Karnataka High Court
The State Through Sedam Police Station vs Rafeeq Khureshi S/O Hamid Khureshi & Anr on 1 July, 2013
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
-1-
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
ST
DATED THIS THE 1 DAY OF JULY, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
CRIMINAL APPEAL NO.3645/2012
BETWEEN :
The State of through
Sedam Police Station
Rep.by Addl.State Public Prosecutor
Gulbarga ..Appellant
(By Sri Sanjay A.Patil, Addl.SPP)
AND :
1. Rafeeq Khureshi
S/o.Hamid Khureshi
Aged 38 Years
R/O.Batgera (B) Village
Occ: Butcher, Sedam Taluk
2. Smt.Lalbi
W/o.Hamid Khureshi
Aged 70 years,
Occ: Butcher
-2-
R/o.Batgera (B) Village
Sedam Taluk
..Respondents
(R1 and R2 served)
This Appeal is filed under Section 378(1)(a) and (3)
of Cr.P.C. by the SPP for the State praying that this
Hon'ble Court may be pleased to grant leave to appeal
against the judgment and order of acquittal dated
20.4.2012 passed by the I Addl.Sessions Judge at
Gulbarga in SC.272/2009 thereby acquitting the accused-
respondent for the offence punishable u/s.302 of IPC.
This Appeal coming on for admission, this day,
MOHAN .M. SHANTANAGOUDAR, J., delivered the
following:-
JUDGMENT
Heard the Additional SPP for admission. This appeal is filed by the State against the judgment and order of acquittal passed by the I Additional Sessions Court, Gulbarga in SC.No.272/2009.
2. The records reveal that the police laid the charge sheet against the respondents for the offences punishable under Sections 498-A, 302 and 304-B r/w. -3- Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act. The accused were tried for the very offences. In order to prove its case, the prosecution in all examined 42 witnesses and got marked 38 Exhibits and 6 Material Objects. On behalf of the defendants, 3 Exhibits were got marked. As aforementioned, the Trial Court by giving benefit of doubt, acquitted the accused.
3. On hearing the learned Additional SPP and after perusal of the records, we do not find any ground to interfere with the order of acquittal passed by the Trial Court.
The case of the prosecution mainly rests on the dying declarations at Ex.P24 and P33. PW.25 is the ASI, who recorded the dying declaration as per Ex.P24 in the presence of PW.29, the Senior Specialist of the Government Hospital, Sedam. All other important -4- witnesses have turned hostile to the case of the prosecution. Thus, the case rests on the dying declarations. According to PW.25, the ASI, he has recorded the dying declaration of the victim Malanabee as per Ex.P24 in the presence of PW.39 in the Government Hospital at Sedam, whereas PW.39 the doctor in his cross-examination has admitted that by the time PW.25, the ASI arrived to the said hospital, the victim Malanabee was shifted to Government Hospital, Gulbarga. Thus, the evidence of PW.39 clearly indicates that PW.25 has not at all recorded the dying declaration of the deceased Malanabee as per Ex.24 in the Government Hospital, Sedam in the presence of PW.39. More over, the time of recording of dying declaration is not mentioned in Ex.P24. PW.25, the ASI has deposed in the cross- examination that the hospital has sent a letter to him about the admission of the victim to the hospital and -5- consequent upon which the ASI came to the hospital. There is no mention in the requisition at Ex.P23 as whether it is a case of murder. If really the accused poured kerosene on the deceased and set her ablaze on her person, there would have been some indication in the requisition letter at Ex.P23. If really the victim was able to speak immediately after admission to the hospital, she would have given the history to the doctor or the person who accompanied the victim would have given the information about the incident.
4. The doctors who examined the victim have deposed that the victim has sustained burn injuries to the extent of 90% to 95%. All the burn injuries were deep burn injuries. PW.23, another doctor who treated the victim has deposed that the victim was in serious condition when he treated her. He has further admitted that generally in a case of 90% to 95% burn injuries, the patient will be in coma; Since the cells of -6- the brain of the victim were rested, she would have gone in coma and she would not have been in a position to understand the questions.
5. PW.35, the Taluka Executive Magistrate, who has recorded the dying declaration of the deceased Malanabee as per Ex.P33 has stated that he has not written the timings in Ex.P33. Ex.P33 does not disclose that the victim was in good state of mind. According to PW.35, accused No.1 himself brought the victim to the hospital. Ex.D1 is the copy of the letter sent from the Police Station, Sedam to the Tahsildar to record the dying declaration of the deceased. Ex.D1 was received by the Taluka Executive Magistrate prior to Ex.P33 being recorded. Ex.D1 discloses that due to harassment being given by her husband and mother, the victim herself poured kerosene on her person and herself set on fire. Thus, according to PW.35, it is not the case of murder, but -7- the victim herself committed suicide as she was not in a position to tolerate the ill-treatment. Even Ex.P33 does not disclose any role of accused No.2 for the death of the victim.
6. PW.39, another doctor who treated the victim Malanabee in the hospital at Gulbarga has deposed that the victim sustained deep injuries on her neck and chest and in such cases, the patient is likely to go in coma. Ex.P33 clarifies that except the face and foot, the entire parts of the body are completely burnt.
The Trial Court has assigned valid reasons for coming to the conclusion that it is neither case of murder, nor it is a case which falls under Section 304-B of IPC. Since both the dying declarations are rightly rejected by the Trial Court, the Trial Court is justified in acquitting the accused. Even on -8- reappreciation of the material on record, we do not find any ground to interfere with the impugned order.
Hence, appeal fails and accordingly the same stands dismissed at the stage of admission.
Sd/-
JUDGE Sd/-
JUDGE *ck/-