Rathna W/O Girish and Girish S/O Govindaiah Vs. State of Karnataka by Rajagopalanagar Police - Court Judgment

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- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.huluvadi g. ramesh, j.1. appeal is by the accused aggrieved by the order of conviction and sentence passed by the xii addl. sessions judge, bangalore in sc 36/1991.2. the police inspector of rajagopalanagar filed a charge sheet against the accused for the offence punishable under section 302 r/w section 34, ipc in cc 17110/1998 before the vii addl. cmm, bangalore. the matter was committed to the court of sessions by the learned magistrate by order dated 23.1.1999 since the case was triable by the sessions court. during trial, prosecution examined in all twenty witnesses and got marked about eleven documents and one material object. on behalf of the defense, dw 1 - dr. sundresh was examined, two documents were got marked and about six material objects were also marked.3. the case of the prosecution in brief is: accused 1 and 2 went to the house of the deceased vijaya on 17.7.1998 around 5.00 p.m. situate at # 596, near bilal masjid within the jurisdiction of rajagopalanagar police station. the 1st accused abused vijaya in filthy language suiting that she has kept her husband and spoilt her family. stating so, she doused kerosene on vijaya and set her ablaze. it is alleged, the 1st accused asked the 2nd accused and one more person to hold the deceased and thereafter, the 1st accused having plashed kerosene on her, lit fire. subsequently when vijaya started crying, neighbors gathered there. the victim's husband - revanna also came to the spot. revanna went to the police station to bring the police. meanwhile, accused 1 and 2 shifted vijaya to victoria hospital. there, entry has been made in the mlc register. thereafter, the head constable - pw 18 who had come, recorded the statement in the presence of pw 20 which was attested by pw 20 and on the basis of the said statement/dying declaration, the police having conducted further investigation, recorded the statements of the eye witnesses as well as the husband of the victim, neighbors and other circumstantial witnesses and, have filed charge sheet. based on the incriminating material, trial court framed charges. since the accused pleaded not guilty and claimed to be tried, trial court having held trial, convicted the accused. the defense of the accused is statement has been recorded by dw 1 who was the casualty medical officer in the mlc register and as per the said statement at ex.d1, vijaya is said to have stated that she sustained injuries due to fire burns which is accidental and not due to the act of the accused. however, subsequently statement/complaint has been recorded by the police in the presence of dr. muniraju - pw 18 as per which, she has implicated the accused alleging that the 1st accused having splashed kerosene, set her on fire and the 2nd accused held her. the eye witnesses pw 6 and 7 daughter and mother of the deceased, have turned hostile. however, the neighbors haw supported the version of the prosecution. as could be seen, neighbors pw 10 and 12 came to the spot immediately on hearing the cries. they have spoken about the accused shifting the injured to the hospital in an autorickshaw but, they are not the eye witnesses to the specific overt act attributed against the accused regarding splashing kerosene and setting fire and the 2nd accused holding the deceased.4. according to the appellants' counsel ex.d1 - so called entry / dying declaration recorded by the doctor who was on duty, it is the statement made by the victim and subsequent statement of the victim recorded cannot be treated as dying declaration and it is a second dying declaration which is contradictory to the earlier version given by the victim herself as such, the accused/appellants are entitled to the benefit of doubt and acquittal. rather, the trial court, has not looked into the inconsistencies in the dying declaration i.e., one recorded by one of the doctor who has admitted the patient and, another one recorded by the head constable and according to the appellants' counsel, nothing has been stated as to the presence of the of pw 20 - doctor on duty at the time of recording the complaint/dying declaration recorded by pw 18- head constable and in the absence of any corroboration as to the so called dying declaration at ex.p10 and the statement at ex.d1 which has been recorded first in point of time which does not implicate the accused, it cannot form the basis for conviction and accordingly submitted, when two versions are possible, the accused are entitled for the benefit of extension of doubt and therefore, prayed for acquittal.5. per contra, government pleader submitted that the version of the prosecution itself is that the accused took the injured to the hospital and there they managed to get entry made in the mlc register that it is self inflicted injuries as such, it cannot be relied upon to extend the benefit of doubt to the licensed to hold them not guilty of the offence. the dying declaration which is at ex.p10 has been recorded in the presence of pw 20 by pw 18 - head constable which has been attested by pw 20 which is the true version, based on which, conviction came to be passed and there is no such illegality committed by the trial court in recording conviction and sentence against the accused. it is also his submission that, pw 10 and 12 are the neighbors who have spoken about the presence of the accused as such, the very statement of the neighbors runs corroboration regarding presence of accused at the time of incident. the evidence of pw 5 - husband of the deceased also implicates the accused regarding the overt act as suited by the victim herself before him who had armed at the spot on coming to know of the incident and there is corroborating evidence to hold the accused guilty of the offence. accordingly, he sought for dismissal of the appeal.6. having heard the learned counsel, the points that arise for consideration is-whether the prosecution has proved beyond reasonable doubt that accused 1 & 2 are guilty of the offence of murder as alleged;whether the prosecution has proved beyond reasonable doubt that the dying declaration given by the deceased would form the sole basis for conviction of the accused;whether the trial court is justified in convicting and sentencing the accused for the above said offence and,what order and sentence, if any.7. from the evidence on record, it is seen the alleged incident has taken place on 17.7.1998 in the evening when accused 1 & 2 visited the house of the deceased vijaya. as per the prosecution case itself, the 2nd accused had illicit relation with the deceased, vijaya it appears, to teach a lesson, the 1st accused accompanied by the 2nd accused, went to the house of the deceased and there, the 1st accused, out of anger, slapped the accused, bit her checks and having doused her with kerosene, set her ablaze. ex.p10 is the dying declaration recorded. prior to that, ex.d1 is the entry in the mlc register recorded by dw 1. in the description it is shown as 'self accidental burns while preparing tea in the stove due to sudden flames, occurred at 5.00 p.m. this statement is recorded first in point of time and the deceased had sustained 75% burns. it is even the version of the prosecution as well as the defense, that the victim was in a position to give a statement. however, the contradiction placed before the court is, as per the statement at ex.d1 - entry in the mlc register, the injuries were due to accidental burns as disclosed by the victim herself. in this regard to rule out the possibility of giving a self serving statement, a statement has been recorded by pw 18 - head constable, in the presence of pw 20 -doctor. it is pertinent to note that ex.d1 has been recorded by dw 1, the doctor who was on duty and he, a resident medical officer, speaks about the statement given by the victim herself. what is to be noted in this context is, admittedly the accused took the victim to the hospital where, such a statement has been recorded. the possibility of victim giving such a statement, in the presence of the accused, out of fear or apprehension, though if it is taken as true, cannot be ruled out. ex.p10 - is the dying declaration recorded by the head constable in the presence of the doctor - pw 20.8. on going through the evidence on record, the statement of pw 20 is to the effect that on 17.7.1998 around 10.30 p.m. the rajgopalanagar police recorded the statement of vijaya w/o revanna in his presence and he also certifies that the victim was conscious go give the statement and also, has identified the signature and statement at ex.p10. in the cross examination, it is noticed that the witness volunteers that the police made oral request and on that oral request, they recorded the declaration. he denies that vijaya was not in a fit condition to gave a statement. nothing worth is elicited to discard the evidence of this witness in whose presence the dying declaration has been recorded.9. pw 6 & 7 are the eye witnesses to the version as to the overt act of the accused. even on perusal of section 161, cr.pc statement recorded, although it is noticed as to the presence of accused 1 & 2 and the overt act against the 1st accused, nothing has been recorded as to the overt act of the 2nd accused. though statement under section 161. cr.pc cannot be referred for any other purpose, only to notice the consistency in the version of the prosecution, that statement has been taken note of to see whether any incriminating evidence is available as against the 2nd accused at this juncture. except that the 1st accused inflicted injuries on the cheek and deceased kerosene on the vicitim and set her ablaze and also instigated the 2nd accused to catch hold of the victim, there is nothing consistent to implicate the 2nd accused, although it is stated in the dying declaration that 2nd accused has held the deceased at the instance of the 1st accused. further, what is noticed is the evidence of pw 5 who is none other than the husband of the victim, who arrived at the spot and before whom the victim is said to have made a statement which is in the form of oral dying declaration.10. on going through the evidence of pw 5, it is noticed that this witness has spoken about the incident that has taken place in the evening around 5.00 on the date of the incident in the house in which he was residing. after returning from work around 5.00 p.m., he found several persons gathered and that even the accused were also present there. he found bite marks on the checks of his wife and also burn injuries all over the body. he also found his wile vijaya caught in fire. at that time, his neighbors came and extinguished the fire by pouring water. later, he went to the police. meanwhile, the accused took the injured to the hospital. he also took the police to victoria hospital. there, his wife could speak and on inquiry, she stated that the 1st accused had quarreled with her styling that she had kept the husband of the 1st accused and later, the 1st accused doused her with kerosene from the stove which was in the house and lit her on fire. he her also spoken that, for about four days vijaya was alive and then, she succumbed to the injuries on 22.2.1998. this statement of pw 5 implicates the 1st accused alone. although the presence of the 2nd accused is stated no overt act has been attributed against him. if it is taken as a dying declaration made by the victim first in point of time before her husband and, the other statement/dying declaration recorded by the head constable in the presence of the doctor at ex.p10, and both are taken into consideration, it is the first dying declaration made before her husband which has been recorded,. implicating the 1st accused alone. even if the statement of the victim at ex.d1 is taken as a dying declaration, as already explained, if such statement has been recorded in the presence of accused 1 & 2 as they had carried her to the hospital, might be under apprehension of fear, she might not have implicated the accused.11. in the lengthy cross-examination of pw 5 on behalf of the accused, it appears nothing worth is elicited to discard the evidence on pw 5 regarding the statement made by victim before him. in the further cross-examination, he has admitted that he had been to police station around 5.30 p.m. and when he went to the hospital, it was 8.00 p.m. the police have recorded the statement of the victim in his presence and also his children were there. this witness has also admitted in the cross-examination that he was there in the hospital up to 9.00 p.m. and thereafter, he was not in the hospital and only went to the hospital on the next day. the police went to the scene of offence around 9.30 p.m. on that day. to the version of the defense that pw 5 was not aware of accused 1 & 2, he has explained that accused 1 & 2 used to visit them frequently as such, he knew the accused. even the version of the defense is, the deceased was not financially stable as such, she had borrowed money from the accused and in connection with monetary transaction, to get rid of the accused they have been falsely implicated in the ease. this version of the defense has been denied by this witness / pw 5.12. pw 6 is the daughter of the victim and pw 7, mother of the victim. both of them have turned hostile to the version of the prosecution. pw 8 is the panch witness for the scene of offence panchnama who has turned hostile to the version of the prosecution. pw 9 is the pancha for the inquest panchnama and he has spoken about the same that it was conducted at the mortuary at victoria hospital. pw 10 who is a neighbor has spoken about the incident that has taken place in the house of the victim and also gathering of the neighbors and shifting of the injured to the hospital in an autorickshaw. to the same effect is the evidence of pw 11 who is also a neighbor. however, pw 10 & 11 are not the eye witness to the incident. similar is the evidence of pw 12 who has spoken regarding presence of the accused at the time of the incident, shifting the injured to the hospital in an autorickshaw and regarding extinguishing fire. she is a hear-say witness regarding the 1st accused selling the victim ablaze by splashing kerosene and she has not attributed any overt act on the 2nd accused except that she has spoken about his presence. pw 13 is the psi who conducted part of the investigation and pw 14 is the doctor who conducted the postmortem on the dead body of the victim and he has spoken about the presence of injuries on the both and also opined the cause of death as septicemia due to burn injuries. pw 15 is the inspector who handed over the body to the husband of the victim. pw 16 & 17 are the investigating officers who have conducted the investigation. pw 18 is the person who has recorded the statement of the victim in the presence of the doctor and has spoken about the same. in the cross-examination of pw 18, he has admitted that he has not obtained the permission of the doctor in writing regarding recording of the statement of the victim and also stated that he has not subscribed to the signature on ex.p10 as to the writing of the statement in his handwriting.13. on perusal of the overall evidence on record, it is seen the only implication is against the 1st accused to the effect that this accused look the victim to task staling that the victim has spoilt the family of the 1st accused having kept her husband girish; biting the cheeks of the victim and setting her on fire. in the absence of direct evidence - as both the eye witnesses pw 6 & 7, have turned hostile, the only material available on record is three different versions by way of dying declaration of the victim herself - one before the doctor / casualty medical officer at ex.d1; the other oral dying declaration made by the victim before her husband and another one is at ex.p10. in the circumstances, whether the dying declaration alone could form the basis for conviction by holding the accused guilty of the offence has to be ascertained.14. it is not in dispute that both the accused were found in the house of the victim and there the incident is said to have taken place. the witnesses who are neighbors have spoken about the presence of the accused in the house. whether the presence of the 2nd accused along with the 1st accused is with a common intention, could not be gathered from the material evidence on record because, the 1st accused led the 2nd accused or both of them voluntarily went there is also not clear. in the circumstances, it could not be gathered, the 2nd accused also having contributed, but, the 1st accused could have led him to the house of the victim to teach her a lesson and out of anger, she has also assaulted by biting on the checks of the victim. later, it is evident as to the 1st accused splashing kerosene and setting fire on the deceased for which, the version of the doctor - dw 1 who was on duly is that, it is only accidental as per the statement of the victim herself.15. as already noted above, the presence of the 1st accused along with the 2nd accused is proved by the evidence of the material witnesses. whether the 1st accused inflicted burn injuries on the victim or it is accidental, in the usual course, benefit of doubt could have been extended to the accused but for the fact that in the presence of the accuses themselves, statement has been recorded by dw 1 in the hospital in the mlc register. although ex.d1 could have been a substantial piece of evidence to favour the accused but for the fact that in the presence of the accused the said statement has been recorded gives rise to a doubt and the possibility of fear of apprehension by the victim while giving such a statement, cannot be ruled out.16. then, what remains is the oral declaration made by the victim before her husband regarding infliction of injuries and also selling her ablaze and she has implicated the 1st accused. though presence of the 2nd accused is spoken, nothing has been stated against him. although the 1st accused has persuaded by way of instigation to each hold of the victim, whether the 2nd accused has really caught hold of the victim is not stated in the evidence of pw 5. in the document ex.d1 such a statement has been recorded and ex.d1 is quite contradictory implicating the 2nd accused that he held the deceased at the instigation of the 1st accused, which cannot be accepted and ex.d1 cannot be solely relied upon to record a conviction as it is not free from doubt/exaggeration in view of the fact nothing has been stated by pw 5 regarding victim mentioning before him as to the overt act of the 2nd accused is concerned.17. in the circumstance, what remains is only the implication of 1st accused regarding she biting the victim on her checks and also setting the victim on fire by splashing kerosene. it also cannot be ruled out in the circumstances, it is neither with a motive to commit murder nor with an intention to commit murder of the victim. out of anger, having felt that the 1st accused's family is mined because of the victim's affair with the 2nd accused, she took an opportunity to wreak vengeance and to teach her a lesson, splashed kerosene on the victim and set her ablaze. however, it is clear that the 1st accused had knowledge though not any intention to commit murder. necessarily, the 2nd accused being a silent spectator has accompanied the 1st accused. had the incident happened in a fit of anger on the act of the victim which resulted in provocation for the 1st accused to commit such an act, it would have attracted the offence under section 304 ii, ipc. but, for the present, having regard to the factual circumstance, the overt act attributed against the 1st accused would constitute an offence punishable under section 304 i, ipc. although the 1st accused cannot be blamed for expressing anger and taken revenge against the victim, but the act done by her, although partly justified in the situation, but having taken law into her hands she has inflicted bite injuries and burn injuries which resulted in the death of the deceased. the death of the deceased was due to septicemia as a result of burns sustained and she had sustained 75% burns. in the circumstances, the order of conviction although is justified as against the 1st accused, the order of conviction against the 2nd accused is totally unwarranted in the circumstances.18. in the result, appeal is allowed in part. while upholding the order of conviction as against the 1st accused, the sentence is reduced from seven years in four years. the sentence to pay fine of rs. 5,000/- is waived of as the accused is a woman. the 1st accused is entitled to the benefit of set of under section 428, cr.pc for the sentence already undergone if any, during inquiry and trial.19. the order of conviction and sentence passed against the 2nd accused is set aside and he is acquitted of the offences with which he was charged. his bail bond stands cancelled. fine amount if any, deposited be returned to the 2nd accused.