Karnataka High Court
State By Shiralakoppa Police Station vs Abdul Gaffor Sab on 30 November, 2012
Bench: K.L.Manjunath, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
CRL.A No.1291/2007 (A)
BETWEEN :
STATE BY SHIRALAKOPPA
POLICE STATION
SHIRALAKOPPA. APPELLANT
(By Sri SAMPANGI RAMAIAH, HCGP)
AND :
ABDUL GAFFOR SAB
S/O IBRAHIM SAB
AGED 39 YEARS, CARPENTER WORK
MATADAGADDE, SHIRALAKOPPA TOWN
SHIKARIPUR TALUK. RESPONDENT
( By Sri. H DAYANANDA SARASWATHI, ADV.)
THIS CRL.A. IS FILED U/S.378 (1) & (3) CR.P.C BY
THE STATE P.P. FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO GRANT LEAVE
TO FILE AN APPEAL AGAINST THE JUDGEMENT
DT.19/2/2007 IN S.C. NO.39/2006 ON THE FILE OF THE
PRL. S.J, SHIMOGA, - ACQUITTING THE RESPONDENT/
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ACCUSED FOR THE OFFENCE P/U/S.498-A AND 302 OF
IPC. APPELLANT/ STATE PRAYS THAT ABOVE ORDER
MAY BE SET ASIDE.
This Crl.A coming on for hearing this day, K L
MANJUNATH, J delivered the following:
JUDGMENT
The State has come up in this appeal challenging the judgment and order of acquittal passed by the Principal Sessions Judge, Shimoga in SC No.39/2006 dated 19.2.2007 for the offences said to have been committed under Sections 498A, 302 IPC. The accused was charged by the Shiralakoppa PS and tried for the aforesaid offences by the Sessions Court, Shimoga.
2. It is the case of the prosecution that the deceased, Shakeela Banu was the wife of the accused and their marriage had taken place about 15 years prior to the incident. It is the further case of the prosecution that Shakeela Banu was subjected to mental and physical cruelty by the respondent and cruelty was in such a nature to drive the deceased to commit suicide. On 28.8.2005 at about 9.00 p.m. when the deceased was at home, the accused took up a quarrel with her and 3 demanded his wife to serve fish and egg curry since the deceased did not oblige, he set her person ablaze by pouring kerosene. The neighbours having seen the flames shifted the deceased to Shiralakoppa government hospital. PWs.3 and 5 are her neighbours and she was treated at the first instance by PW8, Dr.Gangibai, lady Medical Officer where the deceased gave a statement of the incident before the doctor. According to the statement given by the deceased before PW8 Dr.Gangibai that fire was an accidental on account of fall of lit kerosene chimney kept on the cupboard while collecting some domestic articles kept on the cup board. PW8 sent an intimation to Shiralakoppa PS as per Ex.P11. PW13, Head Constable bearing buckle No.634 called on injured and recorded her dying declaration in the presence of PW8/doctor as per Ex.P12. Ex.P12 was handed over by PW13 to PW15/PSI Shiralakoppa. Based on the statement given by the deceased, Shiralakoppa PS did not take further steps in regard to the incident.
3. On the next day, the deceased was removed to Chigateri hospital, Davanagere for better treatment. On 31.8.2005, 4 PW1/Kum.Nasimabanu, the daughter of accused and the deceased, approached the Shiralakoppa PS alongwith her maternal uncle, PW6/Rehamath and gave statement before PW15 stating that there was a quarrel between her parents and during the quarrel the accused poured kerosene on her mother and set her ablaze. Based on the statement of PW1, PW15, C S Chandrashekar went to Davanagere and requested PW9/H M Revanasiddappa, Taluk Executive Magistrate, Davanagere to record dying declaration of the deceased. Accordingly, PW9/H M Revanasiddappa recorded the dying declaration in the presence of PW16/Dr.D Parushuramappa, wherein the deceased gave a statement that it is her husband to set her person ablaze by picking up a quarrel. According to her, her husband demanded fish and egg curry for food as the same was not available and he was in drunken state, he poured kerosene and lit fire. She also stated that she had given statement before the lady Medical officer and Head Constable of Shiralakoppa PS stating that it is an accidental fire and she did not inform them about the involvement of her husband. Ex.P14 is the dying 5 declaration recorded by the Taluka Executive Magistrate, Davanagere. Later she succumbed to the burn injuries. Accordingly, a case was registered in Crime No.155/2005 by the Shiralakoppa PS. On 1.9.2005, the accused was arrested and produced before the Magistrate. Later the burnt sari, petticoat, kerosene can, matchbox and matchsticks, torn jacket and piece of sari were seized from the scene of occurrence. Thereafter, the PSI recorded the statement. Since the offences charged against the respondent/accused were exclusively triable by the Sessions Court, the case was committed by the JMFC, Shiralkoppa to the Sessions Court. Before the Sessions Court, the accused pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused, the prosecution relied upon the evidence of PW1 to P16 and Exs.P1 to 30 and MO1 to MO9. While cross-examination, three documents were marked as Exs.D1 to D3 on behalf of the defence side. While answering the statement recorded under Section 313 Cr.PC, the accused denied the evidence stated against him by the prosecution witnesses. His case is a total denial. 6
5. Learned Sessions Judge formulated the following points for his consideration:
1. Whether the prosecution proves that Shakeela Banu met with homicidal death?
2. Whether the prosecution proves that accused subjected his wife Shakeela Banu to mental and physical cruelty and cruelty meted out to her was of such a nature as to drive her to commit suicide and thereby committed an offence punishable u/s.
498-A IPC?
3. Whether the prosecution proves that the accused murdered his wife Shakeela Banu by setting her person ablaze and thereby committed an offence punishable u/s 302 IPC?
4. To what order?
6. After hearing the arguments of Public Prosecutor and the defence counsel and upon perusal of the documents and scrutinizing the evidence in detail, the Sessions Court held points 1 to 3 in negative and acquitted the accused for the offence tried against him. Aggrieved by the judgment and order of acquittal dated 19.2.2007, the present appeal is filed by the State.
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7. We have heard the learned Government Pleader, Sri Sampangi Ramaiah and the learned counsel for the respondent.
8. It is the specific case of the State that the learned Sessions Judge has committed an error in holding that the prosecution has failed to bring home the guilt of the accused without appreciating the dying declaration of the deceased - Ex.P14. According to him, Ex.P14 was recorded by PW15 in the presence of PW16/Dr.D Parushuramappa who certified the mental and physical condition of the deceased in order to give her statement. According to him, though PW1/Kum.Nasimabanu, daughter of the deceased and accused, has turned hostile, the case of the prosecution could not have been brushed aside by the Sessions Court as there were no reasons for the deceased to give dying declaration against the accused. He further contends that the trial court also did not consider that the prosecution has proved the offence punishable under Section 498A by examining PW6, PW7 and PW11 and without assigning proper reasons, evidence of PW6, PW7 and PW11 has been discarded and therefore, their evidence is also 8 required to be considered. In the circumstances, he requested the Court to set aside the judgment and order of acquittal by the Sessions Court.
9. Per contra, learned counsel for the respondent submits that none of the grounds urged by the State are tenable because at the first instance, the Sessions Court could not have tried the accused for the alleged offence punishable under Section 498A IPC, because none of the ingredients of Section 498A IPC is attracted to the facts and circumstances of the case. According to him, it is not a case of the deceased that the deceased was harassing, which compelled her to commit suicide since she could not bear the torture or cruelty meted out to her by the accused. It is also not the case of the prosecution that the accused was demanding dowry and on account of the same, he was harassing the deceased. It is also not the case of the prosecution that the deceased died in a circumstances within 7 years from the date of marriage. Therefore, he contends that even if the dying declaration Ex.P14 is accepted in toto, it will not attract the ingredients of Section 498A IPC and the charge 9 levelled against the accused on this count has to be rejected. He further contends that PW1 is none other than the daughter of the deceased and accused. She has not supported the case of the prosecution. PW2 to PW5, who are the neighbours shifted the deceased, Shakeela Banu to Shiralakoppa Hospital, have also not deposed against the accused in regard to pouring kerosene by the accused on his wife and set her person ablaze. He also contends that the evidence of PW6, PW7 and PW11 has been rightly rejected by the Sessions Court because PW6, PW7 and PW11 are the residents of Masoor village, Hirekerooru Taluk, who are residing far away from Shiralakoppa. Their evidence has been rightly disbelieved by the Court, because PW6 and PW7 were still minors when the marriage took place and have not seen that the deceased was harassed by the accused. He further contends that in view of evidence of PW8/Dr.Gangi Bai before whom, the first statement was given by the deceased in regard to the manner in which the kerosene fell on her and caught fire on the sari as per Ex.P10.
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10. Admittedly, the accused was not present when the statement was given by the deceased before PW8/Dr.Gangi Bai and there was no threat or force or coercion on her not to give any statement against her husband. Therefore, he contends that the statement made by the deceased as per Ex.P10 as recorded by PW13 in the presence of PW8 has been rightly appreciated by the trial court in order to discard the statement recorded by PW9 as per Ex.P14, which is an after thought much after Ex.P10. He further contends that there is nothing on record to show that by the time Ex.P14 was recorded by PW9/Taluka Executive Magistrate, the deceased was keeping sound mind, because the fire accident took place on 28.8.2005 and the statement as per Ex.P14 was recorded on 31.8.2005 at about 8.30 p.m. and she succumbed to the burn injuries on 2.9.2005, by that time, her body was suffering from septecemi and was not in a fit condition to give any statement and therefore the dying declaration recorded by PW9 as per Ex.P14 has been rightly disbelieved by the Sessions Court by giving cogent reason, which cannot be disturbed by this Court in this appeal. 11 In the circumstances, he requests the Court to dismiss the appeal.
11. Having heard the learned counsel for the parties, we have to consider the following two points in this appeal:
1) Whether the death of Shakeela Banu is
homicidal or not?
2) Whether the prosecution has proved beyond
all reasonable doubt to bring home the guilt of the accused for the offence punishable under Section 304 IPC?
3) Whether the prosecution has proved that the respondent/accused has committed offence punishable under Section 498A IPC?
12. So far as the point No.1 is concerned, the learned Government Pleader as well as the counsel for the respondent does not dispute the death of Shakeela Banu on account of burn injuries and cannot be treated as suicide in view of the statement/Ex.P10 as recorded by PW12.
13. We have seen the dying declaration given before 12 PW8/Dr.Gangi Bai at Government Hospital, Shiralakoppa and also the dying declaration given by the deceased before PW16/Dr.Parashuramappa at Chigateri hospital. On perusal of these, two dying declarations, it is clear to the Court that none of the ingredients of Section 498A attracts the case in hand. It is not the case of the deceased that her husband was subjecting her to cruelty and his conduct was such a nature that it was material to drive her to commit suicide and it is also not her case that she was meted out to mental and physical cruelty. She stated that there was a quarrel between her and the accused and on some of the occasions, the accused assaulted her. It is also not her case that she was harassing to bring dowry and on failure to satisfy him, the accused subjected his wife Shakeela Banu to mental and physical cruelty. Therefore, the ingredients of Section 498A IPC is not attracted on the facts and circumstances of the present case. Accordingly, point No.3 is answered.
14. The next question would be whether the accused poured kerosene on his wife and set her person ablaze on 28.8.2005 at 13 about 9.00 p.m. in their house. When the incident took place as could be seen from the statement given by the deceased before PW8 and PW13 as per Ex.P8 and Ex.P12, her husband was not present when the incident took place and her children had been to the neighbours' house to watch television and lit kerosene chimney had fell on her and that her sari was burnt, as a result of which, the deceased sustained burn injuries. When the statement was recorded by PW8 and PW13, the accused was not present. There was no pressure or coercion from any body to give statement in such a manner. According to PW1, she had given statement before the police on 31.8.2005. According to her evidence, her mother died due to burn injuries and she was not present when her mother sustained burn injuries and her younger brothers were sleeping in the house and the accused was not present when her mother received the burn injuries and her mother was shifted to the hospital by the neighbours. She has been treated as hostile witness. In her evidence, she also stated that her mother was unable to speak on account of burn injuries. This piece of evidence has not been challenged by the 14 prosecution.
15. We have also seen the evidence of PW9/Taluka Executive Magistrate while recording Ex.P14, he has not put a question to the deceased for giving a different version before PW8 and PW13 and he has also not recorded the reasons as to what made the deceased to change her version and to give the dying declaration against her husband. It is also not the case of the prosecution that the statement was given by the deceased before PW8 and PW13 as per Exs.P10 and 12 out of compulsion or coercion. PW1/daughter of the deceased has deposed before the Court that she could not speak to her mother as she was unable to speak on account of burn injuries. The evidence of PW13 has not been challenged by the prosecution. It is difficult to accept the statement recorded by PW9 as per Ex.P14. By the time the statement was recorded by PW9, the deceased was suffering from burn injuries for more than three days. By the time, her body would have poisoned and in such circumstances, it is difficult to believe this statement/dying declaration Ex.P14 given by the deceased.
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16. Ex.P30 is the case sheet maintained by the Chigateri hospital, Davanagere. On perusal of the entire case sheet maintained by the hospital, we have noticed that the entry has commenced from 29.8.2005 at about 3.30 a.m. and the entry in regard to the treatment given to the deceased at about 8.45 a.m. on 29.8.2005. From 8.45 a.m. of 29.8.2005 till 8.15 a.m. of 2.9.2005, there are no entries at all. During this period, what treatment was given to the deceased is not forthcoming. It is also not forthcoming from the records that the mental and physical status of the deceased to show whether the deceased was capable of giving dying declaration/Ex.P14. In such circumstances, if the Sessions Court has disbelieved Ex.P14, this Court cannot reverse such a finding in an appeal against the order of acquittal.
17. We have also seen other hospital records, which show that the deceased had 95% burns on the body. If a deceased was suffering from 95% of burn injuries, is it possible for any court to hold that she was capable of giving dying declaration three days after such incident.
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18. The neighbours, who shifted the deceased to Shiralakoppa hospital, have not supported the case of the prosecution with regard to the alleged ill-treatment or cruelty meted out by the deceased by the respondent/accused and even the evidence of PW6, PW7 and P11, who are none other than the younger brothers of the deceased and father, cannot be believed by any court because they were not residing with the deceased or nearby locality. They are residents of far away place. Even the eldest daughter of the accused and deceased has not supported the case of prosecution. Therefore, we hold that the prosecution has failed to bring home guilt of the accused for the aforesaid offence. In the result, we pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE bkm.