh vs State

N. Ananda, J.—The appellants No. 1 and 2 (hereinafter referred to as accused No. 1 and 2) were tried for offences punishable under Sections 498-A and 302 IPC.

The learned Sessions Judge convicted accused No. 1 and 2 for an offence punishable under Section 498-A IPC.

The learned Sessions Judge acquitted accused No. 2 of an offence punishable under Section 302 IPC. The learned Sessions Judge convicted accused No. 1 for an offence punishable under Section 302 IPC. Therefore, they are before this court.

We have heard Sri. K.A. Chandrashekar, learned counsel for accused and Sri. Vijaykumar Majage, learned Government Pleader for the State.

Before adverting to appreciation of evidence and consideration of submissions of the learned counsel for parties, it is necessary to state inter se relationship of accused, deceased and some of the prosecution witnesses and also certain facts which are not in dispute.

Accused No. 1 is the son of accused No. 2; accused No. 1 had married deceased Manjula on 22.06.1994; they have two children in their marriage; they were residing in a house within the jurisdictions of Vidyaranyapuram Police Station in Mysore; accused No. 2 was residing in a different locality; the deceased was working as a maid servant, so also accused No. 2; the daughters of first accused and deceased namely P.W. 15-Chaya and her younger sister Bindu were residing in the house of their maternal grand mother P.W. 1-Mahadevemma.

It is the case of prosecution that accused used to come home in a drunken state and pick up quarrel with the deceased; the deceased was working as a maid servant to maintain her family; on 25.01.2010 at about 7.00 p.m., the deceased returned home after completing her work; accused came home in a drunken state and picked up quarrel with the deceased stating that she had come late; the deceased served food to accused No. 1; accused No. 1 threw away the food; accused No. 1 splashed kerosene on the deceased and set her on fire; she suffered burn injuries and ran out of the house; accused had also suffered burn injuries; P.W. 2-Basavaraju extinguished the fire on deceased by covering her with a gunny bag; P.W. 2 shifted her to K.R. Hospital; on the same day at about 11.00 p.m., the jurisdictional Sub-inspector of Police namely P.W. 17-Shivanna came to K.R. Hospital and enquired with P.W. 10-Dr. B.S. Madhu about the physical and mental fitness of deceased; P.W. 10 examined the deceased and certified that she was mentally and physically fit to give her statement; thereafter, P.W. 17 questioned the deceased and dictated her statement to P.W. 18 who reduced the same to writing; P.W. 17 registered Crime No. 13/2010 for an offence punishable under Section 307 IPC; the deceased succumbed to burn injuries at about 5.40 p.m., on 27.01.2010; P.W. 17 submitted an application to include an offence punishable under Section 302 IPC.

P.W. 22-Puttaswamy has deposed; that accused No. 2 was staying at Bangalore. She was working as maid servant at Bangalore.

The evidence of P.W. 15-Chaya (the daughter of accused and deceased) would reveal that P.W. 15 and her younger sister Bindu were staying in the house of P.W. 1-Mahadevamma (their maternal grand mother) and they were studying in a Convent at Gokulam, Mysore. During holidays, they used to visit the house of their parents. P.W. 15 has stated that accused No. 1 used to quarrel with the deceased whenever deceased used to return home late in the evening. The accused used to question her as to where she had gone and used to quarrel with her.

P.W. 15 has not stated that second accused was staying in the house of first accused. She has not stated that second accused was instigating the first accused to assault the deceased.

Accused No. 2 was not staying in the house of accused No. 1 and deceased. The evidence of P.W. 15 that accused No. 2 used to instigate accused No. 1 to assault the deceased is not free from reasonable doubt.

P.W. 13-Pushpavathi is the younger sister of deceased. P.W. 13 has not deposed that accused No. 2 was staying in the house of accused No. 1 and the deceased. She has deposed that accused No. 2 was suspecting the fidelity of deceased and she was instigating accused No. 1 to make enquiries. The evidence of P.W. 13 is vague.

Admittedly, accused No. 2 was not staying in the house of accused No. 1 and deceased. In the circumstances, it looks improbable that accused No. 2 was visiting the house of accused No. 1 only to instigate accused No. 1 to assault the deceased.

The learned trial judge without properly appreciating evidence against accused No. 2 has held accused No. 2 guilty of an offence punishable under Section 498-A IPC. Therefore, conviction of accused No. 2 for an offence punishable under Section 498-A IPC cannot be sustained.

As regards accused No. 1, we have consistent evidence of P.W. 15-Chaya (elder daughter of deceased and accused) and P.W. 13-Pushpavathi (the younger sister of deceased) that accused No. 1 used to come home in a drunken state and he was harassing and assaulting the deceased. Accused No. 1 was not taking care of the family. Therefore, P.W. 15 and her younger sister Bindu were staying in the house of her maternal grandmother namely P.W. 1-Mahadevamma.

P.W. 1-Mahadevamma has deposed; that accused was not taking care of the family; accused No. 1 was telling the deceased that he would take a second wife because she had not begotten a male child; P.W. 1 convened a panchayat to advise accused No. 1; accused No. 1 assured the panchayatdars that he would take proper care of deceased and his children; accused No. 1 again started harassing the deceased stating that she had given birth only to female children; accused No. 1 used to come home in a drunken state and harass the deceased; P.W. 15-Chaya and her sister Bindu were staying in the house of P.W. 1; accused No. 1 was not providing money for their education; the second accused was living separately from first accused.

The evidence of P.W. 1 would prove that accused No. 1 was constantly harassing and ill-treating the deceased because she had given birth to two female children; accused No. 1 was harassing the deceased to give her consent for his second marriage; the first accused was not maintaining the family; the first accused used to come home in a drunken state and assault the deceased.

Thus, the prosecution has proved that accused No. 1 was subjecting the deceased to cruelty within the meaning of Section 498-A IPC. We have no reasons to interfere with the finding of trial court that accused No. 1 is guilty of an offence punishable under Section 498-A IPC.

The next point for determination is:

"Whether the prosecution has proved that on 25.01.2010 at about 7.30 p.m., accused No. 1 doused kerosene and set the deceased on fire and caused burn injuries to her?"

P.W. 10-Dr. B.S. Madhu was working as Assistant Professor in the Department of Surgery in K.R. Hospital at Mysore.

P.W. 10 has deposed; that on 25.01.2010, one Manjula was admitted in burns ward of K.R. Hospital, Mysore; P.W. 10 was in the casualty department; on that day, at about 11.15 p.m., P.W. 17 (Sub-inspector of Vidyaranyapuram Police Station), gave a written requisition to P.W. 10 to state whether Manjula (since deceased) was in a position to give her statement; P.W. 10 examined injured Manjula and found that she was conscious and oriented and informed P.W. 17 that she was in a position to give her statement; P.W. 17 recorded the statement of Manjula (since deceased) in the presence of P.W. 10 in between 11.10 to 11.40 p.m., on 25.01.2010; P.W. 10 had made endorsement as per Ex. P21(b).

P.W. 10 has deposed that Manjula (since deceased) affixed her LTM to Ex. P21 (statement of the deceased) in his presence. The deceased has stated before P.W. 10 and P.W. 17 that her husband had quarreled with her at about 7.15 p.m., on 25.01.2010 and splashed kerosene and set her on fire. She has further stated that her neighbour P.W. 2-Basavarju extinguished the flames and brought her to K.R. Hospital.

During cross-examination, P.W. 10 has reiterated the version given in examination-in-chief. He has denied the suggestion that deceased was not conscious and oriented to give her statement. He has denied the suggestion that deceased was under the influence of sedatives, therefore, she was not physically and mentally fit to give her statement.

P.W. 10 did not know the accused. He had no grudge or grievance against the accused. In the circumstances, the contention of defence that P.W. 10 has given false evidence to implicate the accused cannot be accepted.

P.W. 17-Shivanna was working as Sub-inspector of Police in Vidyaranyapuram Police Station. P.W. 17 has deposed; that on 25.01.2010, he was on patrolling duty; at about 11.00 p.m., he received a phone message from P.W. 18 asking him to go to burns ward of K.R. Hospital. P.W. 17 came to burns ward and enquired P.W. 10-Dr. B.S. Madhu whether deceased was in a condition to give her statement; P.W. 10 told him that she was in a condition to give her statement; the deceased gave a statement before P.W. 17 stating that she was working as a maid servant; on 25.01.2010, after completing her work, she returned home at about 7.00 p.m.; accused No. 1 was in the house; she gave reasons for coming late; accused No. 1 left the house and returned back; he was drunk; the deceased served food to the accused; he threw away the food; the accused doused kerosene on her and set her on fire; she came out of the house; her neighbor Basavaraju (P.W. 2) extinguished flames by covering her with gunny bag and shifted her to K.R. Hospital; accused No. 1 also suffered burns when he had set fire to the deceased.

During cross-examination, P.W. 17 has reiterated the evidence given in examination-in-chief. P.W. 17 had ascertained about the physical and mental fitness of deceased to give her statement from P.W. 10 who was the duty Doctor in K.R. Hospital. P.W. 10 examined the deceased and opined that she was in a fit condition to give her statement. Thereafter, P.W. 17 recorded the statement of deceased, in the sense, he enquired the deceased and dictated the answers given by the deceased to P.W. 8 who reduced the same to writing as per Ex. P21. P.W. 17 has denied that deceased was not physically and mentally fit to give her statement.

At this stage, it is relevant to state that P.W. 17 was not known to the deceased. Accused was not known to P.W. 17. In the circumstances, the contention of defence that P.W. 17 in connivance with P.W. 10 concocted the statement of deceased cannot be accepted. In our considered opinion, the dying declaration (marked as per Ex. P21) does not suffer from any discrepancy.

The learned counsel for accused referring to burn injuries suffered by the accused and deceased would submit that deceased had suffered burn injuries in the accidental fire due to burst of LPG cylinder.

At this juncture, we would like to refer to the contents of Forensic Science Laboratory report (marked as per Ex. P30) wherein, it is shown that the clothes of deceased and kerosene can seized from the house of accused showed presence of residues of kerosene. If deceased had suffered burn injuries in the accidental fire due to burst of LPG cylinder, in the Forensic Science Laboratory report, the chemical examiner would not have noticed presence of residues of kerosene in the half burnt clothes of the deceased and also on kerosene can seized from the place of incident. The accused had also suffered burn injuries and he was also treated in K.R. Hospital. The accused has not explained the circumstances under which he had suffered burn injuries.

As per evidence of P.W. 2-Basavaraju, after the incident, deceased came out with burning flames on her; P.W. 2 extinguished the flames. The accused who had suffered burn injuries was proceeding towards a shop to purchase Beedis.

In a decision reported in Trimukh Maroti Kirkan Vs. State of Maharashtra, the Supreme Court has held:

"22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram Vs. State of Himachal Pradesh, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khokhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal Vs. State of Maharashtra, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State U.P. Vs. Dr. Ravindra Prakash Mittal, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu Vs. Rajendran, the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."

In the case on hand, the homicidal death of deceased Manjula had taken place due to burn injuries suffered by her in the house of accused. The subsequent conduct of accused speaks about the guilt of accused. The accused had not made any attempt to shift the deceased to hospital. On the other hand, accused was happily smoking beedi. During examination of accused under Section 313 Cr.P.C., accused apart from denying incriminating evidence against him, has not offered any explanation as to how the deceased suffered burn injuries in his house. The neighbours of deceased and accused have not wholeheartedly supported the case of prosecution. It looks probable that they had leaned in favour of the accused and they wanted to save the accused.

In the discussion made supra, we have assigned reasons for accepting the statement made by the deceased. We have also considered the evidence of elder brother of deceased regarding the conduct of accused. The fact that P.W. 15-Chaya and her sister (children of deceased and first accused) were staying in the house of their maternal grand mother (P.W. 1) would demonstrate that accused used to come home in a drunken state and he was quarrelling with the deceased. Therefore, P.W. 15-Chaya and her sister (children of deceased and first accused) did not have congenial atmosphere in the house of accused. Therefore, they were staying in the house of their maternal grand mother (P.W. 1). The conduct of accused after the incident is not consistent with the conduct of an innocent person. The accused had not bothered to shift the deceased to hospital soon after the incident. The statement given by deceased that accused had set her on fire does not suffer from any discrepancy.

Thus to sum up, the prosecution from oral and documentary evidence and also from the statement of deceased has proved that accused was subjecting the deceased to cruelty within the meaning of Section 498-A IPC. On 25.01.2010, accused No. 1 came home in a drunken state, quarreled with the deceased, doused kerosene, set her on fire and left the house. The accused had also suffered burn injuries in the process of setting fire to his wife. The subsequent conduct of accused is not consistent with the conduct of an innocent person. In the circumstances, the learned Sessions Judge was justified in convicting accused No. 1 for offences punishable under Sections 302 and 498-A IPC.

In the discussion made supra, we have held that there is no evidence to convict accused No. 2 for an offence punishable under Section 498-A IPC. Therefore, the impugned judgment requires modification.

In the result, we pass the following:

ORDER

"The appeal is accepted in part. The impugned judgment is modified.

The conviction of accused No. 1 for offences punishable under Sections 498-A and 302 IPC and sentence imposed thereon is confirmed.

The conviction of accused No. 2 for an offence punishable under Section 498-A IPC is set aside. Accused No. 2 is acquitted of an offence punishable under Section 498-A IPC. The bail bond executed by accused No. 2 stands cancelled. If accused No. 2 has deposited fine amount, the same shall be refunded to her."