Karnataka High Court
The State Of Karnataka New Town Police ... vs Khaleel Ahmes S/O Osmansab on 2 July, 2012
Bench: K.Sreedhar Rao, B.S.Indrakala
-1-
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 2ND DAY OF JULY 2012
PRESENT
THE HON'BLE MR.JUSTICE K. SREEDHAR RAO
AND
THE HON'BLE MRS.JUSTICE B.S.INDRAKALA
CRIMINAL APPEAL NO.3534/2008
BETWEEN :
THE STATE OF KARNATAKA
NEW TOWN POLICE STATION,
BIDAR, REPRESENTED BY ADDL STATE PUBLIC
PROSECUTOR, GULBARGA
...APPELLANT
(BY SMT. ANURADHA DESAI, ADDL. SPP)
AND
1. KHALEEL AHMED, SON OF OSMANSAB
AGED ABOUT 32 YEARS
2. OSMANSAB SON OF SYEDSAB
AGED ABOUT 65 YEARS
3. ABIDA BEGUM WIFE OF OSMANSAB
AGED ABOUT 60 YEARS
-2-
4. ABDUL RASHEED SON OF OSMANSAB
AGED ABOUT 38 YEARS
ALL ARE RESIDENTS OF ALIYABAD
TALLUK BIDAR.
5. NASREEN SON OF OSMANSAB
AGED ABOUT 18 YEARS
(CASE AGAINST ACCUSED NO.5 IS SPLIT UP)
...RESPONDENTS
(BY SRI. AVINASH A. UPLAONKAR, ADV. FOR
R-1 TO R-4, R5 SERVED)
***
THIS CRIMINAL APPEAL IS FILLED U/S 378(1) &
(3) OF CR.P.C. PRAYING TO GRANTE LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 25.06.2008 PASSED BY THE LEARNED
PRESIDING OFFICER (SESSIONS JUDGE) FAST TRACK
COURT -II AT BIDAR IN SESSIONS CASE NO.101/2007
ACQUITTING THE ACCUSED/ RESPONDENTS FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498-A,
504, 302 R/W SECTION 149 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, K. SREEDHAR RAO, J.,
DELIVERED THE FOLLOWING:
-3-
JUDGMENT
One Rehana Begum is the deceased. She is the wife of accused no.1 who is respondent no.1 in this appeal. Respondent nos.2 and 3 are the parents of accused no.1 and in laws of the deceased. Respondent no.4 is the brother of accused no.1 and brother-in-law of the deceased, respondent no.5 is the sister of accused no.1 and sister-in-law of the deceased. Accused no.5- sister-in-law of the deceased is a juvenile offender, therefore, the case is split up against her and accused nos.1 to 4 faced the trial.
2. The material facts of the prosecution case discloses that the deceased was married with accused no.1 about five years prior to the incident. At the time of marriage, six tolas of gold was given as dowry. Accused no.1 had pledged the gold ornaments and the deceased was demanding him to redeem the pledged ornaments to her. In that regard they used to quarrel. On 06.12.2006 -4- at 9.30 p.m. deceased started pestering accused no.1 and others to redeem and get back the gold ornaments. Accused nos.2 and 3 abated accused no.1 to douse the deceased with kerosene and to set fire. Accordingly, accused no.1 doused kerosene on the deceased and set fire. Accused nos.4 and 5 were present and they also abetted to murder. The deceased was brought to hospital by accused no.4. At the time of admission, it was stated that the burn injuries were accidental. PW-17-Head Constable received information by telling about the M.L.C. case. He came to hospital around 12.10 a.m. on 07.12.2006, recorded the dying declaration of the deceased as per Ex.P16 and registered FIR.
3. In the said dying declaration she implicates accused nos.2 to 5 for abetting accused no.1 in causing murder by dousing her with kerosene and setting fire and the said dying declaration is on similar terms as stated in Ex.P16. By about 1.20 a.m. the parents of the -5- deceased came from village to hospital which is about 50 kms. away. The deceased was taken to Hosmani Hospital where she succumbed to injury on 08.12.2006. The inquest mahazar is conducted at Hosmani Hospital.
4. Later on accused are charged for the offence under Sections 498-A, 504 and 302 r/w Section 149 of IPC. The prosecution has relied upon the following circumstances to prove the guilt of the accused :
1) The motive that the deceased was pestering to redeem the gold articles to the dislike of the accused.
2) On 06.12.2006 at 9.30 p.m. when deceased insisted redemption of gold articles, accused nos.2 to 4 abated to kill the deceased and accused no.1 to douse the deceased with kerosene and set fire.
5. The said circumstances are substantiated by : -6-
1) The statement made by deceased is recorded by PW-17 as per Ex.P16 which is the basis for FIR wherein she says that accused are responsible for her death and it construes the dying declaration besides FIR.
2) The oral dying declaration made to the police,
3) The dying declaration recorded by Tahsildar Executive Magistrate as per Ex.P.15,
4) The post mortem report shows that the death is due to burn and homicidal.
6. The prosecution explains that at the time of admission the burn injuries are shown to be accidental which is false and incorrect version however, on the contrary it was accused no.4 who brought the deceased and admitted to the hospital which is evident from Ex.P16. The contents of Ex.P16 gets corroborated by dying declaration recorded by the Tahsildar Executive Magistrate as per Ex.P15. The prosecution has -7- established motive to the fact that it is a homicidal death and complicity of the accused is established by dying declaration made as per Ex.P16. The oral dying declaration to PW-5 and PW-8 and dying declaration as per Ex.P15 made to the Tahsildar Executive Magistrate, would prove the guilt. It is argued that the order of acquittal recorded by the Trial Court is illegal and the Court has failed to appreciate the material evidence produced by the prosecution.
7. Per contra, the counsel for the defence submitted that in the evidence, it is evident that the deceased when she was shifted from emergency ward, her parents were in the hospital and in the case sheet the hospital recorded as suicidal. The Police arrived at the hospital around 1.30 a.m. The contention of the prosecution that the statement of the deceased was recorded around 12.10 a.m. To 2.00 a.m. become doubtful to be believed. The said statement is not -8- recorded in the presence of the doctor to show that the patient was conscious and was able to give statement.
8. It is on record that the parents had already arrived when Ex.P16 was recorded. It is probably to infer that the parents of deceased should have influenced PW- 17 to record a false version in Ex.P16. There is a possibility of victim being influenced and tutored by parents to indict the accused. Therefore, the statement of deceased recorded by the Tahsildar Executive Magistrate cannot be considered as credible version. There is every possibility of parents influencing and tutoring the victim. The Tahsildar Executive Magistrate has also not recorded the statement in presence of doctor. The conduct of PW-17 and Taluk Executive Magistrate PW-16 becomes doubtful since, they don't try to record the statement of deceased in presence of doctor. There is no credible evidence that the deceased was able to give any statement. However, the medical evidence -9- discloses that she was in a state of shock. The oral dying declaration to PW-5 and PW-8 becomes doubtful to be believed that there is every reason on their part to falsely implicate the accused.
9. Upon consideration of submissions made at the bar, we find that the dying declaration recorded at Exs.P15 and 16 becomes doubtful to be believed that they have not been recorded in presence of doctor, although they have been recorded in the hospital. Ex.P16 is recorded at the time when parents were present in the hospital. The contention that possibility of parents influencing the victim to give dying declaration as per Exs.P15 and 16 cannot be brushed aside. There is no credible evidence led by the prosecution regarding time of recording Ex.P16 and registration of FIR. There is delay in transmitting the FIR to the Magistrate since, the same is received by Magistrate at 3.00 p.m. on 07.12.2006. The Police Station and the Magistrate Court
- 10 -
are close by. There should not have been more than an hour or two for transmitting FIR to Magistrate. But in the instant case the delay is inordinate. Because of the discrepant circumstances, the order of acquittal does not call for interference.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KV