Karnataka High Court
The State By Malkhed Police Station vs Mehboobmiya S/O Chunnumiya Ors on 2 November, 2018
Bench: Aravind Kumar, H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF NOVEMBER 2018
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
CRIMINAL APPEAL NO.3585/2011
BETWEEN:
The State by
Malkhed Police Station,
Represented by
Additional State Public Prosecutor,
Office of the Advocate General,
Gulbarga.
... APPELLANT
(By Sri.Prakash Yeli, Addl.SPP)
AND:
1. Mehboobmiya S/o Chunnumiya
Age 26 years, Occ. Agriculture,
2. Sharifa Bee W/o Chunnumiya Sangavi,
Age 51 years, Occ. Household,
3. Jarinabee W/o Jamidmiya Jamadar,
Age 31 years, Occ. Household,
2
4. Chunnumiya S/o Moulansab,
Age 56 years, Occ. Agriculture,
All are R/o Huda-B,
Tq. Sedam, Dist.Gulbarga.
... RESPONDENTS
(By Smt.Anuradha M.Desai, Advocate appearing for
Sri.Mahantesh Desai, Advocate)
This Criminal Appeal is filed under Section 378(1)
and (3) of the Code of Criminal Procedure praying to
grant leave to appeal against the judgment and order of
acquittal dated 28.09.2010 passed by the IV Additional
District Judge at Gulbarga in Sessions Case
No.51/2010, thereby acquitting the respondents -
accused of the offences punishable under
Sections 498-A, 504, 302, 114 r/w 34 of IPC; set aside
the aforesaid judgment and order of acquittal dated
28.09.2010 passed by the IV Additional District Judge
at Gulbarga in Sessions Case No.51/2010, thereby
acquitting the respondents - accused of the offences
punishable under Sections 498-A, 504, 302, 114 r/w 34
of IPC.
This appeal coming on for further hearing this
day, Aravind Kumar J., delivered the following:
JUDGMENT
State is in appeal assailing the judgment and order of acquittal passed by the IV Addl. Dist. Judge, Gulbarga, dated 28.09.2017 in S.C.No.51/2010, 3 whereunder respondents 1 to 4 herein who had been arraigned as accused Nos.1 to 4 and tried for the offences punishable under Sections 498-A, 504, 302 and 114 read with Section 34 of IPC came to be acquitted.
2. The gist of the prosecution case is :
A complaint came to be lodged by deceased- Parveen Begum alleging that she was married to accused No.1-Mahaboob Miya and out of said wedlock a male and female child were born; on 30.05.2009 at about 9:00 p.m. her husband-Mahaboob Miya, mother- in-law-Shareef Begum and sister-in-law-Jareena Begum, together came and took her to the kitchen room where her husband-Mahaboob Miya abused her in filthy language alleging that she did not bring gold from her parental house on the occasion of tonsure ceremony of children and her mother-in-law instigated accused No.1 not to leave her and to set her on to fire and as such her 4 mother-in-law took kerosene oil can poured on the body of complainant and her sister-in-law-Jareena Begum set fire to her body by matchstick and her husband- Mahaboob Miya was telling others to kill her by setting her on fire; due to burns, complainant raised hue and cry and on hearing sound, servant-Amruth (PW.8) came to the spot, put out fire and at that time accused persons ran away from the scene and complainant's hands, chest, breast, legs were burned; the villagers Fayaz Ali (PW.2), Sikandhar (PW.1) and Amrut (PW.8) took her in an ambulance to Government Hospital, Sedam and after administering first aid, she was shifted to Basaveshwar Hospital, Gulbarga; she has further alleged in her complaint that from the date of marriage, her husband, mother-in-law and sister-in-law were ill- treating her alleging that she did not know how to do household work and had not brought gold at the time of tonsure ceremony of the children and have given ill- treatment both physically and mentally and as such 5 sought for legal action against them. The complaint came to be recorded by Manaya (PW.18) and it was registered in Crime No.77/2009 by Malkhed Police Station for the offences punishable under Sections 498- A, 504, 114 read with 34 IPC. In the meanwhile, injured-complainant while taking treatment, succumbed to burn injuries on 06.06.2009 at about 8:10 a.m. and as such Section 302 read with Section 34 of IPC came to be included in the FIR on the requisition of Investigating Officer.
3. During the course of investigation, Investigating Officer has recorded the inquest panchanama, spot and seizure panchanama and also recorded statement of witnesses and incriminating articles came to be seized and accused were arrested and remanded to judicial custody. On completion of investigation, charge sheet came to be filed against accused persons for offences punishable under 6 Sections 498-A, 504, 302 and 114 read with Section 34 of IPC.
4. The learned jurisdictional Magistrate took cognizance of the offences and passed committal order, as it was exclusively triable by Court of Sessions. The jurisdictional Sessions Court registered the same in SC No.51/2010 secured the presence of accused Nos.1 to 4 by which time they had already been enlarged on bail. After hearing learned Advocates appearing for accused, charge came to be framed against accused persons and on their pleading not guilty, trial came to be commenced, whereunder the prosecution examined 29 witnesses as PW.1 to PW.29, got marked 29 documents as Exs.P1 to P29 and marked seized incriminating articles as MO.1 to MO.5 in order to prove the guilt of the accused. Subsequently, statement of accused persons under Section 313 of Cr.P.C. came to be recorded. Accused have also tendered defence evidence by examining one Javed S/o Usman Ali as DW.1 and no 7 documents came to be marked on their behalf. Having heard the learned Advocates appearing for the parties, the learned trial Judge formulated following points for its determination. :
1. Whether the prosecution has proved accused No.1 to 4 forced by demand to the deceased Parveen Begum to bring gold from her parental house on the occasion of tonsure ceremony of children and thereby caused ill-
treatment and cruelty upon deceased Parveen Begum so as to have committed an offence punishable under S.498-A r/w S.34 of Indian Penal Code?
2. Whether prosecution further proved beyond reasonable doubt that on 30-05-2009 at about 9:00 p.m. accused No.1 to 4 took deceased Parveen Begum in a kitchen room, abused her in filthy language and poured kerosene on the body of deceased by accused 2 and lit fire by match stick by accused No.3 and accused No.1 and 4 abated accused No.2 and 3 to commit murder of deceased Parveen Begum and thereby committed murder of 8 deceased Parveen Begum by setting fire to her body and while taking treatment in Basaveshwar hospital, Gulbarga on 06.06.2009 at about 7:30 p.m. deceased succumbed to the injuries and thereby accused No.1 to 4 have committed the offence punishable under Sections 504, 114 and 302 r/w S.34 of IPC as alleged?
3. As to what order?
5. After having considered the evidence on record, the learned trial Judge by judgment under challenge has acquitted the accused persons on the ground that Ex.P-20 (complaint) which was alleged to have been lodged by deceased herself is claimed by prosecution to have been recorded between 2:30 p.m. and 3:30 p.m., whereas alleged dying declaration- Ex.P26 was recorded between 1:15 p.m. and 2:15 p.m. and contents of both were not proved. That the alleged motive as shown in Ex.P-26 is not proved and incident since it was stated by the deceased that her husband 9 was ill-treating her for not bringing gold articles on occasion of tonsure ceremony on her children, which was falsified since there was no corroboration and even the parents of the deceased had turned hostile and nothing worthwhile had been elicited in their cross- examination to believe the statement of deceased. The learned Judge has also noticed that dying declaration marked as Ex.P25 which was said to have been recorded by PW.23 has admitted that said dying declaration came to be recorded by her in her own handwriting and stated that she had sealed the same, though in the cross-examination she admitted that dying declaration with cover note was signed by the present Tahsildar of Gulbarga. Taking into consideration said inconsistency and the fact that all the witnesses examined on behalf of prosecution had turned hostile and nothing worthwhile had been elicited in their cross-examination, the learned Sessions Judge has acquitted the accused. Hence, State is in appeal. 10
6. We have heard the arguments of Sri.Prakash Yeli, learned Additional State Public Prosecutor appearing for State and Smt.Anuradha M.Desai appearing on behalf of Sri.Mahantesh Desai learned counsel appearing for respondents-accused.
7. It is the contention of learned Additional State Public Prosecutor that trial Court committed a serious error in acquitting the accused by disbelieving the testimony of PW.15 - Imamsab who had clearly spoken about the demand for additional dowry made by accused persons and also the evidence of PW.5 Jareenabee who had stated about there being frequent quarrels between deceased and the accused and non consideration of this vital evidence has resulted in accused persons being erroneously acquitted.
8. The learned Additional State Public Prosecutor would also draw the attention of the Court to the statement of deceased herself found in Ex.P.20 11 (complaint) which has been corroborated by PW.18 namely Police Sub-Inspector who noted down the statement of deceased and non consideration of this vital evidence is erroneous and as such order under challenge deserves to be set aside. He would elaborate his submission by contending that trial Court erred in not considering the evidence of Doctor PW.22 - Dr.Chandrashekhar, who conducted autopsy of deceased who has specifically stated in the cross- examination that burn injuries found on the body of the deceased was due to fire on account of kerosene poured and lit. Non-consideration of this vital evidence has resulted in gross miscarriage of justice.
9. He would also draw the attention of the Court to the evidence of Doctor PW.24 who has endorsed that the statement made by deceased in Ex.P.20 which would show her mental alertness and she was able to give statement and on the basis of complaint Ex.P.20 which was lodged by the deceased 12 herself which came to be corroborated by her dying declaration Ex.P.26, learned Sessions Judge ought to have convicted the accused persons and not acquitted them for the offences alleged. On these grounds he seeks for allowing the appeal and prays for setting aside the order of acquittal and convicting the accused for all the offences they were charged.
10. Per contra Sri.Mahantesh Desai, learned counsel appearing for respondents would defend the order of acquittal passed and contends that dying declaration Ex.P.26 has not been proved by the prosecution and by relying upon the judgment of Hon'ble Bombay High Court in the matter of Laxmibai and Ors vs. State of Maharashtra reported in 2010 (3) Crimes 308 (Bom.), he has prayed for dismissal of the appeal.
11. Having heard the learned Advocates appearing for the parties and on perusal of the records 13 secured from the learned Sessions Court and after bestowing our careful and anxious consideration to the rival contentions raised at the bar, following points arises for our consideration are :-
(i) Whether the judgment dated 28.09.2010 passed in SC No.51/2010 acquitting respondents 1 to 4 (accused 1 to 4) for the offences punishable under Sectioned 498A, 504, 302 and 114 read with Section 34 of Indian Penal Code suffers from any infirmity either in law or on facts calling for our interference ?
(ii) What order ?
12. RE: POINT NO.1 :
It requires to be noticed at the outset that there is no dispute to the fact that deceased was the wife of accused No.1 and their marriage having been 14 solemnized about three years prior to the date of incident.
13. It is specific case of prosecution that on 30.05.2009 at about 9.00 p.m while deceased Miss.Parveen Begum was in her house she was dragged by accused Nos.1 to 3 namely her husband, mother-in- law, sister-in-law and father-in-law into the kitchen and her husband abused her in filthy language for not bringing gold from her parental house on the occasion of tonsure ceremony of their children and accused No.1 had instigated other accused persons to pour kerosene on the deceased and at the instigation of accused No.1, accused No.2 had poured kerosene and accused No.3 had lit the fire. In this background complaint - Ex.P.20 dated 31.05.2009 requires to be examined namely as to whether contents of complaint had been proved by the prosecution. The complaint Ex.P.20 was undisputedly not in the handwriting of deceased and same came to be marked as Ex.P.20 through Sri.Manaya - PW-18 Police 15 Sub-Inspector of Police, Malkhed Police Station. The right thumb impression found on the said complaint is said to be that of Parveen Begum namely the deceased and endorsement is said to have been made by the Causality Medical Officer. Dr.Sharnappa who was examined as PW.24. He states that he has endorsed in Ex.P.20 that patient was conscious between 2.30 to 3.30 p.m., she was mentally alert and her statement was taken before him and the statement was made by the deceased in Urdu language. The said Doctor who was examined as PW.24 has identified the endorsement made by him as Ex.P.20(b) which contains his signature. In his cross-examination he admits that deceased was not admitted under 'Medico Legal Case'. He also admits that after recording of the statement, endorsement was taken on the statement. In fact Doctor PW.28 who is said to have endorsed on dying declaration Ex.P.26 has clearly stated that deceased was not fit to make statement when he examined her at 16 11.45 a.m. Dying declaration Ex.P.26 is said to have been recorded at 1.10 p.m. by PW.23.
14. Thus, initial burden which was on the prosecution to prove the contents of Ex.P.20 has not been discharged. That apart the burden is on the prosecution to prove that the maker of the statement namely the deceased was aware of the contents of statement that she was making. Even this fact also not been proved by the prosecution. In fact P{W.18 admits that except himself and the Head Constable there no other person present in the burns ward where the deceased taking treatment. The statement of deceased Ex.P.20 is said to have been recorded between 2.30 to 3.30 p.m. according to the endorsement made by PW.24. However, in the cross-examination he states that the recording of statement might have taken about half an hour. He also admits that deceased had been administered with painkillers, which would necessarily mean that she was on sedation as to the actual 17 treatment that was administered and to the extent of her mental alertness ought to have been proved by the prosecution by producing the medical records. In the light of the fact that deceased had suffered burn injuries on the previous day at about 9.00 p.m. and by that time she had been brought to Basaveshwar Hospital at Kalaburagi, sufficient time had lapsed and she had been already been administered first aid treatment at Sedam her mental status was not fit to give a statement at 11.15 p.m. on 31.05.2009 even according to PW.24 - Doctor. It is normal practice that in case of burn injuries, to over come the pain of burns the injured would be administrated with pain killers and sedatives and it may result in the patient going into deep sleep or drowsiness being present. It all depends on that particular individual. Thus, the burden being on the prosecution to prove that deceased was mentally alert and capable of making a statement and being conscious of the fact as to what statement she was making, 18 burden was on the prosecution. For reasons best known not even the case sheet of the deceased was placed before the Sessions Court to prove the nature of burn injuries suffered and extent of injury that deceased had received when she was admitted to Basaveshwar Hospital at Kalaburagi on 31.05.2009 and the treatment administered to her, which would have inspired confidence with the court to arrive at a conclusion, that despite medicines being administered she was conscious and capable of giving or making a statement. In the absence thereof prosecution would not justified by contending that contents of Ex.P.20 has been proved. It is because of this precise reason learned Sessions Judge having examined the entire evidence has arrived at a conclusion that contents of Ex.P.20 was not proved by the prosecution vide paragraph 34 of judgment.
15. Yet another material which was heavily relied upon by the prosecution was the dying declaration which came to be marked as Ex.P.26. 19 Ex.P.26 is said to have been recorded by the then Tahasildar, Sindhanoor Smt.V.Shashikala who was examined as PW.23. She has deposed that during March 2009 to August 2009 she had worked as Tahasildar, Kalaburagi and at about 11.30 a.m., on 31.05.2009 she had received requisition from Malkhed Police Station to record the dying declaration of Miss.Parveen Begum who was admitted at Basaveshwar Hospital, Kalaburagi with burns injuries. Hence, she is said to have visited the casualty of burns ward at Basaveshwar Hospital, Kalaburagi at 11.45 a.m. and Doctor attending the injured person had told that injured was not in a fit state of mind to give statement, since she had administered painkillers.
16. She further states that at 1.10 p.m. the Doctor PW.28 certified that injured was capable of giving statement and accordingly she claims to have recorded the statement in the prescribed performa and is said to have taken right thumb impression of the 20 injured Miss.Parveen Begum. PW.23 also states that she has taken endorsement from the Dr.Shivasharanappa - PW28 who had certified the injured Miss.Parveen Begum being capable of giving statement. Though she states that she sealed the said statement in a cover, she admits that dying declaration with cover note is signed by the present Tahasildar and it is not signed by her. She has identified her signature in the dying declaration as Ex.P.25(b). She has also stated that she had taken the endorsement of the Doctor in Ex.P26 twice Ex.P.26(c). PW23 is also the author of inquest panchanama which came to be marked as Ex.P.27 and her signature as per Ex.P.27(a). Three panchas secured to witness the inquest panchanama had been examined as PWs.25 to 27 and they have turned hostile. Insofar as PWs.25 and 26 are concerned there is no cross- examination and in the cross-examination of PW.27 who has turned hostile, nothing worthwhile has been elicited.
21
17. Be that as it may. Turning our attention back to the evidence of PW.23 who is said to have recorded the dying declaration Ex.P.26 and the cross- examination of PW.23 is perused, it would disclose that PW.23 admits that Dr.Shivasharanappa PW.28 who is said to have been present at the casualty medical burns ward. She has certified at about 1.00 p.m. that deceased Miss.Parveen Begum was mentally fit to give statement and as such she went and recorded the statement at 1.10 p.m. At this juncture itself it would be apt and appropriate to note that the prosecution claims to have recorded the dying declaration at 1.10 p.m through PW.23 and the complaint is said to have been recorded by PW.18 which came to be marked as Ex.P.20 between 2.30 p.m. to 3.30 p.m. This inconsistency which is at large or gaping loophole in the prosecution case has not been explained by any other corroborative evidence to prove the guilty of the accused beyond reasonable doubt.
22
18. Yet another intriguing factor which cannot go unnoticed is the credibility of the statement made by PW.23. In her cross-examination dated 20.07.2010 she has stated that Dr.Rachooty after certifying the patient mentally fit to give statement had left the place and she claims to have recorded the dying declaration in her own handwriting and she further states that on instructions of the Doctor she wrote endorsement that it is taken at 11.45 a.m Ex.P26(b) and also the endorsement taken at 1.10 p.m Ex.P.26(c) which relates to the state of condition of the patient. Whereas PW.28 through whom the dying declaration came to be marked as Ex.P.26 has identified his signatures in Ex.P.26 at Ex.P.26(b) and Ex.P.26(c) and he states that said endorsements Ex.P.26(b) and Ex.P.26(c) is in his own handwriting and he has made the endorsement. This inconsistency in the dying declaration is conspicuous which has not been removed by the prosecution. In other words cloud surrounding inconsistencies in 23 Ex.P.26 statement has not been cleared by the prosecution. The conclusion which we intend to arrive at to reject the case of the prosecution insofar as the dying declaration is concerned is also fortified by the admission of PW.28 in the cross-examination dated 29.07.2017 to the following effect :-
"It is true that I have not treated xxx dying declaration. It is true that at the time of taking endorsement Ex.P.26(b) and Ex.P.26(c) that the dying declaration for prescribed from his blank and later entered into the writing. I stayed till 2 p.m. at the burns ward at the time of recording dying declaration. I have not made any endorsement about the position of victim in a fit state of mind till 2 p.m. I do not know that who gave treatment to the victim at the time of taking dying declaration. The treatment was given in terms of pain killers and sedation. It is true that the injured victim in the state of brousiness at the time of giving statement. No body was present before I went into the burns ward to observe the victim."
As per above statement of PW.28 it would clearly indicate that when the endorsement Ex.P.26(b) and Ex.P.26(c) were made dying declaration form Ex.P.26 24 was blank. He has also stated that he had not made any endorsement about the mental fitness of the victim till 2.00 p.m. whereas contents of Ex.P.26 indicate that Casualty Medical Officer has certified at 1.10 p.m. that deceased was mentally fit to make statement.
19. The Hon'ble Apex Court in the case of Ranbai vs. State of Chhattisgarh reported in (2002) 8 SCC 83 has held that the evidentiary value of dying declaration as indicated in Section 32 of the Evidence Act would depend upon various factors. The physical state of or injuries on the declarant not by themselves would be determinative on the mental fitness of the declarant to make the statement. It has been further held that mental fitness can be ascertained from the opinion of Doctor or from testimony of witness and surrounding circumstances. It has been further held that even in the absence of Doctors evidence about mental fitness of deceased to make the statement dying declaration cannot be rejected, if the person recording 25 the statement is satisfied that declarant was in a fit mental condition to make such dying declaration. In other words the author or the person who records the dying declaration if satisfied with the mental condition of the injured and certified the capability of injured in giving a statement and was being conscious of what statement is being made, it would suffice.
20. Hon'ble Apex Court in the case of Ramilaben Hasmukhbhai Khristi and Anr. vs. State of Gujrat and connected cases reported in AIR 2002 SC 2996, has held where the declaration did not inspire confidence such declaration cannot be made the sole basis for conviction. It has also been held that conviction on the basis of the declaration that deceased alleged to have sprinkled with kerosene and set ablaze by accused would not be sound and acceptable in the absence of any corroboration. It has been held by the Hon'ble Apex Court to the following effect ;- 26
"So far the law regarding dying declaration is concerned, on behalf of the appellants, learned counsel for the appellants placed reliance upon some cases. In (2001(5) SCC 254) Uka Ram v. State of Rajasthan, the Court observed "it has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement."
21. In the case of Chacko vs. State of Kerala reported in 2003 CRI. L.J. 441, it has been held that 27 dying declaration reliability not to be accepted where the declaration is made 8 to 9 hours after the incident whreunder the material details of motive and manner of incident having been narrated would be sufficient ground to create doubt about its genuineness.
22. Keeping these authoritative principles in mind when the dying declaration recorded in the instant case which marked Ex.P.26 is re-looked or re- examined at the cost of repetition, we are of the considered view that one and only conclusion which requires to be drawn is that the prosecution has failed to establish the contents of dying declaration and the fact that PW.23 having not stated that she was either satisfied with the mental status of the injured while recording the statement Ex.P.26 or the fact that she being satisfied about the statement made by the deceased. That apart Doctor PW.26 himself admitted that the deceased was under sedatives was in the state of drowsiness. Even this circumstance also raises 28 suspicion about the genuineness of said dying declaration.
23. That apart, all the prosecution witness except Investigating Officer having turned hostile and even the mother of the deceased who was examined as PW.16 having stated that at no point of time accused No.1 had ill-treated the deceased, is a strong factor which would go against the case of prosecution and even the panchas to Ex.P.29 have not supported the case of the prosecution. That apart the father of the deceased i.e., PW.15 has also not supported the case of the prosecution and they have in unequivocal terms stated at no point of time accused had made any demand for dowry or had ill-treated for not brining any dowry. In fact the complaint which is said to have been lodged by the deceased herself which came to be marked as Ex.P.20 also does not state about any earlier incidents of any physical or mental ill-treatment meted out by the accused persons to her which fact would also 29 come to the rescue of the accused or goes against the case of the prosecution.
24. For the reasons aforesaid stated we are of the considered view that order of acquittal passed by learned Sessions Judge is just and proper and there is no error committed either in law or on facts calling for our interference. Accordingly, Re-point No.1 is answered against the appellant-State and in favour of respondents (accused Nos.1 to 4).
25. RE-POINT NO.2 :
For the aforestated reasons, we proceed to pass the following ORDER
(i) Criminal Appeal is hereby dismissed;
(ii) Judgment dated 28.09.2010 passed in
S.C.No.51/2010 by the IV Additional
District Judge, Kalaburagi acquitting the respondents for the offences charged under Section 498A, 504, 302, 114 read 30 with Section 34 of Indian Penal Code is hereby affirmed.
(iii) Registry is hereby directed to retransmit the records to the jurisdictional court.
Sd/-
JUDGE Sd/-
JUDGE sn