BASAVARAJ Vs. STATE

JUDGEMENT

(1.) This appeal is filed by the accused in S.C. No. 191/2006 on the file of the Presiding Officer, Fast Track Court-I, Bellary, dated 25.08.2007 wherein the accused-appellant herein is convicted of having committed the offences punishable u/ss. 504 and 302 IPC and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- and in default to pay the fine to suffer further rigorous imprisonment for one month for the offence punishable u/s 504 of IPC. Further, he was punished to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, the accused shall suffer further rigorous imprisonment for one year for the offence punishable under Section 302 of IPC. The period of detention undergone by the accused person during the enquiry and trial is ordered to be set off against the substantial sentence imposed on the accused person as per Section 428 of Cr.P.C. The material facts of the case leading up to this appeal with reference to the ranks of the parties before the sessions court are as follows:

(2.) It is the case of the prosecution that Hussainamma was the wife of the accused and they have two children namely PW-1 Hulgemma and PW-4 Dodda Basavaraja. It is the case of the prosecution that the accused was addicted to consumption of alcohol and was demanding money from his wife for gratifying his need to consume liquor and abusing and threatening his wife. It is the further case of the prosecution that on 28.10.2001 at about 2.45 p.m. when Dr. Mahantappa Shabadi was on duty in the hospital, the injured by name Hussainamma and her daughter Hulgemma were brought to the hospital for examination and treatment. Emergent treatment was given to the injured Hussainamma and immediately thereafter at about 2.45 p.m., intimation was sent to the PSI as per Ex. P.10. The PSI, Sri. G. Harisha on receiving the intimation as per Ex. P.10, went to the hospital and saw both the injured and inquired PW-8 whether Hussainamma was in a position to give statement and since the Medical Officer who attended to the injured said that the statement of Hussainamma could be recorded, he recorded her statement/complaint in the presence of Dr. Mahantappa Shabadi. Hussainamma has stated in her statement that she was married to the accused about 20 years ago and that they have got four children. Since 4 to 5 years, her husband was living on the income earned by her children and he was addicted to drink alcohol and demanding them to pay money. On the date of incident at about 2.30 p.m., while herself, her husband and Hulgemma were in the house, her husband started quarrelling for payment of the coolie amount for consuming liquor, but she expressed her inability to pay the said amount since she had no money even to spend for the household expenses. The accused abused her saying that she was staying as a kept mistress and poured kerosene on her by taking the kerosene can containing kerosene oil and lit fire to her and she started burning. She came out of the house and asked PW-1 Hulgemma to extinguish fire. In that process, PW-1 also sustained burn injuries on her hands and right side of her neck. Thereafter, Hussainamma was shifted to the hospital along with Hulgemma. Thereafter, PSI came to the hospital and she gave her statement as per Ex. P.10. On the basis of the said complaint, PW-16 returned to the police station and registered the case in Cr. No. 195/2001 for the offences punishable u/ss. 307 and 504 of IPC and sent the FIR as per Ex. P.19 to the jurisdictional court and copy of the same to his superiors. On the same day, he gave a requisition to Taluka Executive Magistrate for recording the dying declaration of Hussainamma. On receipt of the requisition, the Taluka Executive Magistrate-PW-10 went to the hospital and again made enquiry with PW-8 as to whether Hussainamma was in a position to give the statement and when the doctor said that Hussainamma was in a position to give statement, he recorded the statement of Hussainamma in the form of question and answer wherein she has clearly stated that her husband poured kerosene on her and lit fire to her and that her husband was demanding money for drinking liquor and since amount was not paid, he poured kerosene and lit fire. The said statement was recorded as per Ex. P.13 in the presence of Dr. Mahantappa Shabadi Math. In the said statement, the doctor has certified that Hussainamma was in a fit condition to give the statement and certified the same under his signature. Thereafter, PW-16 secured the presence of panchas and PW-1 Hulgemma and in their presence conducted the Spot Panchanama and during the panchanama he seized the articles M.Os. 1 to 4 being half burnt match stick, half burnt match box, plastic can and half burnt piece of saree under Ex. P.8. On the same day, recorded the statement of PWs-2, 3 and 11. He along with his subordinates searched for the accused. But could not trace the accused. On 29.10.2001, they received a wireless message stating that Smt. Hussainamma who was undergoing treatment in the VIMS hospital died at about 6.00 a.m. The wireless message received from the PSI is marked as Ex. P.20. Thereafter, he submitted a requisition to the court for alteration of the charge from Section 307 to 302 IPC and sent the modified FIR. On the same day, he conducted inquest panchanama over the dead body of Hussainamma in the presence of PWs-7 and 14 as per Ex. P.9. He got the post mortem examination of Hussainamma conducted through PW-9 as per Ex. P.14. However, the investigation was handed over to Sri. Chinnappa, Dy. S.P.-PW-17. PW-17 verified the investigation already conducted. He sent the seized articles to FSL. He received the FSL report as per Ex. P.22. After completing the investigation, he filed the charge sheet against the accused showing him as absconding. On 20.11.2006 the accused was arrested by CPI by name Maligi and produced him before the court. Charges were framed against the accused for having committed offences punishable u/ss. 504 and 302 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined PWs-1 to 17 and got marked Ex. P.1 to Ex. P.22 and the articles seized were marked M.Os. 1 to 4. Statement of the accused u/s 313 of the Code of Criminal Procedure was recorded. On behalf of the accused, no oral or documentary evidence was produced and the defence of the accused was that Hussainamma suffered accidental death and that a false case has been filed against him. The trial court after considering the contentions of the learned counsel appearing of the parties and appreciating the oral and documentary evidence on record by order dated 25.08.2007 convicted the accused of having committed offences punishable u/ss. 504 and 302 IPC and sentenced the accused as aforesaid. Being aggrieved by the said judgment and conviction, the accused has preferred this appeal.

(3.) Amicus Curiae was appointed for presenting the case of the appellant. We have heard learned counsel appearing for the appellant and the learned Additional State Public Prosecutor.