Karnataka High Court
Mohd.Younis S/O. Mohd.Khasim Ustad vs The State Through Mahila Police Station on 22 September, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER 2017
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.3513/2010
C/W
CRIMINAL APPEAL No.3525/2011
In CRL.A.No.3513/2010:
Between:
1. Mohd Younis
S/o Mohd. Khasim Ustad
Age: 24 years, Occ: Coolie
2. Abeeda Begum
S/o Mohd Khasim Ali Ustad
Age: 60 years, Occ: Household
Both are R/o Chota Roza-K,
Gulbarga.
...Appellants
(By Sri M.A. Jahagirdar &
Sri Mahantesh Desai, Advocates)
2
And:
The State
through Mahila Police Station,
Gulbarga, represented by
Public Prosecutor, High Court
Circuit Bench at Gulbarga.
...Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C. praying to set aside the judgment and order of
conviction and sentence rendered by IV Addl. District and
Sessions Judge at Gulbarga on 13.11.2009 in S.C.No.162/
2008.
In CRL.A.No.3525/2011:
Between:
The State of Karnataka
Through Mahila P.S.
Gulbarga
Represented by
Addl. State Public Prosecutor
High Court of Karnataka
Circuit Bench, Gulbarga.
...Appellant
(By Sri Prakash Yeli, Addl. S.P.P.)
And:
1. Mohd. Younus
S/o Mohd. Khasim Ustad
3
Age: 26 years
R/o Chota Roza-K, Gulbarga.
2. Abeeda Begum
W/o Mohd. Khasim Ali Ustad
Age: 62 years
R/o Chota Roza-K, Gulbarga.
3. Mohd. Azeez
S/o Mohd. Khasim Ali Ustad
Age: 28 years
R/o Chota Roza-K, Gulbarga.
4. Mohd. Naseer
S/o Mohd. Khasim Ali Ustad
Age: 30 years
R/o Chota Roza-K, Gulbarga.
5. Rasheeda Begum
W/o Mohd. Naseer,
Age: 27 years
R/o Chota Roza-K, Gulbarga.
6. Shaheeda Begum
W/o lateMohd. Haneef
Age: 37 years
R/o Chota Roza-K, Gulbarga.
...Respondents
(By Sri M.A. Jahagirdar and
Sri Mahantesh Desai, Advocates)
This Criminal Appeal is filed under Section 378 (1) and
(3) of Cr.P.C. praying to:
a) grant leave to appeal against the judgment and
order of acquittal dated 13.11.2009 passed by
the IV Addl. District Judge in
S.C.No.162/2008, insofar as it relates to
acquitting the accused No.1 and 2 for the
4
offences punishable under section 302 r/w
sec. 149 IPC and sec. 3 & 6 of Dowry
Prohibition Act;
b) Grant leave to appeal against the judgment
and order of acquittal dated 13.11.2009 passed
by the IV Addl. Dist. Judge in
S.C.No.162/2008 so far as it relates to
acquitting the accused No.3 to 6 for the
offences punishable under sec. 498A, 302,
304(B) r/w sec. 149 of IPC and Sec. 3, 4 and 6
of IPC;
c) Set aside the judgment and order of acquittal
dated 13.11.2009 passed by the IV Addl. Dist.
Judge at Gulbarga in S.C.No.162/2008 insofar
as it relates to acquitting the accused No.1 and
2 u/s 302 r/w sec. 149 of IPC and sec. 3 and 6
of Dowry Prohibition Act;
d) Set aside the judgment and order of acquittal
dated 13.11.2009 passed by the IV Addl. Dist.
Judge, Gulbarga in S.C.No.162/2008 insofar
as it relates to acquitting accused No.3 to 6 for
the offences punishable u/s 498A, 302, 304 (B)
r/w sec. 149 of IPC and sec. 3, 4 and 6 of
Dowry Prohibtiion Act and
e) Convict and sentence all the accused i.e.
accused Nos.1 to 6 for the offences, for which
they were charged and tried in accordance with
law.
These appeals coming on for hearing, this day,
N.K.SUDHINDRARAO J., delivered the following:
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JUDGMENT
These two appeals are directed against the judgment of conviction and order of sentence passed in S.C.No.162/2008 by the learned IV Addl. District and Sessions Judge at Gulbarga on 13.11.2009, wherein the learned IV Addl. District and Sessions Judge at Gulbarga convicted the accused Nos.1 and 2 for the offence punishable under Section 498-A read with Section 34 of Indian Penal Code (hereinafter referred to as the 'IPC' for short) and sentenced two years rigorous imprisonment and to pay fine of Rs.500/- each, IDSI six months. Further accused Nos.1 and 2 also convicted for the offence punishable under Section 304-B read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- each, IDSI six months. Accused Nos.1 and 2 were further convicted for the offence punishable under Section 4 of the Dowry Prohibition Act and sentenced to undergo simple imprisonment for six months and a fine 6 of Rs.250/- each, IDSI three months. The sentences are ordered to run concurrently and the accused persons were given benefit of set-off against of their stay in judicial custody and the substantive sentences to run concurrently. Further, the learned trial Judge has acquitted the accused Nos.1 and 2 of the punishable under Section 302 read with Section 149 of IPC and also for the offence punishable under Section 3 and 6 of Dowry Prohibition Act and in the process they were acquitted for the same. The accused Nos.3 to 6 were found not guilty of the offence charged under Sections 498-A, 304-B read with Section 149 of IPC and under Sections 3, 4 and 6 of Dowry Prohibition Act. Accordingly, they were acquitted for the said offences.
2. Thus, in Criminal Appeal No.3513/2010 is preferred by the accused Nos.1 and 2 who were convicted for the above offences referred above and the appeal in Crl.A.No.3525/2011 is preferred by the State, 7 wherein the order of acquittal of the accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of IPC and also Section 3 and 6 of Dowry Prohibition Act is challenged.
3. The incident that led to the registering of a criminal case against the accused persons is, on the basis of complaint lodged by one Mohammadi Begum W/o Mohd. Yonus Ali Ustad, aged about 20 years, resident of House No.556 of Chota Roza, Gulbarga. The Police Sub-Inspector after receiving the message regarding a medico legal case, went to the hospital and recorded the statement of one Mohammadi Begum who was bearing injuries and states that Mohd. Yonus Ali Ustad is her husband. She is a housemaid. Her marriage was solemnized as per Islamic rites and formalities on 13.04.2007. As per the request and desire of her husband and his family members, gold of two tola (20 grams) and cash of Rs.15,000/- were given as dowry 8 and her mother also spent an amount of Rs.1,50,000/- for marriage that was performed in Faizal Function Hall at Bilalabad, Gulbarga. Her relationship with the accused in the beginning was cordial. She further states that despite being given the dowry as stated above, her husband, mother-in-law, brother-in-laws, sister-in-law and the sister of her husband Saheda and co-sister, all were torturing her demanding the dowry claiming what was given has been very less, in this connection used to raise quarrel. When the complainant informed the matter and her problems to her mother and elders, she was consoled and advised to carry on and hope for better sense and better days may prevail. Later after some period the marital life of the victim became miserable. Her sister-in-law along with daughter Saheda, all started living together. After being looked for some days the torture and harassment resume on complainant by the accused persons. She was also demanded additional dowry of Rs.20,000/- to be 9 brought from her parental house. In this connection they were causing physical and mental torture to her. This matter was being whispered by the complainant to her mother. Her mother expressed the inability for the reason that they had already incurred huge expenditure in performing the marriage and that she is short of funds and would try to adjust in future and the complainant used to tell us to inform the accused persons regarding the helplessness on that particular stage. But better sense did not prevail on the accused rather they increased torturing. When she brought to the notice of her mother, the latter advised her to get herself adjusted in order to prevent the breaking of the marital life.
4. As the torture resumed, her mother and sisters conveyed panchayath about three months prior to the incident, but the accused persons were normal but again started their cruel acts. On the previous day 10 on 09.09.2017 at 9.00 p.m. her husband and brother- in-law, sisters, daughter of her sister-in-law Saheda again raised quarrel and she manhandled the complainant, this matter was informed by the complainant to her mother and Jaheed Khan and others. They told the complainant that they would look into the matter. On the date of complaint on 10.09.2007 at about 11.00 a.m. when the complainant was engaged in domestic work her mother-in-law (Mohd, Yonus) her husband accused No.1, brothers-in-law Mohd. Azeez, sister-in-law Rasheeda Begum and Shaheeda, all of them formed a team by themselves and made mockery on the complainant and humiliated her that she is not capable of getting the additional dowry of Rs.20,000/- and she was a bad omen to the family and her face is waste to be seen. Accused No.2 brought kerosene and it was poured by accused No.2 on the body of the complainant and her husband Mohd. Yonus allowed match stick and set her body, she started feeling 11 irritation and was screaming. The neighbors after hearing her screaming and shouting came to the house and put water on her body and extinguished fire. Accused No.2 who is her mother-in-law abused the complainant and cursed her to be eliminated and so saying, brought kerosene and doused the complainant with kerosene, her husband Yonus set the complainant at ablaze and the complainant started screaming in pain and on hearing her voice the neighbourers gathered and seeing her amidst fire flame, they put water to extinguish the fire. She was admitted to hospital and thereafter shifted to Basaveshwar Hospital at Kalaburagi.
5. Thus, an attempt was made on her life in furtherance of the torture and cruelty posed by the accused persons. With this statement being recorded as per Ex.P.20 the Assistant Sub Inspector - Neelamma gets it back to the police station stating regarding the 12 receiving of information i.e., MLC Register from the Government Hospital, Kalaburagi regarding the admission of the complainant with burn injuries and thereafter visited the Government Hospital at Kalaburagi at 1.00 p.m. wherein she was informed that the injured was taken to Basaveshwar Hospital for further treatment.
6. PSI Neelamma from there, she goes to Basaveshwar Hospital and it was 2.30 p.m and she received the MLC register and enquired the Medical Officer as to whether the complainant was in a position to give statement and after ascertaining the opinion of the Doctor, she recorded the statement and came back to Police Station at 4.45 p.m. and registered a criminal case in Crime No.54/2007 for the offences punishable under Section 143, 147, 148, 498A, 307 and 504 read with Section 149 of IPC and Sections 3 and 4 of the Dowry Prohibition Act and took up the job of 13 investigation. At 2.30 p.m. on the same day the PSI Neelamma requested the Executive Magistrate for recording the statement of the complainant, as there was an apprehension of her death. Accordingly, the statement other than the one by the PSI was recorded by the Executive Magistrate as per Ex.P-48.
7. The learned Executive Magistrate who is also examined as P.W.21 B.Sharanappa has choose to record the statement in the form of question and answers wherein the first question was with reference to her name and relating to her father name, husband name, age, occupation, caste and state of mind capacity to speak her stay at that time persons who brought up who are the assailants and their names, her identification and the lot of sustaining injuries, weapons used, place of assault, her capacity to locate the injuries and how did she sustain the injuries and the manner and the motive.
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8. The questions are all in English and the answers given in Kannada wherein she states that her name Mohamadi Begum W/o Younus Ali, her age 19 years, housemaid, Muslim by religion. She is having conscious to speak and is in a position to speak. She was brought to hospital by her mother-in-law, husband, brother-in-law and co-sister. The assailants were her husband, mother-in-law, brother-in-law, co-sister and she speaks out the name of Mohammad Younus (husband), Abeda Begum (mother-in-law), Raseeda Begum (sister-in-law), Mohammed Naseer Ali (brother- in-law) and she can identify them. She also answers that accused persons poured kerosene and set her ablaze by using kerosene and lighting match stick. She also states that her mother-in-law was pressuring her to bring dowry and her husband was a mute spectator when the amount was demanded. Mother-in-law, husband's brother, sister-in-law and her husband were harassing to bring dowry. All the said persons are the 15 reason for her position of getting injured and being admitted to hospital.
9. The complainant Mohammadi Begum did not recover from the burn injuries, on the other hand she succumbed to them. Thus, the case came to be transformed to the offence of dowry death and alternatively for murder. Thus the case in Crime No.54/2007 became the one punishable for the offence punishable under Section 302 read with Section 149 of IPC.
10. After the matter being committed and after hearing the accused before charge, the learned Judge framed charges for offences punishable under Sections 498A, 302 alternatively 304B read with Section 34 of IPC, further, for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. The accused persons pleaded not guilty and chose to be tried. 16
11. The prosecution examined twenty two witnesses as PW-1 to PW-22 and got marked documents at Exs.P-1 to P-48 and M.Os.-1 to 5 material objects. The accused persons were also examined under Section 313 of Cr.P.C. Incriminating circumstances were explained to them and they denied. No defence evidence was lead.
12. PW-5 the mother of the deceased Syeda Nafeesunissa lodged the complaint with the information which was with her having heard from her daughter when her daughter was alive. She states about the torture, dowry demand and harassment to her daughter. She further states that she enquired her daughter about the injuries and her evidence is almost on the lines with the complaint Ex.P-29 the statement of Mohammadi Begum recording when she was alive.
13. Insofar as Syed Akhil Ahmed is examined as PW-8 who is aged 75 years on 31.12.2008. He is the 17 maternal uncle of the deceased. He deposed that he paid Rs.15,000/- to her sister to meet the demands of the accused and also the circumstances which he experienced and witnessed.
14. PW-2 Mohammad Ruknoddin states for having issued the marriage documents, marriage card, marriage CD of thedeceased. PW-4 Shaik Abdul Rafiq is a Junior Engineer who has drawn the sketch map of scene of incident.
15. Munnibi was examined as PW-9 on 31.12.2008. She is a marriage broker and was familiar to the family of the complainant and the accused as well. She is engaged in mediation for arranging marriage for 20 years and in her deposition before the trial Court on 31.12.2008 she narrates the dowry bargaining by the complainant's family, marriage and meeting of the demands for dowry by the complainant in favour of accused.
18
16. Akbari Begum is examined as PW-10 on 31.12.2008 who works as a Teacher in a private school. She is the elder sister of the deceased. She speaks about negotiations of dowry and payment of Rs.15,000/- as demanded by the accused and also about the torture experienced by her sister.
17. Insofar as PW-12 Syed Alijiki Hussaini is concerned, he is said to be the friend of accused but he turned hostile to the prosecution case. Mohammed Jaheed PW-13 is a friend of the accused. In his evidence he states about the circumstances existed on the previous date to the incident and also mentions about the earlier incident. He and Mujeeb being friends, went to the house of Mohammadi Begum. They found that Mohammadi Begum was weeping. These two people had convened panchayat earlier and hence they had ocassion to go to the house of Mohammadi Begum. 19
18. PW-14 Mohd. Mujeeb also explained the marriage circumstances and earlier incidents. This witness turned hostile to the case of the prosecution.
19. PW-15 Dr. Sudhendra Deshmukh in his evidence on 03.02.2009 states that being a doctor he has discharged his duties to the effect that on 10.09.2007 the victim was brought by Akbari at 1.30 p.m. He further states that patient is conscious and she was able to speak. He has admitted the said patient in burns ward. Patient had 90% burns. The patient admission register is marked as Ex.P-20 and the case sheet consisting of 22 pages were marked as Ex.P-21 which states stage wise incident happened in Basaveshwar Hospital from the moment of admission upto the death of Mohammedi Begum.
20. Insofar as the mahazars conducted during investigation, PW-2 Mohd. Ruknoddin is the panch witness for seizing the documents of marriage CD, 20 marriage card etc. at Ex.P-2. Sikandar Pasha PW-6 is examined for inquest mahazar. PW-7 Abdul Gafoor for seizure of the kerosene tin Ex.P-7. PW-11 Mohammed Ismail for seizing document in the house Ex.P-2.
21. Insofar as the death of Mohammadi Begum is concerned, that is the reason for adding Section 302 or 304B of IPC. Regard being had to the fact that the case was originally registered for the relevant offence punishable under Section 302 IPC, further statement of the complainant was also taken.
22. PW-19 H. Hanmanthappa Police Inspector and the other officers have tendered their evidence. Out of them PW-17 Neelamma, PSI is examined who states regarding registration of the case after recording the statement and making the request to the doctor to ascertain the position of Mohammedi Begum for recording statement. PW-18 Sudhir Hegade, Police Inspector was examined who conducted part of 21 investigation and Dr.Renukar Devi PW-1 was examined who opined regarding injuries, cause of death and age of deceased. According to the report of postmortem of the dead body of Mohammedi Begum the death might have occurred 12 to 18 hours prior to the time of postmortem.
23. The learned District Judge in the judgment found the major offence of 304 B of IPC held proved and held accused Nos.1 and 2 guilty for the offence punishable under Section 304B and acquitted for the offence punishable under Section 302 IPC. Under the circumstances, the point for adjudication in the appeal by the accused and the State as well is that:
Whether there was cruelty, harassment and dowry demand, because of which Mohammadi Begum's life became miserable, which brought abnormal circumstances and Mohammadi Begum was done to death? 22
24. In this connection, insofar as the offence punishable under Section 302 of IPC is concerned, it is incumbent on the part of the prosecution to establish that death of Mohammadi Begum on 10.09.2007 was a homicidal and not a natural one. Thereafter, it has to establish that Mohammadi Begum was done to death by the accused persons.
25. In this connection, learned counsel appearing for the accused persons submitted that the trial Court has acquitted the accused persons for the offences punishable under Sections 302 of IPC and it was not homicidal. The learned counsel for the accused further asserts that it was case of suicide at the most it may be a suicide by Mohammadi Begum, but without any fault of the accused. In this connection, the point which he wanted to drive was regarding smell of kerosene emitting or otherwise and he submitted that it is doubtful to find whether kerosene smell was being 23 emitted from the dead body and the cloths. In fact, the cloths examined by the FSL have issued Ex.P-46 stating that contents of kerosene was present. In this regard, it is necessary to make comparative analysis of Section 302 and Section 304 B of IPC insofar as the application or otherwise on the case. The findings of the trial Court is not clear as it gets confused by itself regarding the finding of homicidal death.
26. The aspects reflecting homicidal death are:
(1) Inquest report dated 10.09.2007 Ex.P-16; (2) Postmortem examination report dated 16.09.2007 Ex.P-1 and (3) FSL report Ex.P-46
27. There is sufficient evidence reflecting that death of Mohammadi Begum was only homicide and was not a natural death. In this connection, she was admitted to Government Hospital.
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28. PW-20 Dr. Pandurang states that deceased was admitted with 80% burn injuries which is evident from Ex.P-47 and he opines that she had to be shifted to Basaveshwar Hospital and make arrangement. Further, the case history, postmortem report, injuries, cause of death establishes beyond reasonable doubt that it was homicidal death. However, the prosecution has to establish that homicide was committed by the accused persons in pursuance of their demand for dowry.
29. Learned Additional State Public Prosecutor would submit that the trial Court got itself confused in evaluating evidence on record which did not required further evaluation then to an inference that the accused persons have committed offence punishable under Section 302 of IPC apart from other offences. In this connection, gravity and effects of the ingredients of Section 304B and 302 of the IPC are to be considered. 25
30. Insofar as offence under Section 304B IPC is concerned, it is related to marriage or marital life and unnatural death of a married lady under abnormal circumstances preceded by demand for dowry.
31. Insofar as Section 302 of IPC is concerned, it is generic and covers all kinds of cases of homicidal death. The knowledge and conscious of the act by the person who commits the offence is the reference to natural consequence of such act. Section 302 of IPC further focuses on causing homicide with an intention where a person who commits will have the knowledge of the act and have the knowledge of the result which is regarded as intention, i.e., fore knowledge coupled with the desire to do it.
32. Insofar as Section 304 B of IPC is concerned, it defines where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her 26 marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
33. Insofar as Section 302 of IPC is concerned, there are no riders. The ingredients of murder is defined under Section 300 of IPC.
34. In this connection, the final report filed by the police states that it was homicidal in the sense the column No.17 of the final report states specifically that Mohammadi Begum was done to death in the instant case. Learned Judge framed the charge for Section 302 of IPC and alternatively for Section 304B of IPC and accused are acquitted for the offence punishable under Section 302 of IPC.
27
35. Insofar as the presumption available under Section 304B IPC regarding dowry death is concerned, once the prosecution discharges its initial burden it becomes incumbent on the part of the accused to discharge the burden that it was not a dowry death and Section 302 IPC is nothing to do with Section 304B IPC. Insofar as the punishment for the offence under Section 304B is concerned, it shall imprisonment not less than seven years but it may extend to imprisonment for life. and punishment for offence under Section 302 of IPC is life imprisonment and fine or death sentence and fine. Insofar as the classification of offence punishable under Section 304B is concerned, it may be added to offence to any terms of punishment which is under Section 302 of IPC provided homicide is established and commission of the offence by the accused is proved.
36. The legislature in its wisdom amended Section 304 IPC and inserted Section 304 B to counter 28 the menace of the miseries of a married lady more particularly in the first phase of seven years in her marital life and there is no mandate that the homicidal death is compulsory to come under the purview of Section 304B. On the other hand even a suicide may fall under the said provisions of law under certain relevant circumstances. However, suicide which is nothing but murdering oneself is totally outside the ambit of Section 302 of IPC.
37. As we are adjudicating the appeal by the accused and the State as well, the learned Additional S.P.P. would submit that the punishment given to accused Nos.1 and 2 is by and large very less compared to the offence of murder committed by them and the learned counsel for the accused states that even the offence punishable under Section 304B of IPC was not committed by accused Nos.1 and 2 and all of them are entitled for acquittal.
29
38. In view of the evidence and material available in this case, the prosecution has established that homicide of Mohammadi Begum was committed by the accused Nos.1 and 2 and they wanted to eliminate her and she was set at ablaze by them. Then the offence punishable under Section 302 IPC is attracted and not Section 304B IPC.
39. Insofar as Section 304B IPC is concerned, accused Nos.1 and 2 used the opportunity and set ablaze Mohammadi Begum who was helpless and her statement Ex.P-29 before the PSI Neelamma can never be an exaggeration and also she failed to secure the additional dowry as demanded by them. The said statement is a substantive evidence in the circumstances of the case. It also bears confirmation by Ex.P-48 the statement recorded by the Executive Magistrate. It is free and away from exaggeration, particularly insofar as accused persons 1 and 2 are 30 concerned, and not against the other accused persons. In this connection, framing alternative charge is to find out whether the death was suicidal or homicidal.
40. The main document is the complaint i.e. Ex.P-29 that was given by the injured Mohammadi Begum. In this connection, the Sub-Inspector has recorded the complaint and the next one is dying declaration Ex.P-48 recorded by the Executive Magistrate and in substance they are not contrary to each other, in other words, one supports the other. However, the point that gets established is that the Sub- Inspector recorded the complaint of the injured as a mark of investigation.
41. It is said that no one is presumed to lie when about to die. No doubt, Mohammadi Begum has stated that all the accused persons have contributed their cruelty and assailed for causing the injuries to which she succumbed later. It is not strange that when a 31 person receives injuries, he tells about the assailants, the persons who attacked him without sparing the culprit however, may add even others. It is in this angle no doubt Mohammadi Begum had suffered domestic cruelty in the hands of all the accused but at the same time the corroborating materials insofar as the accused Nos.3 to 6 are concerned, who are the relatives of the husband, there is no corroboration of a circumstance or other evidence to hold against them regarding commission of the offence.
42. Learned Addl. S.P.P. submits that the complainant has spoken against other accused persons also. Though the deceased speaks about the names of all the accused persons, no specific overt acts regarding torture or causing burn injuries are made against accused Nos.3 to 6. However, in both the statements it becomes dying declaration by virtue of her death reveal 10/10 times that her husband and mother-in-law 32 played very dreaded role in pouring kerosene on her body and setting her ablaze with a definite knowledge and desire that she will be eliminated.
43. Insofar as the evidence regarding torture or cruelty of a married woman within the meaning of Section 498A IPC and Dowry Prohibition Act is concerned, except allegation in the complaint or statement, there are no incidents or corroborating circumstances to tell or project accused Nos.3 to 6 in committing the offence. Insofar as the registering of the complaint is concerned, absolutely there is no lapse on the part of the police in recording the statement of the victim, etc. The cause of death as reflected from the PM report is due to shock as a result of septicaemia due to 85% superfecial burns. There was absolutely no medical negligence and other circumstance to aggravate the injuries leading to the death of the injured and she was shifted to Basaveshwar Hospital for better treatment 33 with the hope that she could survive if shifted to Basaveshwar Hospital.
44. It was the mother of the complainant who was instrumental in shifting her. Thus, the complainant and her son expected the recovery of Mohammadi Begum and not that they were expecting her death to lodge a complaint against the accused persons.
45. The procedure in recording the dying declaration cannot be vitiated by procedural lapses and there is no format of certification. On the other hand the status of the injured to give statement is certified by the doctor and there was not even a remote circumstance to doubt the genuineness of Ex.P-29 statement of Mohammadi Begum and statement recorded by the Executive Magistrate Ex.P-48. The satisfaction of a doctor on the condition of the injured need not be in a particular and rigid manner.
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46. In this case P.S.I. Neelamma PW-17 has requested the doctor for recording the statement thought it was complaint and there is an endorsement.
47. It was submitted by learned counsel for the accused that there was no endorsement by the doctor, which is not the case. In Ex.P-29 complaint and also Ex.P-48 the statement recorded by Executive Magistrate and there is signature of the doctor that she can give statement. Insofar as Ex.P-28 is concerned, the Casualty Medical Officer who has also been examined, has stated before the trial Judge regarding the condition of the injured to give statement and the Casualty Medical Officer is examined as PW-7. Even on the complaint or statement recorded by the Sub-Inspector, the endorsement is made as Ex.P-29. The case file containing the admission and discharge summary of Mohammadi Begum issued by Basaveswhar Hospital where she has given statement before the Sub-Inspector 35 and also Executive Magistrate and breathed last, are quite sufficient to cover the details regarding the position of Mohammadi Begum to give statement. In this connection, it is necessary to recap that except the version regarding the attack by her husband and mother-in-law, the victim has not spoken regarding overt acts of any nature against the other accused persons.
48. There is no dispute with regard to the admission of Mohammadi Begum to the Hospital with history of burn injuries, homicidal, burns caused by her husband and in-laws and the magnitude of the injuries being explained by the doctors about the serious condition of the injured Mohammadi Begum and that doctors also had doubt of her survival. Ex.P-20 contains the nature of treatment, medicines administered to her while she was alive. No doubt, item Nos.1, 2 and 3 were examined by the Forensic Science Laboratory and its 36 report revealed the presence of kerosene in the clothes and the other material objects that were sent for FSL. Thus, through abundant and satisfactory evidence it is proved that Mohammadi Begum was done to death by pouring kerosene and setting her ablaze.
49. Thus, in the circumstances, the appeal preferred by accused Nos.1 and 2 is devoid of merits insofar as convicting accused Nos.1 and 2, as 304B is included and merged with the offence punishable under Section 302 IPC by both accused Nos.1 and 2 in furtherance of their common intention. Insofar as the appeal preferred by State is concerned, accused Nos.1 and 2 are held guilty of the offence punishable under Section 302 of IPC and not the lesser offence of 304B of IPC. Thus, the appeal preferred by the State is entitled to be allowed in part and insofar as the appeal preferred by accused Nos.1 and 2 for acquittal is liable to be dismissed. Further, insofar as the offence punishable 37 under Sections 3 and 4 of the Dowry Prohibition Act is concerned, the order of conviction for the offence punishable under Section 498A and 304B of IPC are liable to be rejected. In the result, we pass the following:
ORDER Crl.A.No.3525/2011 preferred by the State is allowed in part. Insofar as the conviction and order of sentence for imprisonment for the offences punishable under Sections 498A and 304-B of IPC and Section 4 of the Dowry Prohibition Act are set aside.
Accused Nos.1 and 2 are held guilty of the offence punishable under Section 302 read with Section 34 of IPC and are convicted for the same. They are sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-. The fine amount already deposited is treated as the fine for the offence punishable under Section 302 of IPC.38
The learned District Judge is hereby directed to secure the presence of accused Nos.1 and 2 and issue conviction warrant to undergo the remaining period of sentence of imprisonment. Bail bonds, if any, shall stand cancelled.
If accused Nos.3 to 6 have executed any bail bonds and offered any surety, the bail bonds and surety bonds of accused Nos.3 to 6 are also hereby cancelled.
Crl.A.No.3513/2010 preferred by the appellants- accused Nos.1 and 2 for setting aside the judgment of conviction and order of sentence is hereby rejected.
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