Karnataka High Court
Naseerabee W/O Babu Miyan @ Mehetab Sab ... vs The State Through on 7 January, 2014
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R
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 07TH DAY OF JANUARY, 2014
:BEFORE:
THE HON'BLE MR. JUSTICE B V PINTO
CRIMINAL APPEAL NO.3711/2010
BETWEEN:
1. NASEERABEE,
W/O.BABU MIYAN @ MEHETAB SAB FAKEER,
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD.
2. BABU MIYAN @ MEHETAB SAB,
S/O. GUDU SAB FAKEER,
AGED ABOUT 60 YEARS,
OCC: COOLIE.
3. MANSOOR MIYAN,
S/O. BABU MIYAN FAKEER,
AGED ABOUT 33 YEARS,
OCC: DRIVER.
ALL ARE RESIDING AT
SHEKHAPUR VILLAGE,
TALUK AND DISTRICT BIDAR. ... APPELLANTS
(BY SRI ANIL KUMAR NAVADAGI, ADV.)
2
AND:
THE STATE THROUGH
BAGDAL P.S.
TALUK AND DISTRICT BIDAR. ... RESPONDENT
(BY SRI S.S.ASPALLI, HCGP)
****
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF
CR.P.C PRAYING TO, SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED
23.09.2010 PASSED IN SESSIONS CASE NO.
155/2009, BY THE PRESIDING OFFICER, F.T.C.-I AT
BIDAR, THEREBY CONVICTING THE APPELLANT /
ACCUSED NO.1 FOR THE OFFENCE P/U/S 306 IPC
APPELLANT/ACCUSED NO.1 TO 3 FOR THE OFFENCE
P/U/S 498-A R/W SEC. 34 OF IPC AND THE
APPELLANT / ACCUSED NO.1 IS SENTENCED TO
UNDERGO SI FOR FOUR YEARS TO PAY FINE OF RS.
5,000/- ID TO UNDERGO SI FOR THREE MONTHS
FOR THE OFFENCE P/U/S 306 OF IPC, FURTHER THE
APPELLANTS / ACCUSED NO. 1 TO 3 ARE
SENTENCED TO UNDERGO SI FOR ONE YEAR EACH
AND TO PAY FINE OF RS. 2,000/- EACH, ID TO
UNDERGO SI FOR TWO MONTHS EACH FOR THE
OFFENCE P/U/S 498-A OF IPC. THE SENTENCES
INRESPECT OF A-1 SHALL RUN CONCURRENTLY. THE
APPELLANTS / ACCUSED PRAYS THAT THEY MAY BE
ACQUITTED BY ALLOWING THIS APPEAL.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING THE JUDGMENT THIS DAY THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
The parties are referred to as per their ranking before the trial Court for the purpose of convenience and clarity.
2. This appeal is filed challenging the Judgment dated 23.09.2010 passed by the Fast Track Court-I, Bidar in SC No.155/2009 convicting accused Nos.1 to 3 for the offence under Section 498-A r/w Section 34 of IPC and sentencing each of them to undergo simple imprisonment for one year and to pay fine of `2,000/- each in default to undergo simple imprisonment for two months for the offence under Section 498-A of IPC and further sentencing accused No.1 for the offence under Section 306 of IPC and sentencing her to undergo simple imprisonment for four years and to pay fine of `5,000/- in default to undergo simple imprisonment for three months with a further 4 direction that the sentence of accused No.1 shall run concurrently.
3. It is the case of the prosecution that, accused No.3-Monsoor Miyan had married the deceased- Shaheena Begum about six years prior to 19.01.2009 and after their marriage, they were residing along with accused Nos.1 and 2 who are the parents of accused No.3 and accused No.4 who is the husband of the daughter of accused Nos.1 and 2 in Shekapoor village. During the said period, it is the case of the prosecution that, all of them have subjected the deceased Shaheena Begum to cruelty and assaulted her by giving her physical and mental torture, thereby, they are alleged to have committed an offence under Section 498-A r/w Section 34 of IPC.
4. It is the further case of the prosecution that, on 19.01.2009 in the house of accused Nos.1 to 3 at Shekapoor village in furtherance of their common 5 intention, accused Nos.1, 2 and 4 abused the deceased Shaheena Begum and insulted with an intention to provoke the breach of peace and humiliated her and threatened her with life, thereby they are alleged to have committed the offences under Section 504 and 506 of IPC r/w Section 34 of IPC.
5. It is the further case of the prosecution that, on 19.01.2009, at about 9.00 a.m. in the house of accused at Shekapoor Village, at the instigation of her husband and in furtherance of their common intention, all the accused abetted the commission of suicide by the deceased Shaheena Begum without providing food to her for about two days and by pouring kerosene on her body, as a consequence of which she set herself on fire with the help of a match box and stick, thereafter, she died on 22.01.2009 in the hospital, thereby, they are alleged to have committed the offence under Section 306 r/w Section 34 of IPC.
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6. Accused No.3 is further charged for the offence under Section 109 r/w Section 34 of IPC for having abetted the commission of offence by the other accused.
7. The prosecution in order to prove the case has examined in all 19 witnesses and got marked Exs.P1 to 20 and produced Mos.1 and 2. The defence of the accused was one of total denial and they got marked Ex.D1 being the portion of the statement of PW.4. However, by the impugned Judgment, the learned Sessions Judge has convicted and sentenced them as aforestated while acquitting accused No.4 of the offences charged against him. It is this order of conviction and sentence which has been challenged by the accused in this appeal.
8. The case of the prosecution rests on the dying declaration alleged to have been recorded by 7 PW.19-PSI-Mahadev and also the dying declaration recorded by PW.17-Taluka Executive Magistrate. In the dying declaration recorded by PW.19-PSI, it is stated by the deceased that, she was given in marriage to accused No.3. At the time of marriage, certain amount of gold and silver articles were given to her by her parents. However, in this connection there was some misunderstanding between the mother-in-law-Accused No.1, father-in law-accused No.2 and her husband. It is alleged that, her husband was consuming alcohol and was abusing her for not begetting the children though five years have lapsed from the date of the marriage. She has stated that her husband was a driver and was going to Hyderabad, Bombay and other places. The house people were ill-treating her by giving physical and mental torture to her. She has also alleged that the husband of her sister-in-law-accused No.4 was also abusing her. It is further stated in the said statement that, the accused have not given her any food for the 8 previous two days and that she was kept starving. On 19.01.2009, at about 9.00 a.m. she went inside the house, took rice inorder to cook and eat and at that time her mother-in-law-Naseerabee snatched rice from her and pushed her and poured kerosene on her body. At that time, she (deceased) got angry and by saying "why should her mother-in-law set fire", she herself set on fire by lighting the matchstick, as a result of which her clothes caught fire and there was burn injuries on her body, chest, thigh, nose, forehead, chin, back and her legs. Thereafter, she was taken to Bidar Government Hospital and got admitted. During the said time, her husband was in Bombay and that he had informed over phone to accused Nos.1 and 2 to kill her and instigated them. It is stated in the said statement that, from the date of the marriage, accused were giving mental and physical torture to her and were also giving life threat. Hence, she has requested for registering the case. She has also stated that she has a female child of one year. 9 The Bagdal police on receipt of the said statement registered the same in Crime No.9/2009 for the offences under Section 498-A, 504, 506, 109 r/w Section 34 of IPC at about 15.00 hours on 19.01.2009 and transmitted the FIR to the Court.
9. Subsequently on the request of the PSI, the Tahsildar PW.17- visited the hospital and recorded the statement of the victim as per Ex.P16. In the said statement which was recorded at about 4.20 p.m., on 19.01.2009, the deceased has stated that, on 17.01.2009, she had brought ½ thola of gold and 10 kgs of copper etc which was sold and hence, she had raised the objections. At that time, both father-in-law and mother-in-law assaulted her in this connection. She was kept starving for the last two days and her husband was drinking. On the alleged date of the incident, he was in Bombay. He was not present when the incident happened. However, he has informed accused Nos.1 10 and 2 over phone to kill her. It is further stated in the said statement that, on 19.01.2009 at about 9.00 a.m her mother-in-law poured kerosene on her and she got enraged and set herself on fire. It is further mentioned in Ex.P16 in answer to Question No.12, 'as how she sustained injuries and in what manner' she has replied that her husband was consuming alcohol and assaulting her. On 19.01.2009 at about 9.00 a.m after quarrel, kerosene is poured on her and she set herself on fire, since she did not beget children for four years and that they were giving trouble to her. When she objected for sale of gold and copper articles, she was meted out with physical and mental torture. Now she has one female child. Based on the above two documents-Exs.P16 and 19, the investigation is carried on. In the mean time, the deceased died on 23.01.2009. Hence, the offence under Section 306 of IPC is added to the earlier FIR.
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10. During trial, except father and mother of the deceased, Taluka Executive Magistrate, Police and the Doctor all other witnesses namely PW.1- Kashinatha, PW.2- Masthan, PW.3-Mohammed Jafar, PW.6-Kasturi Bai, PW.7-Ramesh, PW.8-Siddamappa, PW.9-Prabhu, PW.10- Shanmukappa, PW.11-Vijay kumar, PW.12- Amruthappa, PW.14-Hanmanthappa, PW.15- Ganpathroa, PW.16-Bhimshah have turned hostile and have not supported the case of the prosecution.
11. The father and the mother of the deceased who are examined as PWs.4 and 5 have stated as per Ex.P18 before the Tahsildhar in which it is stated that, the deceased had informed them that the mother-in-law had poured kerosene and sister-in-law threw the burning matchstick towards her. Hence she has sustained the burn injuries. Apart from this contradiction, the evidence of PWs.4 and 5 who are the 12 parents of the deceased is consistent insofar as the ill- treatment and harassment is concerned.
12. PW.17-Dr.Sharanappa, Taluka Executive Magistrate has spoken regarding recording of the dying declaration by him so also PW.19- Mahadeva, Sub- Inspector of Police. PW.13-Dr. Sudeer Kamtikar has conducted the postmortem examination and has stated that the deceased has sustained 90% of the burn injuries and the death is due to shock and septicemia. PW.18-Dr.Niveditha has stated that, she has treated the injured on 19.01.2009 in the Casualty Department, District Hospital, Bidar. She has also stated that she was present when the Tahsildhar has recorded the statement of the deceased and she has endorsed so in Ex.P16. She has subsequently stated before the Court that the patient was conscious and was in a stable condition to talk and give the answers. 13
13. It is from the above evidence on record that the learned Sessions Judge has convicted and sentenced the accused as aforestated.
14. Heard Sri Anil Kumar Navadagi learned Counsel for the appellants/accused and Sri. S.S.Aspalli, learned HCGP for the State/respondent.
15. Sri. Anil Kumar Navadagi, learned Counsel for the accused submits that, both PWs.17 and 19 who have recorded the dying declarations of the deceased have not stated in the evidence before the Court the specific words spoken by the deceased implicating the accused at all. Further relying upon the Judgment reported in 2010(2) Acquittal 156 (Bom) in the case of Laxmibai and Ors vs. State of Maharashtra, he has submitted that there is no substantial piece of evidence on record showing cause of death implicating the accused and therefore, the accused are entitled for an order of acquittal.
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16. Sri S.S.Aspalli, learned HCGP for the State on the other hand submits that, the defence has suggested to PW.17 in the cross-examination to the effect that, accused No.1 snatched rice and pushed her and poured kerosene and in the said incident the upper portion of the neck etc. of the deceased was burnt which indicates that the accused have suggested to PW.17 who has recorded the dying declaration that the deceased had stated before him that the accused No.1 snatched the rice and pushed her by pouring kerosene. Hence, he submits that, since the deceased had died as a result of pouring kerosene by the accused, the accused have assisted and instigated the deceased to commit suicide. Hence the offence under Section 306 of IPC is clearly attracted against all the three accused. It is also his further submission that the conduct of the accused clearly establishes that there was ill-treatment and harassment to the deceased and since the accused are relatives of the husband of the deceased, the trial Court 15 has rightly convicted the accused and therefore submits that, the appeal may be dismissed.
17. I have carefully gone through the entire materials on record, more particularly the evidence of PWs.4, 5, 16, 17, 18 and 19 who are only material witnesses in this case. The submission made by the learned Counsel for the accused that, no witnesses have spoken regarding the contents of the dying declarations has to be accepted since both PWs.17 and 19 who have recorded the statement of the deceased have not stated before the Court in unequivocal terms that the deceased told them that accused No.1 had poured kerosene and she had set herself on fire. Section 60 of the Indian evidence Act states as follows:
"Section 60. Oral evidence must be direct-. Oral evidence must, in all cases whatever, be direct; that is to say--
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;16
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
xxxxxxx"
Section 32 of the Indian Evidence Act, 1872 states as follows:
"Section 32: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--
(1) When it relates to cause of death.-When the statement is 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 that person' s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the 17 nature of the proceeding in which the cause of his death comes into question;.
xxxxxxx".
18. Sections 32 and 60 of the Indian Evidence Act clearly state that, the evidence of a fact which could be heard must be given by a person who says that he has heard it. Dying declaration was originally heard by PW.19 and PW.17. Both of them have not stated before the Court that the deceased told them that accused No.1 had poured kerosene on her. Both of them have not stated before the Court as to why they had gone to the hospital and recorded the dying declarations but the prosecution has got marked the said documents as Exs.P19 and 16 respectively. No where they have stated before the Court that they have heard the deceased telling them that accused No.1 had poured kerosene on her. Section 32 of the Indian Evidence Act mandates that the dying declaration to be admissible should be 18 spoken to by a person who heard the deceased person and such direct evidence of cause of the death originally made by the dying person in contemplation of his/her death is a dying declaration. It is not the written statement on the paper which is a dying declaration. The statement on paper is only recording the dying declaration made to a person who hears it from the dying person. In the absence of any such positive evidence from PWs.17 or 19, that they have heard the deceased telling that accused have poured kerosene on her by mere marking of the report of the dying declaration will not become direct evidence within the meaning of Section 60 of the Indian Evidence Act which requires that the fact which was heard must be the evidence of the witness who say that he heard it. In this case, unfortunately, it is not elicited in the evidence of these two witnesses that the deceased told before them that the accused had poured kerosene on her. 19
19. So far as the evidence of PWs.4 and 5 on this aspect is concerned, Ex.P18 is the statement of the parents of the deceased recorded before PW.17. However the said statement is discrepant and that the averment in the said statement that sister-in-law threw the burning matchstick towards her is not at all the prosecution case. The case of the prosecution is that, the deceased herself set fire after accused No.1 poured kerosene on her. Under the circumstances, I am of the considered opinion that the prosecution has not proved the case beyond all reasonable doubt that the accused have either assisted or instigated the deceased to commit the suicide. Therefore, the order of conviction recorded against accused for an offence under Section 306 of IPC is erroneous and they are entitled for an order of acquittal of the said offence.
20. So far as the offence under Section 498-A of IPC is concerned, the evidence of PWs.4 and 5, coupled 20 with the statement of the deceased as spoken to by PW.17-Tahsildhar clearly indicates that, mother-in-law had kept her daughter-in-law/deceased starving for the previous two days on the date when the deceased went to bring the rice from inside the house and was about to prepare the food for her and at that time, accused No.1 pushed her and thereafter poured kerosene on her. PW.18-Dr.Niveditha has stated before the Court that she was present when the statement of the deceased was recorded. The deceased was having burn injuries, when she was brought to the hospital on 19.01.2009.
21. Section 498A in The Indian Penal Code, 1860 reads as follows:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section, "cruelty" means-21
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or xxxxxxx"
22. It is the case of the prosecution that the deceased had set herself on fire and she had died as a result of grave injury caused to her by such act. The same was consequent upon the conduct of her mother- in-law in pouring kerosene on her. Therefore, the conduct of accused No.1 amounts to cruelty within the definition of the said offence under Section 498-A of IPC and therefore the order of conviction of accused No.1 for the said offence is proper and same requires to be confirmed. However, so far as accused Nos.2 and 3 are concerned, there is no material to show that they were involved in the incident. The presence of accused No.2 is not at all spoken to by any witnesses and the deceased herself has stated that accused No.3 was in 22 Bombay. Though, it is the case of the deceased in her dying declaration that accused No.3 informed accused Nos.1 and 2 to kill her over phone, the prosecution has not placed any materials to support the said contention of the deceased.
23. In that view of the matter, I am of the considered opinion that accused Nos.2 and 3 are also entitled for benefit of doubt insofar as the offence under Section 498-A of IPC is concerned. So far as the part played by accused No.1 is concerned, her behaviour right from the date of the marriage till the date of the death of the deceased clearly attracts the offence under Section 498-A of IPC and the learned Sessions Judge has rightly convicted the accused for the aforesaid offence.
24. So far as the sentence is concerned, though the learned Sessions Judge has sentenced her to meager simple imprisonment for one year, in absence of 23 any appeal by the State seeking for enhancement of the said sentence, I am of the opinion that the simple imprisonment of one year imposed on accused No.1 is adequate and does not warrant interference. In the result, the following order is passed:
ORDER
i) Appeal is allowed in part.
ii) The order of conviction passed against accused Nos.2 and 3 for the offences under Section 498-A and 306 of IPC is hereby set aside. They are acquitted of all the charges leveled against them. Bail bond executed by them stands discharged. Fine amount if any deposited shall be refunded to them.
iii) The order of conviction for the offence under Section 306 of IPC passed against accused No.1 is set aside. She is acquitted of the said charge. Fine if any deposited in respect of the said offence is ordered to be refunded to her.24
iv) The Judgment of conviction recorded against accused No.1 for the offence under Section 498-A of IPC is confirmed and so also the order of sentence imposed on her for the said offence is hereby confirmed.
v) Accused No.1 is on bail. Her bail bond is cancelled. She is directed to surrender before the Court for serving sentence imposed on her.
vi) If she fails to surrender before the Court, the trial Court is directed to execute the sentence as modified in this appeal.
Sd/-
JUDGE KSR