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2020 DIGILAW 1361 (KAR)

Jafar v. State Of Karnataka

2020-07-08

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This Criminal Appeal is directed against the judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi (herein after referred to as the 'trial Court'), in Sessions Case No.86/2015 dated 22.2.2017, wherein the appellant-accused has been convicted for the offences punishable under Sections 323, 504, 307 and 302 of IPC. 2. We have heard the learned counsel Sri. S.S.Yadrami for Sri. N.L.Batakurki, for the appellantaccused and the learned Additional S.P.P. Sri V.M. Banakar for the respondent-State. 3. The genesis of the case of the prosecution in brief is that the deceased was belonging to Hindu Banajiga community. She came in contact with the accused about six years back while doing the centring work and subsequently, they became friends. Thereafter, they started loving each other. Subsequently, she left the house without informing her family members and started residing in a rental house with the accused. About two years back, she got a male child by name Sohail. At that time, the accused entered into a second marriage. In spite of it, she was leading the life and was working in a hotel as a coolie. It is further alleged that the accused used to suspect her fidelity and in that light on 18/5/2015 about 10.00 p.m., when she came back after completing her hotel work, accused took quarrel with her by suspecting the fidelity and poured kerosene on her and set fire. By hearing the crying, the neighbours came and extinguished the fire and on 19/5/2015, the elders advised her husband-accused to take her to the hospital and accordingly, he took her to Jamakhandi Hospital and subsequently, she died due to burn injury. 4. On the basis of the complaint lodged by the deceased, a case has been registered in Crime No.78/2015. Thereafter, after investigation, the charge sheet came to be filed. 5. The learned Magistrate after following the procedure and supplying the copies of the charge sheet and material to the accused, committed the case to the Sessions Court. Sessions Court took cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed, read over and explained to the accused. Accused pleaded not guilty. He claimed to be tried and as such, the trial was fixed. 6. Sessions Court took cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed, read over and explained to the accused. Accused pleaded not guilty. He claimed to be tried and as such, the trial was fixed. 6. The prosecution in order to prove the guilt of the accused, got examined 23 witnesses, got marked 34 documents and 1 material object. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said incriminating materials, but he has not led any evidence nor got marked any documents. After hearing both the sides, the trial Court has come to a conclusion that the accused has committed the offence and convicted him for the same. Challenging the legality and correctness of the said judgment, the appellant- accused is before this Court. 7. The main grounds urged by the learned counsel for the appellant-accused are that the judgement of conviction and order of sentence passed by the trial court is contrary to law, facts and material placed on record. It is his further submission that the material witnesses have not supported the case of the prosecution and they have been treated as hostile. In that light, the prosecution has not established motive for the alleged offences. It is his further submission that the entire case rests on circumstantial evidence and dying declaration said to have been given by the deceased not acceptable. The first dying declaration was recorded on 19/5/2015 as per Ex.P9. In that, she has stated that it is an accidental fire and subsequently, the statement of the victim was recorded as per Ex.P11 and at that time, she had answered the Taluka Executive Magistrate that her saree had fallen on the stove and as a result of the same, she caught fire. It is his further submission that when two documents clearly goes to show that it is an accidental fire, subsequently one day prior to the death of the deceased, that too when the evidence of PW-7 clearly goes to show that her health condition is critical, in that light, the dying declaration Ex.P15 and complaint Ex.P13 have been recorded. It is his further submission that at Exs.P9 and P11, bear the signatures of the deceased. It is his further submission that at Exs.P9 and P11, bear the signatures of the deceased. But, subsequently on Exs.P13 and P15, the thumb impression has been taken under the pretext that her hands have been burnt and she is unable to sign. When in the first instance itself, she is able to sign the first two documents, then under such circumstances, where is the question of she putting the thumb impression on subsequent documents, has not been explained. It is his further submission that immediately after the incident, the husband himself has taken her to the hospital and got her admitted. Under such circumstances, the documents said to have been declared as dying declaration are concocted and created only for the purpose of fixing the appellantaccused in the case. It is his further submission that though there is no sufficient evidence, the trial Court has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow this appeal, set aside the judgement of conviction and order of sentence and to acquit the appellant. 8. Per contra, the learned Additional SPP vehemently argued and submitted that the dying declaration Exs.P13 and P15 clearly goes to show that the accused was suspecting the fidelity and on 18/5/2015, when she came back from the work and at that time, he quarreled with her and he has poured the kerosene and lit the fire and immediately thereafter, she made a hue and cry, neighbours have come and extinguished the fire. It is his further submission that the kerosene can has been seized by drawing Mahazar Ex.P7. It is his further submission that further statement of the deceased corroborated with the version of evidence of PW-7 as throughout the incident, the husband of the deceased was there and as such, she has given the first two statements stating that it is an accidental fire. But when she was in a free state of mind, at that time, she has given the dying declaration as per Ex.P15 and the statement as per Ex.p.13. It is his further submission that the accused has not come up with any explanation to the allegations made against him. Under such circumstances, an inference has to be drawn that it is the accused who has committed the alleged offence. It is his further submission that the accused has not come up with any explanation to the allegations made against him. Under such circumstances, an inference has to be drawn that it is the accused who has committed the alleged offence. The trial Court after considering all the evidence has come to a right conclusion and has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal. 9. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Trial Court records. 10. It is not in dispute that in the present case on hand, there are no eye witnesses to the alleged incident and the entire case rests on circumstantial evidence and dying declaration said to have been given by the deceased. We are conscious of the fact that if the dying declarations are cogent and acceptable, only on the basis of the dying declaration, the accused can be convicted for the alleged offence. We are also conscious of the fact that when a case rests on circumstantial evidence, the prosecution has to establish all the chain of events without there being any break and if all the chain of events pointed out to the guilt of accused and the accused alone he can be convicted. So to prove the case of the prosecution, it got examined as many as 23 witnesses. 11. Pw-1 is the neighbour of the deceased and the accused. He has not supported the case of the prosecution and he has been treated as hostile. PW-2 is a pancha to the inquest mahazar Ex.P.3 and burial spot mahazar Ex.P.4 where the deceased has been buried. PW- 3 is the pancha to the spot mahazar Ex.P.6. PW-4 is the pancha to burial spot panchanama Ex.P.4 and spot panchanama Ex.P.6. PW-5 is a pancha to the seizure mahazar of kerosene can as per Ex.P.7. PW-6 is a pancha to the inquest mahazar Ex.P.3. PW-7 is the doctor who got admitted the injured to the hospital and has also sent the MLC intimation to the police as per Ex.P.8 and he was also present at the time of recording the dying declaration as per Ex.P.15 and also the complaint as per Ex.P.13. PW-8 is the staff nurse who was also present along with PW-7 at the time of recording the dying declaration. PW-8 is the staff nurse who was also present along with PW-7 at the time of recording the dying declaration. PW-9 is the head constable who has recorded the statement of the victim as per Ex.P.9. PW-10 is the Sheristedar who recorded the dying declaration as per Ex.P.15. PW-11 is the Taluka Executive Magistrate who has recorded the dying declaration as per Ex.P.11. PWs-12 and 13 are the neighbours and PW-14 is the owner of the house where the accused and the deceased used to reside. They have not supported the case of the prosecution and they have been treated as hostile. PW-15 is a witness who was also present at the time of recording the dying declaration as per Ex.P.15. PW-16 is the doctor who has conducted the autopsy and issued post mortem report as per Ex.P.23. PW-17 is the Assistant Executive Engineer working in PWD, who has drawn the sketch as per Ex.P.25 as shown by PW-21, the police constable. PW-18 is the police constable who carried the dead body for the purpose of conducting post mortem. PW-19 is the scribe of Ex.P.13. PW-20 is the head constable who carried the FIR Ex.P.27 to the jurisdictional Court and submitted the same. PW-22 is the PSI who registered the case and issued the FIR as per Ex.P.27. PW-23 is the Investigation Officer who investigated the case and filed the charge-sheet against the accused. 12. From the above evidence, let us consider whether the prosecution has established its case beyond all reasonable doubt. In order to prove the fact that the deceased died a homicidal death, the prosecution has got examined PWs-2 and 6 who have drawn the inquest mahazar as per Ex.P.3. The prosecution has also got examined PW-16, the doctor who conducted autopsy over the body of the deceased. In his evidence, he has deposed that on 28.06.2015 on request he has conducted autopsy over the body of the deceased and he has mentioned as many as 14 burn injuries and has opined that the deceased died due to the burn injuries because of infection. All these materials clearly indicate that the deceased died an unnatural death. 13. The second circumstance on which the prosecution is intending to rely upon is the motive. All these materials clearly indicate that the deceased died an unnatural death. 13. The second circumstance on which the prosecution is intending to rely upon is the motive. As per the case of the prosecution, the accused used to suspect the fidelity of the deceased and in that light, he used to quarrel and on the alleged date of incident, he came late from the work and picked up quarrel suspecting her fidelity and poured the kerosene and lit fire and in order to substantiate the said fact, the prosecution got examined PWs-1, 12, 13 and 14. But, none of these witnesses have supported the case of the prosecution and they have been treated as hostile. Even though the prosecution has contended that the accused used to quarrel suspecting her fidelity, no elders in the society came to be examined for having advised, including the parents of the deceased as well as the accused. If really the accused used to suspect the fidelity of the deceased, under such circumstances, immediately after the incident he could have left the place and even he could not have brought the injured to the hospital. When there is no material to state that the accused was suspecting the fidelity and in that light, he poured kerosene and lit the fire, the said motive has also not been established by the prosecution. The other circumstance is that prosecution has mainly relied upon the dying declarations Ex.P.13 and the complaint Ex.P.15. 14. We have given our thoughtful consideration to these two documents. Ex.P.15 is the document which has been recorded by the Taluka Sheristedar of Jamakhandi on 27.06.2015. It is in the form of question and answer. In that, at question No.8, she has answered that the accused by suspecting her fidelity had poured kerosene on her and lit the fire. So also to question No.13, she has given the same answer and the same has also been reiterated in Ex.P.13, the complaint wherein PW-19 is the scribe and he has also reiterated the same. In that, at question No.8, she has answered that the accused by suspecting her fidelity had poured kerosene on her and lit the fire. So also to question No.13, she has given the same answer and the same has also been reiterated in Ex.P.13, the complaint wherein PW-19 is the scribe and he has also reiterated the same. But, as could be seen from Ex.P.9, the first statement given by the deceased on 19.05.2015 she has stated that on 18.05.2015 at about 10 p.m. she came from the work and filled kerosene to the stove and when she was about to prepare the food, electricity went off and in the darkness when she tried to lit the stove, the kerosene which had fallen on the ground caught fire, her saree also caught fire and as a result of the same, she sustained burn injuries and her husband and neighbours doused the fire. The said statement has been signed by the victim in English. Subsequently, on the same day, dying declaration has also been recorded as per Ex.P.11 in the form in which Ex.P.15 has been recorded. The said dying declaration has been recorded by the Taluka Executive Magistrate, Jamakhandi. In that declaration also, to question No.8 she has answered that as her saree came in contact with the kerosene stove, she sustained burn injuries. She has further deposed that hurriedly she lit the kerosene stove in order to heat the milk as the child was crying and in that process her saree caught fire and she sustained the burn injuries and she is not having any suspicion against anybody and she has put her signature as RJB. 15. On perusal of Ex.P.9, it is seen that there is inconsistency in the statement given by the deceased. In the first two statements i.e., Ex.P.9 and Ex.P.11, she has stated that it is an accidental fire and on 27.06.2015, she has given the statement as per Exs.P.13 and 15. The said statement has been recorded in the presence of PW-7, the doctor. The doctor in his evidence has deposed that he has put his signature to Ex.P.9 and subsequently he has also signed Ex.P.11. All of a sudden, he has deposed that on 24.06.2015 when he had gone to see Ruksana, at that time her husband was not there and her health condition was deteriorating day by day. The doctor in his evidence has deposed that he has put his signature to Ex.P.9 and subsequently he has also signed Ex.P.11. All of a sudden, he has deposed that on 24.06.2015 when he had gone to see Ruksana, at that time her husband was not there and her health condition was deteriorating day by day. He has further deposed that on 27.06.2015 when he had been to see her, nobody was there and as her health condition was deteriorating day by day, he asked her as to what she is going to do in future and that she informed him that she wants to give another dying declaration this conduct and behaviour of both doctor and deceased is not natural and probable. As contended by the learned Additional State Public Prosecutor because of fear of her husband all those days she had not given any declaration and in the absence of her husband, she has stated as per Exs.P.13 and 15. The evidence of PW-7 itself clearly goes to show that on 24.06.2015 her husband was not there and nothing prevented her to express her willingness to call the Tahsildar to give her dying declaration. The conduct of the doctor itself appears to be very strange that he himself said to her that her condition was deteriorating day by day and on 27.06.2015 her condition was critical and in that light he asked as to what she is going to do in future wherein she asked the doctor to get the concerned person before whom she could give her dying declaration. If anybody on the death bed is going to be asked as to what he/she is going to do in future, no person would say that he/she will give a dying declaration. 16. Another crowning factor in this case is that the alleged incident had taken place on 18.05.2015 and she succumbed to the injuries on 28.06.2015 i.e., after 41 days. There was 40 days' time with the deceased to give her dying declaration and it is not the case of the prosecution that all the while her husband was watching her as to see that she should not give any statement to anybody. In that light, the evidence of PW-7 does not repose confidence of this Court to hold that the dying declaration has been recorded on 27.06.2015 as per Ex.P.15. 17. In that light, the evidence of PW-7 does not repose confidence of this Court to hold that the dying declaration has been recorded on 27.06.2015 as per Ex.P.15. 17. One more important aspect which has been pointed out by the learned counsel for the appellant/ accused is that Ex.P.15 has been recorded by the Sheristedar of Jamakhandi. But, earlier when Ex.P.11 was recorded, the same was recorded by the Taluka Executive Magistrate. Even no explanation has been given by the prosecution why that the same Taluka Executive Magistrate was not called for recording the further statement of the deceased. Under such circumstances, it creates doubt in the case of the prosecution. 18. Be that as it may. Even as could be seen from Ex.P.13, the same has been recorded by PW-19. He is a chance witness and he had gone to the hospital for taking the birth certificate of his child and has casually went to meet the injured wherein she has given her statement as per Ex.P.13. He is neither the relative nor known to her and how he could have recorded the declaration as per Ex.P.13 itself is a doubtful circumstance. 19. Taking into consideration the suspicions which have been created in the case of the prosecution, we are of the considered opinion that though the prosecution has produced four dying declarations but none of the dying declarations have come to the aid of the prosecution to bring home the guilt of the accused beyond all reasonable doubt. When the prosecution has utterly failed to prove the motive as well as the intention of the accused and the dying declaration on which it is intending to rely upon are covered with cloud, under such circumstances the evidence of other official witnesses is not going to substantiate the case of the prosecution in any manner. From the evidence, it is not possible to believe such dying declaration said to have been given by the deceased and the same is not acceptable. 20. We have carefully and cautiously gone through the judgment of the trial Court. Though there are many infirmities and contradictions in the evidence of the prosecution, without giving its thoughtful consideration to the facts and circumstances and only by relying upon the dying declaration Ex.P.15 and the statement as per Ex.P.13, the trial Court has come to a wrong conclusion and has wrongly convicted the accused. Though there are many infirmities and contradictions in the evidence of the prosecution, without giving its thoughtful consideration to the facts and circumstances and only by relying upon the dying declaration Ex.P.15 and the statement as per Ex.P.13, the trial Court has come to a wrong conclusion and has wrongly convicted the accused. The same requires to be interfered with at the hands of this Court. In the light of the discussion made by us as above, we pass the following: ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the learned I Addl. District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in S.C.86/2015 dated 22.02.2017 is set aside and the appellant/accused-Jafar s/o Huseinsab Bijapur, is acquitted of all the charges and he is set at liberty forthwith, if he is not required in any other case. The jail authorities are hereby directed to release him forthwith. The registry is directed to communicate the operative portion of this order to the learned I Addl. District and Sessions Judge, Bagalkot, sitting at Jamkhandi, as well as the jail authorities through e-mail to release the appellant/accused-Jafar s/o Huseinsab Bijapur forthwith, if he is not required in any other case. The registry is directed to send back the trial Court records forthwith.