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2009 DIGILAW 794 (KAR)

State of Karnataka v. Ayub

2009-10-20

SUBHASH B.ADI

body2009
Judgment :- Subhash B. Adi, J This appeal is by the State, against the Judgment of Acquittal passed in a Sessions Case No. 35/2006 dated 29-04-2006 on the file of the Presiding Officer, Fast Track Court-V, at Gulbarga, acquitting the accused-respondent for the offences punishable under Section 498-A, 504, 306 IPC. 2. The brief facts of the prosecution case giving rise to this appeal are: That, accused-respondent herein married deceased Shamsad Begum five years prior to her death and out of their wedlock, a female child was born; that, as the accused was having illicit relationship with one Sahebbee @ Raisa, the deceased used to object for the said relation and for the said reason, the accused subjected her to mental cruelty, harassment. On the date of incident also, the accused quarreled with the deceased and told her ‘to go and die’ and thereby abetted her to commit suicide and she committed suicide by pouring kerosene and setting fire herself. 3. To substantiate its case, the prosecution, apart from marking the documents Ex.P.1 to P. 11 and the material objects Mos. 1 to 6, examined 12 witnesses as PWs. 1 to 12. On behalf of the accused-respondent, the contradictory portion of the statement of PWs. 2 & 6 has been marked as Ex.D.1 to D.3. On appreciation of the oral and documentary evidence on record, the Learned Judge of the Trial Court acquitted the accused-respondent for the charges levelled against him. Challenging the said Judgment of acquittal, the State has preferred the present appeal. 4. I have heard Sri. S.K. Babshetty, Learned HCGP., appearing for the State and Smt. Manjula N. Tejaswini, Learned Advocate appearing on behalf of the accused-respondents and perused the material on record. 5. Learned HCGP., strongly relying on the evidence of PWs. 1&2, the parents of the deceased, PWs. 5&6, the neighbours, PW.12 the investigation officer and also the evidence of PWs. 3&4 witness to the inquest and spot mahazar submitted that, Ex.P.8 is the dying declaration of the deceased which has been recorded by PW. 12 in the presence of the duty doctor, which clearly reveal that, the accused subjected the deceased to mental and physical cruelty and abetted her to commit suicide. He further submitted that Ex.P.8 is spoken to by PW.12 who recorded the statement of the deceased. The evidence of PW.12 coupled with Ex.P.8 and the oral evidence of PWs. 12 in the presence of the duty doctor, which clearly reveal that, the accused subjected the deceased to mental and physical cruelty and abetted her to commit suicide. He further submitted that Ex.P.8 is spoken to by PW.12 who recorded the statement of the deceased. The evidence of PW.12 coupled with Ex.P.8 and the oral evidence of PWs. 1&2, the parents of the deceased clearly establishes the cruelty meted out to the deceased by the accused. He further submitted that if the act of the accused who subjected the deceased ill-treatment has certainly driven the deceased to commit suicide and when there is a dying declaration coupled with the oral testimony of PWs. 1&2, the parents of the deceased clearly establishes the prosecution case. Despite such clinching evidence, the Trial Court has committed an error in acquitting the accused. He further submitted that in the dying declaration Ex.P.8 the deceased has stated that the accused abused her and therefore, the provisions of Section-504 got attracted and therefore, the Judgment of acquittal passed by the Court below is liable to be set aside. 6. Per contra, Learned Counsel for the accused-respondent vehemently submitted that, the entire case of the prosecution depends on the oral evidence of PWs. 1&2, the parents of the deceased, PW.12, the investigation officer and Ex.P.8 the dying declaration of the deceased. He drew the attention of the Court to the evidence of PW.1, the mother of the deceased and submitted that PW.1 has categorically stated that on receipt of information that her daughter committed suicide, she went to the house of the accused at 5.00 P.M on 09-04-2005 and by that time, the neighbours had already extinguished fire and she along with her husband PW.2 took the deceased to the hospital. He further points out from the cross-examination of PW.1 wherein she has admitted that she do not know about the accused having any relation with another lady and that she has not stated the same before the police in her 161 Cr.P.C., statement. He further points out from the cross-examination of PW.1 wherein she has admitted that she do not know about the accused having any relation with another lady and that she has not stated the same before the police in her 161 Cr.P.C., statement. She further admits in her cross-examination that, she insisted that the accused to make separate house; that on the date of incident, till 8.00 or 8.30 P.M the doctor did not turn up to give treatment to her daughter, whereas, PW.12 the investigation officer who alleged to have recorded the statement of the deceased as per Ex.P.8 got the information at about 6.40 P.M. and rushed to the hospital at 7.00 P.M visited the MLC ward and recorded the statement of the deceased and thereafter she returned to the police station and registered FIR., at 8.00 P.M. If according to PW.1, there was no doctor till 8.30 P.M and the deceased was not given any treatment till then, the investigation officer PW.12 could not have recorded the statement before 8.00 P.M since there was no doctor was present and no treatment was given to the deceased till 8 or 8.30 P.W as stated by PWs. 1 & 2, the parents of the deceased; if the doctor was not at all present till 8.00 P.M., the investigation officer recording statement of the deceased before 8.00 P.M. is not acceptable. Further, the doctor who alleged to have certified that the deceased was in a fit condition to give her statement has not been examined by the prosecution; that even in Ex.P.8, the dying declaration, the deceased alleges that on the date of incident, the accused abused her as regards the relationship of the accused with one Sahebee and the accused told her to “go and die” and that by itself does not amount abatement and would not constitute the offence punishable under Section 306 IPC. Further it has come in the evidence that both the accused and the deceased used to quarrel because the accused, being lorry driver used to stay away from the company of the deceased. However, the neighbours who have been examined as PWs. 5 & 6 have not stated anything about the quarrel between the accused or disharmony between them. Further it has come in the evidence that both the accused and the deceased used to quarrel because the accused, being lorry driver used to stay away from the company of the deceased. However, the neighbours who have been examined as PWs. 5 & 6 have not stated anything about the quarrel between the accused or disharmony between them. If this evidence on record is considered and appreciated, the same does not prove the case of cruelty meted to the deceased by the accused so as to take extreme decision to commit suicide. He further submitted that the Trial Court on appreciation of the evidence on record has come to the right conclusion and acquitted the accused and even two views are possible, this Court has to take the view, which would, helpful to the accused. On these grounds, he submits that the Judgment of acquittal passed by the Court below does not calls for interference by this Court and prays for dismissal of the appeal filed by the State. 7. In the light of the rival contentions urged, the point that arise for my consideration is: “Whether the Court below is justified in acquitting the accused-respondent of the charges levelled against him.” 8. Amongst the witnesses examined on behalf of the prosecution, the case of the prosecution strongly relies on the evidence of PWs. 1 & 2, the parents of the deceased, PWs. 5 & 6, the neighbours of the accused, PW.12, the investigation officer who recorded the dying declaration of the deceased as per Ex.P.8. 9. On careful scrutiny of the evidence of PW.1, the mother of the deceased it reveals that in the cross-examination of her evidence, she has categorically admitted that “the accused and deceased were often used to quarrel for petty matters for which she did not give much importance, that she had not seen the accused having any illicit relationship with one Sahebee and she denies having given statement before the police to that effect.” It is relevant to note that, according to PW.1, the mother of the deceased, the incident had taken place at about 4.00 or 4.30 P.M and she rushed to the house of the accused about5.00 P.M and took the deceased to the hospital with the help of PWs. 5 & 6. 5 & 6. In paragraph-21 of her evidence, she categorically states that till 8 or 8.30 P.M, the doctor did not turn up and given treatment to her daughter. The evidence of PW.2, the father of the deceased is similar to that of PW.1, the mother of the deceased in all material aspects. PW.2 in his examination-in-chief states that since the accused was driver in profession, his daughter (deceased) used to stay in his house and just one month prior to her death, the deceased started to stay with the accused separately. He has further stated that after the incident of burn injuries, his daughter was alive only for 4 or 5 hours and she succumbed to the burn injuries at 8.30 or 9.00 P.M. From the evidence of PWs. 1 & 2, the parents of the deceased it emerges that till 8 or 8.30 P.M no doctor visited and no treatment was given to deceased and the deceased died at 9.00 P.M. On the contrary, PW.12, the investigation officer states that she reached the hospital at 7.00 P.M and gave requisition letter to the duty doctor N.S. Dhadve as per Ex.P.7 and after certification of the doctor to the effect that the deceased was mentally in a fit condition to give statement, she recorded the dying declaration of the deceased as per Ex.P.8 at 7.00 P.M and thereafter she returned to the police station and registered FIR at 8.00 P.M. If the evidence of PW.12 is accepted, then she might have recorded the statement of the deceased before 8.00 P.M. i.e., between 7.00 or 8.00 P.M whereas, the parents of the deceased PWs. 1 & 2 states that no doctors turn up to give treatment to the deceased till 8.30 P.M and their daughter died at 9.00 P.M. If the doctor themselves were not present to give treatment to the deceased till 8.30 P.M., it is highly impossible that PW.12 could have recorded the statement of the deceased. The evidence of PWs. 1 & 2, falsifies the case of the prosecution that PW.12 recorded the dying declaration of the deceased. Further, the doctor M.S. Dhadve who alleged to have certified the health condition of the deceased to give her statement and in whose presence the alleged statement alleged to have been recorded has not been examined. The evidence led by the prosecution is full of material contradictions. Further, the doctor M.S. Dhadve who alleged to have certified the health condition of the deceased to give her statement and in whose presence the alleged statement alleged to have been recorded has not been examined. The evidence led by the prosecution is full of material contradictions. Therefore, there is no consistency or corroboration in the evidence of PWs. 1, 2 and PW.12 as regards the recording of the dying declaration as per Ex.P.8 in the presence of the doctor and the said inconsistency would goes to the root of the case of the prosecution. Further, as could be seen from the evidence of PW.9, the doctor who conducted postmortem report over the dead body of the deceased has stated that, the deceased had sustained 80 to 90% burn injuries and the death was due to neurogenic shock as a result of 80 to 90% burnt and according to the doctor, the death has taken place around 9.00 P.M. Thus, it further creates veracity as regards recording of statement of the deceased by PW.12. It is also not clear as to whether the deceased who had suffered 80 to 90% burn injuries was in a position to give her statement. 10. Apart from the shaky evidence of the prosecution as narrated above, PWs. 5 & 6 being immediate neighbours of the deceased and they being the independent witnesses are the best persons to speak about the frequent quarrel between the accused and the deceased and ill-treatment meted to the deceased by the accused. But in their evidence, there is no whisper about the ill-treatment or cruelly meted to the deceased by the accused or accused abetting the deceased to commit suicide. According to PW.5, he saw the deceased shouting for help, he rushed to the house and after extinguishing the fire, with the assistance of PW.6 shifted the deceased to the hospital. Even PW.6 another neighbour of the deceased also has not stated anything about the quarrel or disharmony between the accused and deceased. 11. No doubt, death of a woman has taken place at the time when the accused was not in present in the house. Even PW.6 another neighbour of the deceased also has not stated anything about the quarrel or disharmony between the accused and deceased. 11. No doubt, death of a woman has taken place at the time when the accused was not in present in the house. Even assuming that the deceased was suspecting the illicit relationship of the accused with another lady and there was a frequent quarrel between the accused and the deceased and accused told the deceased to “go and die” in a casual manner, that itself would not amounts to abetting the deceased to commit suicide or cruelty so as to attract the ingredients of provisions of Section-306 IPC. Merely because the death has taken place, in the absence of any clinching evidence to the effect that the death was due to mental and physical cruelty meted to the deceased and on account of accused abetting the deceased to commit suicide, the accused cannot be held guilty for the said offence. The prosecution evidence, as discussed above is hardly not sufficient to draw the presumption under Section 113-B of the Evidence Act to attract the ingredients of provisions of Section-306 IPC. The Trial Court, on appreciation of the material on record in a proper perspective has concluded that the prosecution has failed to establish charges levelled against the accused beyond reasonable doubt and extended the benefit of doubt in favour of the accused. It is well settled law that even if there is a second view is possible, it is not possible for this Court to take a view that would helpful to the prosecution in the appeal filed by the State against the Judgment of acquittal and even if there is possibility of second opinion, the benefit has to go in favour of the accused. 12. On re-appreciation of the entire evidence on record, this Court of the considered view that there is no error or illegality committed by the Court below and the Learned Judge of the Court below is justified in acquitting the accused-respondent of the charges levelled against him and consequently, the appeal filed by the State fails and it is liable to be dismissed. 13. Accordingly, I answer the point for consideration and proceed to pass the following: ORDER The appeal filed by the State is dismissed. 13. Accordingly, I answer the point for consideration and proceed to pass the following: ORDER The appeal filed by the State is dismissed. The Judgment of acquittal dated 29-04-2006 passed by the Presiding Officer, Fast Track Court-V, Gulbarga in S.C. No. 35/2006 is confirmed.