Karnataka High Court
State By Honnali Police vs Rahamathulla S/O Sathar Sab on 5 December, 2012
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF DECEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUANTH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.1834/2007 (A)
BETWEEN
State by Honnali Police
Davanagere.
...Appellant
(By Sri. Sampangiramaiah, HCGP)
AND:
1. Rahamathulla
S/o. Sathar Sab
22 years, Coolie work
R/o. Kundur Village
Honnali Taluk, Shimoga Dist.
2. Fazalunbi
W/o. Late Satharsab
Aged 50 years
Household work
R/o. Kundur Vilalge, Honnali.
3. Rabiya
W/o. Esmail Sab
Aged 20 years
Coolie work
2
R/o. Kundur Village, Honnali,
Shimoga Dist. ... Respondents
(By Sri.S.Vishwajith Shetty, Adv., for R.1 to 3)
This Crl.A. is filed under Section 378 (1) and (3) of
Cr.P.C. by the State P.P. for the State praying to grant
leave to file an appeal against the Judgment dated
24.3.2007 passed by the Addl. S.J., FTC- I ,
Davanagere, in S.C.No.108/2006 acquitting the
respondents/accused for the offence P/U/Ss. 498 (A),
304(B), 206 r/w. Section 34 of IPC as well as under
Sections 3, 4 and 6 of D.P.Act and convict the
accused/respondents for the offences with which they
have been charged.
This Crl.A. coming on for hearing this day,
K.L.Manjunath J., , delivered the following:-
JUDGMENT
The State has preferred this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, challenging the legality and correctness of the judgment and order of acquittal dated 24th March, 2007 passed in S.C.No.108/2006 by the Additional Sessions Judge, Fast Track Court - 1, Davanagere,
2. The respondents/accused were tried for the offences punishable under Sections 498 (A), 304 (B), 306 r/w. Section 34 of IPC and under Sections 3, 4 and 3 6 of the Dowry Prohibition Act. According to the prosecution, on the basis of dying declaration of one Malan Banu recorded by PW.15 - Taluka Executive Magistrate at Chigateri General Hospital, Davanagere, as per Ex.P.16 in the presence of PW.26 - Dr.Mohammed Salaudhin at about 6.40 p.m. on 30.07.2006, PW.21 - A.T.Shanthappa, ASI, registered the case against the respondents in Crime No.163/2006 and FIR was sent to the JMFC, Honnalli as per Ex.P.25 on 31.7.2006.
3. It is the case of the prosecution the marriage of A.1 with the deceased Malan Banu was performed on 4.6.2006. A.2 and A.3 are the mother and younger sister of A.1 and at the time of marriage of A.1 with Malan Banu, a sum of Rs.10,000/- cash and gold ornaments weighing ½ sauran were demanded and the same was satisfied by her parents. Immediately after the marriage, A.1 started subjecting the deceased to cruelty and harassment both mentally and physically, being unbearable of which, on 30th July, 2006 at about 3.00 4 p.m. in the house of the accused situated at Kundur Village coming within the limits of Honnalli Police station set fire to her-self after dousing with kerosene and sustained burn injuries. She was shifted to Chigateri General Hospital, Davanagere and admitted to the hospital at about 6.00 p.m. She succumbed to the injuries on 4.8.2006 at about 7.25 a.m.
4. The Taluka Executive Magistrate recorded the dying declaration of the deceased on 30.07.2006 at about 6.40 p.m. in the presence of PW.26 - Dr.Mohammed Salaudhin. Thereafter, PW.15 - Taluka Executive Magistrate sent the dying declaration to PW.22- P.R. Shahu Dysp. On the basis of which, he registered the case and took-up investigation. During the course of investigation, he arrested the accused on 31.7.2006 and got him remanded to the judicial custody. He also recorded the statements of the witnesses and on completion of the investigation submitted final report before the Jurisdictional Magistrate, who in turn committed the case to the Court 5 of Sessions, which on receipt of the records, secured the presence of the accused and framed charges for the aforesaid offences, to which the accused pleaded not guilty, but they claimed to be tried.
5. The prosecution in support of its case examined in all PWs. 1 to 30 and got marked Exs.P1 to 33 and MOs. 1 to 3.
6. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on this defence and to lead any evidence that they may have in support of their case, to which they stated that they have no defence evidence to lead. Total denied of the prosecution case is the defence of the accused.
7. The Sessions Court formulated the following points for its consideration:-
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1) Whether the prosecution proves all reasonable doubt that, the A.1 being the married husband of deceased Malan Banu and A.2 and A.3 being mother and younger sister of A.1, in furtherance of common intention have subjected the deceased Malan Banu both physically and mentally for dowry of their house at Kundur and thereby committed offence under Section 498 (A) r/w.
Sec. 34 of IPC?
2) Whether the prosecution further proves beyond all reasonable doubt that the A.1 and A.3 in furtherance of common intension have abated the deceased to commit suicide in their house by way of subjecting her to cruelty on 30.07.2006 at about 3.00 p.m., which was within the period of 7 years of the marriage of the deceased and thereby committed offence under Section 304 r/w. Section 34 of IPC?
3) Whether the prosecution further proves beyond all reasonable doubt that the A.1 to A.3 in furtherance of common intension, have subjected the deceased to cruelty which instigated the deceased to commit suicide by setting herself on fire after pouring kerosene 7 on 30.7.2006 at about 3.00 p.m. and that the succumbed to the burn injuries on 4.8.2006 at about 7.25 a.m. in the hospital, which is punishable under Section 306 r/w. Sec. 34 of IPC?
4) Whether the prosecution further proves beyond all reasonable doubt that the accused at the time of marriage or just prior or thereafter, the accused have demanded and accepted the dowry of Rs.10,000/- and ½ sauran of gold ornament while A.1 marrying with Malan Banu which is punishable under Section 3 of the D.P. Act?
5) Whether the prosecution proves that beyond all reasonable doubt that the accused persons have subjected the deceased to cruelty to bring more dowry from her parents after the marriage which is punishable under Section 4 of the D.P. Act?
6) Whether the prosecution further proves beyond all reasonable doubt that the accused on receipt of dowry on demand from the parents of the deceased, have failed to entrust the same to the concerned either during the lifetime of the deceased Malan 8 Banu or after her death, within stipulated time/period which is punishable under Section 6 of D.P. Act?
7) What order?
8. The Sessions Court after considering the entire material placed before it and considering the arguments of the learned public prosecutor and defence counsel held point Nos. 1 to 6 in the negative and acquitted the accused on the ground that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt.
9. The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court.
10. We have heard Sri.Sampangiramaiah, learned High Court Government Pleader for the State and Sri.S.Vishwajith Shetty, learned counsel appearing for the respondents/accused.
11. According to the learned Government Pleader, the Sessions Court has committed a serious error in holding 9 that the prosecution has failed to bring home the guilt of the accused without appreciating the evidence of PW.15, 26 and Ex.P.16 and also the evidence of PW.16 - Dr. K.B.C. Sogi. According to him, though the relatives of the deceased have not supported the case of the prosecution, the same could not be the ground for the Sessions Court to reject the medical evidence and discard the dying declaration considering the physical and mental condition of the deceased, who has given her statement as per Ex.P.16 in the presence of PW.26. He further submits that the trial Court has not properly appreciated Ex.P.21 - the history sheet maintained by the hospital and according to him, if the medical evidence and the dying declaration had been considered properly by the Sessions Court, the Sessions Court could not have acquitted the accused persons. According to him, there were no reasons for the deceased to commit suicide within two months from the date of her marriage without there being any ill- treatment meted out to her by her husband, mother-in- 10 law and sister-in-law. Therefore, the impugned judgment and order cannot be sustained, it be set-aside and the accused be convicted and sentenced.
12. Per contra learned defence counsel submits that the Sessions Court has rightly rejected the evidence of PWs.15, 26 and PW.16 and so also Ex.P.16 in the back drop of Ex.P.21. According to him, medical record shows that the deceased was got admitted to Chitageri General Hospital by A.1 only. According to the dying declaration of the deceased, she was brought to the hospital by her relative in a Temp Traveler, which is not the case of the prosecution. According to him, the deceased had sustained burn injuries to the extent of 98% to 99% and that she had been admitted to hospital at about 5.30 p.m. and by looking into Ex.P.21, she was administered an injection known as Diazgpam at 6.30 p.m. and when such an injection was administered, she could not have given dying declaration between 6.30 to 7.30 p.m. as per Ex.P.16. Therefore, the learned Sessions Judge has rightly discarded the medical 11 evidence and has rightly held that in view of nature of injection administered to her, she could not have given dying declaration as per Ex.P.16. In addition to that, from the dying declaration the deceased has admitted that she herself committed suicide by pouring kerosene on her. Therefore, it was for the prosecution to prove that A.1 to A.3 were treating the deceased with utmost cruelty, which compelled her to commit suicide and the evidence of the relatives of the deceased discloses that no such harassment was meted out to the deceased by A.1 to A.3. In the circumstances, he contended that the Sessions Court is justified in acquitting the accused persons.
13. Having heard the learned counsel for the parties, what is to be considered by us in this appeal is:
"(a) Whether the prosecution has proved beyond reasonable doubt that A.1 to A.3 had subjected the deceased to cruelty and harassment, being unbearable of which, the deceased has committee suicide?12
(b) Whether the impugned judgment
and order of the trial Court calls for
interference?"
14. The deceased Malan Banu having committed suicide is not disputed. The question is; whether the accused had subjected the deceased to cruelty and harassment, being unbearable of which, the deceased has committed suicide.
15. As rightly pointed out by the learned trial Judge, none of the prosecution witnesses, who were relatives of the deceased, have supported the case of the prosecution. The learned trial Judge has observed that merely because, the relatives and witnesses have not supported the case of the prosecution, the accused cannot be acquitted if there is other cogent, legal evidence on record. In this connection, it has dealt with the medical evidence let in by the prosecution in detail and has also considered the evidence of PWs.15, 16, 26 and so also Exs.P.16 and P.21.13
16. According to PW.15, he recorded dying declaration of the deceased as per Ex.P.16. PW.26 - Dr.Mohammed Salaudhin has certified that the deceased was able to give her statement/dying declaration. The dying declaration is said to have been recorded between 6.40 to 7.30 p.m. on 30th July, 2006.
17. As could be seen from the case sheet maintained by the hospital, it is A.1 who got the deceased admitted to the hospital. It is also stated that she was admitted to the hospital at about 5.30 p.m. and that she had suffered 98 to 99% burn injuries.
18. On looking into the case sheet maintained by the hospital, her BP could not be recorded and at 6.30. p.m. she was administered with an injection known as Diazgpam and also rantac. PW.14 is Dr.P.J.Prabhakar, who has treated the deceased at the first instance at Chigateri General Hospital. In his cross-examination, he has admitted that the doctors could not record her BP and as per Ex.P.21 her physical condition was not 14 stable and at about 6.30 p.m. diazgpam injection was administered and if such an injection is administered, the patient will go to sleep and that injection would work for 4 - 5 hours and he has further stated that after injection was administered, she was unable to speak.
When the injection was administered to her at about 6.30 p.m., it is difficult for any Court to believe that she was able to give dying declaration as per Ex.P.16 between 6.40 to 7.30 p.m.. Therefore, the learned trial Judge considering the evidence of PWs.15, 16, 26 and Exs.P.16 and P.21 has rightly rejected the case of the prosecution and has acquitted the accused.
19. We find from the evidence on record, the trial Judge on appreciation of the material before it has come to the right conclusion in holding that the prosecution has failed to prove the charge against the accused, which in our view does not suffer from any infirmity or illegality calling for interference that too in an appeal filed by the State against an order of acquittal. 15
20. In the result, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SA