Karnataka High Court
Nawaz vs The State Of Karnataka By on 13 March, 2020
Bench: K.N.Phaneendra, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL APPEAL NO. 1103 OF 2014 (C)
BETWEEN:
Nawaz,
S/o Ilyas Basha
Aged 21 years
R/at No.290, Modi Road,
Roshan Nagar, D.J.Halli,
Bangaluru-560 045.
... Appellant
(By Smt.Vijaya M.N., Advocate)
AND:
1. The State of Karnataka by
Devara Jeevanahalli Police
Represented by its
State Public Prosecutor,
High Court of Karnataka,
Bangaluru - 560 001.
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2. Smt.Noor Jan @ Noori,
W/o. Ilyas Basha
Aged about 37 years
Residing Near Kannada School,
Besides Shani Mahathma Temple
Thanisandra (Respondent Nos.2
and 3 are
Bangaluru-560 016. deleted as per order
dated 04.02.2015)
3. Smt.Hameeda,
W/o late Allbakash
Aged 40 years,
R/at No. Nil, 1st Cross,
Hegde Nagar,
Bangaluru-560 016
... Respondents
(By Sri.Honnappa, HCGP for R1)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the judgment and order of
conviction dated 17.11.2014 and sentence 18.11.2014
passed in S.C.No.1527/2012 by the XLV Additional City
Civil and Sessions Judge Court, Bengaluru City -
convicting the appellant/accused No.1 for the offence
P/U/S 302 of IPC and etc.,
This appeal coming on for Hearing this day, K.N.
Phaneendra J., delivered the following:
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JUDGMENT
The present appeal is preferred against the judgment of conviction dated 17.11.2014 and order of sentence dated 18.11.2014 passed by the XLV Additional City Civil and Sessions Judge Court, Bengaluru City in SC.No.1527/2012 (arising out of Crime No.234/2012 of D.J.Halli Police Station, Bengaluru), whereunder, the appellant has been convicted while acquitting the accused Nos.2 and 3 for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 498(A) of IPC. Further, the appellant is also sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC.
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2. We have heard the arguments of learned counsel for the appellant and learned HCGP for the respondent-State. Perused the records.
3. Before adverting to the materials on record, we would like to have the brief factual matrix of the case. It is the case of the prosecution that on 08.08.2012 the victim lady by name Farzana was admitted to the hospital as she has sustained burn injuries. She has given statement before the police as per Ex.P11. On the basis of the above allegations, a case has been registered. It is the case of the prosecution as per the statement of the victim that, the victim was given in marriage to accused No.1- Nawaz (appellant). At the time of marriage, there was demand of dowry. In pursuance of said demand, the parents of victim-Farzana have given gold articles and other household items to the bridegroom and performed the marriage at their cost. After the marriage, all the accused persons have demanded cash of Rs.70,000/- and 5 one gold chain as additional dowry from the deceased- Farzana, as agreed at the time of marriage negotiation. Thereafter, the appellant and other accused persons have started torturing the deceased mentally and physically. Though there was some compromise in between, in spite of that the accused persons did not desist themselves from ill-treating and harassing the deceased. When the matter reached the climax, on 08.08.2012 at about 5.00 p.m., while deceased-Farzana was at home, accused No.1- appellant persisted for dowry amount and he told that how long he has to wait for the same and if she dies, he would marry 2nd time and live happily. By saying so, he brought kerosene can, poured kerosene on the deceased and lit fire, due to which she suffered burn injuries. Thereafter, she was shifted to Victoria Hospital and in the hospital, she made the said statement before the police.
4. On the basis of statement of the deceased, the respondent-police have registered a case in Crime 6 No.234/2012 for the offence punishable under Sections 438A and 307 read with Section 34 of IPC and also under Sections 3 and 4 of Dowry Prohibition Act. Afterwards, the deceased died on 13.08.2012 due to said burn injuries. After completion of investigation, charge-sheet has been filed for the offence punishable under Section 302 along with other alleged offences as noted above.
5. After committal proceedings, the trial Court put the accused on trial. The Prosecution in order to bring home the guilt of the accused, examined 17 witnesses as PW1 to PW17 and got marked documents as Exs.P1 to P29 and also material objects at MOs No.1 to 3. The accused was also examined under Section 313 of Cr.P.C., and called upon to enter into defence evidence if any, but the accused did not choose to lead any evidence on his side. The statement of accused recorded under Section 313 of Cr.P.C., is nothing but total denial of the case of 7 the prosecution and he has not taken any special or specific defence as such.
6. After appreciating the oral and documentary evidence on record, trial Court has mainly relied upon two dying declarations given by the victim and convicted the accused for the offence punishable under Sections 498A and 302 of IPC. However, the trial Court found inadequate evidence so far as other accused persons are concerned i.e. accused Nos.2 and 3. Therefore, they were acquitted for the above said charges.
7. Smt. Vijaya M.N., learned counsel appearing for the appellant has strenuously contended before the Court that the declaration of the deceased only made as a ground for convicting the accused, though there is discrepancy in the statements of the victim with reference to the demand of dowry and cruelty towards her by the accused persons. Therefore, she contended that the benefit of doubt ought to have been given to the accused. 8 She has also contended that, the offence may not strictly fall under Section 302 of IPC. Utmost, it may fall under Section 304 part B of IPC and the said provision is not punishable either with the sentence of death or imprisonment for life, compulsorily. Therefore, she requested the Court to take lenient view. Even if the dying declarations of the deceased is accepted as it is, in view of all other witnesses ie., his kith and kin, have not supported the case of the prosecution. So far as offence under Section 498(A) is concerned, even accepting the dying declarations, the offence under Section 302 of IPC is not attracted. Under the above stated facts and circumstances, she prayed for allowing the appeal.
8. Per contra, the learned HCGP contended that, the dying declarations are so strong and there is no legal infirmity in recording of the dying declarations by the public servants i.e. one by Investigating Agency and another one by Taluka Executive Magistrate-PW7, which 9 are fully supported by the evidence of Doctors who were present through out the process of recording of dying declarations. Therefore, he pleaded that, there is no ground to interfere with the judgment of conviction and order of sentence passed by the trial Court.
9. On the basis of the above rival submissions, the point that would arise for the consideration for this Court is, whether the trial Court has committed any error in convicting and sentencing the appellant/accused for the offence punishable under Sections 302 and 498A of IPC or not. In order to thrash out the above stated contentions, we feel it is just and necessary to re-evaluate the materials available on record.
10. PW1 is the mother of the deceased. She, in fact has supported the case of the prosecution to some extent for the offence punishable under 498A of IPC, but she has not supported the case of the prosecution insofar as subsequent demand of dowry and also with reference to 10 the cause of death of the deceased. PW2-Gowhar Jan, who is the father's brother of the deceased (Uncle), has not stated anything regarding demand of dowry by the accused. PW3-Razia, is the neighbor and she has turned hostile. PW4-Noorulla, the father of the deceased stated that there is no demand of dowry of cash or gold articles from the accused persons. PW5-Akhil Phasa, paternal uncle i.e. sister's son of PW4 and PW6-Mahaboob Baig the close relative of the deceased, have turned hostile to the case of the prosecution. They have not supported the case to any extent including inquest proceedings. PW7-R. Suma was working as Taluka Executive Magistrate who recorded a dying declaration on 12.08.2012. PW8-Dr.C.N. Sumangala is the Doctor, who conducted post mortem examination and has given post-mortem report as per Ex.P10. She has opined that the death was due to septicemia as a result of burn injuries suffered by the deceased.
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11. PW9 Dr. R. Jagadeesh is the Doctor who has issued Fitness Certificate of the deceased for recording the dying declaration to the PSI of concerned police station as per Ex.P11. PW10-Rao Ganesh Janardhan, the then PSI of D.J.Halli Police station, Bangalore, has recorded the statement of the victim (dying declaration) as per Ex.P11. Thereafter a case came to be registered followed by an FIR as per Ex.P13 and dispatched the same to the jurisdictional Magistrate.
12. PW11-Yogananda is a police constable. He is a formal witness to the case of prosecution and he has apprehended the accused persons on 09.08.2012 and given report as per Ex.P14. Accused No.1 is in judicial custody since the date of his arrest.
13. PW12-Sunitha is a Woman Police Constable. She is a formal witness and she has sent the dead body for post mortem examination after Inquest Mahazar. 12
14. PW13-Ramakrishnegowda is a Head Constable in D.J. Halli Police Station, who has deposed that he has handed over the articles to FSL.
15. PW14 - Shivapa H. Lamani, is the Special Tahsildar, Bengaluru, who has conducted the Inquest on 13.08.2018 as per Ex.P16. He has also recorded the statements of relatives of the deceased.
16. PW15 - Dr. Ramesh is the Chief Medical Officer of Victoria hospital, who was present at the time of recording of second dying declaration as per Ex.P8. He has given Certificate of Fitness of the injured at the time of recording of dying declaration.
17. PW16 - S Parashivamurthy is a Police Inspector, who has taken up the investigation, gone to the spot, drawn the Spot Mahazar as per Ex.P10 and seized MOs.1 to 3 from the spot. He has also prepared Spot Sketch as per Ex.P17, arrested the accused persons and 13 received the request letter as per Ex.P9 with reference to the death memo and converted the case for the offence under Section 302 of IPC.
18. PW17-Vani N, is a Scientific Officer, who has examined MOs.1 to 3 and has given Certificate as per Ex.P29 who found kerosene residues on MOs.1 to 3.
19. On careful perusal of the entire evidence on record, except the witnesses who are referable to two dying declaration given by the deceased, all other witnesses have turned hostile to the prosecution.
20. Though we have said that there is absolutely no defence taken by the accused during the 313 Cr.P.C statement, but an attempt was made in the course of the evidence of the relative witnesses to elicit that the death of the deceased was due to stove burst. Before adverting to the dying declaration straightaway, whether this particular defence is attributable on the basis of the 14 evidence of the prosecution witnesses supported by any other materials is to be examined.
21. Ex.P16 is the Spot Mahazar, which clearly discloses that, the police have very meticulously examined inside the house of the deceased and accused, where actually the incident occurred and there, they found a kerosene can, one match box and half burnt clothes of the deceased and they have seized the same. Except that, nothing was available inside the house which is a very small house without having any separate room. Therefore, if at all, there was any stove or due to any stove burst and due to which the deceased sustained burn injuries, there must have been some materials available to the police in this regard. The Doctors, who have been examined before the Court were also suggested in their evidence that, at the time of admission of the injured to the hospital, there was no history given which can be referable and favourable to the defense taken by the 15 accused that the death of the deceased was due to accidental fire because to stove burst. In the absence of such materials, the Court straightaway cannot draw any inference that the death was due to any stove burst. Therefore, in this background the Court has to examine the evidence of the witnesses, who actually recorded the dying declarations and the Doctors who were present at the time of recording the dying declarations.
22. It goes without saying that, the persons who have recorded the dying declarations i.e. Investigating Officer, the Police Sub-Inspector and the Taluka Execute Magistrate and the Doctors who were present to certify the physical and mental fitness of the deceased, are all public servants. Unless there is any strong material in evidence, the Court has to draw an initial presumption that the public servants have done their duty in accordance with law after following due procedure as contemplated under law for the time being in force. It is 16 the onus on the accused at the time of cross-examination of these witnesses to establish as to why the evidence of these witnesses should not be believed and what is the interest they had to falsely implicate the accused to the crime. Therefore, with this background, we proceed to appreciate the evidence of these witnesses.
23. Ex.P11 is the first document which came into existence virtually in the nature of first information given by the deceased to the police. PW10 is the person who recorded the said Ex.P11, based on which the police have registered a case and dispatched the F.I.R., at the earliest point of time to the Magistrate along with the statement of the victim.
24. PW10 - Sri Rao Ganesh Janardhan has categorically stated that on 08.08.2012 at about 6.30 p.m., when he was in the Police Station he received a telephone call from Victoria Hospital. Immediately he went to the hospital and received the memo as per Ex.P12, 17 thereafter he met PW9 Dr. Jagadeesh and has taken the opinion of the Doctor whether he can record the statement of the victim. Then the said Doctor examined the victim and gave the Certificate that, victim was in a fit condition and statement of the victim can be recorded. At that time, perhaps there was no anticipation that the deceased may die, but in an usual course, the said statement appears to have been recorded by the PW10. He further stated that a Police Constable Sri Santhosh Ganachar was also present along with him and after examining the witness he recorded the statement of the victim and he has taken the Thumb Impression and thereafter he returned to the station, registered a case and dispatched the F.I.R. to the Court. He has also stated that he has read over the contents of Ex.P11 to the victim.
25. In the course of cross-examination what has been not stated in the examination-in-chief, was virtually got it explained as to how he recorded the statement of the 18 victim. Very naturally the witness has stated that the victim was telling the answers in Urdu language as this witness was also had knowledge of Urdu language he put questions in Urdu language and recorded the statement converting the same into Kannada language. Except that nothing worth has been elicited to come to the conclusion that he has not at all gone to the hospital and recorded the dying declaration. There is no significant evidence available to show why this person has to falsely implicate the accused. There is no much cross-examination to this witness.
26. PW9 is Dr. R. Jagadeesh, who was very much present at the time of recording dying declaration. He has deposed before the Court that he was working as Medical Officer at Victoria Hospital. On 08.08.2012, PW10 came along with another Police Constable and this witness was very much present and he examined the victim and gave a Certificate that, she was in fit condition to give her 19 statement. He has also perused Ex.P11 and confirmed that the said statement was recorded by the Police Sub- Inspector in his presence. The Police Sub-Inspector was dictating the contents of Ex.P11 and the Police Constable has taken down the said contents of Ex.P11. Therefore, the evidence of PW10 is fully corroborated by the evidence of PW9.
27. In the course of cross-examination of PW.9, of course again it is elicited that, the Doctor is not the Doctor who treated the victim, but he was actually present in the hospital at the particular point of time when PW10 came to the hospital. Therefore, he being the Doctor who was very much present at that particular point of time and he being the Chief Medical Officer, has actually examined the victim and gave the said Certificate to the police for the purpose of recording the dying declaration. It is also elicited in the course of cross-examination that he has gone through the injuries sustained by the victim and also 20 witnessed how she was giving answers to the questions put by the Investigating Officer etc. Of course, it was elicited that such injuries could also be caused, if there is any accidental stove burst. But, it is a mere suggestion to the Doctor, unless the said suggestion was corroborated by means of some other evidence on record and probabalize the defense taken by the accused. There is no suggestion even to this witness, as to why this witness has to give any false evidence before the Court and whether he had any ill-will or hatred or interest in the prosecution to implicate the accused to the crime. In the absence of such material, we have no other way, but to accept the evidence of these two witnesses. Therefore, the dying declaration recorded at Ex.P11, in our opinion, is substantiated beyond reasonable doubt and proved by the prosecution.
28. The said circumstance is not only the circumstance available to the prosecution. The investigation Officer with abundant caution, has also 21 made a request to the Taluka Executive Magistrate for recording the dying declaration of the deceased. The Taluka Executive Magistrate, who is an independent witness, is also a responsible Officer of the State, being a public servant, on the request of the police has recorded the dying declaration. PW7 - R. Suma, who was the Taluka Executive Magistrate, Bengaluru North, has recorded the dying declaration in the presence of the Doctor PW15 has also supported the said aspect. PW7 has deposed before this Court that on 12.08.2012 i.e. about 4 days after the incident received an information and requisition from the D.J. Halli Police Inspector and on that day at about 6.00 p.m., she went to the hospital and one Dr. Ramesh - PW15 was very much present there and the said Doctor examined the victim for giving the Fitness Certificate and thereafter at about 6.25 p.m., she recorded the dying declaration of the deceased. She has categorically stated that, the victim has stated before her with reference to her marriage with accused No.1 and 22 thereafter the ill-treatment and harassment given by the accused in demand of dowry, gold chain and etc., and also incident taken place on that day as the accused poured kerosene on her and lit fire and thereafter she ran away from the house. She has also stated that the neighbours have actually shifted her to the hospital and there she gave a statement before the police. From looking to the above said evidence of the witness she has perfectly followed all the procedures which are contemplated before recording of the dying declaration. She has taken Doctors' opinion with regard to the mental and physical fitness of the victim to record the dying declaration and thereafter she recorded the same in detail as stated by the victim.
29. In the course of cross-examination it is further elicited that Dr. Ramesh was in his Chambers at that time and she has taken his opinion with regard to the condition of the victim and about 20 minutes she has recorded the statement of the victim. At the time of recording 23 statement of the victim the Doctor was present through out and another person Sheristedar by name Prasanna was also present along with her. However, the Doctor has not actually examined the victim at that time, but the said Doctor has just prior to examine the victim, he was present at that time and given Certificate that she was in a fit condition to give statement. According to her, the Doctor has given the statement that the victim had suffered 75% burn injuries. In the rest of her evidence, she has actually reiterated the statement given by the victim. But she has not taken any Thumb Impression on the dying declaration as she has stated that by that time the hands of the victim were bandaged, therefore, she has not taken the Thumb Impression of the dying lady. Rest of the evidence is with reference to mere suggestion that, she did not visit the hospital and recorded dying declaration, which were emphatically denied. 24
30. In support of above, PW15 - Dr. Ramesh who treated the deceased, has also fully supported the case of the prosecution and he has deposed that on 12.08.2012, PW7 - Taluka Executive Magistrate came to the hospital at about 6.15 p.m., and this witness has given the Certificate on the request made by the Taluka Executive Magistrate and he has talked with the victim and he gave opinion that the victim was in a fit condition to give statement and thereafter in his presence the Taluka Executive Magistrate has recorded the dying declaration and he also has signed underneath his Certificate as per Ex.P8(c) and 8(d). Therefore, it shows that prior to and after recording of the statement of the victim this witness has certified the same.
31. In the course of cross-examination of PW.15, it is elicited that he has not given any requisition letter given by Investigation Officer before the Court. There was no such suggestion made to the Police Officer who has given 25 the request that he has not given any request in that manner. Even though the non-production of the same is mere irregularity, but it did not affect the case of the prosecution. He has also stated that he was not a duty Doctor, but he was present at the time of recording of the statement and after examining the victim he has given the fitness Certificate. There is no need for the person who has actually treated the victim should be present and give such certificate. Any Doctor who happens to be present at that the particular point of time, was competent to give such fitness Certificate, Even in the absence of such Certificate also, if the person who records the dying declaration is fully satisfied that the victim was in a position to give statement, in such an eventuality also there is no embargo under law that he could not record the dying declaration. Nothing more worth is elicited in the cross-examination, with reference to any interestedness or any partiality on the part of this witness to falsely implicate the accused. More over in the absence 26 of any evidence to the contrary, Doctor cannot be having any interest in favour of anybody. But, in view of the factual aspects, he has actually present at the time when the dying declaration was recorded.
32. Looking to the above said two dying declarations, there is absolutely no infirmity or legal defect in recording the dying declarations. Though, the other witnesses have turned hostile and they have also stated that due to stove burst the alleged incident has taken place, but such evidence found to be not corroborated by any other materials on record. However, the recording of the dying declarations and statement of the victim is fully supported by the evidence of two Doctors.
33. What we found from the statement of the victim is that, there was ill-treatment and harassment and demand for dowry and the accused has pored kerosene, lit fire and thereby committed the murder of the deceased. The intention of the accused to kill the deceased as per 27 the statement is apparent because, before pouring kerosene and litting fire, he has declared that she has not brought dowry amount to him and if she dies he can marry second time and can live happily thereafter. It shows that, he has been really intended to kill the deceased by pouring kerosene and litting fire and thereafter he actually poured kerosene and lit fire. The post mortem examination report, as we have already referred to, also fully corroborates the statement of the victim that she had sustained severe burn injuries to the extent of 75% and she died due to septicemia after four days of the incident. Though the interested witnesses have turned hostile, they have never stated in their examination that the Police and the Doctors did not come to the victim and police have not recorded statement at all. In fact, they have stated that the police had visited the hospital and recorded the statement of the deceased. Therefore, in the absence of any other material, we do not find any strong reason to interfere with the impugned 28 judgment of conviction and sentence passed by the trial Court. Even for the offence under Section 498A and 302 of IPC, under the above said circumstance, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, we proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/ JUDGE SB/SBS*