Akkamahadevi v. State Of Karnataka .

Order

1. The sole appellant-accused, Akkamahadevi was charged with an offence punishable under Section 302 of the Penal Code, 1860 (in short “IPC”). The prosecution story was that the accused had developed intimacy with the Planning Officer, Krishnamurthy (PW 13), resident of Shimoga. She was shifted to Thirthahalli, where she was working as a cook in a hostel. In Shimoga, Saraswathi, the deceased had become friendly with her and was having an affair with PW 13.

2. In November 1993, PW 13 told Akkamahadevi, the accused to bring Saraswathi to Thirthahalli on the night of 7-1-1993, so that all the three could go to Udupi, Goa and other places. In view of this, the deceased came to Thirthahalli and was staying with the accused at her house. On the pretext of cleaning the deceased's ornaments, the accused took her ornaments, put them in soap water and kept the container on a shelf. The deceased took bath and was having a slight fever. Thereafter, she sat before the fire in the oven situated at the bathroom to warm herself. At that time the accused came from behind and gave a blow on her head, and pushed her into fire. Resultantly, the saree of the deceased caught fire and even thereafter the accused again pushed her into the fire. The deceased managed to get up but by that time she had been completely engulfed in the flames. The back of her head was bleeding. Even in that condition, she chased the accused, who had already ran out and was standing on a platform at the coconut tree in front of her house.

3. Hearing the noise of the deceased, the neighbours of the accused, PW 1, Thimmappa Shetty; PW 2, Bhaskaran and others came and extinguished the fire on the body of the deceased. At that point of time, she was shouting that her ornaments had been taken by the accused. She even told the people, who had gathered, the above story. PW 1 went to a nearby hotel and made a phone call to the police, PW 18, the investigating officer accompanied by police constable came there. She was shifted to the hospital where she was examined by PW 17, Dr G.D Narayanappa and was given treatment. Her statement was recorded by the investigating officer as per Ext. P-11 and after returning to the police station at 11.30 p.m he registered a case against the accused under Sections 302 and 380 IPC. Later the deceased died.

4. To prove the above case, the prosecution has examined as many as 21 witnesses, which included PW 1, PW 2—the persons who had seen the deceased immediately after she came out of the house of the accused. Both the investigating officer and the doctor testified before the trial court. However, the trial court vide its judgment dated 15-2-1999, found serious contradictions in the statements of the witnesses. Furthermore, the trial court held that Exts. P-9 and P-11 were not reliable pieces of evidence and while declining to treat Ext. P-11 as admissible and valid dying declaration, acquitted the accused while recording the following finding:

“31. For the above reasons, I come to the conclusion that the prosecution has miserably failed to prove the motive, the alleged dying declaration and also the circumstances leading to the offence. Hence, the accused is also entitled for benefit of doubt, because the possibility of accidental death cannot be ruled out in this case. So Point 1 is answered in the negative and I proceed to pass the following:

Order

1. Acting under Section 235 CrPC, the accused is acquitted for the offence punishable under Section 302 IPC.

2. Bail bond of the accused shall stand cancelled.

3. MOs 1 to 7 are ordered to be returned to PW 8, Srinivisa, who is the elder brother of the deceased, and other MOs being worthless are ordered to be destroyed after the appeal period.”

5. Against this judgment of acquittal, the State preferred an appeal and the High Court vide its judgment dated 4-11-2004, allowed the appeal, set aside the judgment of acquittal finding the accused guilty of an offence punishable under Section 302 IPC, awarded her life imprisonment and to pay a fine of Rs 1000 and in default, to undergo simple imprisonment for three months. Aggrieved by the judgment of the High Court converting the acquittal into conviction, the appellant-accused has filed the present appeal.

6. The learned counsel appearing for the appellant had laid a lot of emphasis on the argument that the High Court has fallen in error of law as well as in appreciation of evidence. The present case was not one where the judgment of acquittal could be converted into that of conviction. It was also contended that either Ext. 9 or Ext. 11 could not be made the basis for conviction of the accused as this evidence was surrounded by doubt and suspicion. Given her condition it was not possible for the deceased to make a statement as has been recorded. The counsel also referred to some contradictions in the statements of the witnesses and these contradictions are not of serious nature.

7. The presence of the accused at the site is not in dispute before us. Once the presence is accepted then the limited point that the court has to examine is whether the prosecution has been able to establish the subsequent chain of events which point towards the guilt of the accused. In this regard, there is no reason for the court to discard the statements of PW 1 and PW 2 and that of the investigating officer as they had no enmity towards, and obviously have no reason to depose against the accused. It is also hardly disputed before us and in fact, stands fully established that she had come to the house of the accused, where she had a bath after giving her ornaments, on the pretext of cleaning them.

8. The next point is as to whether the saree of the deceased caught fire accidently or she was pushed into the fire, after injury was inflicted on her head as stated by the prosecution. Undoubtedly there is no eyewitness to this occurrence and the High Court has rightly noticed that only two persons could depose in that regard, one was the deceased and other the accused. The deceased had told about the incident to different people on two different occasions. Firstly, she told PW 1 and PW 2 that the accused after taking her ornaments, inflicted injury on her head and pushed her into fire and secondly, to PW 17 Dr G.D Narayanappa when she was taken to the hospital.

9. The doctor recorded that she was fully conscious and she informed him how she had suffered that injury. It will be useful to refer to the relevant part of this witness:

“She had 90% of 2nd degree 90 to 100% burns. She was fully conscious. Saraswathi gave history that Akkamma set her on fire.”

10. The above circumstance clearly shows that despite suffering 90% burn injuries of second degree, she was conscious and was able to talk to the doctor. Thereafter, she was given treatment including calmpose so as to reduce her pain resulting from the burn injuries. The doctor has clearly stated that he was present in the hospital when the police arrived and immediately thereafter Ext. P-11 was recorded. The doctor has fairly stated that he had given one calmpose to the deceased for sedation.

11. The argument raised on behalf of the appellant is that once calmpose was given to the deceased, instantly she would be unfit to make any statement. This does not appear to us to be correct. The learned counsel for the appellant has been unable to support his contention by any medical literature. Normally, calmpose would not make a person instantly unconscious or instantly sedate him to the extent that the person would not be able to speak. The object was obviously to suppress the pain and not render the deceased unconscious. In the present case, there are three persons, the police officer, the doctor and the nursing staff, who were present when Ext. P-11 was recorded. The collective reading of Exts. P-9 and P-11 clearly implicate the accused to the entire occurrence.

12. In fact, the accused was examined under Section 313 CrPC. In her statement under Section 313 CrPC the court had put as many as 44 questions to the accused bringing out the entire incriminating evidence against her to her knowledge. She only took up the stand of mere denial and said nothing more. She led no defence. In fact, she even went to the extent of stating that it was false to say that the deceased had died. This conduct of the accused is certainly strange. Surely, a statement made under Section 313 cannot be the sole basis for convicting an accused but it is a relevant consideration which the court may take into account, while examining the case of the prosecution.

13. In our considered view it was expected of the accused to give some plausible explanation of the entire incident particularly and admittedly when the deceased had come to her house, had caught fire and subsequently died when she was taken by the accused to the hospital. The complete denial of the accused under Section 313 CrPC further buttresses our conclusion that the prosecution has been able to establish its case beyond any reasonable doubt. Therefore, we find no merit in the appeal and the same is dismissed.