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2017 DIGILAW 386 (KAR)

Dadapeer Mabusab v. State of Karnataka

2017-02-07

ANAND BYRAREDDY, K.SOMASHEKAR

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JUDGMENT : Anand Byrareddy, J. Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor appearing for the State. 2. The appellant was accused No.1 along with his mother, accused of offences punishable under Sections 498-A, 302 and 109 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as "I.P.C.", for brevity) and has been convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.500/-, in default of payment of fine, to undergo further simple imprisonment for one month for the offence punishable under Section 498-A of the IPC and further the accused is sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/- for the offence punishable under Section 302, IPC. His mother, accused No.2 has been acquitted. The conviction of the appellant is under challenge in the present appeal. 3. The facts of the case as stated by the prosecution are as follows: The appellant had married one Gousiya, about 11 years prior to the incident. It transpires that they had two female children by the marriage, Asha aged about 4 and Meharan aged about 7. It is stated that accused No.2 was living separately in an adjacent house and the elder daughter Meharan was living in the house of the father-in-law of the appellant. On the date of incident, the elder daughter was not at home. It is stated that they were all residing at Gaddekelage of Miller pet, Ballari. It was alleged that though the appellant and his wife had been married for 11 years, he still ill-treated her mentally and physically and was demanding dowry and was also complaining that she had produced only female children and was thus constantly harassing her and it was further alleged that it was at the instigation of accused No.2, the mother of the appellant. It transpires that on 07.10.2010, it was found that Gousiya and Asha had been set on fire by accused No.1 as a result of which they had died at the spot. It transpires that on 07.10.2010, it was found that Gousiya and Asha had been set on fire by accused No.1 as a result of which they had died at the spot. It is claimed that neighbourers had come upon hearing the cries of the victims and on noticing heavy smoke billowing out of the house and had found that they had already died on account of the burn injuries and the complainant, namely the father-in-law of the appellant being informed, he along with others had come to the spot and thereafter had lodged a complaint alleging that the appellant and his mother were constantly harassing the deceased and had committed her murder by setting Gousiya and her daughter on fire by pouring kerosene on them. 4. It was claimed by the appellant that he was a dealer in scrap metal and also engaged in electrical work and that on 06.10.2010 he had left home in a lorry carrying scrap to Hyderabad and he had left Ballari at about 10 p.m. and around mid night, the lorry driver having found that he was unable to drive on account of lack of sleep, had stopped the lorry and that it was on the morning of 07.10.2010 one Narasimhalu, neighbourer of the appellant had called him on his cell phone and informed him that his wife and daughter had died of burn injuries and accordingly, the appellant had collected money from his friends Mohammad Javid, Alibasha and Basheer Ahmad and had immediately boarded a bus to Ballari and he had arrived Ballari at about 2 p.m. and he was arrested by the police and the bus ticket as well as the cell phone were taken by the police and were not returned to him and this was set up as his defence as to his being absent from Ballari on the fateful night and therefore, being innocent of any alleged offence. 5. It is on the basis of these facts and assertions that the police had instituted the case and the accused had stood trial. The prosecution had examined 21 witnesses and the defence had examined three witnesses apart from other material objects also had been marked. The Court below on an analysis of the evidence had framed the following points for consideration: 1. The prosecution had examined 21 witnesses and the defence had examined three witnesses apart from other material objects also had been marked. The Court below on an analysis of the evidence had framed the following points for consideration: 1. Whether the prosecution proves beyond reasonable doubt that accused No.1 being the husband of deceased Gousiya subjecting her to both physical and mental cruelty since 2006 and thereby committed an offence punishable under section 498-A of IPC? 2. Whether the prosecution further proves beyond reasonable doubt that on 07.10.2010 in between 2.00 a.m. to 5.00 a.m. Gousiya wife of accused No.1 died by homicidal death in the house of accused, Gaddekelage at Millarpet, Bellary? 3. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place Asha daughter of accused No.1 died homicidal death in the house of accused, Gaddekelage at Millarpet, Bellary? 4. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused No.1 being the husband of deceased Gousiya committed murder of Gousiya by setting her on fire by pouring kerosene and thereby committed an offence punishable under section 302 of IPC? 5. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused No.1 being the father of deceased Asha aged about 4 years committed murder of Asha by setting her on fire by pouring kerosene and thereby committed an offence punishable under section 302 of IPC? 6. Whether the prosecution proves that on the above said date, time and place, accused No.2 abetted the commission of murder of Gousiya and Asha by accused No.1 by pouring kerosene and set fire and thereby committed an offence punishable under section 302 R/w 109 of IPC? 7. What order? The Court below has answered points 1 to 5 in the affirmative and 6 in the negative and accordingly has acquitted accused No.2 and convicted accused No.1 in terms as aforesaid. It is that which is under challenge in the present appeal. 6. Sri. Hanumareddy, the learned counsel appearing for the appellant would point out that there are no eyewitnesses to the incident. The complainant, father-in-law of the appellant died during the pendency of the trial and hence, the entire case of the prosecution rests on the alleged circumstantial evidence. It is that which is under challenge in the present appeal. 6. Sri. Hanumareddy, the learned counsel appearing for the appellant would point out that there are no eyewitnesses to the incident. The complainant, father-in-law of the appellant died during the pendency of the trial and hence, the entire case of the prosecution rests on the alleged circumstantial evidence. The circumstances sought to be proved are that the appellant and his mother were ill-treating deceased Gousiya and were making demands for dowry and complaining that the deceased could only produce female children. In this regard, the primary witnesses, on whose testimony the prosecution has chosen to rely upon and whose testimony has been accepted by the trial Court are that of PWs-8, 9, 10 and 16. 7. PW-8 was the younger sister of the deceased Gousiya, who was married and living in her matrimonial home. Her evidence to the effect that she was informed by Gousiya from time to time about the ill-treatment meted out to the deceased, is a self-serving statement to suit the convenience of the prosecution and to bolster the complaint and not much significance could be attributed to this testimony to establish the commission of the serious offence of murder. The appellant's marriage having taken place 11 years prior to the incident, the allegation of harassment for dowry is certainly diluted by the fact that the appellant was not dependant for his finances and that he was fairly well to do, running his own business and hence, the allegation of demand and harassment for dowry as stated by the said witness loses significance. 8. PW-9 was the mother of the deceased who has again stated that her daughter had informed her from time to time of the ill- treatment meted out by the appellant and his mother and that on receiving information about the incident, she had rushed to the spot and found that her daughter was still alive and had taken her to hospital, but, she had died on the way to the hospital. This, it is pointed out, is contradictory to the statement of CW-17 who was the first person who had visited the scene of the incident and he has stated categorically that the deceased had died when he, along with others, found her in the house. This, it is pointed out, is contradictory to the statement of CW-17 who was the first person who had visited the scene of the incident and he has stated categorically that the deceased had died when he, along with others, found her in the house. Significantly, the said witness has not been examined at the trial by the prosecution and therefore, the evidence of PW-9 who claims that they were on the scene immediately on information reaching them and that they had then taken the victims to hospital, that the victim had died on the way, is found to be incorrect and an untrustworthy statement only to frame the accused. 9. PW-10 it is found was the brother of the deceased who again has reiterated the allegations in the complaint of ill- treatment meted out to Gousiya. 10. PW-16, another younger sister of Gousiya who was married and living in her matrimonial home, it is pointed out by the learned counsel that the combined effect of the testimony of these witnesses could at best establish the ill-treatment and harassment for dowry and cannot by any stretch of imagination be cited as circumstantial evidence to establish the commission of murder by the appellant and therefore, the entire evidence of the prosecution could only support a case of harassment for dowry and not of a murder. Not a single witness has spoken about the presence of the appellant at the scene of the crime nor of the appellant having been seen in Ballari, except when he was arrested at the bus stop where he alighted from the bus coming from Hyderabad. Not a single witness has spoken about the presence of the appellant at the scene of the crime nor of the appellant having been seen in Ballari, except when he was arrested at the bus stop where he alighted from the bus coming from Hyderabad. Therefore, in the absence of any clinching evidence that the appellant was seen at the place of incident by any witness or that he was seen in town during such time till he was arrested, his presence becomes doubtful and therefore, the Court below having proceeded on the basis of the testimony of PWs-8, 9, 10 and 16 has lead to a miscarriage of justice and would conclude that the mere establishment of an unnatural death did not lead to the presumption that it was commission of murder by the accused and hence, the learned counsel would submit that the appellant has already undergone imprisonment for over six years and the maximum punishment that he could have been awarded for the offence punishable under Section 498-A, IPC, even assuming that such a case was established, is much lesser than the imprisonment that he has undergone and hence, he seeks that the appellant be acquitted and judgment of the Court below be set aside. 11. While the learned Additional State Public Prosecutor seeks to justify the judgment of the Court below. 12. It is no doubt true that the independent witnesses namely neighbourers who have been examined have not supported the case of the prosecution. The prosecution for reasons best known has not chosen to examine CW-17 who was the first man on the scene of offence who would have thrown light on the scene of crime. Though the wife of CW-17 has been examined as well as the owner of a tea shop in the vicinity has also been examined and that since he had accompanied CW-17 to investigate the smoke that was billowing out of the house of the appellant and who had discovered the bodies of the victims, does not establish that there was involvement of accused No.1, the appellant. They have not spoken about the presence of the appellant. They have not spoken about the presence of the appellant. Neither has any other witness spoken about the accused No.1/appellant having been seen either during the night of 06.10.2010 and 07.10.2010 or earlier in the day on 07.10.2010 till such time that he was arrested at the bus stop by PW-20, the Investigating Officer and his men. The only evidence that is tendered which is claimed as being circumstantial evidence to establish the case as already stated is that of PWs-8, 9, 10 and 16. They are all close relatives of the deceased and were intent on supporting the complainant and the case of the prosecution. But, the worst that could be made out against the accused No.1 was that he was harassing and torturing the deceased at the instigation of his mother for dowry and she was also being harassed for only producing female children. This by itself would not establish the commission of the murder in the absence of other clinching evidence about the presence and active participation of the appellant. This, it is found is not forthcoming from a close reading of the evidence of the prosecution. 13. It is also not brought out as to whether the door of the house was locked from inside or whether it was locked at all, though it is vaguely stated that there was a rolling shutter entrance to the house and this was opened in gaining access to the house by the witnesses who had been first on the scene. This was a crucial aspect of the matter, which has been lightly overlooked both by the Investigating Authority as well as the Court below. Therefore, the only case that could be made out against the accused, even if, the entire evidence of the prosecution is accepted is possibly an offence punishable under Section 498-A of the IPC and certainly not of an offence punishable under Section 302, IPC. In view of the fact that the appellant has already undergone imprisonment for over six years, it would be in the fitness of things to hold that the accused No.1/appellant could have been punished only for the offence punishable under Section 498-A of the IPC. Accordingly, the judgment of the court below convicting and sentencing the appellant to life imprisonment for the offence punishable under Section 302 of the IPC is set aside. Accordingly, the judgment of the court below convicting and sentencing the appellant to life imprisonment for the offence punishable under Section 302 of the IPC is set aside. The appellant is acquitted of the said offence and he shall be set at liberty forthwith since he has already served the period of imprisonment imposed on him for the offence punishable under Section 498-A of the IPC. The operative portion of this order shall be communicated to the jail authorities of the Central Jail, Ballari, for due compliance.