IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 16TH DAY OF DECEMBER. 2011 PRESENT THE HON’BLE MR. JUSTICE D.V.SHYLENDRA KUMAR AND THE HON’BLE MR. JUSTICE H. S. KEMPANNA CRIMINAL APPEAL NO.38/2007 BETWEEN 1. AKBAR, Sb. ISMAIL MARTHUR AGE: 28 YEARS, 0CC: AUTO DRIVER 2. JAINABI W/O. ISMAIL MARTUR, AGED ABOUT 50 YEARS, 0CC: HOUSEHOLD, BOTh RESIDENTS OF NEAR KORIMATH, GANGANAGAR. GULBARGA. ... APPELLANTS (BY SRI.MAHANTESH H DESAI- ADVOCATE) AND THE STATE OF KARNATAKA REP.BY RAGHAVENDRA POLICE STATION, GULBARGA. ... RESPONDENT (BY SRI.SUBHASH MALL’PUR-HCGP) 7 CRLA FILED U/S.374 CR.P.C BY THE ADVOCATE FOR THE APPELLANTS AGAINST THE JUDGEMENT DT. 10.11.2006 PASSED BY THE PRL SJ GLLBRGA IN S C NO 139/05 AND CONVICTING THE APPELL.NTS/ CCLSED NO 1 & 2 FOR IHE OFFENCE P/U/S 498A & 302 PJW SEC 34 OF IPC AND SENTENCING THEM TO UNDERGO IMPRISONMENT FOR A TERM OF 3 YEARS & TO PAY A FINE OF RS 2 500/- EACH FOR THE OFFENCE P/U/S 498-A RJW. SEC. 34 OF 1PC, l/D S.I. FOR I MONTH. FURTHER SENTENCING THEM TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY A FINE OF RS 5000/- FOR THE OFFENCE OF MURDER P/U/S.302 RIW. SEC.34 OF IPC. I.D. S.I. FOR A PERIOD OF 3 MONTHS SUBS FANTIVE SENTENCE OF IMPRISONMENT SHALL RUN CONCURRENTLY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGEMENT ON 21.09.2011 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, H.S.KEMPANNA J., DELIVERED THE FOLLOWING; JUDGEMENT This appeal by the accused is directed against the judgment and order dated 10.11.2006 passed in S.C.No. 139/2005 by the Principal Sessions Judge, Gulbarga, convicting them for the offences punishable under Sections 498-A nw 34 IPC, 302 r/w. 34 of IPC and sentencing them to undergo imprisonment for three years and imprisonment for life and to pay fine of Rs.2,500/- and Rs.5,000/- each in default to undergo S.I. for one month and three months respectively for the said offences. 3 2. The brief facts of the case are as under: The appellants/accused came to be tried by the learned Sessions Judge on the charges for the offences punishable under Sections 498-A r/w. 34 of IPC and 302 nw. 34 of IPC. On the allegation that the accused Nos. 1 and 2 being the husband and mother-in-law respectively of the deceased-Baby, in furtherance of their common intention had subjected her to cruelty and harassment after her marriage and on 13.9.2004 on the ground of demand of her salary and further on 13.9.2004 at about 8.45 p.m. in the house of Accused No.2 situated at Ganganagar, Gulbarga, doused her with kerosene and set fire to her, due to which she sustained severe burn injuries and succumbed to the same on 17.9.2004 while undergoing treatment in the hospital. 2.1 It is the case of the prosecution that the deceased Baby is the daughter of PW. 1- Gouramma who was residing in her house situated at Dhangargalli Brahampur, Gulbarga for the last 30 years. Deceased 3 4 Baby had completed her graduation and had obtained B.Ed. Degree. 2.2 Accused No.2 is the mother of accused No.1. She was residing separately in her house situated at Ganganagar in Gulbarga. Accused No.1 has studied upto Xth Standard and is an auto driver by occupation. 2.3 The deceased baby had fallen in love with accused No.1 during her student days and initially they got their marriage registered at Afzalpur and subsequently, about three years prior to the date of occurrence, which took place on 13.9.2004 their marriage was performed and their marriage was a love marriage. After the marriage deceased and Accused No.1 were living in the house of PW1 situated at Dhanagargalli, Brahampur, Gulbarga. They were also visiting the House of Accused No.2. They were leading a cordial marital life. 2.4 It is the case of the prosecution that about 2 to 3 months after the marriage deceased Baby was appointed as a teacher in Gangamma High School, A 5 Shahbad and she was working in the said school. Initially there were no differences of what so ever between the deceased on the one hand and the accused on the other hand. But it arose between them after the deceased started drawing her salary. 2.5 It is the case of the prosecution that accused No.1 was demanding the deceased to pay her salary and in this connection quarrels were taking place between them in the house of PW1. It is also the case of the prosecution that the accused were also quarrelling with the deceased to pay her salary whenever she was visiting the house of Accused No.2 situated at Ganganagar in Gulbarga and in this connection both the accused were subjecting the deceased to cruelty and harassment both mentally and physically. PW. 1 had advised the accused, but they had not headed to the same. 2.6 Such being the position it is the case of the prosecution that on 13.9.2004 Accused No.1 and the deceased who had gone out of the house of PW. 1 6 returned in the evening at 7 p.m. Thereafter, accused No.1 took the deceased to Sharanabasaveshwara Temple at Gulbarga. Till about 9 p.m. they did not return home. Therefore, PW. 1 went in search of them to the house of Accused No.2. There she saw people having gathered infront of the house of accused No.2 and someone among them told her that Accused Nos. 1 and 2 have assaulted the deceased, doused her with kerosene and have set fire to her and she has been taken to the hospital. Immediately, she proceeded to Government hospital Gulbarga and there she saw her daughter having sustained burn injuries on her person including the face and being treated for the same. On enquiry with her deceased daughter she told her that Accused Nos. 1 and 2 assaulted her, Accused No.1 poured kerosene and set fire to her and they did so for the sake of money. 2.] It is also the case of the prosecution that after the deceased was set fire she raised cries and hearing the same PW.5, PW.6, PW.1O and PW.11 who are 7 residing near the house of Accused No.2 came and they saw the deceased having sustained burn injuries on her body and on enquiry she told them that she sustained the same at the hands of accused and requested them to remove her to the Hospital and accordingly, on securing an auto rickshaw they sent the deceased to the hospital along with Al and A.2. 2. It is further the case of the prosecution that PW. 14-A.S.I. on receipt of the intimation from the hospital came to the hospital at about 10.00 p.m. He gave a requisition to the Medical Officer — PW.2 as per Ex.P.3 to ascertain whether the deceased was in a fit condition to give her statement. The Medical officer told him that she is not in fit condition to give her statement and made an endorsement to that effect as per Ex.P.3(a). Thereafter, he gave the said requisition to PW. 1 6-Taluka Executive Magistrate to record the statement of the deceased and returned to the police station. PW. 16 — Incharge Taluka Executive Magistrate in response to the requisition as per Ex.P.3 given by 7 8 PW.14 recorded Ex.P12 the statement of the deceased on 14.9.2004 at the Government Hospital Gulbarga. 2. It is also the case of the prosecution that thereafter PW. 1 appeared before PW. 14 at about 01.00 a.rn. on 14.09.2004 and filed her complaint as per Ex.P. 1. On the basis of the same, PW. 14 registered a case in Crime No.95/04 for the offences punishable under Sections 498 - A, and 307 nw. 34 of IPC against the accused and issued a FIR to the Jurisdictional Magistrate as per Ex.P.9. On the same day, at about 8 a.m. he proceeded to the spot of the occurrence i.e. house of accused No.2 situated at Ganganagar and there he prepared the spot panchanama as per Ex.P.6 in the presence of PW.8 and seized M.O.2 thereunder. Thereafter, he recorded the statements of PW. 5, PW. 10, PW. 11 and two other witnesses. On the same day at about 1.00 p.m he visited the Government Hospital and contacted the Medical Officer on duty, who informed him that the deceased was not in fit condition to give her statement. Again he visited the Hospital on that day 0 9 at about 6 p.m. and at that time as she was in fit condition to make her statement as certified by the Medical Officer he recorded her statement. He also came to know by that time PW16 - Taluka Executive Magistrate had also recorded the statement of the deceased. Thereafter at about 6.30 p.m. the same day he arrested A. 1 and on completion of the arrest formalities he got him remanded to judicial custody. On 16.9.2004 the deceased was shifted from Government Hospital Gulbarga to Basaveshwara Hospital Gulbarga for further treatment. On 17.9.04 at about 02.45 a.m. the deceased expired at Basaveshwara Hospital while undergoing treatment and to that effect he received intimation as per Ex.P. 10. On the basis of Ex.P. 10 he prepared an additional report as per Ex.P1 1 adding Section 302 of IPC in the case registered earlier and forwarded the same to the Jurisdictional Magistrate. Thereafter, he gave requisition to the Taluka Executive Magistrate - PW. 15 to hold inquest over the body of the deceased, who in response to the same held inquest 10 over the body of the deceased in the presence of the panchas PW.9 and PW. 12 and drew-up inquest panchanama as per Ex.P.8. Thereafter, he forwarded the body for subjecting to post mortem examination along with a requisition. In the meantime, he also seized the nose-stud MO. 1 found on the body of the deceased under panchanama Ex.P.7 in the presence of pancha PW.8. In response to the requisition given by PW. 14, PW. 17 Medical Officer conducted autopsy over the body of the deceased and issued post mortem report as per Ex.P. 13. Thereafter, PW. 14 handed over further investigation to PW. 13 - CPI on 25.9.04. PW. 13 on taking over the investigation verified the same. He arrested A.2 on 8.10.04 and on completion of the arrest formalities, got her remand to the Judicial custody and thereafter on completion of recording of the statements of the witnesses and on obtaining the necessary documents including the wound certificate filed the final report against the accused before the Jurisdictional Magistrate. The learned Magistrate in turn committed 1 fl ii the case of the accused to the Court of Sessions and on committal the accused pleaded not guilty to the charges framed and claimed to be tried. 3. The prosecution in support of its case in all examined PWs. 1 to 17 and got marked Exs.P. 1 to P.13 and MOs. 1 to 3. The accused have got marked Ex.D. 1 during the course of examination of the prosecution witnesses. 4. After completion of the prosecution evidence the accused have been examined under Section 313 of Cr.P.C. They have denied all the incriminating circumstances put to them found in the evidence of prosecution witnesses and have also filed their statement. Thereafter, they were called upon to enter on their defence and to adduce their defence evidence if any they have in support of their case. In response to the same, both the accused have got themselves examined as DWs. 1 and 2 and they got marked Exs.D.MO. 1 and D.MO.2. It is their case that the 11 12 deceased has committed suicide by setting fire to herself and they have no nexus of whatsoever with the deceased sustaining burn injuries. Among the witnesses examined for the prosecution, PW. 1 is the mother of the deceased who has filed her complaint as per Ex.P. 1. PW.2 is the Medical Officer who has treated Accused No.2 and has issued wound certificate as per Ex.P.2. He has also informed PW. 14 ASI initially on the night of 13.9.04 stating that the deceased was not in a fit condition to give her statement. PW.3 is the Medical Officer who has given treatment to the deceased, but her evidence is not complete since the originals’ have not been produced by her .PW.4 is an engineer who has drawn up sketch of the scene of the occurrence as per Ex.P.4. PWs.5, 6, 10 and 11 are the neighbours of A.2 who have come near the house of A.2 immediately after the occurrence and have seen the deceased having sustained the burn injuries. PW.7 is the sister of PW. 1 who on coming to know of the deceased having been admitted to the l) 13 hospital has proceeded to the hospital and on the next day, she was told by the deceased that she sustained injuries at the hands of the accused. PWs.8. 9 and 12 are the panchas for Exs.P.6, P.7 and P.8 namely spot panchanama, seizure panchanama and inquest panchanarna. PW. 15 is the Taluka Executive Magistrate who has drawn up the inquest panchanama as per Ex.P.8. PW. 16 is the another Taluka Executive Magistrate who has recorded Ex.P. 12 - the dying declaration of the deceased. PW. 17 is the Medical Officer who has conducted the autopsy over the body of the deceased and has issued post mortem report as per Ex.P. 13. PW. 14 is the ASI who has conducted major part of the investigation. PW. 13 is the CPI who after completion of the investigation has filed final report against the accused before the Jurisdictional Magistrate. 5. The learned Sessions Judge thereafter on hearing the learned Public Prosecutor for the State, learned cousnel for the accused and on perusal of the 14 evidence and documents placed on record came to the conclusion that the prosecution has established the charges levelled against the accused and accordingly, by his judgment and order dated 10.11.06 convicted them for the offences punishable under Section 498 -A nw. 34 of IPC and 302 r/w. 34 of IPC and sentenced them to undergo imprisonment for three years and imprisonment for life and to pay a fine of Rs.2,500/- and Rs.5,000/- each in default to undergo S.I. for one month and three months respectively for the said offences. It is the correctness and legality of the said judgment and order of conviction and sentence that has been assailed by the appellants/accused in this appeal. 6. Learned counsel for the appellants/accused assailing the impugned judgment and order of conviction and sentence contended that the same cannot be sustained as there is no clinching and cogent evidence placed on record by the prosecution to establish the guilt of the accused. Elaborating his 14 15 submission learned cousnel contended that the evidence on record that of PW. 1 the mother of the deceased, PWs.5, 7, 10 and 11 does not inspire confidence to place reliance on their testimony having regard to delay in filing the first information before the police, the suspicious circumstances under which Ex.P. 12 - the dying declaration of the deceased has come into existence and as the evidence of the said witnesses does not corroborate with each other on material particulars. The said evidence which is not trust-worthy has not been appreciated in the right perspective by the Trial Judge. He further contended that the entire evidence on record is shrouded with suspicion as the prosecution witnesses have not explained the injuries sustained by accused No.2 on her person who admittedly was taken to the hospital along with the deceased and as they have suppressed the material facts in the case, the same does not point towards the guilt of the accused. He further contended that evidence of the accused examined as DWs. 1 and 2 15 16 clearly goes to show that there was absolutely no demand for dowry by them and the deceased has committed suicide on her own by setting fire to herself which has not been properly appreciated by the learned trial Judge and therefore, the impugned judgment and order of conviction and sentence cannot be sustained. Accordingly, he prayed for setting aside the same by allowing the appeal. 7. Per contra, learned High Court Government Pleader for the State supporting the impugned judgment and order passed by the trial Judge contended that the evidence of the prosecution witnesses pointed to the guilt of the accused persons, more particularly that of PWs. 1, 5, 7, 10 and 11 reveal that the accused have subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of her salary and further they have committed her murder by dousing her with kerosene and setting fire to the deceased and as nothing has been brought out in the cross-examination of the said witnesses to discredit 16 17 their testimony which is fortified from Ex.P. 12-dying declaration of the deceased recorded by PW.16 - Taluka-Executive Magistrate, the impugned judgment and order passed by the trial Judge does not call for any interference and accordingly, appeal be dismissed. 8. Taking the rival submission into consideration, the evidence and the documents on record, the points that arise for our consideration are: (1) Whether the prosecution has established that the deceased Baby has died on account of sustaining burn injuries? (2) Whether the Prosecution has established that the accused in furtherance of their common intention, subjected the deceased to cruelty and harassment both mentally and physically on the ground of demand of the salary drawn by her and further they did douse her with Kerosene and set-fire to her with an intention of committing her murder? - 17 18 (3) Whether the impugned judgment and order of the trial Judge calls for any interference? (4) What order? 9. Re-point No.1 :- The prosecution in order to establish that the deceased Baby has died on account of sustaining burn injuries have placed reliance on the evidence of PW. 17 — Medical Officer who has conducted autopsy over the body of the deceased and the post mortem report Ex.P. 13 issued by him. His evidence reveals that he conducted autopsy over the body of the deceased on 17.9.04 and at that time he noticed burn injuries on face, neck, both the hands, upper chest, abdomen over back and lower abdomen, anterior and posterior aspect of both legs, and the said burns were approximately to the extent of 90%. He has further stated that on dissection of the body he noticed puss coming out of cut section of lungs and all the internal organs were congested. He is of the opinion that the death was due 18 19 to septicirnic shock secondary to burns. In the cross — examination of this Medical Officer nothing has been elicited to discredit his testimony with regard to the deceased having sustained burn injuries and succumbing to the same. The only question put to him in the cross—examination is that whether it is suicidal or homicidal or accidental death, to which PW. 17 has answered that he cannot say. It is elicited in the cross- examination that he noticed deep injuries on the neck. The deceased having died due to burn injuries is not seriously disputed by the accused. According to them, the deceased sustained burn injuries on account of setting fire to herself in order to commit suicide. In view of the evidence of PW. 17 and the stand taken by the accused, it is clear that the deceased has died on account of sustaining burn injuries. The same is also fortified from the evidence of PW. 1—mother of the deceased, PWs.5, 10, 11 who are neighbours of the accused and PW.7 sister of PW. 1. Apart from the same, it is also fortified from the evidence of PW. 15 Taluka 1Q 20 Executive Magistrate who has conducted inquest over the body of the deceased and has drawn up inquest panchanama as per Ex.P.8, which is supported by PW. 12-the inquest panchanama. As already pointed out the deceased having died on account of sustaining burn injuries is also not disputed to by the learned counsel for the accused. In that view of the matter, we have no hesitation to hold that the deceased Baby has died on account of sustaining burn injuries and Prosecution has established the same. 10. Re: Point No.2:- It is the case of the prosecution that the accused were demanding the deceased to pay her salary. The deceased had given Rs.30.000/-, despite the same, quarrels were taking place both in the house of PW. 1 and Accused No.2. In this connection, the accused in furtherance of their common intention were subjecting the deceased to cruelty and harassment both mentally and physically. As their demand was not acceded to, on 13.9.2004 in the night at about 8.45 p.m. in the house 9n 21 of A.2 situated at Ganganagar in Gulbarga doused her with kerosene and set fire to her, due to which, she sustained burn injuries and succumbed to the same while undergoing treatment at Basaveshwara Hospital on 17.9.2004 and they did commit her murder in furtherance of their common intention. The prosecution in order to establish the same have relied upon the evidences of PW. 1- mother of the deceased, PWs.5, 6, 10 and 11 - neighbours of A.2 and PW.7 - sister of PW. 1. Apart from the same, they have also relied upon the evidence of PW. 16 —Taluka Executive Magistrate who has recorded the dying declaration of the deceased which is at Ex.P. 12. The established facts of the case are: - The deceased is the daughter of PW. 1-Gauramma. PW. 1 was residing in her house situated at Dhanagargalli, Brahampur, Gulbarga for the last 30 years. She had lost her husband about 5 years prior to the occurrence. The deceased Baby had completed her graduation and had obtained her B.Ed. degree. Accused ‘)l No.1 is the son of Accused No.2 who was residing in a rented house situated at Ganganagar in Gulbarga. Accused No.1 had studied up to 10 standard and an auto driver by occupation. The deceased and A. 1 had fallen in love with each other when they were studying in the school and initially they had got their marriage registered at Afzalpur and later about three years prior to the occurrence their marriage had been performed and their marriage was a love marriage and inter caste marriage as deceased was a Hindu and A. 1 is a Muslim. After the marriage A. 1 and the deceased were living in the house of PW. 1Gouramma situated at Dhangargalli Brahampur Gulbarga. They were also visiting the house of Accused No.2. It is the case of the prosecution that the deceased got appointed as school teacher in Gangamma High School, Shahabad 2-3 months after her regular marriage with A. 1. Initially the couple lived happily in the house of PW. 1. Trouble arose after the deceased started getting her salary. It is the case of the 23 prosecution that accused were demanding deceased to pay her salary and in that connection quarrels were taking place between them both in the house of PW. 1 and A.2. It is also the case of the prosecution that A. 1 had raised loan and in order to discharge the same, he wanted money and in that connection the deceased had given a sum of Rs.30,000/- to A.1. In spite of the same, accused were subjecting her to cruelty and harassment by beating her demanding to pay her salary. Ultimately, on 13.9.2004, A. 1 took the deceased to the house of his mother-A.2 and there he doused with her kerosene and set fire to her with the assistance of his mother A.2, due to which she sustained burn injuries and succumbed to the same while undergoing treatment in the hospital on 17.9.04. PW. 1 in her evidence has stated that A. 1 was quarreling with the deceased for the sake of money, as he was to repay the loan. Here itself we