Karnataka High Court
Syed Arif S/O Syed Hussaini vs The State Through Mahila Ps on 13 March, 2013
Bench: D V Shylendra Kumar, Huluvadi G Ramesh
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 13th day of March, 2013
Present
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
&
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Criminal Appeal 3660 / 2009
Between:
Syed Arif S/o Syed Hussaini
32 yrs, Tailor, R/o Pachapura
Bowligalli, Roza (K)
Gulbarga Appellant
(By Sri Ishwaraj S Choudapur, Adv.)
And:
State of Karnataka - through
Mahila Police Station, Gulbarga Respondent
(By Sri Sanjay A Patil, Addl. SPP)
The Appeal is filed under S.374(2) of the Criminal Procedure Code
to set aside the judgment dated 29.9.2009 in SC 54/2008 by the Fast Track
Court, Gulbarga.
The Criminal Appeal having been reserved for orders on 6th March,
2013, Huluvadi G Ramesh J., delivered the following:-
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JUDGMENT
The accused is in appeal under S.374(2) of the Crl.PC against the order of conviction and sentence passed by the Fast Track Court I, Gulbarga in SC 54/2008 convicting and sentencing the accused to undergo life imprisonment for the offence under S.302, IPC and to pay a fine of Rs.500/- and in default, to undergo simple imprisonment for two months for the offence punishable under S.504, IPC.
As per the prosecution, the accused after having divorced his first wife, in order to maintain two of his children born out of the marriage with the first wife, married Afsara Begum while residing at his house situate at Bavadigalli Roza, harassed and ill-treated her physically and mentally alleging that she is not looking after his two children born to the first wife and also objected for being pregnant. On the alleged date of incident i.e., on 31.10.2007 around 6.30 a.m., having objected for her visiting the matrimonial house, picked up a quarrel and abused her in a filthy language and poured kerosene and set her on fire causing burn injuries. Afsara Begum died on 6.11.2007. The police, having recorded the statement/complaint/dying declaration of the victim Afsara Begum while 3 she was under treatment in the hospital due to burn injuries, in the presence of the doctor, after investigation, and also after recording the statement of several witnesses, filed the charge sheet for the offence under S.498A, 504 and 302, IPC. On such committal, after having framed charges against the accused for the alleged offences, since the accused pleaded not guilty and claimed to be tried, prosecution having examined 19 witnesses, got marked 28 documents and 7 material objects and thereafter, recorded the statement of the accused under S.313, Cr.PC. The evidence of the defense witness of the neighbor has been recorded as DW 1. The defense of the accused is that, on that day around 6.30 a.m., when he was sleeping his wife was about to prepare tea, at that time, she sustained burn injuries due to spreading of fire from the kerosene lamp accidentally and it is not because of his involvement. The trial court having heard the counsel for the accused and also the public prosecutor, has convicted the accused for the offence under S.504 and 302, IPC and sentenced him to undergo imprisonment for life for the offence under S.302, IPC and sentenced to pay fine of Rs.500/- and default sentence of SI for a period of two months for the offence for the offence under S.504, IPC. However, the accused was acquitted for the offence under S.498A, IPC.
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In the incident, Afsara Begum sustained 65 to 75% burn injuries. While she was under treatment, her complaint as well as dying declaration was recorded. She died while under treatment.
Heard the counsel for the appellant and the SPP.
The submission of the appellant's counsel is, the alleged incident has taken place not due to the involvement of the accused but, due to the accidental fire while the deceased was preparing tea and she was caught in fire. The accused made an attempt to extinguish the fire. In that process, he also sustained burn injuries and it is not a case of murder and there is neither intimidation nor harassment. Even the trial court has rightly acquitted the accused for the offence under S.498A, IPC. The witnesses to the incident and the sister of the deceased have turned hostile to the version of the prosecution. Further, the trial court has based the conviction solely on the evidence of the doctor, police witness and the dying declaration of the victim. It is stated, recording of the complaint as well as the dying declaration is not in consonance with S.32 of the Evidence Act much less, the Taluka Executive Magistrate, in his evidence has not whispered the 5 exact wordings of the deceased in her dying declaration except stating that as per Ex.P24 and, in the absence of deposing the statement of the deceased as stated by her, and also when it is evident that the statement recorded by the Taluka Executive Magistrate has not been read over to the victim to confirm the same to that effect, no such statement has been recorded in Ex.P27. In support of his argument, learned counsel relied upon the decision of the Apex Court in the case of Maniben Vs State of Gujarat - 3 2009(3) Crimes 298 (SC) and also the decision of the Madhya Pradesh High Court in the case of Prem Singh & Anr. Vs State of Madhya Pradesh - 2007 (2) Crimes 127 (MP) and also an unreported decision of this Division Bench in Crl.A. 3564/2010 decided on 23.5.2012 to contend that there is non-compliance of S.32 of the Evidence Act and also the offence alleged does not fall within S.302, IPC but, at the most would fall under S.304 Part II, IPC. Learned counsel also relied upon a decision in the case of Alamelu & Anr Vs State - AIR 2011 SC 715 to contend that mere production and marking of a document as exhibit cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouch safe for the truth of the facts in issue. Thus, according to the appellant's counsel, there 6 is no cogent evidence on record to prove the guilt of the accused beyond reasonable doubt that the accused has set fire to his wife to cause her death and accordingly, sought for acquittal of the accused.
Per contra, Addl. Public Prosecutor has argued that even in the absence of evidence of material witnesses, the contents of Ex.P27 the complaint which had been recorded by the police in the presence of the doctor on such certificate that the victim is conscious and capable of giving statement and so also Ex.P24, dying declaration do form the basis for conviction. The conduct of the appellant that he poured kerosene and set her on fire and also that he also sustained burn injuries also depict the fact that the accused is a person involved in the commission of the offence. The dying declaration and the evidence of the Taluka Executive Magistrate regarding recording of the dying declaration as per Ex.P24 (a) itself is sufficient and, in the evidence of the Taluka Executive Magistrate though it has not been repeated as contained in Ex.P24(a), but on referring to Ex.P24(a) the dying declaration, he has stated the victim gave a statement. A reading of the statement speaks to the fact of culpableness of the accused in setting her on fire in order to commit murder with an intention and with 7 that knowledge, by setting fire she is likely to die admittedly when she sustained 65 - 75% burn injuries. Also, he has relied upon the decision of the Apex Court in the case of Gopal Vs State of Karnataka - (2011) 14 SCC 396 to stand by his contention and also to contend that conviction based solely on the basis of the dying declaration even when all the witnesses have turned hostile, is sustainable.
In reply, learned counsel for the appellant, referring to the evidence of the doctor - PW 7 who has conducted the autopsy that the death of the deceased was due to cardio respiratory arrest which is due to septicemia contended that death is not directly attributable to setting fire to the deceased but, due to septecemic shock as such, there is no motive, intention or knowledge to be attributable to the cause of the death of the victim.
In the light of the arguments advanced, points that would arise for consideration are -
Whether the trial court is justified in holding that the prosecution has proved beyond all reasonable doubt that the accused poured kerosene on Afsara Begum, his second wife, set her on fire and caused severe burn 8 injuries as a result of which, she succumbed to the burn injuries on 6.11.2007 while under treatment in the hospital; & Whether the trial court is justified in holding that on 31.10.2007 around 6.30 a.m., the accused has insulted his wife Afsara Begum, abused her in a filthy language and thereby, committed intimidation addressing her as 'randi' and that she visited her parents' house without his permission and as such, committed an offence punishable under S.504, IPC.
At the outset, the doctor / PW 7 who has conducted autopsy on the dead body of the deceased Afsara Begum, in his evidence has opined that the deceased had sustained 65 to 75% burn injuries which resulted in cardio respiratory failure and also due to septecemic shock as such, the death of the deceased as per the postmortem report - Ex.P11 confirms that it was due to the external injuries suffered by the deceased which tantamount to homicidal death. The prosecution though examined the eye witnesses and other witnesses like neighbors, relatives of the accused and the deceased, none of them have supported the prosecution version to the effect, accused having abused the deceased in a filthy language, had set fire on her by pouring kerosene thereby, she sustained severe burn injuries. 9
PW 1 is a pancha to the scene of offence panchanama wherein there is seizure of kerosene can and the matchbox. PW 2, the owner of the house who was also an eye witness to the incident, has not supported the version of the prosecution but, however, she has deposed to the effect that Afsara Begum died due to burn injuries. PW 3 and 4 neighbors of the accused and also eye witnesses to the incident have not supported the version of the prosecution. PW 5 is the police constable who handed over the dead body, after inquest, to the relatives and also reached the FIR. PW 6 is the police constable who arrested the accused along with other staff and also submitted the seized articles to the FSL. PW 7 is the doctor who has conducted the autopsy on 7.11.2007 along with other doctors and has also given opinion as to the cause of the death of the deceased as per Ex.P11. PW 8 is the junior Engineer who has prepared the sketch of the scene of offence. PW 9 is the doctor who has admitted the injured who came to the hospital with burn injuries and he has also spoken about the consciousness of the victim and that she was capable of giving a statement. He has also treated her and also stated that victim sustained 65% of burn injuries and has also spoken about the statement given by the victim before him about 10 the alleged incident of her husband setting fire. PW 10 is the mother of the victim. Although she has spoken about her daughter sustaining burn injuries, she has turned hostile to the version of the prosecution. PW 11 is one Munira Begum, co-sister of the deceased. Except stating that deceased has sustained burn injuries and was admitted to the hospital and she went and saw her in the hospital, she has turned hostile to the remaining portion of the prosecution version regarding the overt act of the accused. PW 12 is the sister of the deceased who has although spoken about the death of the deceased on having sustained burn injuries, she has also turned hostile to the version of the prosecution. PW 13 one Mohammed Ali is the husband of PW 12. Although he has spoken about the deceased sustaining burn injuries, she was admitted to the government hospital at Gulbarga, he went and saw her having sustained burn injuries all over the body and that she died after 4-5 days of treatment, he has turned hostile to the version of the prosecution that police had recorded the statement of the victim in his presence. PW 14 is the revenue officer who has issued the property extract of the house where the incident has taken place.
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The relevant evidence of PW 15 is that of Dr.Swathi. According to her, on 31.10.2007 she certified the condition of the victim Afsara Begum who was admitted in the government hospital at Gulbarga with burn injuries. She certified that the patient was conscious and capable of giving a statement and accordingly, she certified that in her presence, the Taluka Executive Magisdtrate, Gulbarga recorded her dying declaration around 1.30 p.m. on 31.10.2007. In the cross examination, she has stated that there were burn injuries on all the fingers of Afsara Begum and that she has put her thumb impression on her statement and that at the time of recording the statement of Afsara Begum by the Taluka Executive Magistrate, her mother and her relatives were sent out of the Burns Ward. However, nothing worth is elicited to discard her evidence. PW 16 is the Investigating Officer - Police Inspector of Roza Police Station who took up further investigation and having collected the post mortem report and also dying declaration, sent the seized articles from the scene of offence and the clothes of the deceased to the Forensic Science Laboratory. Also having secured the wound certificate of the accused, he has handed over further investigation to another Officer. PW 17 is the one who has taken the Engineer to draw the sketch of the scene of offence.
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PW 18 is the Taluka Executive Magistrate who has recorded the dying declaration on 31.10.2007. He has deposed to the effect that as per the request of the police, he went to the Government Hospital, Gulbarga and having seen the victim Afsara Begum who was under treatment in the hospital for burn injuries, recorded her statement as per Ex.P24 around 1.35 p.m. and before recording her statement, he got certified from the Doctor on duty that she is in a fit condition to give statement. On 7.11.2007 also, once again he went to the Hospital at Gulbarga and in the presence of panchas, conducted the inquest panchanama as per Ex.P26 and has also recorded the statement of the mother of the victim. In his cross- examination, he has stated that when he made inquiry Afsara Begum has stated that she does not know to sign as such, she put her thumb impression.
PW 19 is the Investigating Officer who has first recorded the complaint of the victim as per Ex. P 27 in the presence of the doctor and the panchas. Also she conducted the scene of offence panchanama after having registered the complaint in Cr.No.59/2007 and seized the incriminating articles like yellow colour plastic kerosene can, match box, bangle pieces and burnt blue colour Churidar and Pyjama and also, a yellow colour shirt 13 which was burnt and arrested the accused on 3.11.2007. In the cross examination she has stated that she has taken the signature of the victim on Ex.P27 which is marked as Ex.P27(a).
In the instant case, the material witnesses including the relatives of the deceased Afsara Begum and the eye witnesses to the incident have all turned hostile to the version of the prosecution. As per the version of the prosecution, the accused was married to one Yasmin and out of the wedlock, had two children aged 8 and 4 years respectively. The accused had left her a year back, prior to the incident. During 2007 March, he married the deceased and she was cordial with her husband and was also 7 months pregnant. Of late, accused in connection with taking care of the children of the first wife, was harassing Afsara Begum. In this regard, her parents had also advised the accused. In connection with the harassment, on 30.10.2007 when she went to her maternal house and once again complained of the harassment meted out to her and had stayed back for the night. On the next day morning i.e., on 31.10.2007, around 6.30 a.m., she came back to her husband's house and when she was talking to her husband, all of a sudden her husband Syed Ali expressing his anguish 14 abusing her in a filthy language that it had become too much on her part and she had gone to complain to her mother and came in the morning, further abusing her stating that he will not leave her, went inside the house and brought a kerosene can and having splashed kerosene on her clothes expressing that he will burn her, set fire to her with a match stick. While she was crying, the neighbors, having separated her from her husband, shifted her to the Government Hospital at Gulbarga. Due to setting fire, she sustained burn injuries on her face, on both hands, chest, abdomen and on the back and also she has stated, her husband also sustained burns and that he had also expressed an intention to kill her stating that she is not taking care of her step children. she died during treatment in the hospital after 4-5 days of the incident due to sustaining 65-75% burns and also as a result of septecemic shock .
In the case on hand, in his evidence PW 9 - Dr A M Jabbar who is a government doctor who admitted the injured, having examined her, has stated that the victim has sustained burn injuries and was conscious and talking and also stated before him that when her husband was quarreling with her, he has set her on fire by pouring kerosene. This piece of 15 clinching evidence and also the MLC extract at Ex.P13, since it was a medico legal case, he made arrangements to send the information to Roza Police Station and he has also expressed an opinion that the victim had sustained 65% burn injuries.
Further, the evidence of the doctor on duty in whose presence complaint as per Ex.P27 and dying declaration has been recorded at Ex.P24 to the effect of injured giving a complaint as well as statement by way of dying declaration, cannot be called in question and the veracity of the evidence of the witnesses viz., Dr Swathi and also the Taluka Executive Magistrate viz., Sharanappa / PW 18, evidence of PW 19 - PSI who has recorded the statement in the form of complaint in the presence of doctor PW 15 also cannot be doubted as to the fitness/condition of the victim and her capacity to give the statement and that she was conscious and capable of giving a statement. Further more, Dr Leelavathi who has conducted the autopsy has stated in her evidence about the cause of death due to cardio respiratory arrest which is a result of septecemic shock and it is due to 65- 75% burns sustained by the victim . The victim died after the 6th day of the incident. Counsel for the accused relied upon Maniben's case cited supra 16 to contend that it is not a case of S.302, IPC the deceased died due to septecemic shock and that the accused also had sustained burn injuries, rather, he also attempted to rescue the deceased and he has not set her on fire. In our opinion, the above ruling is not applicable to the case on hand.
The trial court has formed an opinion that the expression as stated in Ex.P27 that the accused expressing his anguish having abused poured kerosene on the victim and set her on fire, is sufficient to prove the occurrence of offence under S.302, IPC. Accordingly, the trial judge has sentenced him to undergo imprisonment for life and also for the offence under S.504, IPC for intimidation.
At the outset, the stand of the counsel representing the accused is that except stating that the victim Afsara Begum gave a statement as per Ex.P 24, the witness viz., the Taluka Executive Magistrate has not deposed to the effect as per the statement given by the victim before him except stating as per Ex.P24. Accordingly, it is contended it does fall short of S.32 of the Evidence Act. Learned counsel also contended that the cause of death as per medical evidence is due to septecemic shock and not exactly due to 17 burn injuries. In this context, it is to be noted as per the Post mortem report, deceased had sustained 65-75% burn injuries which led to cardio respiratory arrest due to septecemic shock. Thus, it is directly attributable to burn injuries due to the overt act of the accused. The septecemic shock is consequential of the fire burns as such, the conduct on the part of the accused in setting fire also resulted in the death of the deceased.
The defense of the accused cannot be accepted in view of the fact that there is vivid evidence on record which proves the case against the accused beyond reasonable doubt regarding his overt act which is also fortified by the evidence of the duty doctor and the statement by way of dying declaration despite minor discrepancies in the mode of recording the dying declaration. The stand of the accused that he also sustained burn injuries in the incident cannot be an exception to hold otherwise and to find favour with him. It is nothing but a feeble attempt to escape himself. In Gopal's case cited supra, the Apex court has opined that the dying declaration recorded by a police officer itself was a good dying declaration and it is the accused who has committed this offence and accordingly, held that the statement recorded by way of dying declaration is sufficient to 18 sustain conviction despite all the eye witnesses have turned hostile. The reliance placed on Prem Singh's case by the appellant's counsel to contend that deceased died due to scepticemic shock and that the offence falls under S.302 Part II, IPC and not under S.302, IPC, of course would lend support to some extent as death was due to septicemia. But in the said decision, death occurred due to discharge from the hospital against medical advise. In the case on hand, the deceased continued to be in hospital in furtherance of treatment and nothing has been attributed as to medical negligence or any other cause for the death of the deceased and also for development of septicemic shock other than burn injuries which is to the extent of 65-75%. As such, the above decision is not applicable to the case on hand.
Now the question is whether the offence directly falls under S.302, IPC or S.304 of IPC. S.302, IPC provides for punishment with death or imprisonment for life. S.304 reads thus:::
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing 19 death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Part I of S.304 defines the punishment for culpable homicide not amounting to murder and it shall be punishable with life imprisonment or imprisonment of either description for a term which may extend to ten years... If the act is committed by which death is caused, and which is done with an intention of causing death or of causing such bodily injury as is likely to cause death.
The facts gathered in the case on hand do depict that the complainant and the accused were quarrelling. The accused having raised objection regarding her conduct of alleged neglect towards step children and complained of the same, and alleging harassment to her by the accused and complaining the same to her parents and also having left the house on the previous night and when she returned to her matrimonial house on the next day, in that anguish while quarrelling, the accused went inside the house and brought a kerosene can, splashed it on her and set fire. The death is 20 the outcome of the alleged conduct of the complainant in neglecting her stepchildren and complaining to her parents. Being enraged by the conduct of the complainant, the accused set her on fire which is neither a case of dowry death nor a case of intended harassment. Thus, the infliction of burn injuries by the accused on the deceased is without premeditation. In that view of the matter, the overt act attributed against the accused does not fall under S.302, IPC but falls under S.304 Part I, IPC.
In the circumstances, while upholding the order of conviction passed by the trial court, however, we are of the view that the offence attributed against the accused falls under S.304 Part I and not S.302, IPC as the accused had not premeditated to commit an act of murder, it amounts to culpable homicide not amounting to murder. As such, the conviction is altered from S.302 to one under S.304 Part I, IPC. Accordingly, in the facts and circumstances of the case, accused is sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for three months. Further, the sentence passed by the trial court to pay Rs.500 and in default to under go simple 21 imprisonment for two months for the offence under S.504, IPC remains unaltered. He is entitled for the benefit of set of under S.428, Cr.PC.
Appeal is allowed in part.
Sd/-
Judge Sd/-
Judge An