Karnataka High Court State By Gulpet vs Jameer Pasha @ Bilal on 11 December, 2012Author: K.L.Manjunath And B.Manohar

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11TH DAY OF DECEMBER 2012

PRESENT

THE HON’BLE MR. JUSTICE K.L.MANJUNATH

AND

THE HON’BLE MR. JUSTICE B.MANOHAR

CRL.A No.1759/2007

BETWEEN :

STATE BY GULPET

POLICE STATION. …APPELLANT (BY SRI.P.M.NAWAZ, ADDL.SPP)

AND:

JAMEER PASHA @ BILAL

S/O IBRAHIM

AGE: 26 YEARS

R/O BEEDI COLONY

CHICKBALLAPUR ROAD

KOLAR. …RESPONDENT (BY SRI.M.R.NANJUNDE GOWDAJ, ADV)

THIS CRL.APPEAL 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.19.01.2007 IN S.C. NO.267/2005 ON THE FILE OF THE PRL.S.J KOLAR – ACQUITTING THE RESPONDENT ACCUSED FOR THE OFFENCE P/U/S.498-A, 304-B, 302 AND 316 OF IPC. AND SEC.3, 4 AND 6 OF D.P ACT. THIS APPEAL COMING ON FOR HEARING THIS DAY, MANJUNATH J, DELIVERED THE FOLLOWING:

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JUDGMENT

The State has preferred this appeal challenging the Judgment and order of acquittal passed by the Principal Sessions Judge, Kolar, in S.C.No.267/2005 dated 19.1.2007. Based on the charge sheet filed by the Gulpet Police, Kolar, the respondent was tried for the offence punishable u/s 498A, 304B, 302 and 316 of IPC and sections -3, 4 and 6 of Dowry Prohibition Act.

2. It is the case of the prosecution that one Thabasum, daughter of PW1 – Chand Pasha was given in marriage to the accused and at the time of marriage there was a demand for Rs.10,000/- as cash, gold ring, wrist watch. Accordingly, the same was satisfied by PW1 and marriage was solemnized on 11.1.2004 and that the deceased – Thabasum was subjected to physical and mental cruelty to bring additional dowry of Rs.2000/-, Since she refused to bring Rs.2000/- as additional dowry from PWs.1 and 2, on 2.4.2005 at 11.30 p.m. in the night, accused set fire to her by pouring kerosene and on account of the same she sustained 85% burn injuries. She was shifted to S.N.R.Hospital, Kolar by PWs.1 and 4 and on the same day, for further treatment she was shifted to Victoria 3

Hospital, Bangalore and she succumbed to the injuries on 8.4.2005. It is also the case of the prosecution that at the time of the incident she was 9 months old pregnant. Based on the dying declaration of the deceased- Thabsum, charge sheet was filed by Gulpet Police against the accused. Accused pleaded not guilty and claimed to be tried.

3. The prosecution relied upon the evidence of PWs.1 to 19 and Ex.P1 to P32 and MOs.1 to 4 to bring home the guilt of the accused. After recording the evidence of the witnesses of the prosecution and statement was recorded u/s 313 Cr.P.C. and the accused denied the incriminating materials emanating from the case of the prosecution, no evidence was led in by the defence. The Sessions Court after considering the arguments advanced by the Public Prosecutor and the defence counsel formulated the following points for its consideration:

1) Whether the prosecution has proved

beyond all reasonable doubt that the

accused demanded and accepted a sum of

Rs. Ten thousand, one gold ring and one

writst watch as dowry in connection with

his marriage with Thabasum?

2) Whether the prosecution has proved

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beyond all reasonable doubt that the

accused had further demanded Thabasum

to bring Rs.2000-00 as additional dowry

from her parents after the marriage and

that he had subjected her to cruelty in this regard?

3) Whether the prosecution has proved

beyond all reasonable doubt that the

accused poured kerosene on his wife and

lit fire at about 10 pm on 2.4.05 in his

house at Beedi colony, Kolar City and

thereby caused her death to come within

the purview of the definition of murder?

4) Whether the prosecution proves beyond

all reasonable doubt that the accused did

not return the cash and dowry articles,

which he had received in connection with

the marriage?

5) Offences punishable under Secs.498A

and 302 of IPC and Secs.3, 4 and 6 of the

D.P. Act are proved>

6) To what Order?

After appreciating the entire evidence let in by the prosecution, Sessions court came to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, points-1 to 5 were answered in negative and he was set at liberty forthwith, if he was not required in any other case, by the Judgment and order of acquittal dated 19.1.2007. 5

4. Challenging the legality and correctness of the Judgment, the present appeal is filed by the State.

5. We have heard, Mr. Nawaz, Additional SPP for the State and Mr. Nanjunde Gowda, for the respondent.

6. The learned Additional SPP, contends that the Sessions Court did not consider the dying declaration of the deceased properly and that the Sessions Court has further committed an error in not considering the evidence of PW6 – Dr. Shankarappa, PW10 – Dr.P.K. Devadas, PW7 – Ramegowda, Special Executive Magistrate, PW17 – Dr. Vishwanatha, PW12 – K.V.Krishnappa, who recorded the dying declarations. According to him, even though PWs.1 to 4 have not supported the case of the prosecution since the case of the prosecution is based on the dying declaration of the deceased, the Trial court was required to consider the case of the prosecution for the offences punishable u/s 498A, 304B and 302 IPC., even if the court had come to the conclusion that the prosecution has failed to bring home the guilty of the accused in regard to the offence punishable u/s 316 IPC. He further contends that even if the court had come to the conclusion the prosecution 6

failed to bring home the guilt of the accused for the offence punishable under sections-3, 4 and 6 of the Dowry Prohibition Act, the respondent was required to be convicted under sections- 498A, 304B and 304 IPC.

7. According to him, merely because there are certain contradictions in the evidence of PWs.6, 8, 10, 7 and 12, the same cannot be a ground for the Sessions Court to discard their evidence and acquit the accused person because there were no reasons for the official witnesses, namely, Doctors at Victoria hospital to record the dying declaration of Thabasum, incorrectly. According to him, the deceased – Thabasum has categorically declared before the Doctors that it is accused who poured kerosene, set her on fire since she did not oblige to bring the dowry of Rs.2000/- from her parents. In the circumstances, he requests the court to re-appreciate the entire evidence and reverse the findings of the Sessions Court and convict him for the offences punishable under sections-398A, 304B and 302 IPC.

8. Per contra, Mr. Nanjunde Gowda, the learned counsel for the respondent submits that none of the grounds urged by the 7

Additional S.P.P. are tenable because the Sessions Court has rightly considered the oral evidence of PWs.1 and 2 and disbelieved Exs.P10, 11 and 12 – dying declarations recorded by the Doctors of Victoria Hospital and also the evidence of PW7 and PW12- K.V.Krishnapa, because of several contradictions and more particularly considering the nature of injury sustained by the deceased. According to him, considering the medical case sheet maintained by the Victoria Hospital the condition of the patient, while she was admitted to the hospital, was precarious and was unable to give any statement. According to him, PW2 the mother of the deceased has categorically stated that her daughter was not knowing to speak in Kannada and she was knowing only Urdu. But the evidence of the persons who recorded the dying declarations revealed that the dying declaration was given by the deceased in Kannada and which is contrary to the evidence of PW2 – the mother of the deceased. According to him, even PW1 has also stated that his daughter was not knowing Kannada. In the circumstances the dying declaration Exs.P10,11 and 12 have been rightly discarded by the Sessions Court as the same could not be believed by the Sessions Court in view of the physical and mental condition of the deceased and that these statements are said to have been given by the deceased 8

in Kannada language which was not known to her.

9. According to him, the prosecution did not explain in not recording the dying declaration within a reasonable time by PW7 – Special Executive Magistrate when PW6 Dr. Shankarappa had sent an intimation to the Police on 4.4.2005 stating that the condition of the patient is precarious and an arrangement has to be made immediately for recording the dying declaration. It is also his case that PW7 has recorded the dying declaration at about 11.30 a.m. on 8.4.2005, and on the same day, she succumbed to the injuries at about 2.50 p.m. Considering the time taken by PW7 to record the dying declaration of the deceased and the time of her death, would only show that dying declaration recorded by PW7 cannot be believed by any court considering the mental and physical condition of the deceased.

10. Taking us through Ex.P16, he contends that PW6 as per Ex.P16(g) has sent an intimation to the Police Out Post at Victoria Hospital at about 1.50 a.m. on 3.4.2005 stating that the patient condition was not satisfactory, survival was precarious and requested the Police to arrange for recording the dying declaration by the 9

concerned authorities. This has been received by the Police Station at about 12.00 p.m. on 5.4.2005. Since the Police attached to the Victoria Hospital did not arrange for recording the dying declaration, therefore the concerned authorities – PW6 has sent one more requisition on 8.4.2005 on the ground that the general condition of the appellant is not satisfactory and survival is precarious and again requested the Police to arrange for recording the dying declaration. Since the same was not done, again as per Ex.P16(h) he has requested the Police to make arrangement for recording the dying declaration of the patient. PW7 has recorded the dying declaration as per Ex.P12 wherein deceased has not stated in regard to the demand of dowry made by the accused at the time of the marriage. What she has stated in her Ex.P12 is that she married the accused two years back and now she was 9 months pregnant and that accused pouring kerosene on her and set her on fire. Since her parents house was next to her house, her parents took her to S.N.R. Hospital, Kolar and thereafter shifted to Victoria hospital. According to him, in Ex.P12 it is not stated the language in which the questions were put to be deceased. It is also his case that Ex.P12 is not recorded in the format which is required to be recorded in the form of question and answer as required under law. He further contends that Ex.P12 is 10

also another dying declaration recorded on 4.4.2005 between 4 p.m. to 5.00 p.m. in the presence of PW6. Even according to him, no endorsement was made by PW12 or PW6 in the language in which the statement was given by the deceased – Thabasum. He further contends that Ex.P10 is another statement recorded by PW6 Dr. Shankarappa on 3.4.2005 at 1.50 a.m. Even there also he has not recorded the language in which the statement was given by the deceased. According to him as per Ex.P10, the statement recorded by PW6 was explained in his own language. According to PW6, Kannada language was not known to the deceased. Therefore, Ex.P10 has been rightly discarded by the Sessions Court. In the circumstances, he requests the court to dismiss the appeal.

11. Having heard the counsel for the parties, it is not in dispute that Thabasum, died due to burn injuries. But the question is that whether the Prosecution has proved beyond reasonable doubt to bring home the guilt of the accused in deceased sustaining burn injuries on account of pouring kerosene by him and setting her on fire.

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12. As stated supra, prosecution case rests on the dying declaration of the deceased and the evidence of PWs.1 to 3. PW1 is the father of the deceased. PW2 is the mother of the deceased. PW1 has stated that she was given in marriage earlier to one Mubarak. After the said marriage was dissolved, she was given in marriage to the respondent and unfortunately she caught fire and sustained burn injuries while lighting the stove. He does not state any ill-treatment meted out to his daughter by the accused. It is also not his case that accused demanded dowry at the time of marriage or thereafter. Though he has been treated as hostile witness, nothing is elicited in his cross-examination. According to him, having seen that she sustained burn injuries, it is he who shifted her to S.N.R.Hospital, Kolar and thereafter she was shifted to Victoria Hospital, Bangalore. When she was shifted to S.N.R.hospital, she was unable to speak and her condition was precarious. According to him, either he or his daughter did not give any statement in the hospital. It is also his case that her daughter was not knowing to speak in Kannada and she was unable to understand Kannada and she was knowing only Urdu.

13. P.W.2 is the mother of the deceased. She has not supported the case of the prosecution. She has also stated that her 12

daughter was knowing only Urdu. She has further deposed that her daughter was not able to understand Kannada. She has also admitted that when her daughter was admitted to S.N.R.hospital and Victoria Hospital, she was put on oxygen and she was unable to speak. This piece of evidence is not challenged by the prosecution. According to PW2 she learnt that accidentally her daughter caught fire and sustained burn injuries.

14. Therefore, the Trial court relying upon the evidence of PWs.1 and 2 has come to the conclusion that deceased was not knowing Kannada language, she was speaking only Urdu and the dying declarations recorded by the Doctors and PWs.7 and 12 cannot be believed because it is stated by them that the questions were put in Kannada language and deceased answered them in Kannada language. According to PW6, he recorded the statement given by the deceased and thereafter he translated in his own language. PW6 language is not Urdu, it is Kannada. Therefore, the evidence of PW6 cannot be believed and it is rightly disbelieved by the Sessions Court.

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15. The evidence of P.W.6 also cannot be believed because in his cross-examination, he has deposed that the deceased was not pregnant when Ex.P12 was recorded which is contrary to the medical sheet maintained by the Victoria Hospital. As a matter of fact, she had given statement about still born child as could be seen from the case sheet maintained by the Victoria Hospital. Even the autopsy report discloses that the deceased was not pregnant. The autopsy was conducted by P.W.10 Dr.P.K.Devdas. Ex.P16 is the case sheet maintained by the Victoria Hospital in respect of the deceased. It is maintained in a haphazard way and that pages are not tallying with each other. According to P.W.6, the deceased spoke in Kannada as well as in Urdu. It is also his evidence that the deceased gave a statement as per Ex.P12 in Kannada and at that time, P.W.7 the Deputy Tahsildar and one Staff Nurse by name Hemavathi were present. When the parents of the deceased P.W.1 and P.W.2 have categorically stated that their daughter was not knowing Kannada, she was speaking only in Urdu and she is unable to understand Kannada, it is difficult to believe the dying declaration recorded by P.W.7 in the presence of P.W.6 as per Ex.P12. When the dying declaration was recorded, he has not mentioned that the patient was mentally fit to give a statement. Ex.P16 further discloses that a 14

request was made to the Police to record the dying declaration twice, but there was no response from the Police. He admits in Ex.P16 that while sending the requisition to the Police to make arrangement for recording the dying declaration, the condition of the patient, has been mentioned. Therefore, it is difficult to accept the evidence of P.W.6 that the deceased was in good condition oriented and conscious while giving dying declaration as per Ex.P12, which is quite contradictory to the requisition sent by P.W.6 to the Police. In addition to that, P.W.1 and P.W.2 have categorically admitted that their daughter was unable to speak when she was taken to SNR Hospital at Kolar and also while admitting her to Victoria Hospital.

16. In regard to the evidence of P.W.7, who was in-charge Special Executive Magistrate who has recorded the dying declaration of the deceased on 8-4-2005 at about 12 Noon is concerned, as contended by the learned defense counsel that the dying declaration as per Ex.P12 is not recorded in the format which was meant for dying declaration and questionnaire was not prepared by him. Within a few hours from the time of recording the dying declaration, the deceased succumbed to burn injuries. While considering the evidence of P.W.6, we have discussed about the 15

mental and physical condition of the deceased and we have also come to the conclusion that the deceased was unable to give any statement. Even according to P.W.7, the deceased gave statement in Kannada. Similarly the evidence of P.W.12 also cannot be believed because when he recorded the dying declaration as per Ex.P11, the patient gave statement in Urdu language, and that the same was translated into Kannada by him, but nowhere he states that Urdu is known to him or that he had taken the help of any translator. He further states that patient spoke to him in Kannada and she was answering in Kannada. In one breath he says that she was speaking to him in Urdu and the statement given by the deceased was translated into Kannada by him, but in the cross-examination, he has admitted that the deceased gave answers only in Kannada and she was knowing Kannada which is quite contradictory.

17. Ex.P11 is the dying declaration recorded by P.W.12 which discloses that the incident took place when the deceased was sleeping in her bed room, the accused poured kerosene and set her on fire. As per Ex.P12 another dying declaration recorded by P.W.7 in the presence of P.W.6 which is quite contradictory to the statement given as per Ex.P11. Under Ex.P12, she has stated that she was 16

sitting outside the house and her husband by pouring kerosene set her on fire. So that there are three dying declarations. The contents of all the dying declarations are quite contradictory to each other and there is no consistency or corroboration. In the circumstances, if the Sessions Judge has acquitted the accused on the ground that the prosecution has failed to bring home the guilt of the accused, it is difficult for this court sitting in appeal against the judgment of acquittal to reverse the finding of the Sessions Court.

18. Viewed from any angle, we cannot hold that the appreciation of evidence by the Sessions Court as perverse and not in perspective.

In the result, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Ak/mpk/-*