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2021 DIGILAW 259 (KAR)

Aslam Khan S/o Wasim Khan v. State Of Karnataka

2021-02-12

K.S.MUDAGAL

body2021
JUDGMENT : Aggrieved by the order of conviction and sentence passed against him for the offences punishable under Sections 498A and 304 Part I of IPC, the accused has preferred the above appeal. 2. The appellant was prosecuted in S.C.No.59/2008 on the file of the District and Sessions Judge, Ramanagara for the offences punishable under Sections 498A and 302 of IPC on the basis of the charge sheet filed by Ramanagara Town police in Crime No.25/2008 of their Police Station. For the purpose of convenience, the appellant will be referred to henceforth as accused. 3. The accused was married to Gulnaz Khanam on 07.02.2002. Both of them were living in the house situated at Janatha Colony, Rehamaniya Nagara, Ramanagara. Out of the said wed lock, couple had two sons and one daughter. PW.9 is the father, PW.2 is uncle and PW.1 is the cousin of Gulnaz Khanam. PWs.3 to 6 were her neighbours in marital home. Prior to marriage and even after marriage Gulnaz Khanam worked in Silk filature. 4. On 10.03.2008 at 10.45 p.m. Gulnaz Khanam suffered burns in the house of the accused. Immediately she was taken to General hospital, Ramanagara. During the same night, she was shifted to Victoria Hospital, Bengaluru. On 14.03.2008 at 5.00 a.m. she succumbed to burn injuries 5. The case of the prosecution in brief was as follows: (i) PW.15 the then Police Inspector of Ramanagara Town Police Station on receiving medico legal intimation from the hospital about Gulnaz Khanam suffering burn injuries, deputed Assistant Inspector of Police Govindaiah to record the statement of Gulnaz Khanam in Victoria Hospital; (ii) Accordingly, Govindaiah visited Victoria Hospital and issued requisition as per Ex.P9; (iii) PW.10 the Casualty Medical Officer of Victoria Hospital was enquired whether that the victim was in a condition to give the statement. PW.10 found her in a position to give statement and on his certification Govindaiah recorded the victim’s statement as per Ex.P10, returned to the police station and submitted the same to PW.15; (iv) On that basis, PW.15 registered the first information report as per Ex.P16 for the offences punishable under Sections 498A and 307 of IPC and took up investigation; (v) PW.15 deputed staff to secure the accused. On 11.03.2008 at 8.45 p.m. they produced the accused before him and he arrested him; (vi) On 12.03.2008, PW.15 visited the scene of offence and conducted the spot mahazar as per Ex.P2 in the presence of the witnesses. During the said mahazar, he seized MOs.1 to 3, recorded the statements of the witnesses, sent the seized articles to the forensic examination; (vii) On the basis of the statement of PW.1, he came to know that Gulnaz Khanam died on 14.03.2008. Thereafter he registered another first information report as per Ex.P17; (viii) On the requisition of PW.15, the Taluka Executive Magistrate conducted inquest mahazar. Then PW.15 handed over the further investigation to PW.12; & (ix) PW.12 collected the inquest mahazar Ex.P11, assessment register extract of the scene of offence as per Ex.P12, sketch of the scene of offence as per Ex.P13, forensic report as per Ex.P14 and filed the charge sheet. 6. The trial Court on hearing the parties framed the charges for the offences punishable under Sections 498A and 302 of IPC and tried the accused for the said offences. On trial, the trial Court by the impugned judgment and order convicted the accused for the offences punishable under Sections 498A and 304 Part I of IPC and sentenced him to rigorous imprisonment of seven years and fine of Rs.15,000/-for the offence punishable under Section 304 Part I of IPC and rigorous imprisonment of one year and fine of Rs.5,000/-for the offence punishable under Section 498A of IPC with default sentence clause. 7. The trial Court based the order of conviction and sentence on the following grounds: (i) The dying declaration of the victim as per Ex.P10 was proved by the evidence of PW.10 the doctor and PW.15 the Investigating Officer; (ii) The evidence of PW.10 shows that at the time of the incident, the victim was in a position to give the statement; & (iii) The evidence of PWs.1, 2 and 9 and the dying declaration proved that the accused subjected the victim to cruelty and set her on fire and caused her death. 8. 8. Sri Rakshit Jois, learned Amicus Curiae seeks to assail the impugned order of conviction and sentence on the following grounds: (i) Govindaiah who is said to have recorded the dying declaration was neither cited as charge sheet witness nor examined as prosecution witnesses which was fatal to the prosecution; (ii) PW.10 has not certified that Ex.P10 was recorded as per the narration of the victim; (iii) PWs.1, 2 and 9 the close relatives, though alleged that the accused subjected the deceased to cruelty after marriage they had not filed any complaint prior to the incident; & (iv) Neighbours PWs.3 to 6 did not support the alleged cruelty. 9. Sri Rohit B.J, learned HCGP seeks to justify the impugned order of conviction and sentence on the following grounds: (i) The injuries were sustained in the house of the accused and he had no explanation for that; (ii) The evidence of PWs.1, 2 and 9 was cogent and consistent with regard to cruelty inflicted by the accused to the victim; (iii) The evidence of PWs.3 to 6 also show that at the time of the incident, the accused was in the house and his conduct of not attending to the victim and reporting the matter to the police militate against him; (iv) The evidence of PW.15 regarding deputation of Govindaiah to record the statement of the victim and he submitting Ex.P10 to PW.15 was not at all disputed. At this stage, it is not open to the accused to raise that issue; (v) The evidence of medical officers PWs.10 and 16 show that the victim was in a position to give the statement. Therefore the trial Court rightly relied on the dying declaration; & (vi) The Court can convict the accused solely relying on the dying declaration, if the same is found acceptable. 10. In support of his contentions, he relies upon the following judgments: (i) Vidhya Devi v. State of Haryana, (2004) 9 SCC 476 (ii) Poonam Bai v. State of Chhattisgarh, (2019) 6 SCC 145 11. 10. In support of his contentions, he relies upon the following judgments: (i) Vidhya Devi v. State of Haryana, (2004) 9 SCC 476 (ii) Poonam Bai v. State of Chhattisgarh, (2019) 6 SCC 145 11. The case of the prosecution was based on following circumstances: (i) The dying declaration of the victim before the Assistant Sub-Inspector of Police Govindaiah and PW.10; (ii) The dying declaration before PWs.1, 2 and 9; (iii) The evidence of PWs.3 to 6 who rush to the scene of offence on hearing commotion of the victim; (iv) The evidence of PWs.1, 2 and 9 regarding cruelty inflicted by the accused to the victim; & (v) The medical evidence and the evidence of the official witnesses. 12. There is no dispute that the accused was married to the victim on 07.02.2002, she suffered burn injuries on 10.03.2008 at 10.45 p.m. in his house. Further it was also not disputed that she succumbed to those injuries. PW.10 the doctor who conducted the postmortem examination opined that the death was due to septicemia which was secondary to the burn injuries. The tenor of cross-examination of PWs.3 to 6 who came to the scene of offence on hearing the cries of the victim shows that the accused was in the house at the time of the incident. 13. As per the prosecution, soon after the marriage, the accused was addicted to alcohol and gambling. Therefore, the victim was forced to work in filature for the purpose of maintaining the family. It was further alleged that the accused used to ill-treat her physically and mentally objecting her to coming late from the work and imputing infidelity to her. It was also alleged that he used to snatch away her income. According to the prosecution, on the date of the incident the accused subjected Gulnaz Khanam to such cruelty and being frustrated by that to threaten the accused, she dowsed herself with kerosene saying that she will commit suicide and the accused instead of pacifying her lit her with matchstick and caused burn injuries. But according to the accused the burn injuries were on account of attempt of suicide by the victim. 14. Therefore, the only question was whether the injuries were suicidal or homicidal. It was suggested by the accused during the course of cross-examination of the prosecution witnesses that when the incident took place he was asleep. But according to the accused the burn injuries were on account of attempt of suicide by the victim. 14. Therefore, the only question was whether the injuries were suicidal or homicidal. It was suggested by the accused during the course of cross-examination of the prosecution witnesses that when the incident took place he was asleep. Whereas the neighbours PWs.3 to 6 say that after hearing commotion of the victim, they rushed to the spot, found her aflame and accused was also present there. The accused did not try to put off the fire nor take her to the hospital or reported the matter to the police. This circumstance certainly militates against him. 15. Then the next question was whether the victim gave the dying declaration as per Ex.P10 before Govindaiah who was deputed by PW.15. PW.15 states that he deputed Govindaiah the Assistant Sub-Inspector of Police to the hospital to record the statement of the victim. PW.10 Casualty Medical Officer of Victoria Hospital states that Govindaiah visited the hospital and gave requisition as per Ex.P9 and on he certifying about the condition of the victim, recorded the statement as per Ex.P10. In the cross-examination of PWs.10 and 15 Govindaiah visiting the hospital or he submitting the report Ex.P10 to PW.15 was not disputed. Only an attempt was made saying that the victim was not in a position to give statement. 16. The other contention that PW.10 has not certified that Ex.P10 was recorded according to the narration of the victim. In the cross-examination, even requisition Ex.P9 was not disputed. PW.10 is an independent witness. He states that the victim was in a position to give statement and she gave statement as per Ex.P10. PW.16 conducted the postmortem examination on the dead body of the victim and gave his report as per Ex.P11. He was not even cross-examined to deny that the entry in Ex.P11 that the mouth, pharynx and esophagus were intact. It was not suggested that they were burnt. 17. No doubt according to the evidence of medical witnesses, the victim had suffered 80 to 85% burn injuries of second and third degree. But even according to evidence of PW.10, the burn injuries were not immediate cause for death and septicemia was the cause of death. The injuries were suffered on 10.03.2008. Ex.P10 was recorded on the very next day i.e. on 11.03.2008. Two days thereafter she died. But even according to evidence of PW.10, the burn injuries were not immediate cause for death and septicemia was the cause of death. The injuries were suffered on 10.03.2008. Ex.P10 was recorded on the very next day i.e. on 11.03.2008. Two days thereafter she died. In Ex.P11 in column No.4 while recording the observations regarding mouth, tongue and esophagus, it is stated that they were intact and congested, thereby indicating that her tongue, mouth had not suffered injuries disabling her to speak on the date of the incident or on the next day. 18. It is true that to prove the dying declaration, the Investigating Officer did not cite Govindaiah as witness, collected the case sheet relating to the victim, did not produce the medico legal intimation. That only shows the apathy of the executives for the helpless and hapless people. Such faulty investigation shall not scuttle the justice to the victim. Though, the trial Court did not advert to the other evidence other than the dying declaration, having regard to the evidence of PWs.10, 15 and 16, this Court does not find any error in the trial Court in relying on Ex.P10. 19. PWs.1, 2 and 9 in their evidence consistently state that soon after marriage, the accused got addicted to vices and harassed the victim as aforesaid physically and mentally. Simply because they did not file complaint to the police, their evidence in that regard cannot be rejected. By the time the incident took place, the victim was married since six years and had three children. The prosecution records show that at the time of the marriage, the parents of the victim were living in Ramanagara. After marriage, they shifted to Nayandalli, Bengaluru. 20. PW.2 uncle, PW.1 cousin were living in the same place. Their evidence that the couple were living in Janatha colony and the victim was struggling to feed her children show that they were economically weak. Under the circumstances, in matrimonial matters efforts of the relatives and parents would be to reconcile the couple and not to rush to the Police Station. Therefore, their evidence regarding cruelty cannot be rejected only on the ground that no complaint was filed earlier regarding harassment. 21. Under the circumstances, in matrimonial matters efforts of the relatives and parents would be to reconcile the couple and not to rush to the Police Station. Therefore, their evidence regarding cruelty cannot be rejected only on the ground that no complaint was filed earlier regarding harassment. 21. PWs.3 to 6 though turned hostile, regarding cruelty of the accused to the victim, were consistent in their evidence that at the time of the incident, the accused was in the house and when they rushed to the spot on hearing commotion, they found the victim aflame. As per their evidence, it was they who shifted the victim to the hospital and the accused did not take any part in that. As already pointed out, the accused did not report the matter to the police. He did not attend to her medical needs and he had not suffered any injuries on his hands if at all the injuries were suicidal, in the normal course he should have attempted to rescue her. 22. Considering over all evidence and the circumstances, this Court does not find any illegality or impropriety in the order of conviction and sentence passed by the trial Court. Therefore, the appeal is hereby dismissed. The bail bond of the accused stood cancelled. Accused shall surrender before the Trial court forthwith. Communicate copy of this order to the trial Court to enable it to secure the accused to serve the sentence. This Court places on record its appreciation for the able assistance rendered by Sri Rakshit Jois, learned Amicus Curiae. Registry shall pay him his service charges as per the norms.