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2015 DIGILAW 342 (KAR)

Abdul Ajeej v. State of Karnataka

2015-03-27

MOHAN M.SHANTANAGOUDAR, P.D.WAINGANKAR

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of conviction passed by II Additional District and Sessions Court, Tumkur dated 15/18.07.2011 in S.C. No. 35/2006 is called in question by the convicted accused. The appellant is tried and convicted for the offence under Section 302 of IPC. The case of the prosecution in brief is that deceased-Meher Taj is the wife of the accused; a child is born out of the said wedlock; the accused is the second husband of the deceased; so also the deceased is second wife of the accused; after the death of the husband of the deceased, she married the accused; by that time, the accused had divorced his first wife; the deceased had indulged in the work of beedi rolling, whereas the accused was a cook in a hotel; the accused was drunkard and he used to come to the house fully drunk and harass the victim both physically and mentally; he used to abuse her in foul language. At about 11.30 p.m. on 23.09.2005, quarrel took place between the accused and the deceased in respect of marriage certificate; the accused assaulted Meher Taj (deceased) resulting in bleeding injuries; thereafter, he felled her on the ground and poured kerosene and set her on fire; he pronounced that "you alone should not die and I will also die"; so saying he dragged her towards him and consequently accused also sustained injuries; in the meanwhile, the accused and the deceased came out of the house screaming; the neighbours of the house also came out and saw the burning of the victim; immediately, the fire was extinguished by the accused and others and thereafter the victim was taken to District Hospital, Tumkur, wherein she took treatment till 29.09.2005, on which day she succumbed to burn injuries. During the course of treatment, the statement of the victim was recorded as per Ex. P13 at about 3.45 a.m. to 4.15 a.m. on 24.09.2005 in the hospital in the presence of Doctor PW.9; the statement was recorded by PW.12-Head Constable of Tilak Park Police Station; based on such statement of the victim viz., Ex. P13, C.Misc. No. 344/2005 came to be registered in Tilak Park Police Station, Tumkur; subsequently i.e., on 26.09.2005, the Taluka Executive Magistrate (PW.14) recorded another dying declaration as per Ex. P13, C.Misc. No. 344/2005 came to be registered in Tilak Park Police Station, Tumkur; subsequently i.e., on 26.09.2005, the Taluka Executive Magistrate (PW.14) recorded another dying declaration as per Ex. P9 at about 7.30 p.m. in the hospital, based on which Crime No. 137/2005 came to be registered against the accused for the offence under Section 307 of IPC. The Investigating Officer-PW.17 after completion of investigation laid the charge-sheet for the offence under Section 302 of IPC against the accused. 2. In order to prove its case, the prosecution in all examined 18 witnesses, got marked 17 exhibits and 4 material objects. On behalf of the defence, no exhibit is marked and no witness is examined. The Trial Court, as aforementioned convicted the accused for the offence under Section 302 of IPC. 3. The learned advocate appearing for the appellant taking us to the material on record submitted that Court below is not justified in convicting the accused solely on assumption; the evidence of PWs. 1 to 3 bristles with number of material omissions which amount to contradictions; the so called oral dying declaration made by the deceased immediately after the incident before PWs. 1 to 3 is completely afterthought, inasmuch as PWs. 1 to 3 have not stated before the Investigating Officer as to such oral dying declaration; the dying declaration-Ex. P9 recorded by the Taluka Executive Magistrate is not supported by the version of any doctor, so also is not supported by any medical record to show that the victim was in a fit condition to make statement as per Ex. P9; if really the victim was in a position to make statement as per Ex. P9, there was no bar for the Taluka Executive Magistrate to record the statement of the victim in the presence of the doctor. On these and other grounds, he prays for acquittal of the accused. The learned Government Pleader argued in support of the judgment of the Court below. 4. PWs. 1, 2 and 3 are the neighbours of the deceased; according to them, all of them rushed to the spot after hearing the cries and saw the victim with burning injuries outside her house; they heard from the victim that it was the accused who poured kerosene and set her ablaze; they along with accused extinguished fire and sent the victim to the hospital along with the accused. PW.4 is the elderly person who performed the marriage of the accused and deceased. However, he has turned hostile to the case of the prosecution. PW.5 is the witness for scene of offence panchanama-Ex. P2 through whom Exs. P3, P4, P5 and P6 are marked. Ex. P3 is the photograph. Ex. P4 is the affidavit. EX.P5 is the marriage certificate. Ex. P6 is the Talaqnama. All these documents are pertaining to the marriage of the accused with the deceased and the divorce of the accused with his first wife. The statement of PW.6 was recorded during the course of the inquest panchanama-Ex. P7. PW.7 is the Junior Engineer. He prepared the rough sketch of the scene of offence Ex. P8. PW.8 is the Police Constable. He carried the first information to the Court. The complaint is at Ex. P9 and F.I.R. is at Ex. P10. PW.9 is the Doctor attached to District Hospital, Tumkur. He gave intimation to police, consequent upon which PW. 12 came to the hospital and recorded statement of the victim as per Ex. P13. The intimation sent to police is marked at Ex. P11. Ex. P20 is the extract of the accident register. PW.10 is the younger brother of the deceased and PW. 13 is the mother of the deceased. Both of them came to the hospital on the next day of the incident. PW.11 is the doctor who conducted post mortem examination over the dead body. Post mortem examination report is at Ex. P12. PW. 12 is the Head Constable of Tilak Park Police Station during the relevant point of time. He was the Station House Officer in the night of 24.09.2005. He received telephonic message from hospital and went to the hospital. He recorded first dying declaration of injured in the presence of the doctor as per Ex. P13 and registered C.Misc. No. 344/2005. PW.14 is the Taluka Executive Magistrate. He recorded second dying declaration. However, he has not consulted the doctor before recording the statement of the victim. He has also conducted inquest proceedings. Inquest mahazar is at Ex. P7. PW.15 is the Sub-Inspector of Police who registered Crime No. 137/2005 based on the complaint Ex. P9 (second dying declaration). PW. 16 is the Head Constable who informed the Sub-Inspector of Police that the injured wants to give her second dying declaration. PW. He has also conducted inquest proceedings. Inquest mahazar is at Ex. P7. PW.15 is the Sub-Inspector of Police who registered Crime No. 137/2005 based on the complaint Ex. P9 (second dying declaration). PW. 16 is the Head Constable who informed the Sub-Inspector of Police that the injured wants to give her second dying declaration. PW. 17 is the Inspector of Police who completed the investigation and laid the charge-sheet. PW. 18 is the doctor who has deposed about the treatment and case sheet of the deceased maintained by the District Hospital, Tumkur. Ex. P19 is the case sheet. 5. From the aforementioned, it is clear that the case of the prosecution mainly rests on the oral dying declaration said to have been made by the deceased before PWs.1, 2 and 3 immediately after the incident and another dying declaration Ex. P9 recorded by the Taluka Executive Magistrate. 6. Undisputedly a child was born out of the wedlock between the accused and the deceased and the said child was living with them. It is specifically deposed by PW.2 that the accused and the deceased were living with their son and the mother of the accused. Thus, it is clear that the mother of the accused was also living with the deceased and the accused apart from the minor child. It is also admitted by PW.2 that the deceased was doing money lending business during her life time. It is admitted by PW.2 that the accused was working as a Cook in a hotel and the deceased was winding beedies. All the aforementioned facts practically are not disputed either by the prosecution or by the defence. So also it is not disputed that the incident has taken place in the matrimonial house of the deceased. It is also not in dispute that the death is due to burn injuries sustained by the deceased. The postmortem report and the evidence of the doctor who conducted the postmortem examination would clearly reveal that the deceased had sustained 85% to 90% burns. Hence, the trial Court has rightly concluded that it is a case of death due to septicemia as a result of severe burn injuries. 7. However, the question still remains as to whether the accused has committed the offence or not. As aforementioned, the case of the prosecution mainly rests on the oral dying declarations as well as the dying declaration at Ex. 7. However, the question still remains as to whether the accused has committed the offence or not. As aforementioned, the case of the prosecution mainly rests on the oral dying declarations as well as the dying declaration at Ex. P9. The oral dying declarations are spoken to by PWs. 1 to 3 who are the neighbours. According to them, after hearing the cries, they rushed to the spot and saw the victim with the burn injuries; the victim told them that it was the accused who set her ablaze after pouring kerosene. Evidence of these three witnesses is consistent to certain extent. However, we find that the version of these witnesses as mentioned supra is nothing but clearly material omission deposed before the Court. None of these three witnesses has stated before the police during the course of investigation at the time of recording their statements under Section 161 of Cr.P.C. about such oral dying declarations allegedly made by the deceased. Such important omissions are proved through the Investigating Officer-PW.17. PW.17 has admitted in his cross-examination that PWs. 1, 2 and 3 have not stated before him that the accused was a drunkard; and that he used to come to his house fully drunk and used to quarrel with his wife everyday; that the deceased told before them that it was the accused who set her ablaze after pouring kerosene. All the aforementioned facts are clear omissions which are proved before the Court through the Investigating Officer. Such omissions are very material to the case of the prosecution and thus, they could be treated as material contradictions. If such material omissions are excluded from consideration, then the theory as put forth by the prosecution through PWs. 1 to 3 about oral dying declarations fails and the same is not proved. 8. Even with regard to the written dying declaration at Ex. P13, the material on record is unreliable. It is relevant to note that immediately after the incident at about 3.45 p.m. on 24.9.2005, the first dying declaration of the victim was recorded as per Ex. P13 by the Head Constable (PW. 12) in the presence of the doctor-PW.9. Based on which C.Misc. No. 344/2005 came to be registered. It is specifically deposed by PW.12, the SHO of Tilak Park Police Station who recorded Ex. P13 by the Head Constable (PW. 12) in the presence of the doctor-PW.9. Based on which C.Misc. No. 344/2005 came to be registered. It is specifically deposed by PW.12, the SHO of Tilak Park Police Station who recorded Ex. P13 that the statement of the victim was recorded by him in the presence of the doctor. The doctor-PW.9 who was present at the time of recording the statement at Ex. P13 has also deposed that Ex. P13 was recorded in his presence. We do not suspect the evidence of these two witnesses, more particularly when both of them are independent public servants. There is no reason for them to record false dying declaration. Added to it, the case sheets maintained by the hospital would amply disclose that it is a case of accidental fire. 9. However, the Investigating Officer has proceeded to get the second dying declaration of the victim recorded at 9.00 p.m. on 26.9.2005 through Taluka Executive Magistrate in the hospital. Ex. P9 specifically implicates the accused by saying that it was the accused who poured kerosene and set the deceased ablaze. If Ex. P9 is to be believed and if the same is proved by the prosecution in accordance with law, the accused can be convicted only on the said basis. However, in the matter on hand, we find that the endorsement of the doctor is not obtained by the Taluka Executive Magistrate before recording the dying declaration at Ex. P9. It is not in dispute that the victim was admitted to the hospital on 24.9.2005 and she died on 29.9.2005. It is also not in dispute that Ex. P9 is said to have been recorded in the hospital. If it is so, there was no hurdle for the Taluka Executive Magistrate to consult the doctor as to find out whether the victim was in fit condition to make statement or not. According to the Taluka Executive Magistrate (PW.14), he went to the District Hospital, Tumkur and having found that the victim was in a talking condition, he dictated the dying declaration to the Second Division Assistant who had accompanied him. In his cross-examination, the Taluka Executive Magistrate has admitted that police had come to the hospital at that point of time. According to the Taluka Executive Magistrate (PW.14), he went to the District Hospital, Tumkur and having found that the victim was in a talking condition, he dictated the dying declaration to the Second Division Assistant who had accompanied him. In his cross-examination, the Taluka Executive Magistrate has admitted that police had come to the hospital at that point of time. He has also admitted that the Second Division Assistant who recorded the dying declaration as per the dictation of the Taluka Executive Magistrate has not put his signature. It is also admitted by him that he did not take any endorsement of the duty doctor on the said statement. He also did not enquire the doctor in the hospital who treated the victim on that day. The doctor has not even put his signature on the statement of the victim. PW.14 did not even inform the hospital authorities before recording the dying declaration in the Burns Ward attached to the District Hospital, Tumkur. It is also admitted by him in his cross-examination that Smt. Jakirabi (PW. 13), the mother of the deceased had stated before him that on 23.9.2005 at 11.45 p.m., victim sustained burns on account of stove burst and her son-in-law (accused) also sustained injuries in the said incident. 10. In this context, the statement of the learned advocate for the defence that the statement recorded by the Taluka Executive Magistrate as per Ex. P9 is highly doubtful, assumes importance. If really he visited the hospital, he would have at least taken the consent of the doctor to record the statement of the victim. Admittedly, the victim was in Burns Ward. She sustained 85% to 90% burns. The Burns Ward is attached to nurses and the doctors. None of the hospital authorities was informed by him. Even the doctor who treated the victim was not intimated about recording of the statement of the victim. 11. We also found from the records maintained by the trial Court that the Taluka Executive Magistrate has not received any requisition from the Police Station to come to the hospital for recording the statement of the victim. Hence, it is clear that he visited the hospital suo motu and recorded the dying declaration. We are at loss to understand as to how the Taluka Executive Magistrate could know about the admission of the victim in the hospital. Hence, it is clear that he visited the hospital suo motu and recorded the dying declaration. We are at loss to understand as to how the Taluka Executive Magistrate could know about the admission of the victim in the hospital. Hence, we find that the evidence of the Taluka Executive Magistrate is highly unreliable and one sided. More-over, the case sheets maintained by the hospital do not disclose that the victim was in fit condition to make statement at any point of time after 24.9.2005. Nowhere in the case sheets it is mentioned that she was in fit condition to make statement, conscious and oriented, etc. So also, nothing is found in the case sheets that the dying declaration is recorded by the Taluka Executive Magistrate. On the other hand, the case sheets clearly reveal that the general condition of the deceased was poor right from 24.9.2005. She started gasping from the morning of 26.9.2005. She was provided with oxygen through oxygen mask. It is further admitted by the doctor in the cross-examination that if a patient is provided with oxygen mask, though she is able to talk, the same cannot be understood by anybody. Be that as it may, having regard to the health condition of the victim as is clear from the case sheets, we are of the clear opinion that the victim may not be in a position to give statement as per Ex. P9. As aforementioned, the doctor has not certified about the fitness of the victim at the time of recording Ex. P9. It is the specific defence of the accused while recording the statement under Section 313of Cr.P.C. that he being the cook working in a hotel, used to come home at 11.00 p.m. everyday. Even on the date of the incident, he came to his house at 11.00 p.m. and at that time, the persons who were having money lending business with the deceased had quarrelled with her and consequently, she was disgusted. She went inside by pronouncing that she has committed wrong by doing money lending business and she wants to end her life and immediately within two minutes she came out with burn injuries. However, accused extinguished the burns and took her to the hospital. He fell on her with a view to extinguish fire, consequent upon which he also sustained major injuries. However, accused extinguished the burns and took her to the hospital. He fell on her with a view to extinguish fire, consequent upon which he also sustained major injuries. The records produced by the victim clearly reveal that the accused was also in the same hospital for about one month and has taken treatment. Having regard to the totality of the facts and circumstances, the defence taken by the accused appears to be plausible defence. Be that as it may, looking to the totality of the facts and circumstances, we are of the clear opinion that the prosecution has failed to prove its case, much less beyond reasonable doubt. The trial Court has not at all considered the material omissions elicited by the defence from the prosecution witnesses more particularly, from the evidence of PWs.1, 2, 3, 13 and 17. The trial Court has proceeded casually while passing the judgment and order of conviction. Hence, the impugned judgment is liable to be set aside. Accordingly, the following order is made:-- "i) The judgment and order of conviction dated 15.7.2011 passed by II Additional District & Sessions Judge, Tumkur, in SC. No. 35/2006, is set aside. ii) Appellant-accused is acquitted of all the charges levelled against him. iii) Appellant-accused shall be set at liberty forthwith, if he is not required in any other case." Appeal is allowed accordingly.