Nazrulla Khan @ Nazrulla vs The State Of Karnataka
2022 Latest Caselaw 9915 Kant

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                                                             R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 29TH DAY OF JUNE, 2022

                          BEFORE

       THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.2045 OF 2018

BETWEEN:

NAZRULLA KHAN @ NAZRULLA,
S/O. NYMATH KHAN,
AGED ABOUT 31 YEARS,
OCC: DRIVER, R/O. NEW MANDLI,
1ST CROSS, 100 FEET ROAD,
NEAR NYAMATH SHADI MAHAL, ILIYAZ NAGAR,
SHIVAMOGGA - 577 201.                          ...   APPELLANT

[BY SRI. SHIVARAJ N. ARALI, ADVOCATE]

AND:

THE STATE OF KARNATAKA
BY SHIVAMOGGA MAHILA POLICE STATION,
SHIVAMOGGA - 577 201.
(REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.)                    ...     RESPONDENT

[BY SRI. R.D. RENUKARADHYA, HCGP]
                           ***
      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 DATED 28/29.09.2018 PASSED
BY THE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA, IN SESSIONS CASE NO.107/2017 (CONVICTED FOR
OFFENCES PUNISHABLE UNDER SECTIONS 498(A) AND 304-B OF
IPC) AND ACQUIT THE APPELLANT/ACCUSED OF THE CHARGES
LEVELED AGAINST HIM.
      THIS CRIMINAL APPEAL COMING ON FOR DICTATING
JUDGMENT THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                            JUDGMENT

The appellant being aggrieved by the Judgment and

Order dated 28/29.09.2018, passed by the II Additional

District and Sessions Judge, Shivamogga, in S.C.

No.107/2017, convicting and sentencing him for offence

punishable under Section 498-A and 304-B of IPC, has

preferred this appeal.

2. I have heard the learned counsel for

appellant/accused and the learned High Court Government

Pleader for respondent/State and perused the material on

record.

3. Charges were framed against the appellant for

offence punishable under Sections 498-A and 304-B of IPC

and alternatively under Section 302 of IPC. The learned

Sessions Judge vide impugned Judgment and Order, found

the accused not guilty for offence punishable under Section

302 of IPC, however, held him guilty for the other charged

offences.

For the offence punishable under Section 498-A of

IPC, the accused was sentenced to undergo simple

imprisonment for a term of 2 years and to pay a fine of

`5,000/-, in default of payment of fine, to undergo simple

imprisonment for 2 months.

For the offence punishable under Section 304-B of

IPC, the accused was sentenced to undergo rigorous

imprisonment for a term of 7 years.

4. Brief facts of the prosecution case are that, the

marriage of the victim/Afsana Banu was performed with

the accused about 6 years prior to the date of incident.

The accused was addicted to alcohol and he was subjecting

the victim to cruelty, both physical and mental. He used to

demand money from her to be brought from her parental

home. On 26.11.2015 at about 11:00 p.m., the accused

came home consuming alcohol, assaulted the victim and

demanded to bring `25,000/- from her parental home. He

then told her that she should die and only then he can live

happily. It is the further case of prosecution that the

accused poured kerosene on the victim and lit fire, due to

which, she sustained severe burn injuries and while

undergoing treatment at Mc.Gann Hospital, Shivamogga,

she died on 11.12.2015 at about 1:45 p.m.

5. As already noted supra, insofar as offence

punishable under Section 302 of IPC is concerned, the

accused was found not guilty and he was acquitted of the

said offence. The trial Court has held that the prosecution

has utterly failed to prove the ingredients of offence

punishable under Section 302 of IPC. The said finding has

become final.

6. The incident took place on 26.11.2015 at about

11:00 p.m. in the house situated at 1st Cross, New Mandli,

Shivamogga, where the deceased and accused were living

together. P.W.4 is the owner of the said house. In her

evidence, P.W.4 has deposed that in the said house the

accused was residing with his wife and two children since

two months. On the date of incident at about 12.00 in the

midnight, she heard some quarrelling sound and therefore,

she came out of her house and saw the accused going

away from the house. Further, she saw his wife had

sustained burn injuries and someone had doused the fire.

Thereafter she was taken to hospital.

7. The deceased was taken to Mc.Gann Hospital,

Shivamogga, immediately after the incident. On receiving

the MLC intimation, P.W.10 viz, Head Constable went to the

hospital and after confirming from P.W.18-Doctor, about

her condition to give statement, he recorded her statement

as per Ex.P9. Thereafter, First Information Report-Ex.P10

was forwarded to the jurisdictional Court.

8. In Ex.P9, the victim has stated that she was

residing with her husband and two children in a rented

house since 2 months. Her husband is doing coolie work

and he was always coming home drunk and giving her

physical and mental torture. He was not providing any

ration to the house. On 26.11.2015 at 11:00 p.m., her

husband came to the house in an intoxicated condition and

started abusing her and when she asked him as to why he

is not giving household expenses and always coming home

drunk, he assaulted on her back with his hands and when

she told him that their elder daughter is not keeping well

and therefore he should not quarrel and should sleep

quietly, again he assaulted her in front of her children and

then told her that she should die and only then he can live

peacefully. Being depressed, she poured kerosene on

herself and set fire. When she screamed, neighbours came

and put off the fire and one Wasim-P.W.5 and others

shifted her to the hospital in an ambulance.

9. Ex.P9 is recorded by P.W.10-Head Constable

between 1:00 a.m. and 2:00 a.m. on 27.11.2015 and after

registering the case, he sent intimation to the Taluka

Executive Magistrate, to record the dying declaration of the

victim.

10. Ex.P17 is the dying declaration of the victim,

recorded by the Taluka Executive Magistrate i.e, P.W.14 on

27.11.2015 at about 12:10 p.m. In his evidence, P.W.14

has deposed that he recorded the statement of the victim

in a question and answer format and when he enquired,

the victim told that her husband i.e., the accused is

responsible for the incident. The victim told him that her

husband came home in an intoxicated condition and told

her to bring money from her parental home and when she

refused, he poured kerosene on her body and lit fire and

thereafter ran away from the house.

11. As per Ex.P17, recorded by P.W.14, the accused

was telling the victim to bring money from her parental

home and on many occasions, the deceased brought

`5,000/-, `10,000/- and `20,000/- and prior to the incident

in question, the accused demanded her to bring a sum of

`20,000/-. It is stated that the accused committed the

offence for the purpose of dowry.

12. P.W.6 is the Woman PSI, working at

Shivamogga Women's Police Station. She has stated that

on 27.11.2015, after taking over the investigation, she

visited the hospital to enquire about the victim's condition

and requested the Medical Officer to certify as to whether

the victim is in a position to give her statement and

thereafter recorded one more statement of the victim as

per Ex.P5. She has stated that the said statement was

recorded by the Head Constable viz, Lakshmi, as per Ex.P5.

According to the said statement, on 26.11.2015 at about

11:30 p.m., the accused stating that he need money for his

expenses and for his drinking habits, demanded `25,000/-

and picked up quarrel with the victim and assaulted her as

well as her elder daughter and when the victim said that

her daughter is not keeping well, the accused saying that

she should go and die, poured kerosene and set her on fire.

13. It is relevant to see that P.W.6 who is said to

have recorded the statement of the victim as per Ex.P5

through one Lakshmi, Head Constable, in her cross-

examination has stated that at the time of recording the

statement, none of the relatives of the victim were present

and only after the statement was recorded, the victim's

mother came to the spot and at that time, victim's

statement was completely recorded. Contrary to the same,

in Ex.P5, it is clearly mentioned that the said statement

was recorded in the presence of the doctor as well as

victim's mother.

14. In Ex.P17 recorded by P.W.14 and Ex.P5

recorded by P.W.6, it is stated that the accused poured

kerosene on the victim and set her on fire after demanding

money. However, the said fact of pouring kerosene and

setting fire by the accused is not stated in Ex.P9 recorded

by P.W.10 on the basis of which, the case was registered

against the accused. Further, Ex.P11 came into existence

at the earliest point of time i.e., on 27.11.2015 at about

12:30 a.m., when the victim was admitted to the burns

ward of Mc.Gann Hospital, Shivamogga, wherein history

furnished is 'burns by self pouring kerosene at around

12:30 a.m., on 27.11.2015 near new Mandli, Shivamogga'.

It is also relevant to see that in Ex.P9 which is recorded by

P.W.10 after confirming the fit condition of the victim to

give her statement from doctor-P.W.8, there is no mention

of any demand of dowry by the accused. From Exs.P9 and

11, it can be clearly seen that it was the deceased who

poured kerosene on herself and lit fire and it is not alleged

that the accused demanded money or he poured kerosene

and set fire to her.

15. P.W.9 is the Doctor who conducted the Post-

Mortem examination. The Post-Mortem Report is marked as

Ex.P8. According to Post-Mortem Report, the death is due

to septicemia as a result of burn injuries sustained. The

doctor has opined that the victim has sustained about 70 to

75% burn injuries. The same is not seriously disputed.

16. From the above evidence on record, the

prosecution has been able to establish that the marriage of

the deceased with the accused took place about 5 to 6

years prior to the date of incident and the accused was

addicted to drinking habits and he was subjecting the

deceased to physical and mental cruelty. On 26.11.2015 at

about 11:00 p.m., he came home in an intoxicated

condition and started quarrelling with her and also hit her

with hands. On the same night, the victim poured

kerosene on herself and set fire and later died in the

hospital, while undergoing treatment, on 11.12.2015 at

about 1:45 p.m.

17. The learned counsel for the appellant has

contended that there are multiple dying declarations which

are not corroborated with each other and the allegation

that accused was demanding dowry and subjecting the

victim to cruelty for the purpose of dowry is not

established. He submits that it is not the case of

prosecution that at the time of marriage the accused had

demanded and accepted dowry. He contends, the couple

were residing separately in a rented house since two

months prior to the date of incident and there is no incident

of assault or quarrel which took place, for the purpose of

dowry, at any point of time earlier. He contends that

P.W.4-the owner of the house would have spoken about

any such cruelty or harassment as she is none other than

the owner of the house residing nearby. He contends that

there is no consistency with regard to the accused telling

the deceased to go and die and even otherwise, if any such

word has been uttered in a spur of moment in a quarrel,

then mens rea cannot be attributed to the accused. He

therefore contends that the trial court having rightly

acquitted the accused of the offence punishable under

section 302 of IPC was not justified in convicting him for

the other charged offences.

18. The learned High Court Government Pleader has

contended that the prosecution has adduced sufficient

evidence to show that the accused was constantly

harassing the deceased both physically and mentally

subjecting her to cruelty in connection with dowry. He

submits that on various occasions, the deceased had

brought money from her parental home and not being

satisfied, the accused quarreled with her on the intervening

night of 26/27.11.2015 demanding her to bring another

sum of `25,000/-. He submits that there is sufficient

evidence to show that soon before her death the deceased

was subjected to cruelty in connection with dowry.

Therefore submits that the trial court was justified in

convicting the accused for the offences punishable under

sections 498A and 304B of IPC. He relied on a decision of

the Hon'ble Apex Court in the case of Lakhan vs. State of

Madhya Pradesh reported in 2011 CRI.L.J. (Supp) 629

to contend that a dying declaration recorded by a

competent Magistrate would stand on a much higher

footing and conviction can be based solely on it, without

any further corroboration.

19. The trial court has come to the conclusion that

the death of the victim has taken place naturally due to the

reasons of burn injuries within seven years of the marriage

and therefore the presumption as to dowry death can be

drawn in favour of the prosecution. It is further observed

that the prosecution has proved the ingredients of Sections

498A and 304B of IPC. The trial Court has also taken into

consideration the evidence of P.W.1 i.e., Panchwitness to

spot Mahazar-Ex.P1 and observed that he has categorically

deposed in his examination-in-chief about the

topographical situation of the spot and falling of kerosene

and kerosene smell at the spot and half burnt clothes of

the victim etc., one match stick box, nighty of the victim,

T-shirt of the child and half burnt hair of the victim etc.,

marked as M.Os.1 to 5. The trial Court has also taken into

consideration the videographed statement of the victim

which was recorded as per Ex.P5, the VCD marked as

Ex.P15.

20. It is no doubt true that the incident has taken

place within seven years from the date of marriage. Insofar

as Ex.P1-spot Mahazar is concerned, from where M.Os.1 to

5 are recovered, there is no dispute that the victim

sustained burn injuries on 26.11.2015 at about 11:00 p.m.

and subsequently she died on 11.12.2015 at about 1:45

p.m. while undergoing treatment in the hospital. Insofar as

Ex.P15 the VCD is concerned, the same is marked through

P.W.13 viz, the Dy.S.P. who filed the additional charge-

sheet. P.W.6 has stated that while recording the statement

of the victim as per Ex.P5, the same was videographed.

However, as per Ex.P5, it was the accused who tried to

pour kerosene and set fire to the victim. Admittedly, the

trial Court has not accepted the case of prosecution in so

far as the accused pouring kerosene and setting fire to the

victim. Both from Exs.P9 and 11 it can be clearly gathered

that it was the victim who herself poured kerosene and set

fire to herself. Insofar as subjecting the deceased to cruelty

soon before her death in connection with dowry is

concerned, in Ex.P9 namely the statement of the victim

recorded by P.W.10 after obtaining certification from the

doctor about her fit condition to give statement, on the

basis of which a case was registered against the accused, it

is nowhere mentioned that the accused was demanding

money and before her death she was subjected to cruelty

for the purpose of dowry.

21. The prosecution has examined the brother of

the victim as P.W.2. In his evidence he has stated that only

for about two months after the marriage the accused was

looking after his sister properly and thereafter he was

giving physical and mental harassment demanding money

from her. He has stated that the accused was addicted to

drinking habits and since he was demanding money, they

gave `5,000/-, `10,000/- and `20,000/- on several

occasions and after sometime he was again giving trouble

to his sister. He has stated that a panchayath was held and

in the said panchayath the accused assured that he will not

give trouble to his sister. He has further stated that on

26.11.2015 at about 11:00 p.m., the accused demanded

`25,000/- from the victim and when she refused, he

poured kerosene and set fire to her. According to him, the

same was informed to him by his sister.

22. In Lakhan vs. State of Madhya Pradesh

(supra), it is held that, in case there are multiple dying

decelerations and there are inconsistencies between them,

generally, the dying declaration recorded by a higher

officer like a Magistrate can be relied upon, provided that

there is no circumstances giving rise to any suspicion about

its truthfulness. In case there are circumstances wherein

the declaration had been made, not voluntarily and even

otherwise, it is not supported by the other evidence, the

Court has to scrutinize the facts of an individual case very

carefully and take a decision as to which of the declarations

is worth reliance.

23. In the case of Amol Singh vs. State of

Madhya Pradesh reported in (2008)5 SCC 468, the

Hon'ble Apex Court, placing reliance upon a Judgment in

Kundula Bala Subrahmanyam and another vs. State

of Andhra Pradesh reported in (1993)2 SCC 684, held

that it is not the plurality of dying declaration but the

reality thereto that adds weight to the prosecution case. If

a dying declaration is found to be voluntary, reliable and

made in a fit mental condition, it can be relied upon

without any corroboration. If there is more than one dying

declaration, they should be consistent. In case of

inconsistencies between two or more dying declarations

made by the deceased, the Court has to examine the

nature of inconsistencies, namely, whether they are

material or not and in such a situation, the Court has to

examine the multiple dying declarations in the light of the

various surrounding facts and circumstances.

24. As already noted, there is discrepancy in the

multiple dying declarations insofar as the accused pouring

kerosene and setting fire to the victim. The case of the

prosecution in that regard has been disbelieved by the trial

Court. Further, even insofar as the accused demanding

money from the victim, there is discrepancy. In Ex.P9, on

the basis of which law was set into motion, there is no

allegation of dowry demand by the accused. Though P.W.2

has stated that there was a panchayath held but, there is

no material placed as to when the said panchayath was

held and none of the panchayathdars have been examined

to show that the accused was demanding money from the

deceased.

25. According to P.W.3, the accused was addicted

to alcohol and he was demanding money from the victim

and giving her physical and mental torture. According to

him, it was informed to him by the parents of the victim.

However, the parents of the victim are not examined.

P.W.3 is only a hearsay witness.

26. In Ex.P5 it is stated that the accused demanded

the victim to get a sum of `25,000/- and picked up quarrel

with her. The said statement reveal that it was recorded in

the presence of her mother. It is not stated in Ex.P5 that

on various occasions the accused received a sum of

`5,000/-, `10,000/- and `20,000/- whereas in Ex.P17 it is

stated that on various occasions the victim had brought the

said amount and gave it to the accused. Further, in Ex.P5,

it is stated that the accused demanded `25,000/- prior to

the incident, whereas in Ex.P17, it is stated that the

accused demanded a sum of `20,000/-. There is

discrepancy with regard to the amount demanded by the

accused soon before the incident. Hence, the dying

declaration with regard to the amount demanded by the

accused does not inspire confidence of the Court.

27. The first and foremost statement of the victim

which is recorded as per Ex.P9 between 1:00-2:00 a.m., on

27.11.2015 by P.W.10, immediately after the incident,

which is recorded after confirming the physical and mental

condition of the patient to give such statement, does not

spell out any cruelty meted to the deceased for the purpose

of dowry. According to Ex.P9, the accused was addicted to

alcohol and he was giving physical and mental torture to

the deceased and he was not bringing ration to the house.

On 26.11.2015 at about 11:00 p.m. he came to the house

in an intoxicated condition and started abusing the victim.

She told him that he is always coming home drunk and not

giving any household expenses. Enraged by the same he

assaulted on her back. When the deceased told him that

his elder daughter is not keeping well and he should sleep

quietly, again he assaulted her in front of their children and

told her that she should go and die only then he can live

peacefully. Being depressed, she poured kerosene and set

fire to herself.

28. The Hon'ble Apex Court in the case of Chitresh

Kumar Chopra vs. State [Government of NCT of

Delhi] reported in (2009)16 SCC 605, has held that the

words uttered on spur of the moment or in a quarrel,

without something more cannot be taken to have been

uttered with mens rea. To constitute "instigation", a

person who instigates another has to 'goad' or 'urge

forward' the latter with intention to provoke, incite or

encourage the doing of an act by the latter.

29. In the case on hand, the evidence on record

falls short to attract the ingredients of abetment. Further

the prosecution has failed to establish that soon before her

death, the deceased was subjected to cruelty for the

purpose of dowry. Hence, the findings recorded by the trial

Court for convicting the accused for the offence punishable

under Section 304B of IPC is not sustainable in law.

However, the evidence and material on record is sufficient

to hold that the accused has committed an offence

punishable under Section 498A of IPC. Hence, the

following:

ORDER

Appeal is partly allowed.

The Judgment and Order dated 28/29.09.2018

passed by the II Additional District and Sessions Court,

Shivamoga in S.C.No.107/2017 insofar as convicting and

sentencing the accused for offence punishable under

Section 304B of IPC is hereby set aside.

The conviction and sentence passed against the

appellant/accused for the offence punishable under Section

498A of IPC is confirmed.

If the accused has already undergone the sentence

imposed against him for the offence punishable under

Section 498A of IPC and paid the fine amount, he shall be

released, unless required in any other case.

Sd/-

JUDGE Ksm*/HB