Karnataka High Court
Mohd. Riyaz S/O Ismailsab Ranjolwale vs The State Of Karnataka on 13 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 2639, 2021 (3) AKR 178
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 13TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B. A. PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.200070/2014
Between:
Mohd. Riyaz S/o Ismailsab
Ranjolwale, Age: 37 years
Occ: Centering work
R/o Gunnali, Tq. & Dist. Bidar
... Appellant
(By Sri Iswaraj S. Chowdapur, Advocate)
And:
The State of Karnataka
(Through Gandhi Gunj P.S.
Represented by Addl.
State Public Prosecutor
Bench at Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to call for the records in Sessions Case
No.79/2013 on the file of Prl. Sessions Judge at Bidar
peruse the same, allow the appeal. The conviction and
sentence including fine passed against the appellant order
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dated 05.04.2014 passed in S.C.No.79/2013 by Prl. Sessions
Judge at Bidar be set aside and acquit the appellant for the
offence under section 498A and 302 of IPC.
This appeal coming on for final hearing this day,
B.A.Patil J., delivered the following:-
JUDGMENT
This appeal has been preferred by the appellant- accused No.1 challenging the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Bidar in S.C.No.79/2013 dated 05.04.2014.
2. We have heard the learned counsel Sri Iswaraj S. Chowdapur for the appellant-accused No.1 and the learned Additional State Public Prosecutor Sri Prakash Yeli for the respondent-State.
3. The gist of the case of the prosecution in brief is that Smt. Shaheen Begum is the wife of accused No.1. They have begotten three children out of the said wedlock. She has been looked after well, by her husband and in-laws for about one year after her 3 marriage. Thereafter they started harassing and used to assault and thereby they used to cause cruelty. Accused No.1 was in the habit of consuming alcohol. Because of difference of opinion they have set up a separate house at Zaheerabad. Often her mother-in-law used to visit and she used to quarrel with her. Accused No.1 used to abuse after consuming the alcohol. He used to allege that she does not know to prepare food properly and not attending the work in the field to earn the money. Even the parents of the deceased also advised the accused No.1 and in-laws. It is further allegation that accused No.1 started torturing her by contending that if she dies he can take a second marriage. Accused No.2 on 12.07.2012 approached the deceased and told that the cheque under the scheme of Bhagyalaxmi bond is ready and hence she called them to village to get bond. When along with her husband and children she came to the village, on the same night her husband-accused No.1 on the evil advise of his 4 mother accused No.2 at about 1.00 a.m. assaulted her and the same was informed to her father on 13.07.2012 at 11.00 a.m. They came and advised the accused No.1 and the mother-in-law. On 19.07.2012 during night hours accused quarreled with the deceased and twisted her left leg. Again on 20.07.2012 at about 9.30 a.m. accused Nos.1 and 2 abused her and challenged her that what her parents will do if they treat her cruelly. They also slapped her. Thereafter poured kerosene by stating that they will finish her and not to spare her anymore, set her ablaze. She had suffered with burn injuries and immediately she has been shifted by securing 108 ambulance. Subsequently after receiving the MLC report the PSI visited the hospital and recorded the statement of the injured and registered the case in Crime No.119/2012. After investigation, the charge sheet was filed.
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4. The committal Court committal the case and thereafter the Sessions Court took cognizance and after hearing the learned Public Prosecutor and learned counsel for the accused, the charge was prepared, read over and explained to the accused. Accused pleaded not guilty, they claimed to be tried and in that light prosecution got examined as many as 29 witnesses and got marked 29 documents and 3 material objects. Thereafter, the statement of the accused was recorded by putting incriminating material and they denied and thereafter the accused have not led any defence evidence and have not got marked any documents. After hearing the arguments of both sides, the trial Court came to the conclusion that accused No.2 has not committed the offences punishable under Sections 504, 323, 302 read with Section 34 of IPC and acquitted her for the said offences and accused Nos.1 and 2 have been convicted for the offence punishable under Section 498A read with Section 34 of IPC and accused No.1 has 6 been convicted for the offence punishable under Section 302 of IPC. Challenging the same, the appellant- accused No.1 is before this Court.
5. The main grounds urged by the learned counsel for the appellant/accused is that the judgment of conviction and order on sentence passed by the Sessions Court is contrary to law and material placed on record. It is his further submission that all the independent witnesses have not supported the case of the prosecution and they have been turned hostile and their evidences is not going to help the case of the prosecution in any manner. Though the material witnesses have turned hostile and the Sessions Court by relying upon the dying declaration Ex.P.14 and the complaint Ex.P.27, recorded by PWs.28 and 29, has wrongly convicted the accused.
6. It is his further submission that the dying declaration Ex.P.14 and the complaint Ex.P.27 does not 7 contain any endorsement that the deceased has given her statement in Urdu mixed Hindi language and thereafter the same has been transcribed by the said authorities.
7. It is his further submission that the prosecution has not clarified the fact that whether the PSI who recorded the complaint as per Ex.P.27 and Tahasildar who recorded the dying declaration as per Ex.P.14, they know Urdu mixed Hindi language and as such they got translated by understanding the language of the deceased in which she has stated.
8. It is his further submission that when the declarant is only able to speak Urdu and Hindi language then under such circumstances the statement of the declarant in the complaint as per Ex.P.27 in Kannada language which is in the form of narration and that the said narration is as if the said declarant was acquainted 8 with Kannada language and given the statement as per Ex.P.14 and Ex.P.27.
9. It is his further submission that there are so many contradictions in both the documents. When such situation is existing then the Sessions Court ought to have given the benefit of doubt. It is his further submission that in the dying declaration Ex.P.14 though the Doctor has signed beneath the said dying declaration Ex.P.27 with endorsement but he has not specifically certified to the effect that the declarant is in a fit state of mind to make such declaration. In the absence of such certification, mere signing to be present at that time will not satisfy the fact that the deceased was in a fit state of mind to make the declaration.
10. It is his further submission that when all the witnesses have turned hostile and there are so many contradictions and doubtful circumstances then under such circumstances the Sessions Court ought to have 9 given the benefit of doubt and could have acquitted the appellant/accused for the alleged offences. On these grounds, he prayed to allow the appeal and to acquit the appellant/accused by setting aside the impugned judgment of conviction and order on sentence.
11. Per contra, the learned Additional State Public Prosecutor vehemently argued and submitted that the deceased had given a dying declaration as per Ex.P.14 and in the said dying declaration she has stated about the act of accused Nos.1 and 2 with regard to ill- treatment and harassment given to her and even accused No.1 pouring the kerosene and ablazing her and even the contents of complaint (Ex.P.27) corroborates with dying declaration (Ex.P.14). It is his further submission that the dying declaration can wholly be relied upon by the Court and the accused can be convicted. In that light, the Sessions Court by exercising the said power has rightly convicted the 10 accused. There are no grounds made out to interfere with the judgment of the Sessions Court. The judgment of Sessions Court deserves to be affirmed. On these grounds, he prayed to dismiss the appeal.
12. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the Sessions Court records.
13. PW.1 is the spot mahazar panch to Ex.P.1; PW.2 is a co-panch to Ex.P1, whereunder MO.1 - Kerosene Can was seized from the place of incident. These two witnesses have not supported the case of the prosecution they have been treated as hostile.
14. PWs.3 to 5 are the inquest mahazar panchas to Ex.P.2. They have also not supported the case of the prosecution they have been treated as hostile. 11
15. PW.6 is the mother of the deceased; PW.7 is from the local person; PW.8 is the uncle of the deceased; PW.9 is the resident of the locality; PW.10 is also from the said locality; PW.11 is also a relative of the deceased; PWs.12 and 13 are also from the locality; PW.14 is the father of the deceased; PW.15 is the sister of the deceased. All these witnesses have not supported the case of the prosecution case and they have been treated as hostile.
16. In that light, there is no concrete evidence insofar as ill-treatment and harassment said to have been caused by the accused. It is the case of the prosecution that the accused Nos.1 and 2 used to harass and ill-treat and used to treat her in cruel and in that light the relatives and elderly persons used to come and even the said persons have also not supported the case of the prosecution and they have been treated as hostile. Under these circumstances, nothing is left-out 12 so as to come to the conclusion that there was ill- treatment and harassment caused by the accused persons.
17. It is the case of the prosecution that the deceased has made a dying declaration as per Ex.P.14 and even the complaint Ex.P.27 is also that of the deceased in the form of dying declaration and in the said two documents she has categorically stated with regard to the ill-treatment and pouring of the kerosene and ablaze her.
18. We are conscious of the fact that though the material witnesses have not supported the case of the prosecution but it is the trite law that the dying declaration can be the sole basis for conviction of the accused, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make the same. This proposition of law has 13 been laid down by the Hon'ble Apex Court in the case of Waikhom Yaima Singh vs. State of Manipur [2011 Crl.L.J 2673].
19. Keeping in view of the said proposition of law, on perusal of the evidence of PW.28 the Tahasildar who has recorded the dying declaration as per Ex.P.14. He has deposed that he has received the requisition from PSI (PW.29) and he visited the Bidar Government Hospital at about 2.10 p.m. and he confirmed about the declarant's mental condition and thereafter he has recorded the dying declaration as per Ex.P.14. He has further deposed that as per the dying declaration her mother-in-law and her husband poured the kerosene and let fire to her and after getting her declaration he has taken the left hand thumb impression. During the course of cross-examination he has deposed that in Ex.P.14 there is no seal of his office and the said declaration is in his own hand writing. He has also 14 further admitted the fact that in Ex.P.14 he has filled all the columns but column No.6, 7 and 9 have been kept blank. He has further deposed that Ex.P.14 is not in the language of the deceased and she has stated in Urdu mixed Hindi language and the same has been got translated in Kannada language and got written.
20. Even as could be seen from the evidence of PW.29 the PSI, he has also deposed that he received the MLC information and he went to the hospital and after obtaining the opinion of the Doctor with regard to condition of the deceased thereafter he has recorded the statement of the deceased as per Ex.P.27. In his cross- examination he has admitted that in Ex.P.27 he has not mentioned from what time to what time the said statement has been recorded and in his evidence he has stated as narrated by declarant, he dictated to the writer and writer has written. He has further deposed that the writer is also heard what the declarant has 15 declared. He has further stated that deceased used to talk in Kannada language and she was talking in local language and when it has been questioned he has stated that Ex.P.27 is not in the language of the declarant. This witness says that what she has stated in a grammatical language the same has been reduced into writing in Ex.P.27.
21. On perusal of the said evidence of these two witnesses though they have stated that as per the declaration made by the deceased i.e. dying declaration Ex.P.14 and the statement Ex.P.27, have been recorded but when PW.28 says that deceased used to speak in mixed Urdu and Hindi language and he got written in Kannada language, it indicates that deceased was not knowing the Kannada language. On the contrary PW-29 has deposed. She was talking in Kannada language and what she has stated in a grammatical language, same has been recorded into writing. In that light, the 16 prosecution has failed to take the reasons for the same. Even PWs.28 and 29 have not made clear who amongst them knows the language of Urdu or Urdu mixed Hindi language and translated the same into Kannada language and when it has not been mentioned at the bottom of the dying declaration or the complaint Ex.P.27 then under such circumstances the same creates a doubt about the truthfulness of the contents of the said dying declaration said to have been recorded and it also reflects that there is possibility of being influenced by somebody in making the dying declaration. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Kashi Vishwanath v. State of Karnataka [(2013) 7 Supreme Court Cases 162]. At para 30, it has been observed as follows ;-
"30. The prosecution has failed to state as to why three dying declarations were recorded in Kannada, if the deceased Neelamma was talking in Telugu. It has also not made clear as to who 17 amongst the Tahisldar, PSI or SI or the doctors who has signed in Ext.P.12, Ext.P.22 and Ext.P.29 had knowledge of Telugu and translated the same in Kannada for writing dying declarations in those exhibits and that in the bottom of three dying declarations it has not been mentioned that they were read over in Kannada and explained in Telugu that the deceased understood the contents of the same. The above mentioned facts create doubt in our mind as to the truthfulness of the contents of the dying declarations as the possibility of she being influenced by somebody in making the dying declarations cannot be ruled out."
22. There is some cloud in the declaration of these two dying declarations and there were infirmities in the dying declaration and it has been unnatural conduct of the witnesses saying that they recorded in the language in which the deceased has disclosed then under such circumstances the accused is entitled to be given the benefit of doubt and he is liable to be acquitted. Though the independent witnesses have not 18 supported the case of the prosecution case and they have turned hostile, the court can depend upon the sole dying declaration and convict the accused. But when the above said clouds and doubts have been expressed in both the dying declaration, then under such circumstances the accused is entitled to be given a benefit of doubt. By taking into consideration the above said factual matrix of the case on hand, we are of the considered opinion that the accused has made out a ground so as to interfere with the judgment of the Sessions Court.
23. We have carefully and cautiously gone through the judgment of the Sessions Court. The judgment of the Sessions Court indicates that there is a causal approach to the factual matrix of the case on hand, neither there is appreciation of the evidence in its right perspective nor there is an application of law properly while adjudicating the case on hand. 19
24. Under such circumstances, we feel that it is a fit case to interfere with the judgment of the Sessions Court and to set-aside the same. Accordingly, we pass the following :-
ORDER The appeal is hereby allowed.
The judgment of conviction and order on sentence passed by the Principal District and Sessions Judge, Bidar in Sessions Case.No.79/2013 dated 05.04.2014 is hereby set-aside and the appellant/accused No.1 has been acquitted for the offence under Sections 302 and 498-A read with Section 34 of Indian Penal Code and he is directed to be released forthwith if he is not required in any other case.
The Jail Authorities are hereby directed to release the appellant-accused No.1-Mohd.Riyaz S/o Ismailsab 20 Ranjolwale, forthwith if he is not required in any other case.
The Registry is directed to intimate the Principal District and Sessions Judge, Bidar and the concerned Jail Authorities through e-mail to release the appellant-
accused No.1-Mohd.Riyaz S/o Ismailsab Ranjolwale forthwith, if he is not required in any other case.
Registry is hereby directed to send back the trial court records.
Sd/-
JUDGE Sd/-
JUDGE swk/sn