Karnataka High Court
Mr Fyroz @ Fyroz Ahamed Khan vs State Of Karnataka on 21 January, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY 2014
PRESENT
THE HON'BLE Dr. JUSTICE K.BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.980/2010 (C)
BETWEEN:
Mr.Fyroz @ Fyroz Ahamed Khan,
Aged 30 years,
S/o. Fyroz Ahamed Khan,
Residing at No.318, 9th Cross,
Ashraya House,
Nehru Nagar,
Mysore City. ....Appellant
[By Sri. I.S.Pramod Chandra, Advocate]
AND:
State of Karnataka,
By Udayagiri Police,
Mysore City,
Through the
State Public Prosecutor,
High Court Building,
Bangalore. ...Respondent
[By Sri.B.T.Venkatesh, State Public Prosecutor-II]
2
This Criminal Appeal is filed under Section 374 (2) of
the Cr.P.C. praying to set aside the judgment and sentence
dated 09.03.2009/12.03.2009 passed in S.C.No.298/2007
by the Presiding Officer, Fast Track Court-V, Mysore-
convicting the appellant/accused for the offences punishable
under Sections 498-A and 302 of IPC and the
appellant/accused is sentenced to undergo R.I. for life and
to pay fine of Rs.5,000/- in default to undergo imprisonment
for a period of 3 months for the offence punishable under
Section 302 of IPC etc.
This Criminal Appeal coming on for hearing this day,
Dr.K.Bhakthavatsala. J., delivered the following:
JUDGMENT
Appellant who is accused in Sessions Case No.298/2007 on the file of Fast Track Court-V at Mysore, is before this court under Section 374 (2) of Cr.P.C., challenging the judgment of conviction dated 09.03.2009 for the offences punishable under Sections 498-A and 302 of IPC and an order of sentence dated 12.03.2009 sentencing him to undergo Rigorous Imprisonment for the remaining period of his natural life and pay fine of Rs.5,000/-, in default in payment of fine, to undergo Simple Imprisonment for three months for the offence punishable under Section 302 of IPC. He was further sentenced to undergo Rigorous Imprisonment for a period of three years and pay fine of 3 Rs.1,000/-, in default, in payment of fine, to undergo Simple Imprisonment for one month for the offence punishable under Section 498-A of IPC.
2. Brief facts of the case leading to filing of the appeal may be stated as under:-
The deceased Heena Fathima is the wife of the appellant/accused. PW.2-Jabeena is the mother of the deceased. The deceased and accused fell in love. In the year 1998 they married. Out of their wed-lock, they got three sons and a daughter. It is the case of the prosecution that since marriage, the accused was demanding his wife to bring money and motor cycle from her parents and under the influence of alcohol, he subjected his wife to cruelty, physically and mentally and in spite of advice given to him, he continued ill-treatment and harassment on his wife and once he tonsured her and pissed on her. On 08.08.2007 at about 4.30 p.m., the accused returned home; sent away his children for playing; consumed alcohol and made his wife- Heena Fathima also to consume alcohol and at about 5.45 p.m., under the guise of having sexual intercourse with her, 4 asked her to undress herself and made her to become nude and when she was lying, the accused poured Sulfuric Acid on chest, hands, legs and back; she raised hue and cry, that attracted the neighbourers and they brought clothes and covered her body. The accused took his wife to K.R.Hospital at Mysore in an autorickshaw belonging to PW.9-Noorulla Shariff. PW.1-Dr. Mahesh and PW.15- Dr.M.A. Balakrishna examined the injured and treated her. On receipt of MLC report, PSI-PW.23-S. Parashivamurthy came to K.R. Hospital and recorded her statement on 08.08.2007 between 7:30 p.m. to 8:00 p.m. in the presence of PW-1 as per Ex.P-2 and also sent a request to the Tahsildar for recording her statement. Accordingly, PW.18-
Krishnamurthy, Tahsildar attached to Mysore Taluk came to K.R. Hospital at 7.00 p.m. and enquired PW.1-Dr.Mahesh about the condition of the victim to make statement. PW.1- Dr. Mahesh informed him stating that the victim was in a fit condition to give statement and he recorded her statement as per Ex.P1. A case was registered in Crime No.111/2007 for the offence punishable under Section 307 of IPC. Later on the victim was shifted to Victoria Hospital, but died on 5 21.08.2007 at about 7.30 a.m., while undergoing treatment. Thereafter the police issued FIR adding Section 302 of IPC. The accused was arrested on 09.08.2007. After the investigation was over, the Investigating Officer laid charge sheet against the accused for the offences punishable under Sections 498-A and 302 of IPC.
3. The accused faced trial before the Court of Session. In support of the case of the prosecution, it has got examined as many as 25 witnesses, got marked 36 documents and got exhibited 6 material objects.
4. After the evidence on the side of the prosecution was over, statement of the accused under Section 313 of Cr.P.C. was recorded. The accused has denied all the incriminating circumstances appearing in the evidence of the prosecution witnesses. He has not adduced any defence evidence.
5. The trial court after hearing arguments and perusing oral and documentary evidence, came to the conclusion that the prosecution brought home the guilt of 6 the accused for the charges levelled against him. The trial court after hearing the accused on the point of sentence, sentenced the accused to undergo Rigorous Imprisonment for the whole of the remaining period of his natural life and pay fine of Rs.5,000/-, in default in payment of fine, to undergo Simple Imprisonment for three months for the offence punishable under Section 302 of IPC and to undergo Rigorous Imprisonment for three years and pay fine of Rs.1,000/- and in default in payment of fine, to undergo Simple Imprisonment for one month for the offence punishable under Section 498-A of IPC. This is impugned in this appeal.
6. Learned counsel for the appellant-accused submits that keeping in view the case of the prosecution that the accused was under the influence of alcohol and he himself took his wife to the hospital for treatment, a lenient view may be taken and the accused who is in custody since 09.08.2007 may be set at liberty.
7. Learned Additional S.P.P. appearing for the Respondent-State submits that keeping in view the evidence 7 placed on record and the dying declaration of the victim and the accused poured acid on her in the guise of having sexual intercourse and as a result of which she died, the trial court is justified in convicting the accused and sentencing him for the aforesaid offences and there is no merit in the appeal.
8. In the light of the arguments addressed by the learned counsel for the parties, the only point that arises for our consideration is,-
"Whether the impugned judgment of conviction and order of sentence call for our interference?
9. Our answer to the above point is in the negative for the following reasons:-
The incident occurred in the house of the accused on 08.08.2007 at 5.45 p.m., when he and his wife alone were present. There is no good ground to doubt the presence of the accused in the house and his committing the crime in the light of the Dying Declaration of the victim recorded by the Tahsildar-PW18-Krishnamurthy. The prosecution has proved the guilt of the accused for the charges levelled against him beyond all reasonable doubt. 8
10. Keeping in view the nature of harassment and cruelty meted-out to his wife by the accused, the trial court is justified in sentencing the accused to undergo Rigorous Imprisonment for the remaining period of his natural life. We see no good ground to interfere with the impugned judgment of conviction and order of sentence.
11. In the result, we pass the following:-
Appeal fails and it is hereby rejected.
SD/-
JUDGE SD/-
JUDGE KGR*