Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1490 (KAR)

Ameenabi v. State Of Karnataka

2020-07-24

B.A.PATIL, M.G.UMA

body2020
JUDGMENT M.G.Uma, J. - The appellants/accused Nos.1 and 2 have preferred this appeal, aggrieved by the impugned judgment of conviction dated 31.05.2017 and order of sentence dated 01.06.2017 passed by the learned Principal District and Sessions Court at Gadag ('trial Court' for short) in S.C.No.4/2009, convicting them for the offences punishable under Sections 498-A and 302 read with Section 34 of IPC and sentencing them to undergo imprisonment for life and to pay fine with default sentence. 2. We have heard the learned advocate Sri.T.B.Patil for the appellants/accused through video conference and learned Addl. SPP Sri.V. M. Banakar for the respondent-State. 3. The brief facts of the case of the prosecution is that; the statement of Mrs.Raziyabegum was recorded on 06.03.2005, who stated that on 05.03.2005 at 5.45 pm, she was preparing food in the kitchen and at that time, suspecting her fidelity and with an intention to cause her death, accused No.2-her brother-in-law poured kerosene on her, accused No.1-her mother-in-law lit fire by using the firewood in the kitchen and also pushed her towards the hearth, as a result of which, she caught fire all over the body. When she tried to escape, accused No.3, another brother-in-law of the victim prevented her from going out of the house by closing the door. However, the victim who could not tolerate the heat, jumped into the water tank and raised hue and cry. On hearing the same, the neighbors came and rescued her. Since she had sustained burn injuries, she was shifted to PHC, Laxmeshwar, where she was given first aid treatment and thereafter referred to KIMS, Hubballi. Since the medical officer treating the injured opined that the victim was not in a position to give statement, her statement was not recorded immediately on the same day. On 06.03.2005, the statement of the injured was recorded. On the basis of this statement of the injured FIR was registered against accused Nos.1 to 3. 4. It is the further case of the prosecution that the injured Raziyabegum succumbed to the injuries on 10.03.2005 while she was being treated for the injuries. Accused Nos.1 and 2 were absconding and therefore split up charge sheet was filed against them. The trial against accused No.3 was held by the trial Court in S.C.No.26/2005 and vide judgment of conviction and order of sentence dated 28.04.2008. Accused Nos.1 and 2 were absconding and therefore split up charge sheet was filed against them. The trial against accused No.3 was held by the trial Court in S.C.No.26/2005 and vide judgment of conviction and order of sentence dated 28.04.2008. He was convicted for the offences punishable under Sections 498-A and 302 of IPC. 5. Subsequently accused Nos.1 and 2 were secured and the trial Court held trial against them in S.C.No.4/2009 for the above said offences. Both the accused pleaded not guilty for the charges and they claimed to be tried. 6. Prosecution examined PWs1 to 20, got marked Exs.P1 to P22 and M.O.1 in support of its contention. Accused Nos.1 and 2 have denied all the incriminating materials available on record but have not chosen to lead any evidence in support of there defence. The trial Court after taking into consideration all these materials on record, convicted accused Nos.1 and 2 for the above said offences. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused Nos.1 and 2 have preferred this appeal on various grounds. 7. Learned advocate for the appellants Sri.T.B.Patil in support of the grounds made out in the memorandum of appeal, contended that the impugned judgment of conviction and order of sentence passed by the trial Court is illegal, perverse and the same is liable to be set aside, in the interest of justice. The trial Court erred in convicting the accused for the offences punishable under Sections 498-A and 302 read with Section 34 of IPC, even though there are no sufficient materials to hold that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The trial Court has ignored the material contradictions and discrepancies in the evidence led by the prosecution. The trial Court based its judgment on uncorroborated version of the prosecution witness, which has resulted in miscarriage of justice. All the independent witnesses examined by the prosecution have not supported the case and they were treated hostile. The version of the relative and interested witnesses was taken into consideration by the trial Court and committed grave error. 8. Pw3 the brother, PW4 the mother and PW5 the uncle of the deceased Raziyabegum are the related and interested witnesses. The dying declaration relied on by the prosecution is also not proved, in accordance with law. The version of the relative and interested witnesses was taken into consideration by the trial Court and committed grave error. 8. Pw3 the brother, PW4 the mother and PW5 the uncle of the deceased Raziyabegum are the related and interested witnesses. The dying declaration relied on by the prosecution is also not proved, in accordance with law. The neighbors have not supported the case of the prosecution. The evidence led by the prosecution go to show that it was the husband of the deceased and other family members, who have shifted the injured to the hospital. The husband of the deceased was not examined before the Court. The fitness of the injured to give her statement and also the dying declaration is not proved. The medical evidence do not support the contention of the prosecution. Taking into consideration all these facts and circumstances, the trial Court should have acquitted the accused but it has proceeded to convict accused Nos.1 and 2, without any basis and therefore the learned advocate for the appellants/accused seeks intervention of this Court by allowing the appeal and setting aside the impugned judgment of conviction and order of sentence to acquit the accused for the above said offences. 9. Per contra learned Addl.SPP supporting the impugned judgment of conviction and order of sentence, submitted that the statement of the victim was recorded after getting the opinion from the doctor, who was treating her, regarding her fitness. The said statement was treated as first information i.e. Ex.P15 and the FIR was registered on 06.03.2005 at 4.00 pm. Subsequently on the same day, between 1.00 to 2.00 pm, the dying declaration of the victim was recorded by the Taluka Executive Magistrate as per Ex.P11. While recording the statement of the victim Ex.P15 and the dying declaration Ex.P11, the medical officer certified that she was in sound state of mind to give her statement. The trial Court found the statement and the dying declaration of the injured reliable, which was supported by the medical evidence and also the evidence of the mother, brother and uncle. Prosecution was successful in proving the guilt of the accused beyond reasonable doubt. Under such circumstances, the impugned judgment passed by the trial Court does not call for interference by this Court and prays for dismissal of the appeal. 10. Prosecution was successful in proving the guilt of the accused beyond reasonable doubt. Under such circumstances, the impugned judgment passed by the trial Court does not call for interference by this Court and prays for dismissal of the appeal. 10. He also further submitted that accused No.3, who was also convicted by the trial Court in a separate proceeding, had preferred the appeal before this Court in Criminal Appeal No.684/2008. The said appeal was heard and came to be disposed of by this Court vide order dated 10.01.2011, confirming the impugned judgment of conviction and order of sentence, which was based on similar set of facts and evidence. The said judgment passed by this Court reached finality. Under such circumstances, the appellants cannot seek interference by this Court with the impugned judgment of conviction and order of sentence convicting them. On these grounds, he prays for dismissal of the appeal. 11. We have taken into consideration all the materials on record including the trial Court records. 12. Prosecution examined 20 witnesses in support of its contention. PW1 is the relative of the deceased and PW8 is the neighbor, examined to speak about the motive for the accused to commit the offence and the harassment that was meted to the deceased. PWs2 and 7 are the mahazar witnesses to the spot mahazar Ex.P2. PW10 is also the witness examined to speak about the harassment to the deceased by the accused. But all these witnesses have not supported the case of the prosecution. They were treated hostile. Even during cross examination by the learned public prosecutor, nothing has been elicited from them in support of the case of the prosecution. 13. Pw3 is the brother, PW4 is the mother, PW5 is the uncle of the deceased, who spoke about the harassment by the accused and their motive to commit the offence. They also spoke about the dying declaration. Even though all these witnesses were subjected to cross examine at length, nothing has been elicited from them to disbelieve their version. The witnesses have denied the suggestion that due to accidental fire, the deceased had died and that they were deposing falsely in order to harass the accused. All these witnesses consistently deposed before the Court that accused Nos.1 and 2 started suspecting her fidelity started harassing the deceased after six months of her marriage. The witnesses have denied the suggestion that due to accidental fire, the deceased had died and that they were deposing falsely in order to harass the accused. All these witnesses consistently deposed before the Court that accused Nos.1 and 2 started suspecting her fidelity started harassing the deceased after six months of her marriage. There were prior instances of quarrel and the accused were not providing sufficient food to the deceased. Even the elders from Dharwad were called and the accused were advised. Witnesses stated that they received intimation regarding the burn injuries sustained by the deceased and rushed to KIMS hospital, Hubballi, where she was being treated. Initially she was not in fit condition to give statement but on the next day after receiving treatment, she explained the act committed by all the accused. These witnesses were subjected to cross examination by the learned advocate for the accused before the trial Court. But nothing has been elicited from them to discard their version. 14. Pw6 is the neighbor of the deceased, who shifted the deceased to the hospital. Even though this witness has not supported the case of the prosecution, he stated that he is the neighbor and the incident had taken place in the year 2005 in the house of the accused at 5.45 pm and that the deceased had sustained burn injuries. He also admitted during cross examination by the learned public prosecutor that the victim was crying to save her and immediately he went their and saw the deceased Raziyabegum, lying in the tub outside the house. This witness was not cross examined by the learned advocate for the accused. 15. Pw9 is the mahazar witness, to the inquest mahazar Ex.P6. PW11 is the medical officer in Community Health Centre, Laxmeshwar, where the injured was initially treated immediately after the incident. This witness stated that when the injured was brought to the Community Health Centre, Laxmeshwar, she was not in a position to speak. She was in the hospital for about 20 to 25 minutes and thereafter shifted to KIMS Hospital, Hubballi. 16. Pw12 is the Taluka Executive Magistrate, who recorded the dying declaration of the victim as per Ex.P11. Witness stated that the PSI of Laxmeshwar police station requested him to record the dying declaration of the injured Raziyabegum, who was being treated in KIMS, Hubballi on the same day, he visited the hospital. 16. Pw12 is the Taluka Executive Magistrate, who recorded the dying declaration of the victim as per Ex.P11. Witness stated that the PSI of Laxmeshwar police station requested him to record the dying declaration of the injured Raziyabegum, who was being treated in KIMS, Hubballi on the same day, he visited the hospital. The medical officer certified that the injured is in fit condition to give statement. The requisition given by him is as per Ex.P9 and the requisition received by him by the investigating officer is as per Ex.P10. Witness stated that the dying declaration as per Ex.P11 was recorded by him in the presence of the doctor with the assistance of the assistant. He stated that, since the injured had sustained burn injuries on her hands and fingers, the impression of the right toe was taken on Ex.P11. The doctor who was present at the time of recording the dying declaration signed the same. Witness also stated that he received the information about the death of the deceased on 10.03.2005. He again visited KIMS Hospital, Hubballi and conducted inquest panchanama as per Ex.P6 and recording the statement of the mother of the deceased. 17. During cross examination, witness stated that immediately after visiting KIMS, Hubballi, he consulted Dr.Rajashekhar, who was treating the injured and verified about the condition of the injured. The said doctor endorsed on Ex.P9, to the effect that the injured is in fit condition. He denied the suggestion that the injured was not in a position to talk and that she had sustained 90% burn injuries. Witness stated that the injured was speaking local language, but she was not comfortable in speaking Kannada. He denied the suggestion that the names of the accused were written in Ex.P11 subsequently and the dying declaration as per Ex.P11 was concocted. 18. Pw13 is the doctor who was doing his post graduation at KIMS Hospital, Hubballi. Witness stated that he was treating the injured Raziyabegum. The investigating officer recorded the statement of the injured on 06.03.2005 between 11.30 to 12.30 pm. The said statement is as per Ex.P15. Witness stated that he also signed the said statement. The right toe impression of the injured was taken on the statement, since her hands and fingers were burnt. Witness stated that the injured was in fit state of mind at the time of recording the statement. The said statement is as per Ex.P15. Witness stated that he also signed the said statement. The right toe impression of the injured was taken on the statement, since her hands and fingers were burnt. Witness stated that the injured was in fit state of mind at the time of recording the statement. Witness also stated that on the same day about 1.50 pm, the Taluka Executive Magistrate, Hubballi came to the hospital and recorded the dying declaration of the injured in his presence. The dying declaration as per Ex.P11 and to the dying declaration also, the right toe impression of the injured was taken. Witness stated that while recording the dying declaration, her condition was fit and fine. Witness stated that he endorsed on Ex.P9 regarding the fit condition of the injured. This witness was not cross examined by the learned advocate for the accused. 19. Pw14 is the police constable who carried the FIR-Ex.P16 and submitted to the Jurisdictional Magistrate. PW15 is the head constable who shifted the dead body for post mortem examination. PW16 the police constable, who carried the material objects to FSL, Bengaluru, for examination. PW17 is the head constable, who searched for accused Nos.1 and 2 and gave report as per Ex.P21 that they are absconding. PWs18 and 19 are the investigating officers, who conducted investigation and filed charge sheet. 20. Pw20 is the PSI recorded the statement of the injured as per Ex.P15 and registering Crime No.15/2005 against the accused. This witness stated that when he visited KIMS hospital, Hubballi on 05.03.2005 at 6.40 pm, the injured was being treated and the doctor gave opinion that she was not in a fit condition to give statement. On 06.03.2005, since the injured was in good condition, her statement was recorded as per Ex.P15 and registered the FIR as per Ex.P16. Witness stated that subsequently on the same day, the Taluka Executive Magistrate conducted inquest mahazar as per Ex.P6. Witness stated that from the scene of occurrence, he seized MO1-the kerosene can and half burnt firewood, under the spot mahazar-Ex.P2. During cross examination, it is suggested to the witness that the injured was not in sound condition to give her statement as per Ex.P15 and that the same was concocted. But the witness denied all those suggestions. 21. Witness stated that from the scene of occurrence, he seized MO1-the kerosene can and half burnt firewood, under the spot mahazar-Ex.P2. During cross examination, it is suggested to the witness that the injured was not in sound condition to give her statement as per Ex.P15 and that the same was concocted. But the witness denied all those suggestions. 21. As per the case of the prosecution, the death of the deceased was due to burn injuries and it was an unnatural death. There is no dispute about this fact. The inquest mahazar Ex.P2, evidence of the mahazar witnesses PW2, the evidence of Taluka Executive Magistrate-PW12, who conducted inquest mahazar along with post mortem report Ex.P22, supported the contention of the prosecution to prove the unnatural death of the deceased, due to burn injuries. 22. This contention of the prosecution that it is the appellants/accused Nos.1 and 2 along with accused No.3, who committed the offence by pouring kerosene and setting fire on the deceased by suspecting her fidelity and with the intention to cause her death. To prove this fact, PWs3, 4 and 5, the brother, mother and uncle of the deceased have deposed before the Court and spoke about the harassment and the motive. Of course no independent witnesses have examined but the evidence of these three witnesses is not shaken during cross examination. It is suggested to these witnesses that they are deposing falsely against the accused, but no motive is suggested for these witnesses to depose falsely. Admittedly the incident had taken place in the house of accused. PW6 is the neighbor of the accused specifically states that the deceased had caught fire in the house of the accused. The spot mahazar Ex.P2 also supports the contention of the prosecution, where the evidence of burning with kerosene oil was present and MO1-the plastic can, in which the kerosene was found, was also recovered from the scene of occurrence. From these materials it cannot be disputed that the deceased had sustained burn injuries, while she was in the house of the accused. 23. Pw20 the PSI categorically stated that the statement of the injured as per Ex.P15 was recorded on 06.03.2005 between 11.30 to 12.30 pm. The statement as per Ex.P15 is the first information, wherein the injured has given the details of the harassment and the incident, accusing the accused. 23. Pw20 the PSI categorically stated that the statement of the injured as per Ex.P15 was recorded on 06.03.2005 between 11.30 to 12.30 pm. The statement as per Ex.P15 is the first information, wherein the injured has given the details of the harassment and the incident, accusing the accused. It is suggested to PW20 that he concocted false statement of the injured, which he has denied. But no motive was suggested to this witness to concoct false statement of the injured. However, even though the prosecution is relying on Ex.P15, the first information, it is only to set criminal law into motion by registering FIR as per Ex.P16. 24. Pw12-The Taluka Executive Magistrate and PW13 the doctor who was treating the injured in KIMS hospital, Hubballi, categorically stated that on 06.03.2005, the dying declaration of the injured as per Ex.P11 was recorded. Both these witnesses stated that the injured was in fit condition to give her statement and the same was recorded in the presence of the doctor-PW13. 25. Even though PW12 was cross examined at length, nothing has been elicited from him to disbelieve the dying declaration. Interestingly, PW13 was never cross examined and his version remained unchallenged. Under such circumstances, we do not find any reason to disbelieve the dying declaration, which is as per Ex.P11. As per this declaration, the injured has given the details of the ill-treatment given by accused Nos.1 and 2 along with accused No.3 and also pouring of kerosene and litting fire by accused Nos.1 and 2 on 05.03.2005 at 5.45 pm, when she was in the kitchen, with an intention to cause her death. Nothing has been brought on record either to disbelieve the version of PWs12 and 13 or to discard the dying declaration Ex.P11. When the dying declaration is free from suspicion and the Court is satisfied that the same is the last version of the victim before her death, more weightage is attached to such declaration. Nothing has been brought on record either to disbelieve the version of PWs12 and 13 or to discard the dying declaration Ex.P11. When the dying declaration is free from suspicion and the Court is satisfied that the same is the last version of the victim before her death, more weightage is attached to such declaration. Under Section 32 of the Indian Evidence Act, 1872, the statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of the person's death comes into question, was held to be relevant fact and it is an exception to the general rule against admissibility of hearsay evidence, when the person, who made the statement is dead. It is trite of law that if the dying declaration relied on by the prosecution is wholly reliable, voluntary and truthful and further that the maker thereof was in fit medical condition to make such declaration, the same can be the sole basis for conviction. Such dying declaration immensely strike to be genuine, stating true story of its maker. If such declaration is free from all doubts and if it is found that it was not the result of tutoring, the same can be the basis for conviction. When the dying declaration has been recorded in accordance with law, and it is reliable, this gives cogent and possible explanation of the occurrence, the same can be relied on as the sole piece of evidence resulting in the conviction of accused. This proposition of law was reiterated by the Hon'ble Apex Court in BHAJJU ALIAS KARAN SINGH Vs. STATE OF MADYA PRADESH, (2012) 4 SCC 327 at paragraphs No.22, 23 and 24, which read as under: "22. The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Evidence Act, 1872 (for short "the Act") is an expression to the general rule against the admissibility of hearsay evidence. This Court has clearly stated the principle that Section 32 of the Evidence Act, 1872 (for short "the Act") is an expression to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a "dying declaration". 23. The "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. 24. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence." 26. When once the Court comes to the conclusion that the dying declaration contain the truthful version of the deceased, as to the circumstance of her death, no further corroboration regarding this fact is required for convicting the accused. 27. From the discussions held above, it is clear that the prosecution is successful in proving the statement of the deceased as per Ex.P15 and her dying declaration Ex.P11, regarding the circumstance under which she sustained extensive burn injuries, which later resulted in her death. 28. Under such circumstances, we do not have any hesitation to hold that the same is not sufficient to convict appellants/accused Nos.1 and 2 for the offences punishable under Sections 498-A and 302 of IPC. 29. The abscondance of accused Nos.1 and 2 immediately after the incident, also add to the circumstance, which points accusing finger towards the accused. There is absolutely no explanation regarding the absondance of these accused for several years after the incident. 30. 29. The abscondance of accused Nos.1 and 2 immediately after the incident, also add to the circumstance, which points accusing finger towards the accused. There is absolutely no explanation regarding the absondance of these accused for several years after the incident. 30. One more circumstance which is relevant to be noted is that, accused No.3 who is tried in S.C.No.26/2005 before the Court, was also convicted for the above said offences on the same set of facts and evidence. There is no dispute that Criminal Appeal No.684/2008 filed by accused No.3, was came to be dismissed by this Court vide order dated 10.01.2011, confirming the judgment of conviction and order of sentence for the above said offences. Therefore, we are of the opinion that the appellants have not made out any grounds to hold that they are innocent of the charges leveled against them. 31. When the case is posted for pronouncement of judgment, the learned counsel for the appellant/accused No.1 submitted that accused No.1 has expired. The same has been endorsed by the Addl.SPP. In that light, case against accused No.1, abates. 32. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has taken into consideration all the materials placed before and arrived at right conclusion, convicting accused Nos.1 and 2 for the offences punishable under Section 498-A and 302 read with Section 34 of IPC. We do not find any reason to interfere with the same. Hence, I proceed to pass the following: ORDER Appeal preferred by accused No.1 is dismissed as abated. Appeal preferred by accused No.2 is dismissed as devoid of merits. The impugned judgment of conviction dated 31.05.2017 and order of sentence dated 01.06.2017, is confirmed. Registry is directed to send back the trial Court records.