APPUMURTHY ALIAS APPU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is by the sole accused being aggrieved of the judgment passed in S. C. No. 97/01 by the III Addl. Sessions judge, Bangalore City dated 21-6-2003 convicting the accused for the offence under sections 498-A and 302, Indian Penal Code and sentencing him to undergo R. I. for two years and to pay fine of Rs. 500/- for the offence under Section 498-A and further sentencing to undergo imprisonment for life and to pay fine of Rs. 2,000/- for the offence under Section 302, IPC.

(2.) THE case of the prosecution in brief is as follows : a young girl Smt. Vadivu alias Vadivu-karasi was just married with the accused, three months prior to the incident, was done to death by causing burns by her husband Appu alias appumurthy. The accused-Appu was residing with his wife Vadivu at Samdhananagar, was alleged to have addicted to alcohol subjecting the deceased to cruelty and harassment in the thrust of sex by asking her to give a child. On 24-9-2000, the deceased having prepared food at about 8 p. m. called her husband to take food, but the accused compelled her to bed to have sex as he wants a child, which was refused by the deceased Vadivu. The accused-Appu in the thrust of sex and by frustration picked up a quarrel with his wife vadivu and poured kerosene on her person by lighting matchstick. When she screamed for help, neighbours of that area viz. , PW-1 shivram, PW-2 Rukmini. PW-9 Rani as well as DW-1 Shivagami, sister of the accused rushed near the house and noticed that the door was bolted from inside, they broke open the door. On noticing the burns, they poured water. They noticed that the accused was also present inside the house. PW-1. PW-2 and dw-1 shifted the injured Vadivu to Victoria hospital. On enquiry, Vadivu informed that the accused poured kerosene and burnt her. PW-3 Dr. B. Vijaya admitted the girl by name vadivukarasi to the hospital for treatment and the history was furnished by one Ramesh, as accidental burn due to stove burst while cooking. On examination, she found 42% of burns and made entries in the accident register as per Ex. P1. The Sub-Inspector of Police, K. G. Halli Pcolice Station, PW-10 V. K. Umesh on receiving the phone message from Victoria hospital, proceeded along with PW-14 puttaswamy, Police Constable and his staff. The Sub-Inspector inquired with Dr. Vijaya about the condition of the injured to record her statement. PW-3 Dr. Vijaya certified that the patient is in a position to give statement. Accordingly, he recorded the statement of vadivu as per Ex. P2, returned to the police station, registered a case in Crime No. 3107 2000, prepared FIR, Ex. P6 and forwarded to the Court. On 25-9-2000. he visited the spot along with panch witnesses, prepared spot mahazar as per Ex. P5. He recorded the statements of PWs-1, 2, 7 and 8, CWs-4, 5 and 8. On the same day, the accused was apprehended and produced before him by Police constables with Buckle Nos. 7686 and 4071. He arrested the accused and produced him before the Court on 29-9-2000 with a remand application to remand him to judicial custody and handed over the case file to Police Inspector pw-13, Pratap for further investigation. The Police Inspector took over further investigation on 29-9-2000 at 11 p. m. and received the message from Victoria hospital about the death of Vadivu and also the death memo, Ex. P4. On the basis of the death memo, he issued a second FIR Ex. P8 for altering sections 307 to 302, IPC He secured pw-12 with a request to prepare an inquest mahazar. PW-12, Ahamed Hussain by securing panch witnesses viz. PW-5 Raju and another, prepared the inquest mahazar as per Ex. P3. The body was subjected to post-mortem examination. PW-11, Dr. Manjunath conducted autopsy on the dead body and issued the post-mortem report as per Ex. P7 and opined that death was due to toxemia as a result of burns. He forwarded the seized articles to FSL and recorded statement of the witnesses. He received FSL and other reports and after completing the investigation, filed the charge-sheel:. The learned Sessions Judge secured the presence of the accused, prepared charges for the offence under Sections 498-A and 302, ipc. The accused pleaded not guilty and claimed to be tried. The prosecution, in all. examined PWs-1 to 14 and marked Ex. P1 to p11 and produced MOs 1 to 4. The defence got marked Exs. D1, D1 (a) and D2. The statement of the accused was recorded under section 313, Cr. P. C. The defence of the accused is due to stove burst, his wife sustained burns and died. The sister of the accused was examined as DW-1. The learned Sessions Judge, after hearing the prosecution amd defence, for the reasons recorded in his judgment, convicted the accused for the offence under sections 498-A and 302, Indian Panal Code sentencing as above. It is this judlgment of conviction and sentence, which is challenged in the present appeal.

(3.) LEARNED counsel Prof. Venkateshaiah for the appellant vehemently submitted that ex. P2 cannot be construed as dying declaration since the statement was not recorded properly and that doctor has aho not certified recordi ng the fitness of the maker of the statement. Also submitted that Ex. P2 came into existence at the instance of PWs-7 and 8 who are the parents of the deceased! It is also submitted that the evidence of DW-1 Shivagami establishes the fact that she was present at the time of the incident of stove burst, as a result of which Vadivu sustained burns and at the same time, the accused also sustained some burns, when he tried to extinguish the fire. Further submits that it is only an accidental fire and therefore the accused cannot be made liable. Secondly, submitted that the evidence of PW-1 Shivaram, PW-2 Rukmini, PW-9 rani to the effect that the accused and the deceased were quarrelling also cannot be believed and their evidence is doubtful in nature. Thirdly, submitted that the testimony of pw-7 Kuppa Raj and PW-8 ISelvi, the parents of the deceased shows that they are interested witnesses. Therefore, their evidence also cannot be relied on. Lastly, submitted that the entire case of the prosecution is doubtful in nature. Therefore, prayed to set aside the conviction and sentence passed by the learned sessions Judge and to acquit the accused. Also in the alternative submitted that the accused is all along in prison for the past six years and that the accused has realised his fault. On this ground also prays to take a lenient view and to acquit the accused.