Bangalore District Court
The State By vs Has Committed The Murder on 7 October, 2022
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BANGALURU (CCH-20)
Present:
Smt. Yermal Kalpana, B.Sc., LL.M.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 1 st day of October, 2022
S.C.No.162/2020
Complainant:- The State by
Kadugondanahalli Police Station,
Bengaluru
[By Public Prosecutor]
Vs.
A c c u s e d:- Sri.Asif
S/o Late Mohinuddin,
Aged about 53 years,
R/a No.205, Midi Apartment, Nethaji
Rod, FrazerTown, Bengaluru 560 005.
J U D G M E N T
The Police Inspector of Kadugondanahalli Police Station, has filed charge sheet in this case in 2 SC No.162/2020 Cr.No.438/2019 for the offence punishable under section- 302 of Indian Penal Code against the accused.
2. The brief facts of the prosecution case is that the wife of the accused namely Smt.Shaheda Khanam-who is CW.10 was working along with the deceased Imran Ali as an Interior decorate Entrepreneur. The accused suspected that his wife/CW.10 and the deceased were having illicit relationship and in that connection, the accused had posed threat to the deceased about a month ago before the incident. Out of the said ill-will, in that connection, on 20.10.2019 at 9.30 am., in front of the Ameen Ambur Dam Biriyani (Ameen Tea stall), Bharath Petrol Bunk on Nagawara Main Road, within the jurisdiction of the Kadugondanahalli Police Station, when the deceased was standing near the said Ameen Tea stall, the accused took petrol in a plastic can and poured it over the deceased and 3 SC No.162/2020 set him on fire, as a result of which, he succumbed to burn injuries and on 24.10.2019 at 7 AM died and thereby, the accused has committed the murder, the offence punishable under section-302 of the Indian Penal Code. Hence, the case was registered against the accused.
3. The accused was arrested and produced before the JMFC Court and remanded to the judicial custody and since then he is in judicial custody.
4. After the charge sheet was filed, this case was sent to this Court vide committal order dtd.13.01.2020. The accused was produced before the Court and after hearing both the parties on charge, the charge was framed against the accused for the offence punishable under section-302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
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5. The prosecution in support of its case has examined 16 witnesses as PW.1 to PW.16 out of the 25 witnesses cited. The prosecution has got marked Ex.P. 1 to P.16 documents. The inquest mahazar witnesses-CW.15 to 17 and formal witnesses-CW.20, CW.22 and CW.23 have been given up by the prosecution in view of consent marking of inquest mahazar as per Ex.P.4.
6. The statement of the accused under section 313 of the Cr.P.C. has been recorded. The accused has denied all the incriminating evidence appearing against him and chosen not to lead defence evidence.
7. Heard arguments and perused the materials on record.
8. The points that arise for my consideration are as under:-
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1) Whether the prosecution proves beyond reasonable doubt that on 20.10.2019 at
9.30 am in front of Ameen Ambur Dam Biriyani (Ameen Tea Stall), Bharath Petrol Bunk on Nagawara Main road, when the deceased-Imran Ali was standing near the said Tea stall, the accused took petrol in a plastic can and poured it over the deceased and set him on fire as a result of which, he succumbed to burn injuries on 24.10.2019 at 7 am and the accused has committed murder of Imran Ali and thereby committed the offence punishable under section-302 of the Indian Penal Code?
2) What order?
9. My answer to the above points are as under:-
Point No.1 : In the affirmative Point No.2 : As per final order for the following:-6
SC No.162/2020 REASONS
10. Point No.1:- The prosecution in order to prove its case has examined PW.1-Ameen Pasha- the complainant, P.W.2-Sulaiman, PW.3-Asgar Ali Khan. PW.4- Muheel Jaafar and PW.-15-Mohammad Jawad-the eye witnesses. PW.5-Parveez Ahmed and PW.6-Asif Ali- the brothers of the deceased, PW.7-Farana Anjum-the wife of the deceased, PW.8-Shaheed Khanam-the wife of the accused, PW.9-Nazeer Ahmed-the mahazar witness, PW.10- Dr.Saikumar-the doctor who had initially seen the victim and had given intimation to the police, PW.11- Dr.M.P.Pradeep Kumar who has conducted the Postmortem on the body of the deceased, PW.12-Dinesh Kumar Shetty-the police official who arrested the accused, PW.13-Nagaraj.T.Nedhalagi and PW.14-Ajay Sarathi- the Investigating Officers and PW.16-Dr.Arpit Shantagiri who 7 SC No.162/2020 had intimated to the police about the death of the victim
-Imran Ali, to the IO.
11. PW.1-Ameen Pasha has deposed before the Court that on Sunday i.e, on 20th in the month of September or October 2019 at about 9.30 a.m. he was standing in front of a tea stall by leaning at a tree which was nearby the Biriyani shop. At that time, the accused came there wearing a cap and brought a chocolate can, poured it on Imran Ali and set him on fire with a match stick and ran away from the spot. Immediately, PW.1 took Imran Ali in an auto rickshaw to the Ambedkar Medical College and also a bandage was put to him in the hospital. PW.1 has further deposed that, on the way to the hospital, the deceased Imran Ali told him that the accused-Asif was threatening to kill him, by pouring acid and on the said day Asif had poured petrol and set him on fire. Further Imran 8 SC No.162/2020 Ali told him that he was doing the business with the wife of the accused and the accused doubted his wife having illicit intimacy with the the deceased and in respect of the said connection he had poured petrol and set him on fire. Further, PW.1 has deposed that three days after the incident, Imran Ali died and PW.1 had attended his funeral and at the time of the incident about 10 people were standing near the tea stall and he has given his statement accordingly to the police. PW.1 has identified the accused as the person before the Court who had poured petrol on the said Imran Ali and also identified the Can-MO.1 which was used to pour the petrol on the deceased.
12. PW.2-Sulaiman has also deposed on similar terms as that of PW.1 and has deposed that about 1½ years ago at 9.00 am when he was drinking tea in front of a tea stall in front of Bharath Petrol bunk, the accused present before 9 SC No.162/2020 the Court poured petrol on the deceased, set him on fire and ran away and people who had gathered at the spot took the injured to the hospital and he later learnt that the victim has died. He has also identified the MO-1 can which the accused had brought and poured the petrol on the deceased . Further he has also identified the victim in the photograph Ex.P.1 and 2.
13. PW.3 Asgar Ali Khan, has deposed before the Court that on 20.10.2019 at about 9.30 a.m. on a Sunday when he along with PW.1, PW.2, the deceased Imran Ali, C.W.6 to 8 were having tea at the tea stall and the accused came there by wearing a cap and poured petrol on Imran Ali, set him on fire and ran away from the place. Accordingly, he tried to chase the accused, but the accused ran away and at the same time, the deceased Imran Ali who was set fire was engulfed in flames and jumping all 10 SC No.162/2020 over and they tried to douse the fire by pouring water and also covering him with gunny bag. PW.3 has further deposed that the deceased Imran Ali was working as an interior businessman and was also doing taxation work and he was fully conscious after he had been set on fire and when the deceased Imran Ali was taken to the hospital, he had followed him on a bike and the victim was talking well and even spoke to the police and later he was taken to the Victoria Hospital. PW.3 has further deposed that the accused was suspecting the victim Imran Ali, as his wife/CW.10 was working with the deceased in the same office and in that connection, the accused had set fire on him. After the deceased Imran Ali was taken from Amedkar Hospital to the Victoria Hospital, he died in Victoria Hospital. PW.3 has identified the Can-MO.1 which was brought by the accused to pour petrol on the deceased. 11
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14. PW.4-Muheel Jaafer has deposed that on 20.10.2019 he was having tea near a glass factory and there, at a distance, one person i.e., the deceased was speaking on the mobile phone and the accused poured the petrol on the person and set him on fire and ran away and though he along with others tried to chase the accused, the accused could not be caught. PW.4 has further deposed that when he returned back being unable to catch the accused, people at the place of incident were pouring water on the person who was set on fire, to extinguish the fire, and later 3-4 persons took him in an auto rickshaw to the hospital. PW.4 has further deposed that, he came to know the name of the person who was set on fire as Imran and he has identified Ex.P.2-the photograph of the deceased and also MO.1 which was used by the accused to pour the petrol and he has also deposed that he came to 12 SC No.162/2020 know about the death of the person when he had gone to the police station.
15. PW.5- Parveez Ahmed who is the elder brother of the deceased Imran Ali, has deposed before the Court that CW.8 and C.W.11 are also his elder brothers and Imran Ali was doing interior decoration work, along with PW.8-the wife of the accused. He has further deposed that, the accused used to threaten his brother Imran Ali stating that he should not work with his wife and the accused was suspecting that the accused's wife was having an illicit affair with his brother and this fact has been told to him by his deceased brother and he had advised his brother to stop working with the accused's wife-P.W.8. PW.5 has further deposed that on 20.10.2019 he received a phone call from one Mr.Azghar who had informed that his brother was set on fire by pouring petrol and he was taken to the 13 SC No.162/2020 hospital and when he went to the hospital at 10.15 a.m., he saw his brother had sustained extensive burn injuries on his face and body and from there he was taken to the Victoria hospital, where after four days, he had succumbed to the injuries in the hospital.
16. PW.6 Asif Ali who is the another brother of the deceased, has deposed that, his brother Imran Ali was doing auditing and also interior work with the accused's wife/P.W.8 and his deceased brother had informed him that the accused was posing threat to him as he was suspecting an illicit relationship with his wife-PW.8. PW.6 has further deposed that, a week before the incident had taken place, he was informed that a panchayath was held with his deceased brother in connection with the allegations made and he had advised his deceased brother to distance himself from PW.8. On 20.10.2019 CW.7 had 14 SC No.162/2020 informed and told him that his brother has been set on fire and when he went to Ambedkar hospital they were asked to take his brother to Victoria Hospital and on 4 th day after the incident he died in the hospital.
17. PW.7 Farana Anjum, who is the wife of the deceased Imran has deposed before the Court that her husband was doing interior work with PW.8 the accused's wife and the accused was suspecting that his wife and the accused were having illicit relationship and he was threatening her husband and she had advised her husband ie., deceased Imran Ali not to work with PW.8. PW.7 has further deposed that her husband had told her that the accused had threatened him stating that if he continued to work with PW.8, he would kill him, but as her husband did not have any illicit relationship with PW.8, he continued to work with PW.8. PW.7 has further deposed that on 15 SC No.162/2020 20.10.2019, CW.7 informed her that her husband has been set on fire and she went to Ambedkar hospital from where he was taken to Victoria Hospital and on the fourth day he died.
18. All these witnesses have been cross examined by the accused, but during the course of their cross examination, nothing worth was elicited to disbelieve their version. On the other hand, the presence of the accused at the spot or he not having committed the act of pouring petrol on the deceased has not been denied to these witnesses.
19. PW.8 Shaheed Khanam who is the wife of the accused has deposed before the Court that the deceased was helping her in her work and he was also working with her for 10 months and was providing labourers to her. She has further deposed that after Imran Ali had started 16 SC No.162/2020 working with her, the accused started suspecting her that she was having illicit relationship with the deceased Imran Ali and whenever she used to go for work, the accused used to come there and torture her, and because of that, she went to her parent's house and informed the said fact to them. She has further deposed that, her parents had convened a panchayath consisting of herself, her parents, her brother and the deceased Imran Ali, at Lal Masadit Road, Shivajinagar and the accused kept on accusing her about the illicit relationship with Imran Ali and in the panchayath itself, the accused has told that he will kill Imran Ali and her. PW.8 has further deposed that thereafter she continued to stay with her mother and was going for her work from her mother's place, even then, the accused used to call her over phone and torture her and he had also threatened her for about two months. She has 17 SC No.162/2020 further deposed that on 20.10.2019 she received a phone call from the relatives of Imran Ali asking her about the accused's whereabouts, but they did not tell her anything and when she returned to her mother's place at 4.00 pm, the police had informed her parents that the accused had set fire on Imran Ali and her parents told the said fact to her and she came to know about the death of Imran Ali after four days and accordingly she has given statement before the police.
20. PW.9 Nazeer Ahmed who is the friend of the deceased Imran Ali has deposed before the Court that on 20.10.2019, CW.2 had asked him to come near the Bharath Petrol Bunk, Nagawara main road, stating that Imran Ali was set on fire, and when PW.9 went to the said place at 12.00 pm along with Massud Ali he signed the spot mahazar prepared at the spot, when the police Inspector 18 SC No.162/2020 has seized the can, baniyan and a T-shirt and he has identified the Can-MO.1, Baniyan-MO.2 and Black shirt- MO.3. PW.9 has also identified his signature on the material objects as MO.2(a) and MO.3(a) and he has identified his signature in the mahazar-Ex.P.3 as per Ex.P.3(a).
21. PW.10-Dr.Saikumar who has treaded the deceased Imran Ali has deposed before the Court that on 20.10.2019 at 10.00 am a patient by name Imran Ali was brought before him with a history of assault by the accused and the person who brought him informed him that he had sustained burn injuries caused by pouring petrol. PW.10 has further deposed that on examining the patient, has found the patient had sustained 45% burn injuries on the face, scalp, chest and back of both upper hands. So he has sent intimation to the police as per Ex.P.5 and he has 19 SC No.162/2020 identified his signature as per Ex.P.5(a). PW.10 has further deposed that in his presence, the police had recorded the statement of the injured patient as per Ex.P.6 and he has affixed his signature on the statement making endorsement that the same was recored in his presence and he has identified his signature as Ex.P.6(a). PW.10 has further deposed that the patient Imran Ali was conscious and in a state of speaking at the time of recoding his statement.
22. PW.11-Dr.M.P.Pradeep Kumar who had conducted the postmortem on the dead body of the deceased, has deposed that on 24.10.2019 at around 2.30 p.m. he received a requisition from the Police inspector of K.G.Halli police station to conduct the postmortem examination on the dead body of one K.Imran Ali aged about 44 years and on the same day between 2.30 p.m. to 3.15 p.m., he had 20 SC No.162/2020 conducted the postmortem examination on the dead body and found the following:-
" Infected burn injuries present over the fact, involving eyelids, nose, lips and both ears with singing of facial hair and scalp hair in patches all over the head, front and back of the neck, front of upper part of the chest, back of the chest and abdomen, lateral aspect of left side of the abdomen, left upper limb diffused, patches on the right shoulder, inner aspect and front of right upper limb, both hands and palms, patches over front and lateral aspect of upper half of left thigh, sparing external genitalia and both legs and foul smelling with yellowish green coloured puss, slough unhealthy granulation tissues present over most of the burnt areas".
23. PW.11 has further deposed that on examination of the scalp, skull and vertebrae, memberance, they were found intact, but the brain was congested and edematous. On dissection of the chest, the ribs were found intact, both cavities contained about 150 ml of straw coloured fluid, 21 SC No.162/2020 both lungs were consolidated and edematous, cut section exudes puss mixed with blood and froth. Head was congested. Larynx and trachea were congested and edematous. He has further deposed that on dissection of the abdomen, he found peritoneum contained about 500 ml of straw coloured fluid; mouth, pharynx and oesophagus were congested, stomach contained about 100 ml of green coloured fluid. No unusual smell was found. Mucosa appeared normal. Both small and large intestine contained gas and its contents. Liver was enlarged and sleen was congested. He has further deposed that the Genito urinary organs were intact and the injures infected were antemortem burn injures. PW.11 has further deposed that in his opinion "the death is due to septicemia as a result of burn injuries sustained" and he has 22 SC No.162/2020 issued postmortem examination report as per Ex.P.7 and he has identified his signature as Ex.P.7(a) and (b).
24. PW.10 and PW.11- the doctors were subjected to cross examination, but nothing was elicited from them to show that the victim was not brought to the hospital with burn injuries or that Imran Ali was not treated nor his postmortem was conducted or that the deceased Imran Ali has not died due to the burn injuries inflicted on him.
25. PW.12-Dinesh Kumar Shetty who is the Asst. Sub Inspector of Police, has deposed before the Court that on 22.10.2019 CW.24-PSI directed him to trace the accused and he along with CW.22-Head constable apprehended the accused at Nidhi Apartment at Frazer Town and produced him before CW.24 and submitted his report as per Ex.P.8 and he has identified his signature as Ex.P.8(a) and he has 23 SC No.162/2020 identified the accused before the Court whom he had arrested.
26. PW.13 Nagaraj.T.Nedhalagi, Police Sub Inspector has deposed before the Court that on 20.10.2019, he received a MLC report at around 10 am. from Dr. B.R Ambedkar Hospital stating that one Imran Ali has suffered burn injuries and has been admitted in the hospital and he went to the hospital and enquired with the victim- Imran Ali, who informed him that he was working in an interior designer along with the accused's wife-PW.8 and the accused and his wife were often quarreling and a panchayath had taken place in that connection, and after the panchayath was over, the accused had threatened the victim and also his wife/PW.8 that he was going to kill one of them. PW.13 has further deposed that the deceased informed him that the accused was suspecting about an 24 SC No.162/2020 illicit relationship between the PW.8 and the deceased and the accused had developed enmity in that connection and with an intention to murder the deceased, on 20.10.2019 at around 9.30 am at Ameen tea shop situated on Nagawara Main road, opp to Bharath Petrolatum Bunk, while the deceased was having tea, the accused all of a sudden came there and poured petrol on him and set him on fire and ran away due to which the deceased had sustained burn injuries on his face, head and body and the deceased-Imran Ali gave his statement in the presence of Dr.Sai Kumar, as per Ex.P6 and the deceased had affixed his right toe mark to the said complaint/statement, because he had sustained burn injuries to his both hands. PW.13 has further deposed that PW13-the doctor had affixed his signature as per Ex.P6(a) by making an endorsement as per Ex.P6(b) stating that the statement- 25
SC No.162/2020 Ex.P.6 was recorded in his presence and the doctor has identified his signature as per Ex.P6(c).
27. PW.13 has further deposed that after recording the statement of the victim, he returned to the police station at around 11 a.m. and registered it in FIR in Cr.No. 438/2019 for the offence u/sec 307 of IPC and submitted the FIR to the Court. PW.13 has further deposed that he continued the further investigation and between 12 p.m. and 1 pm, he conducted the mahazar at the scene of occurrence in the presence of the panchas P.W.9 and CW.14 after PW.15 had shown the place of the occurrence and at the spot he had seized a can-MO.1 smelling of petrol, a baniyan-MO.2 and a black color shirt-MO.3 which was partially burnt, and drawn a mahazar-Ex.P.3 which bears his signature at Ex.P.3(a). He has also identified the signature of the panchas- PW.15, PW.9 and C.W.14. PW.13 26 SC No.162/2020 has further deposed that he had entered the seized articles in the PF No.178/2019-Ex.P.9 and submitted the same to the Court and he has identified his signatures as Ex.P9 (a) and (b) and also that he has recorded the statements of CW.2 to C.W-10, later, the victim was sent to Victoria Hospital for higher treatment and he received the MLC from Victoria Hospital regarding the victim's admission there and on the same day, he had deputed the police officials PW.12 and CW.22 for tracing the accused of the case, on 21.10.2019, he has visited the Victoria Hospital and met the informant/victim when the doctor informed that the victim's condition was critical as he has suffered 54% of burn injuries. PW.13 has further deposed that on 22.10.2019, PW.12 and 22 produced the accused before him at 11.30 am and he arrested the accused and after following the arrest procedure, he has recorded the 27 SC No.162/2020 accused's voluntary statement and sent the accused to Dr. B.R.Ambedkar Hospital for general medical checkup and later he has produced the accused before the Court and the accused was remanded to the judicial custody.
28. PW.13 has further deposed that on 24.10.2019 at 7.00am he received a phone call from Victoria Hospital that the victim Imran Ali died due to the burn injuries sustained and so he sent HC 8034/CW20 to receive the death memo of the victim from the hospital and he has submitted a requisition to the Court regarding the death of the victim and requested for including the offence u/sec 302 of the IPC. and he has visited Victoria Hospital and conducted the inquest on the dead body in the presence of CW15 to CW17, CW11 and CW.12 by drawing the inquest mahazar-Ex.P.10 from 11.00 am to 1.00 p.m. and he has identified his signature as per Ex.P.10(a)(b) and (c). 28
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29. PW.13 has further deposed that as per his direction C.W.20 got the postmortem done on the dead body and submitted the death memo and handed over the dead body to P.W.5-the brother of the victim. PW.13 has further deposed that, he has recorded the statement of C.W.11 and C.W.12 at the time of the inquest and Ex.P.11 is the requisition for postmortem and Ex.P.11(a) is his signature. He has identified the accused before the Court and he has handed over the further investigation to CW.25.
30. PW.14 Ajay Sarathi- the Police Inspector and the Investigating Officer has deposed that on 23.10.2019 he received the records of the case from P.W.13 for further investigation and he deputed P.W.13 to submit the articles seized in PF No.178/2019 to the FSL and on 24.10.2019 he has recorded further statement of PW.1 to 3 and PW.15 29 SC No.162/2020 and 16 on 25.10.2019, he has recorded the further statement of PW.5 and 6, on 26.10.2019 he has recorded the statements of CW.9 and on 12.11.2019 he has received the postmortem report-Ex.P.7 from Victoria hospital and he has identified his signature as per Ex.P.7(c) after completing the investigation, he has filed the charge sheet against the accused in the case. PW.14 has further deposed that on 4.10.2020 he has received the FSL report as per Ex.P.13 and he has identified his signature as Ex.P.13(a).
31. PW.15-Mohammad Jawad an eye witness has deposed before the Court that he knows the deceased Imran Ali and also C.W.3 and on 20.10.2019 at around 9.00 a.m. to 9.30 a.m. when he was having tea at a tea stall opposite to a petrol bunk at Nagavara, the deceased Imran was also at the tea shop and at that time, the accused 30 SC No.162/2020 came near Imran and threw petrol on Imran from the bottle which he was holding and set him on fire and ran away, the people near the hotel poured water on Imran and later 2-3 persons took Imran in an auto rickshaw to Ambedkar hospital and later police came to the spot and he showed the spot to them. PW.15 has further deposed that later he came to know that the the accused suspected his wife-P.W.8 having an illicit relationship with Imran. The police inspected the spot and recorded his statement and drawn the mahazar as per Ex.P.3 and he has identified his signature as Ex.P.3(d). PW.15 has identified the accused before the Court as the person who had poured the petrol on Imran and according to him the entire body of Imran had sustained burn injuries and about 4-5 days after the incident, Imran succumbed to the burn injuries and again 31 SC No.162/2020 the police recorded his statement. He has identified the seized bottle, red baniyan and a black shirt as M.Os.1 to 3.
32. PW.16-Dr.Arpit Shantagiri who was working as intern under the HOD of Plastic Surgery and Burns injury Dept. of Victoria hospital has deposed that on 20.10.2019 he had issued the admission intimation to the concerned police as per Ex.P.15 and he has identified his signature as Ex.P.15(a) and on 24.10.2019, he had intimated to the police that the patient who was admitted to the hospital, has expired by submitting his report-Ex.P.16 and he has identified his signature as Ex.P.16(a) and he has stated that the name of the patient who was admitted as Imran.
33. The case of the prosecution is that the deceased Imran Ali was doing interior business along with PW.8- Smt.Shaheed Khanam wife of the accused, since past seven months prior to the incident and about a month 32 SC No.162/2020 prior to the incident the deceased was asked to come to the house of the accused and there the accused had threatened the deceased that he should stop working with his wife as according to him due to the their illicit relationship, his relationship with his wife-PW.8 has deteriorated. Subsequently on 20.10.2019 at about 9.30 am when the deceased Imran Ali was taking tea at a tea stall situated in front of Bharath petrol bunk, Nagawara Main road, the accused came there and threw the petrol on the deceased and set him on fire and then the deceased was taken to Dr.B.R.Ambedkar Hospital and after three day's on 24.10.2019, he succumbed to the injuries. The Investigating Officer has started investigation after the lodging of the complaint Ex.P.6 by the deceased who had sustained 45% burn injuries on his face, head and body and as the deceased was not in a position to put his 33 SC No.162/2020 signature or thumb impression to the complaint, the right toe mark of Imran Ali was taken in the complaint Ex.P.6 by the I.O. in the presence of the Doctor/PW.10. This aspect of right toe mark taken on the complaint has not been denied by the accused, either by cross examining the Doctor/PW.10 in whose presence the impression was taken or to the IO/PW.13 who had gone to the hospital and recorded the statement of the deceased in the presence of the Doctor/PW.10. Hence, the complaint Ex.P.6 lodged by the victim before his death, bears much importance and it can also be considered as a dying declaration because after four days of the incident,the victim had succumbed to the burn injuries inflicted on him. There is no evidence led to show that the deceased was not in a position to speak about the incident and even the statement given by 34 SC No.162/2020 him to PW.1 goes to show that he was in a conscious state of mind while recording the complaint-Ex.P.6.
34. The doctor/PW.10 has clearly admitted that the patient was in a position to speak and record the statement and he was also cautious and in a state of speaking at the time when the statement Ex.P.6 was recorded. There was no cross examination led to PW.10 /doctor to contradict that the statement Ex.P.6 was not recorded as stated by the deceased and also no evidence has been led to show that the patient/deceased was not in a position to give his statement as shown in Ex.P.6. Even the PW.13 PSI who has recorded the statement Ex.P.6 has also stated that as the deceased had sustained burn injuries to both of his hands and hence his right toe mark was affixed and even in respect of this evidence led by PW.13 no cross examination has been put forth to PW.13 35 SC No.162/2020 and there is not even a single whisper made regarding the condition of the patient in not giving the statement as mentioned in Ex.P.6. Hence, it can be held that the deceased was in a fit state of mind and cautious enough to give statement as per Ex.P.6, through which the investigation of this case came tobe progressed.
35. The next point for consideration is to see whether the incident as alleged by the prosecution and as stated by the deceased in Ex.P.6 statement, has taken place. In order to prove this, the prosecution has examined PW.1, 3, 4 and 15 as material eye-witnesses. PW.1, 3, 4 and 15 have all clearly admitted that when they were having tea in front of the tea stall situated at Nagawara Main road on 20.10.2019 at around 9.00 am., the accused before the Court came to the said spot and threw the petrol which he was carrying in a can on the deceased Imran Ali and set him on fire with a 36 SC No.162/2020 match stick and ran away from the spot. All of them have also clearly deposed that some of them tried to catch hold the accused, but he ran away from the spot, but, considering that Imran Ali had caught fire they poured water on him had taken him to the hospital.
36. The Learned counsel for the accused has argued that there are lots of contradictions in the evidence of PW.1, 3,4 and 15 and it is not mentioned as to whether the accused was riding the motorcycle or he was only a pillion rider and even if it is considered that the accused was riding the motorcycle, no explanation is forthcoming from the evidence of the witnesses and the case of the prosecution, as to how the accused was riding the motorcycle by holding the can-MO.1 and matchstick in his hand and hence the possibility of the accused pouring the petrol while riding the motorcycle is highly impossible. It is 37 SC No.162/2020 also argued that these witnesses are tutored witnesses and all of them have deposed before the Court in a similar manner and hence, their evidences cannot be taken into consideration.
37. The prosecution has examined PW.1, 3, 4 and 15 who are strangers to both the accused and the deceased and the accused has not brought out about their relationship with the deceased during the course of their cross examination . There was no interest for these three witnesses to have deposed against the accused or in favour of the deceased and they being strangers to the both the accused and the deceased, their evidence bears relevance in this case. All these witnesses are direct and neutral eye witnesses to the incident and hence their evidence bear more relevance when compared with the evidence of the other witnesses.
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38. The learned counsel for the accused has also argued that the I.O. has not collected any direct evidence such as CCTV footage from the place of the incident in order to link the accused to the alleged crime. In view of several direct eye witnesses having witnessed the incident, the collection of evidences by way of advanced technology is not necessary and hence considering that there were several witnesses who directly witnessed the incident ie., the accused pouring the petrol on the deceased and setting him with fire the collection of CCTV footage to corroborate the evidence of the eye witnesses PW.1 3, 4 and 15 is not necessary. Hence, in this case, the evidence of PW.1, 3, 4 and 15 bears relevancy and has to be taken into consideration in order to prove the offence against the accused.
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39. The accused is alleged to have brought the can- MO.1 containing the petrol and match stick and poured petrol on the deceased Imran Ali and set him on fire. The learned counsel for the accused has argued that the I.O. has not seized the Can containing the petrol or the match stick. Further, it is also argued by the counsel that due to the ban on stocking of petrol, the I.O. has not conducted any investigation as to, from where the accused has secured the petrol or Can and it is a fatal to the case of the prosecution. But, it can be seen that there is no bar for purchasing of petrol and the petrol is not a prohibited substance. The petrol can be carried in a bottle or can or can be taken from the vehicle also. Hence the contention taken up by the learned counsel for the accused that there was no possibility of the accused carrying petrol in a Can has to be ruled out.
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40. PW.1 has also clearly admitted that when he was talking the deceased in the auto rickshaw the deceased had informed him that the accused was threatening to kill him as he had suspicion about the alleged illicit relationship between him and the wife of the accused. PW.3, 4 and 15 have also clearly stated about the accused coming to the spot in two wheeler and poured petrol from a Can on the deceased and lit fire.
41. The evidence of PW.1, 3, 4 and 15 clearly goes to show that the accused was present at the spot on the date of incident and he had brought a can-MO.1 containing petrol and threw the said petrol on the deceased Imran Ali and set him on fire. Though the said witnesses have been cross examined by the accused, nothing material was elicited from their cross examinations to disprove their version. Even it was not suggested to any one of them, that 41 SC No.162/2020 they had an enmity with the accused to depose falsely against the accused. No material evidence has been led by the accused that there was an enmity between the eye witnesses and the accused, for their to depose falsely against the accused.
42. The incident is alleged to have taken place on 20.10.2019 at about 9.30 a.m.. All these witnesses have also deposed about the incident occurring on the same date and same time and also that immediately after the incident, the victim was taken to Dr.B.R.Ambedkar Hospital as stated by the witnesses and also about the victim being rushed to the hospital and within a span of one hour i.e., 10.45 am., the complaint Ex.P. 6 was recorded by PW.13 in the presence of the Doctor/PW.10 and there was no delay in lodging the complaint Ex.P.6 and the FIR was initially registered for the offence under section 307 of the Indian 42 SC No.162/2020 Penal Code and submitted to the Court. Hence, it can be held that there was no delay in lodging the complaint and registering the case and hence the question of tampering with the prosecution witnesses does not arise.
43. The Investigating Officer/PW.13 has deposed before the Court that he had seized the MO.1-can from the spot and the said can was smelling of petrol. Further, he has also stated that, he had seized MO.2- red colour baniyan which also smelt of petrol and the black colour shirt-MO.3 having white spots which was partially burnt, by drawing the spot Mahazar Ex.P.3 and the said spot mahazar Ex.P.3 which was drawn by PW.13 at the spot was signed by PW.9, PW.15 and C.W.14. PW.9 and PW.18 during their cross examination before the Court have clearly deposed that the spot mahazar Ex.P.3 was drawn in their presence and the MO.1 to MO.3 were seized from the spot 43 SC No.162/2020 by the I.O and they had affixed their signatures on MO.2(a) and 3(a) and also signed the mahazar Ex.P.3(a) at the spot itself. The mahazar witnesses-PW.9 and PW.15 were cross examined with regard to the conduct of the spot mahazar and except for denying that they being friends of the deceased are falsely deposing before the Court, which has been denied and nothing worth was elicited to disbelieve their version that the spot mahazar Ex.P.3 was not conducted at the spot or that the MOs 1 to 3 were not seized from the spot. Hence the conducting of the spot mahazar by PW.13 at the spot and seizing MO.1 to 3 from the spot and subjecting them to the PF are also proved by the prosecution.
44. The learned counsel for the accused has argued that the mental condition and physiological turbulence of the accused has to be taken into consideration in this case, 44 SC No.162/2020 as he was under mental agony on coming to know about the illicit relationship of his wife with the deceased. The suspicion of a person cannot permit him to commit a heinous act, that too, of dousing a person by pouring petrol and setting fire on him, in a broad day light in the presence of several people.
45. On perusal of Ex.P.6 it can be seen that a month prior to the incident itself, the accused had called the deceased to his house and there were talks held by the accused with the deceased and his wife and the accused had threatened the deceased that if he continues to work with his wife he would do away with his life. This statement given by the deceased as per Ex.P.6 was also corroborated by the evidence of PW.8 the wife of the accused Shaheed Khanam herself and she has clearly deposed before the Court that she was working with the deceased Imran Ali 45 SC No.162/2020 and the deceased was providing labourers to help in her work and the accused started suspecting an illicit relationship between them and was torturing her, due to which she went to her parent's house and informed them about the act of the accused and there was a panchayath convened by her parents in their house at Lal Masadit Road, Shivajinagar in the presence of her parents, her brother, herself, her husband along with the deceased Imran Ali and even during the panchayath the accused had threatened both herself and the deceased and in view of his behaviour she continued to stay with her parents and was going for work from her mother's place and even during the said period the accused used to call her and threaten her. This evidence of PW.8-the wife of the accused corroborates to the statement made by the deceased while recording the statement as per Ex.P.6. The act of the 46 SC No.162/2020 accused in carrying petrol in a can and pouring it on the deceased and setting him on fire, all goes to show a predetermined mindset of the accused and in planning to commit the murder of the deceased. The possession of a petrol can and match stick goes to show that the accused has planned in detail to commit the offence.
46. The evidence of PW.8 and the statement recorded in Ex.P.6 are corroborated by the evidence of PW.5 and 6 who are the brothers of the deceased and PW.7 is the wife of the deceased who has all deposed that the deceased was doing interior decoration business along with PW.8 and in respect of the same, the accused was suspecting his wife for having illicit relationship with the deceased and about threatening the deceased.
47. PW.5 to 7 all have clearly deposed before the Court that after the accused had threatened the deceased 47 SC No.162/2020 they had informed the deceased to stop working with PW.8, but inspite of their advise, the deceased continued to work with PW.8 stating that he had no such illicit relationship with PW.8. Hence, the evidence of PW.5 to 7 when considered along with the statement of PW.8 gives credence to the prosecution case, that the accused had grave suspicion about the illicit relationship of his wife with the deceased due to which, he had motive to do away with the life of the deceased and accordingly, preparations were made by him to commit the offence against the deceased. The possession of the petrol can MO.1 and bringing the matchstick along with him, which was used by the accused to commit the offence, that too, in a broad day light in the presence of the public, shows the preparation which the accused had done with an intention to commit the alleged offence.
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48. The learned counsel for the accused has also argued that the death of the deceased was caused after a period of four days. The death of Imran as per the postmortem report- Ex.P.7, was caused "due to septicemia as a result of burn injuries sustained". A According to the counsel for the accused, due to dousing of the water on the victim epidermis of the skin of the victim was blistered and due to the water coming into contact with the human skin, blisters were formed and a devastating effect has taken place. It was suggested by the counsel to the doctor-PW.16 that, bacteria were formed in the burns and when the bacteria enters into the veins and arteries, sepsis takes place, but deep vein thrombosis is not formed and when the blisters are caused, blood clots and the possibility of pulmonary embolism taking place and death occurring when pulmonary embolism takes 49 SC No.162/2020 place, has been denied by the Doctor-PW.16 who had intimated the police about the admission of the victim to the hospital.
49. In a decision reported in State of Madhya Pradesh Vs. Ram Prasad, (1968) 2 SCJ-355, the Hon'ble Supreme Court has held as under:-
"It was obvious that the accused must have known that he was running the risk of causing the death of his wife or such bodily injury which was likely to cause her death. The Supreme Court held that the act could even be covered under clause Fourthly of Section 300 of the Indian Penal Code. It was, therefore, held that his offence was - culpable homicide amounting to murder even if he had not intended to cause the death. There, naturally, the Supreme Court examined a position alternative to the First Clause of Section 300 of the Indian Penal Code and held that even if that alternative position was accepted, still the offence would be one covered by Section 300 and punishable under section 302 of the Indian Penal Code. We are of the opinion that person 50 SC No.162/2020 who pours kerosene on the clothes of another and sets fire to the same must be attributed with the intention of causing the death of that other person. In the instant case, therefore, we hold that the accused did the act which is proved to have been committed by him with the intention of causing the death of Vimal."
50. In another decision on similar line has been renderer by the Hon'ble Supreme Court in the case of 'State of Haryana Vs. Pala and Ors' , in which the Apex Court has held as under:-
"The supervening event of septicemia was not of any consequence as the death was only on account of head injuries and other injuries caused to the deceased."
51. Therefore, it can be safely concluded that the accused has committed the murder of Imran Ali by pouring petrol on him and setting him on fire, as a result of which, he suffered 45% burn injuries and as a consequence 51 SC No.162/2020 of which he died. Accordingly, the point No.1 is answered in the affirmative.
52. Point No.2 :- For the above reasons, I proceed to pass the following :-
ORDER Acting under section 235(2) of the Cr.P.C. the accused-Asif is hereby convicted for the offence punishable under section- 302 of the Indian Penal Code.
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(Dictated by the stenographer, transcribed and typed by him and after corrections, pronounced by me on this the 1 st day of October, 2022)
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(YERMAL KALPANA) XXVI Addl.City Civil & Sessions Judge, Mayo hall, Bengaluru.
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SC No.162/2020 07.10.2022:-
Heard regarding sentence.
ORDERS ON SENTENCE The accused/offender has been convicted for the offence punishable under section-302 of the Indian Penal Code.
2. Section 302 of the IPC provides for punishment with death or imprisonment for life and shall also be liable to fine, for committing murder.
3. The accused and his counsel have been heard on the sentence. The accused has not made any submission and that he has no evidence on the sentencing.
4. The learned counsel for the accused argues that the accused was undergoing mental trauma suspecting the 53 SC No.162/2020 infidelity of his wife which has to be considered along with the psychological turbulence undergone by the accused and hence, minimum sentence provided for the offences may be awarded.
5. The learned Public Prosecutor has submitted that the accused has been convicted for the offence punishable under section 302 of the Indian Penal Code, wherein one person lost his life, which is heinous in nature and hence, the maximum punishment may be awarded.
6. I have considered the submissions made by the learned counsel for the accused and the learned public prosecutor.
7. Considering the submission made by the accused and also considering the gravity of the offence committed by the accused, that too, of pouring petrol and setting fire on the deceased in a broad daylight, that too, in the 54 SC No.162/2020 presence of several witnesses goes to show that at this stage, the accused has not made out grounds for awarding minimum punishment with fine and also this case does not come under the purview of 'rarest the rare case'.
8. Keeping in view of the above said facts and circumstances and position of law, I proceed to pass the following:-
ORDER The accused-Asif is sentenced to imprisonment for life and fine of Rs.5,000/- for the offence punishable under section-302 of Indian Penal Code.
In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of six (6)months. 55
SC No.162/2020 Acting under section-428 of the Cr.P.C., the period of detention undergone by the accused in the custody, is given set off.
Issue Prison commitment Warrant against the accused for serving the sentence and commit him to prison. Office to furnish free copy of the judgment to the accused.
The case properties i.e, M.Os.1 to 3 are confiscated to the State, after the appeal period.
(YERMAL KALPANA) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.56
SC No.162/2020 ANNEXURE
1. List of witnesses examined for complainant:
P.W.1 Sri.Ameen Pasha
P.W.2 Sri.Sulaiman
P.W.3 Sri.Asgar Ali Khan
P.W.4 Muheel Jaffer
P.W.5 Sri.Parveez Ahmed
P.W.6 Sri.Asif Ali
P.W.7 Smt.Farana Anjum
P.W.8 Smt.Shaheed Khanam
P.W.9 Sri.Nazeer Ahmed
P.W.10 Dr.Saikumar
P.W.11 Dr.M.P.Pradeep Kumar
PW.12 Sri.Dinesh Kumar Shetty
PW.13 Sri.Nagaraj.T.Nedhalagi
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PW.14 Sri.Ajaya Sarathi
PW.15 Sri.Mohammad Jawad
P.W.16 Dr.Arit Shantagiri
2. List of witnesses examined for Accused:
NIL
3. List of documents exhibited for Complainant:-
Ex.P.1-2 Photographs
Ex.P.3 Mahazar
Ex.P.4 Inquest Mahazar
Ex.P.5 MLC Intimation
Ex.P.6 Statement/complaint
Ex.P.7 Post Mortem Examination Report
Ex.P.8 Requisition dtd. 24.10.2019
Ex.P.9 PF No.178/2019
Ex.P.10 Mahazar
Ex.P.11 Requisition for PM
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Ex.P.12 Report
Ex.P.13 FSL Report dtd. 22.05.2020
Ex.P.14 Acknowledgment
Ex.P.15 Intimation dated 20.10.2019
Ex.P.16 Intimation dtd. 24.10.2019
4. List of documents exhibited for Accused :-
Nil
5. List of Material objects exhibited:-
MO-1 : Plastic Can
MO-2 : Red baniyan
MO-3 : Striped black Shirt.
(YERMAL KALPANA)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
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(Sentence pronounced vide separate sentence) ORDER The accused-Asif is sentenced to imprisonment for life and fine of Rs.5,000/- for the offence punishable under section-302 of Indian Penal Code.
In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of six (6)months.
Acting under section-428 of the Cr.P.C., the period of detention undergone by the accused in the custody, is given set off.
Issue Prison commitment Warrant against the accused for serving the sentence and commit him to prison. Office to furnish free copy of the judgment to the accused.
The case properties i.e, M.Os.1 to 3 are confiscated to the State, after the appeal period.
(YERMAL KALPANA) XXVI Addl. City Civil Judge, Mayo Hall, Bengaluru.