Karnataka High Court
Firoz Khan vs State Of Karnataka By on 17 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 1548
Bench: K.N.Phaneendra, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR
CRL.A. NO.131/2015
BETWEEN
FIROZ KHAN
AGED ABOUT 28 YEARS
S/O VAJID KHAN @ BASID KHAN
WORKING AS DRIVER IN PRIVATE BUS
RESIDENT OF SMALL MASJID ROAD
ATTHIBELE TOWN, ANEKAL TALUK
PIN CODE - 562 107
... APPELLANT
(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KALEEM SABIR, ADVOCATE)
AND
STATE OF KARNATAKA BY
ATTHIBELE POLICE, ANEKAL TALUK
BENGALURU RURAL DISTRICT
PIN CODE - 562 107
... RESPONDENT
(BY SRI. HONNAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED:
21.01.2015 IN S.C.NO.5044/2013, PASSED BY THE III-
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, SIT AT ANEKAL
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CONVICTING THE APPEALLANT/ACCUSED NO.1 FOR
THE OFFENCE P/U/S 498(A), 302 R/W 149 OF IPC.
THIS CRL.A COMING ON FOR HEARING THIS DAY,
K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant was Accused No.1 before the Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (for short, 'trial Court'), in SC No.5044/2013. He was convicted vide judgment and Order of Sentence dated 21.01.2015 for the offence punishable under Sections 498-A and 302 of IPC. He was sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- for the offence under Section 302 of IPC with default sentence of three years imprisonment. He was also convicted for the offence punishable under Section 498-A of IPC and sentenced to undergo imprisonment for two years and to pay fine of Rs.5,000/- with default sentence of S.I. for three months.
2. We have heard the arguments of Sri. Hashmath Pasha learned Senior Counsel for the appellant on behalf of Sri. Kaleem Sabir, Advocate and 3 Sri. Honnappa, the learned HCGP for the Respondent- State. We have carefully re-evaluated the entire oral and documentary evidence on record.
3. Initially the respondent-Police have laid chargesheet against five accused persons viz., the appellant herein and as well as other four accused, who are close relatives of this appellant ie. his father, mother, brother and sister of the appellant. The trial Court acquitted the other accused persons of the offences alleged against them for want of adequate and sufficient evidence and convicted the appellant solely on the basis of the dying declaration of the deceased marked at Ex.P18 recorded by PW.18 in presence of the Doctor (PW.19).
4. A careful perusal of the evidence on record reveals that, PW.1-Idayuth Khan is the elder brother; PW.2-Firoz Kahn is the sister's husband; PW.3-Parveej Ahmad Khan; PW.4-Imran Khan are the relatives of the deceased; PW.5-Shahajan Pasha is the formal panchwitness to inquest; PW.6-Hinayathulla Khan is the neighbour of the appellant (A1); PW.7-Reshma 4 Thabasim is the cousin of the deceased, who stated to have gone to the hospital and saw the deceased. All other witnesses iz., PWs. 1 to 6 have not fully supported the case of the prosecution particularly to the extent incriminating the accused persons to the crime.
5. PW.8-Srikanth M.Y, is the Assistant Engineer, who prepared the spot sketch as per Ex.P6 on the requisition of the police; PW-9-H.N.Shivegowda, the Taluka Executive Magistrate, has also conducted the inquest proceedings as per Ex.P1. PW.10-Shashikiran is the Panchayat Development Officer, who issued the house extract pertaining to appellant (A1), where exactly the incident took place, as per Ex.P8 & P9. PW.11-Vishwanath is the landlord where the appellant was taken a house for rent, in which appellant (A1) and the deceased were said to have been living; PW.12- Lathif Khan is the neighbourer of Accused No.1 and he also turned hostile. PW.13-Amazad Pasha was also a neighbourer of the appellant and he has also not supported the case of the prosecution; PW.14-Nagaraju is the Head Constable No.439, who carried the FIR and 5 delivered the same to the concerned Magistrate on 06.08.2012; PW.15-C.R. Narayanaswamy, is also a Police Constable No.825, who was deputed to apprehend the accused; PW.16-M.Shivaramappa is the ASI, who was deputed to record the statement of the victim and in fact on the directions issued by his Higher Officer, he requested and secured the presence of the Tahasildar, Anekal Taluk and got the dying declaration recorded PW.17-Prakash is another Police Constable No.1243, who was deputed to apprehend the accused and who actually arrested the accused on 18.10.2012 and he submitted a report to that effect as per report Ex.P17; PW.18-Tejas Kumar is the Special Tahasildar, who actually recorded the dying declaration of the deceased as per Ex.P18; PW.19-Dr. H.V. Shivakumar is a Senior Specialist working in Victoria Hospital, Senior Specialist, who was present at the time of recording the dying declaration and who has given the certificate of dying declaration of the deceased as per Ex.P18(d); PW.20-Dr. Pradeep Kumar M.P, is a Doctor, who conducted post-mortem examination on the dead body of the deceased.
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6. PW.21-Venkata shetty, is the CPI, who investigated the matter and conducted spot- mahazar etc. and converted the case for the offence under Section 302 and also under Section 304-B of IPC, after the death of the Victim, since earlier, when the deceased was alive, the case for the offence under Sections 498-A and 302 of IPC were registered. PW.22- Kumara Swamy is the Dy.S.P. He took further investigation of the case and he visited the place of incident, drew spot mahazar as per Ex.P3, and took statement of CWs 8 & 9; PW.23-R. Virupaksha Swamy is the PSI, who received the admission memo from the Victoria Hospital and entered the same as C.Misc. No.486/2012 at the earliest point of time. Later, he deputed one Mr. Shivaramappa, the ASI along with a WPC and PC to go to hospital and record the dying declaration. However, as per the direction of the Higher Officer, the dying declaration was got recorded through the Tahasildar.
7. On careful re-evaluation of the entire oral and documentary evidence on record, there is no 7 dispute with regard to the relationship between the parties. The deceased is no other than the wife of the appellant and they were residing together under a common roof. Accused Nos. 2 to 5 were not residing along with Accused No.1 and the deceased. It is also not in dispute that the death of the deceased is a homicidal death due to burn injuries sustained by her and she died in the hospital. The post-mortem examination report and inquest report fortify that the death of the deceased caused due to burn injuries sustained by her and she died due to septicemia. None of the witnesses, who are kith and kin, relatives and neighbours of the deceased have supported the case of the prosecution and they have all wholly turned hostile to the prosecution so far as the offence under Sections 498-A and 302 of IPC are concerned. Therefore, the only evidence available to the Court to rely upon, is the dying declaration recorded by PW.18, in the presence of PW.19. Therefore, it is just and necessary for this Court to look at the dying declaration and then the evidence of PW.18 and PW.19 in order to ascertain, whether the said dying declaration has been proved to the 8 satisfaction of the court. Of course when there is any suspicion regarding the circumstance of dying declaration and particularly when the court has to rely upon the sole circumstance of dying declaration, the Court has to very meticulously examine such dying declaration and if it is not fully corroborated by any other material on record, the Court has to test the veracity of the dying person by looking to the procedural regularity observed by the person, who recorded the dying declaration and thereafter the true facts or otherwise of the contents of the dying declaration have to be looked into by the Court before accepting the same for the purpose of convicting the accused.
8. In the above said backdrop, now we will first consider the evidence of PW.18 & PW.19. Before that, we may also say here that, when the relatives and kith and kin of the deceased turned hostile and no suggestions have been made to them in the course of cross-examination by way any defence, it is not made known to the Court as to what exactly happened in the 9 house of Accused No.1 on that particular day. Further, Accused No.1, who is actually answerable, has not stated anything about the incident in his 313 statement as to how the incident had happened. If the prosecution was able to prove the presence of Accused No.1 in the house on that particular date and time of the incident and the deceased was also present, to some extent, the accused is the only person who has to give explanation as to how the incident has happened. It is not even the case of the appellant (A1) that, she committed suicide by pouring kerosene on herself and lit fire. But an evasive defence has been placed by him stating that the incident has taken place due to stove burst and due to the impact of the same, the deceased died.
9. In the above backdrop, the court has to peruse the evidence of PW.18. Of course, PW.18 is the Tahasildar working at Anekal Taluk and he was specially deputed to record the statement of the victim. According to PW.18, on 05.08.2012, at the request of the police, he went to the hospital along with Police 10 Constable No.1508 and she herself examined that, the victim was in a position to give statement and she was in talking terms and the Tahasildar has also talked with her and she was very conscious and thereafter PW.18 recorded the statement of the victim in the presence of the Doctor (PW.19), who has also certified that the victim was in a fit condition to give statement. PW.18 has also stated that, the deceased has stated that all the accused persons were present at the time of assault on her and Accused No.1 actually poured kerosene on her and lit fire. Therefore, being satisfied with the condition of the victim, PW.18 recorded the statement of the victim as per Ex.P18 and signature of the witness was also marked and the Doctor has also signed the said document certifying that the victim was in a fit condition to give such statement.
10. Of course, during the course of cross- examination some irregularities have been elicited that the Doctor cannot certify on the top of the said dying declaration to show that the statement not been recorded. But it was certified at the bottom of the said 11 dying declaration. It is also not elicited that this witness has dictated the dying declaration and the police constable-1508 who was present in the hospital has written the contents of the said dying declaration. Except that, nothing worth has been elicited to deny the dying declaration stating that it was not recorded byPW.18. There is no infirmity in dictating the said dying declaration to PC-1508 and the point of the police constable writing the dying declaration is also not elicited or questioned in the course of cross-examination to show, whether there is any illegality committed by PW.18. Therefore, in the course of cross-examination, except this particular irregularity that the 'certification should not be on the top of the said dying declaration', nothing worth has been elicited. In our opinion it is neither an irregularity nor illegality. PW.18 is a Public Servant and he has been requested to record the dying declaration. Unless it is elicited during the course of cross-examination of PW.18 about his self- interestedness in recording dying declaration of the victim, such contention cannot be tenable. Because, PW.18 is a Special Tahasildar and why he has to lie 12 before the Court and this point has not even been even touched upon during the course of his cross- examination. Even if the said irregularity is accepted, in our opinion, it does not go to the root of recording of dying declaration and in our opinion, such irregularity amounts to mere irregularity unless it is shown to the Court that, it is an illegality. Therefore, the court can just ignore the same.
11. In support of the evidence of PW.18 (Tahasildar), PW.19 (Doctor) was examined. PW.19 has stated that on 05.08.2012 the Tahasildar of Anekal had come to the hospital and he requested that he has to record the dying declaration of the injured and to convey her condition. Then PW.19 was enquired and he examined the victim and first he orally certified that she is in a fit condition to give statement, for the purpose of recording dying declaration and subsequently, he has also certified that, the victim was in a fit condition to give statement and at the time of recording the statement of the deceased, he was very much present and he has also signed the said dying 13 declaration with reference to the certificate issued with regard to the physical and mental fitness of the injured. Of course, in the course of cross-examination, some irregularity has been elicited, that the doctor has not brought the case sheet of the victim, therefore the Doctor first refused to give such certificate and giving status of the victim as he was not the treating doctor. He requested the Tahasildar to go and approach the CMO and in turn it appears, the Tahasildar has requested the CMO and thereafter a direction was issued to this Doctor and after wards, he examined the injured and gave such certificate. Of course, these aspects have not been elicited from the mouth of the Tahasildar as to what is the irregularity that has been committed and only after a direction issued by the CMO, PW.19 gave such certificate to PW.18 to record the statement of the victim, is also not explained by the learned counsel in this regard.
12. The Doctor has categorically stated that, before PW.18 taking statement of the victim, PW.19 has actually opined that, the injured was in a fit condition to 14 give statement. However, no suggestions appears to have been made that, this Doctor was not present and he has not at all given any certificate to disprove the material on record. Of course, the case sheet has not been produced in order to ascertain as to what exactly the first information was given when the victim was admitted to the hospital. But no suggestion has been made to this witness (Doctor) that at the time of the victim being admitted to the hospital, she was admitted on the history of stove burst. It is an admitted fact that the victim was brought to the hospital by the appellant (A1). But no such suggestion or any such cross- examination has been made by the learned counsel for the appellant to the Doctor, who was present very much present and available. Therefore the abrupt defence taken in 313 statement or during the course of cross- examination before the court, the same thing has not been available in any other material on record. When the learned counsel for the accused has questioned the Doctor, that he has not brought any such document before the Court, he would have got explained the infirmity in the said document. Otherwise, it can be 15 presumed that when the Doctor has given information that the victim was in a fit condition to record statement, the court should not without any logical reasons disbelieve the evidence of the doctor, because, he is an expert and he is competent person to give such certificate. The court having no other material on record to logically reject the said information given by the Doctor, due weightage has to be given to the evidence of the Doctor. Merely because of some procedural irregularities, the established true facts of the dying declaration cannot be brushed aside. Therefore in the absence of any such material on record, we are of the opinion that, the dying declaration (Ex.P18) recorded by PW.18 in presence of PW.19 has been proved beyond reasonable doubt.
13. The dying declaration which is marked at Ex.P18 discloses that the Tahasildar had put so many questions with regard to the place of residence and relationship etc. and also about the reason for sustaining injuries on her person and thereafter, the victim has stated that, her husband poured kerosene 16 on her and lit fire. But, very peculiarly it is stated that, from 1.30 p.m, on that day, the quarrel between the members of the family and the victim started and from 1.30 pm to 3.00 p.m., they quarreled with each other and thereafter it appears the matter reached the climax and according to the victim, her husband poured kerosene and lit fire. But though she answered as many as 21 questions in the dying declaration, but conspicuously, she has not explained, as to what happened from 1.30 pm to 3.00pm. It is not a small period of time to ignore the same. If suddenly the incident happened, the accused with an intention to kill her suddenly poured kerosene on her and lit fire. But it is not the case of the prosecution that from 1.30 pm to 3.00 p.m. galata taken place and all the accused persons have abused and assaulted the deceased and ultimately her husband poured kerosene on her and lit fire. It is also doubtful whether all the accused persons at the time of quarrel at 1.30 p.m. were also present when the husband of the deceased pouring kerosene on the deceased and lit fire. Perhaps that may be the reason why the other accused persons were all not 17 residing along with the victim and Accused No.1. The trial Court doubted their presence at that particular point of time, because only the Accused No.1 and the deceased were residing together in a separate rented house. Therefore, on that ground, the benefit of doubt has been given to other accused persons.
14. The State has also not challenged the said judgment of the trial Court so far as the other accused persons are concerned. Therefore, such benefit of doubt given to other accused persons, may not be available to this appellant/accused. Because, all the witnesses who have even turned hostile, have also admitted that Accused No.1 and the deceased were residing together under a common roof. Perhaps, that may be one of the reason, which prompted the trial Court to convict the accused for the above said offences. Further, the content of the dying declaration would also a factor to be taken into consideration. As we have observed, the trial Court has also found from the evidence of PW.18 and PW.19 that the dying declaration has been proved. Therefore, straightway 18 the trial Court has proceeded to convict the appellant (A1) under Sections 302 and 498-A of IPC even without appreciating the contents of the dying declaration.
15. As we have already referred to, there are some procedural irregularity in drafting dying declaration and it is not sufficient to disbelieve the truthness or otherwise of the dying declaration. But, it has to be tested from analyzing or appreciating the contents of the dying declaration. Therefore, when the victim was able to answer 21 questions, and 21st question tally with the explanation given by the victim as to what happened on that particular day, she has stated that the accused persons demanded money which was acquired by her father by selling the house property and she has not brought that amount and that was the reason for galata from 1.30 pm to 3.00 pm. Even assuming and accepting the judgment of the trial Court that, the Accused No.1 and the deceased were alone in their house from 1.30 to 3.00 p.m., and the accused and deceased if at all quarreled, it is not only one sentence that would have been available to the 19 deceased to say that Accused No.1 has poured kerosene on her and lit fire, but some more altercations must have been taken place. Because, in the course of altercation, normally nobody will keep quiet for 1½ hours without speaking anything. Therefore, such quarrel/altercation taken place between the husband and wife has not been stated in detail by the deceased, though she was capable of giving such details before the Tahasildar. Therefore, there is a serious doubt as to whether the quarrel between the husband and wife has taken place for nearly 1½ hours and the matter has reached the climax and the accused due to enragement or due to sudden provocation or in heat of passion or due to any other strong circumstance, has poured kerosene on her and lit fire. Therefore, when such evidence is not available, the court can infer such thing, that the incident must have happened in a heat of passion and in such an eventuality, the benefit of doubt would have been given in favour of the accused.
16. Even accepting that, between 1.30 p.m. to 3.00 p.m., the quarrel took place between the accused 20 and the deceased, due to enragement and due to sudden provocation or in heat of passion the accused poured kerosene on the deceased and lit fire, as specifically stated by the deceased, but to give the benefit of circumstance, we afraid to accept the view of the trial Court that exactly the offence would fall under Section 302 of IPC. Unless the entire circumstances are placed before the court, the court cannot directly jump to the conclusion that the offence under Section 302 of IPC has been established.
17. Therefore, we are of the opinion that, the benefit of doubt to that extent ought to have been given to the appellant (A1). Further, the appellant/ accused, due to quarrel between himself and his wife for such a long time ie., for 1½ hours from 1.30 p.m. to 3.00 p.m, and due to some enragement and in sudden provocation or in heat of passion, if he has committed the said offence, definitely the offence would not have fallen under Section 302 of IPC, but at the most it may fall under Section 300-I of IPC r/w. 301 of IPC. The specific allegation in the dying declaration is that the 21 appellant/accused demanded money from the deceased before he committing the alleged act. It is clear that, the death was occurred within seven years from the date of marriage of the appellant (A1) and the deceased and demand of dowry was made soon before the death of the deceased. Therefore, the cruelty by the husband in demanding dowry and thereafter pouring kerosene and lit fire is proved.
18. In the above facts and circumstances, the offence would attract the provisions of Sections 304-I and 304-B of IPC. Therefore, we are of the opinion that the trial Court has committed serious error in convicting the accused for the offence under Section 302 of IPC.
19. The offence under Section 304-B of IPC is not punishable compulsorily with life imprisonment, but the Court has to determine as to whether the accused has to be sentenced to undergo imprisonment for a minimum period of seven years and it may extent to imprisonment for life. As the accused has already undergone seven years five months sentence in this 22 case, we are of the opinion that, since all other witnesses have turned hostile and only on the basis of the dying declaration the trial Court has convicted the accused, and as the court having no other material circumstance except the dying declaration and other mitigating circumstances and, that the appellant (A1) is a young man and he has no other previous antecedents, and he is not an anti-social element, we are of the opinion that the sentence of imprisonment for 7 years and 5 months, which has already been undergone by the appellant (A1), would be sufficient in the facts and circumstances of this case.
20. With the above observations, we pass the following,-
ORDER
i) The appeal is partly allowed. Consequently, the judgment of conviction and order of sentence dated 21.01.2015 passed against the appellant (A1)-Firoz Khan, by the trial Court viz., III-Additional District and Sessions Judge, Bengaluru Rural District sit at Anekal, in S.C. No.5044/2013, so far as the offence under Section 302 of IPC concerned, is hereby set aside. Accordingly, the appellant (A1) is 23 acquitted of the charges levelled against him for the offence punishable under Sections 302 of IPC.
ii) The appellant (A1) is convicted for the offence punishable under Section 304 (I) of IPC and he is sentenced to undergo imprisonment for 7 years 5 months, which he has already undergone and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for 3 months.
iii) The appellant (A1) is also convicted for the offence punishable under Section 304(B) of IPC and he is sentenced to undergo the sentence of imprisonment for 7 years 5 months, which he has already undergone, and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for 3 months.
iv) The impugned judgment of conviction and order of sentence passed by the trial Court against the appellant (A1) for the offence punishable under Section 498-A of IPC, is hereby confirmed.
v) It is ordered that, the sentence of imprisonment imposed against the appellant (A1) for the above said offences, shall run concurrently. The appellant (A1) is also entitled for the benefit of set off under Section 428 of Cr.PC.
vi) Since the appellant (A1) has already undergone imprisonment for 7 years 5 months, he is ordered to be released from the custody immediately after he 24 depositing the said fine amount and if he is not required in any other case.
vii) The Registry is directed to send a copy of this order to the concerned Jail Authorities for release of the appellant (A1) immediately after he depositing the said fine amount and if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE KGR*