Karnataka High Court
Shabbir S/O. Yakub Sab vs The State Of Karnataka on 5 September, 2024
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CRL.A No. 2814 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO. 2814 OF 2013 (C)
BETWEEN:
SHABBIR
S/O. YAKUB SAB
AGE: 32 YEARS, OCC: AUTO DRIVER
R/O. BEEDI QUARTERS BEHIND
GOLL BADA MASJID,
COWAL BAZAR, BELLARY
...APPELLANT
(BY SRI. J BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA, DHARWAD
...RESPONDENT
(BY SRI. PRAVEEN Y. DEVAREDDIYAVARA, HCGP)
Digitally
signed by
NARAYANA
UMA THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
Location: SEEKING TO CALL FOR THE RECORDS PASSED BY THE ADDL.
HIGH COURT DIST. & SESSIONS JUDGE, BELLARY, IN S.C.NO.73/2012,
OF
KARNATAKA PERUSE THE SAME, ALLOW THIS APPEAL, SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 1.1.2013 AND
SENTENCE DATED 02.01.2013, ACQUIT THE APPELLANT U/S
304-II OF IPC AND SET THE APPELLANT AT LIBERTY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.06.2024 COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
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CRL.A No. 2814 of 2013
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. This appeal is filed by the appellant / accused being
aggrieved by the judgment of conviction and order on
sentence dated 01.01.2013 passed in Sessions Case
No.73/2012 on the file of Additional District and Sessions
Judge at Bellary for the offence punishable under Section
304-ii of Indian Penal Code (for short 'IPC').
2. The ranks of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:
3. It is the case of the prosecution that the deceased
Smt.Ruksana and the appellant are husband and wife.
The couple had three children. The appellant was
running an auto for his livelihood. On 28.09.2011, the
appellant started quarreling with his wife as he she had
borrowed a sum of Rs.100/- from the neighbour. The
deceased in order to threaten the appellant went inside
the room and brought a kerosene can and informed him
that she would die by pouring kerosene on her.
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4. The appellant being frustrated by the act of his wife, he
snatched the kerosene can and poured kerosene on her
and set her ablaze. Consequently, she sustained
injuries. Though the appellant tried to extinguish the
fire, he ran away from the spot before the neighbours
and others could come to the spot. Thereafter, the
neighbours and others have extinguished the fire and
took her to the hospital for treatment where she
informed the jurisdictional police regarding the incident.
The jurisdictional police registered a case in Crime
No.225/2011 and submitted the charge sheet. After
conducting the investigation, submitted the charge
sheet.
5. To prove the case of the prosecution, the prosecution
examined 20 witnesses as PWs.1 to 20 and got marked
14 documents as Exs.D1 to D14 and also identified M.O.1
and M.O.2. On the other hand, the defence marked two
documents, namely, Exs.D1 and D1(a).
6. The Trial Court after appreciating the oral and
documentary evidence on record, recorded the conviction
for the offence under Section 304-ii of IPC and sentenced
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the appellant herein to undergo rigorous imprisonment
for 7 years and also ordered him to pay a fine of
Rs.5,000/-, in default of payment of fine, he shall
undergo further simple imprisonment for six months.
7. Heard Sri.J.Basavaraj, learned counsel for appellant and
Sri.Praveena Y.Devareddiyavara, learned High Court
Government Pleader for the respondent - State.
8. It is the submission of the learned counsel for the
appellant that the judgment of conviction and order of
sentence passed by the Trial Court is contrary to the
evidence on record and also the Trial Court erroneously
appreciated the same, consequently, the impugned
judgment is passed which is required to be set aside.
9. It is further submitted that the injured was admitted to
the hospital on 28.09.2011, however, she died on
21.10.2011 after a lapse of almost 30 days and the said
death was due to septicaemia, therefore, the conviction
in respect of Section 304-ii of IPC cannot be sustained.
10. It is further submitted that there are some
inconsistencies in the evidence of the eyewitnesses.
Even though the deceased stated in her statement
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regarding the involvement of the appellant, P.W.6 who is
the independent witness to the incident has stated that
the accused was not present at the time of the incident.
When the prosecution had failed to establish the
presence of the accused, conviction on the strength of
dying declaration ought not to have been passed against
the accused.
11. It is further submitted that the Executive Magistrate on
29.09.2011 around 1.15 p.m., said to have recorded the
statement of the injured in the hospital when she was
taking treatment. As per the said statement, she
narrated that her husband poured kerosene and set her
on fire. Consequently, she sustained injury and was
admitted to the hospital. However, the said dying
declaration did not contain any fitness certificate. In the
absence of a fitness certificate, the dying declaration
cannot be believed. Such being the fact and law, the
Trial Court relied on such dying declaration and also
relied on the evidence of interested witnesses who are
the relatives of the deceased, recorded the conviction
which is erroneous and the said conviction is liable to be
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set aside. Making such submissions, the learned counsel
for the appellant prays to allow the appeal.
12. Per contra, the learned High Court Government Pleader
for the respondent - State vehemently justified the
judgment of conviction passed by the Trial Court and
submitted that the Trial Court rightly appreciated the
evidence of all the witnesses and recorded the
conviction. The evidence of PWs.2 and 9 who are the
brother and stepmother of the deceased would indicate
that the appellant was harassing the deceased in one or
the other pretext, that he was not taking care of the
family properly and also he was not discharging his
duties as a dutiful husband. Their evidence further
discloses that the appellant quarreled with the deceased
and poured the kerosene and also set her ablaze.
13. It is further submitted that the statements of the victim
both before the Investigation Officer and Taluk Executive
Magistrate are consistent in respect of quarrel,
harassment and pouring kerosene on her and setting fire
to her.
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14. It is further submitted that the Courts are required to act
upon the dying declaration, unless, it is unblemished,
unbiased and believable. There are number of
judgments of the Hon'ble Supreme Court which would
indicate that conviction can be based on the sole dying
declaration if it inspires the confidence of the Court.
Therefore, the Trial Court after appreciating the dying
declaration along with the evidence of other witnesses,
recorded the conviction and reduced the sentence to
304-ii of IPC which is appropriate and hence,
interference with the said findings may not be proper.
Making such submissions, the learned High Court
Government Pleader for the respondent - State prays to
dismiss the petition.
15. After having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court in
recording the conviction, it is relevant to take note of the
brief facts of the case.
16. The appellant and the deceased are husband and wife.
They had three children. The appellant was running an
auto for his livelihood. On 28.09.2011, the deceased
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Smt.Ruksana had borrowed Rs.100/- from the neighbour
and there was a quarrel in respect of the amount. The
appellant being annoyed for the said issues scolded her.
The victim being insulted by the said scolding, she
brought kerosene can and threatened the accused that
she would commit suicide by pouring kerosene. The
accused being enraged by the said threatening, stated to
have poured kerosene on her and set a fire to her. He
said to have extinguished the fire and ran away from the
spot. Though the injured was admitted to the hospital
for treatment, she succumbed to the said injury after
lapse of almost 30 days.
17. The prosecution examined 30 witnesses, among those
witnesses some of the witnesses are relevant for the
case on hand. Therefore, their evidence is required to be
considered for the purpose of re-appreciating the same.
18. P.W.1 is the younger brother of the deceased and also a
witness to the seizure of lighter which was used for
setting a fire on the victim, which is identified as M.O.1.
19. P.W.2 is the brother of the deceased, has deposed in his
evidence that the deceased was not happy in her
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matrimonial home. The accused used to harass his sister
who is the victim in one or the other pretext and also not
taking proper care. He further deposed that he received
an information regarding the incident from his sister who
was taking treatment in the hospital. In addition to that,
he was further informed that the appellant had poured
kerosene on his sister and set her fire. Though this
witness was cross-examined, he was consistent
regarding ill-treatment and harassment. A specific
question was put to him regarding the absence of the
accused at the time of the incident, however, he denied
the same. He further deposed that the appellant is the
person who is responsible for the injuries of her sister.
20. P.W.3 is an independent witness. He stated to have
affixed his signature to spot mahazar which is marked as
Ex.P2.
21. P.W.4 is the mother of the appellant. She deposed in her
evidence that the deceased was her daughter-in-law and
she sustained injuries when she was cooking and the
said burn injury was caused accidentally.
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22. P.W.5 is the father of the accused who deposed in his
evidence that his daughter-in-law committed suicide by
pouring kerosene on herself and set her ablaze. He
further deposed that when the said incident had taken
place, his son/appellant was not there at the spot.
23. P.W.6 who is also an independent witness has stated in
his evidence that when he was doing his work near
Darga around 2.30 p.m., he heard the voice of
screaming and went to the place of the appellant and
saw that the deceased Smt.Ruksana was lying near the
staircase and had sustained burn injuries. He further
deposed that both Yacub and Riaz and himself shifted her
to the hospital for treatment and he did not know who
had committed such injuries to the deceased. He was
treated as hostile and cross-examined by the
prosecution, however, nothing has been elicited to
support the case of the prosecution.
24. P.W.7 is also an independent witness, however, he is the
distant relative of the accused. He deposed in his
evidence that his house was situated far away from the
house of the appellant. When he was in his shop, he
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heard the sound of screaming and went near the place
where the deceased was lying in front of her house.
According to him, the incident had taken place due to
stove burst. He was treated as hostile and cross-
examined by the prosecution, however, nothing has been
elicited to support the case of the prosecution.
25. P.W.8 was working as ASI of the respondent police
station. According to him, he arrested the accused /
appellant near the APMC market.
26. P.W.9 who is the stepmother of deceased Smt.Ruksana,
has deposed in her evidence that after the death of her
stepdaughter, her children are staying with her. She
supported the case of the prosecution regarding
ill-treatment, harassment etc. She further deposed that
she said to have received an information regarding the
incident from the deceased. As per the evidence of
P.W.9, the appellant was responsible for the burnt
injuries. Though she has been cross-examined at length,
nothing has been elicited to discredit her evidence.
27. P.W.10 is the neighbour of the accused. He stated to
have affixed the signature to the spot mahazar. The said
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spot mahazar is marked as Ex.P2. The prosecution
treated him as hostile and cross-examined him, however,
nothing was elicited to support the case.
28. P.W.11 was working as a Constable of respondent police
station. He stated to have carried the FIR and complaint
and handed over the same to the learned Magistrate.
29. P.W.12 was working as a Professor at VIMS Hospital,
Bellary. According to him, on 28.09.2011 at about 8.30
p.m., when he was discharging his duty as a Doctor, he
examined Smt.Ruksana in the burns ward and issued a
certificate regarding the fitness of the injured to give her
statement before the police which is marked as Ex.P7.
He supported the case of the prosecution.
30. P.W.13 was working as an Assistant Professor at VIMS
Hospital, Bellary. He stated to have conducted the
postmortem of the deceased and issued a report as per
Ex.P8.
31. P.W.14 was working as a Police Inspector of respondent
police station said to have conducted the investigation
and submitted the charge sheet.
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32. P.W.15 was working as Tahsildar at Bellary. On
28.09.2011, he received information regarding the burnt
injuries sustained to the woman. On the following day,
at 1.00 p.m., he went to the hospital, met the Chief
Medical Officer and recorded the statement of the
deceased as per Ex.P10. As per the said report, she was
killed by the appellant. He supported the case of the
prosecution in spite of lengthy cross-examination being
done.
33. P.W.16 who was working as in-charge Inspector of the
respondent police station stated to have conducted the
part of the investigation and thereafter handed over the
further investigation to another Inspector.
34. P.W.17 was working as a Doctor at Burns ward.
According to him, on 29.09.2011 around 12.30 p.m., the
Tahsildar had asked him about fitness condition of
Smt.Ruksana. According to him, he endorsed fitness
condition and also gave an opinion that she could give a
statement. He identified his signature as per Ex.P9.
Though he has been cross-examined at length regarding
the fitness of the injured, he was consistent in his
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evidence regarding the fitness and therefore, his
evidence is relevant and also reliable.
35. P.W.18 was working as Inspector of the respondent
police station. He received information from the Head
Constable and informed the Head Constable to find out
whether she was in a fit condition to give a statement or
not. After he received information from the Head
Constable regarding the fitness of a woman to give
statement, he went to the hospital and recorded the
statement of the injured. The statement is marked as
Ex.P7. Based on the said information, FIR was registered
against the appellant.
36. P.W.19 who was working as Head Constable of the
respondent police station stated to have made a
requisition to the Doctor as to whether the injured would
be in a position to give her statement or not. He
identified her requisition and marked as Ex.P13.
37. P.W.20 was working as PSI of the respondent police
station. According to him, he was present at the time of
conducting the postmortem of the deceased.
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38. On careful analysis of the evidence of PWs.2, 9, 12, 15,
17, 18 and 19 who are the material witnesses of the
case, it appears from the record that the entire case is
based on the dying declaration of the victim.
39. In order to appreciate the proposition of law in respect of
dying declaration, it is relevant to refer to the judgment
of the Hon'ble Supreme Court in the case of PHULEL
SINGH v. STATE OF HARAYANA1 held that, if the
entire case is based on dying declaration, the Court must
come to a conclusion that dying declaration is
trustworthy, reliable and one which inspires confidence.
The probability of tutoring and doubt regarding the
mental fitness of the dying declarant has to be seen
along with the evidence.
40. After having considered the dictum of the Hon'ble
Supreme Court, in the present case, deceased Ruksana
had given her statement before the police which is
marked as Ex.P7. P.W.12 Dr.M.Shivaprasad endorsed
the said statement that she was in a fit condition to give
her statement. Similarly, P.W.15 who was working as
(2023) 10 SCC 268
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Tahsildar had recorded the statement of the victim, and
the same is marked Ex.P10. The victim in both her
statements had consistent that the appellant herein had
poured kerosene and set her ablaze.
41. It is also relevant to consider the evidence of P.Ws.18
and 19 for the purpose of analyzing the case. P.W.18
who was working as a Police Inspector of the respondent
police station had received an information regarding the
burn injuries sustained to Smt.Ruksana through Head
Constable. On receiving the said information, he
instructed the Head Constable to clarify as to whether
was she able to give a statement or not. After receiving
the clarification, he went to the hospital and recorded the
statement of the said Ruksana. The statement of said
Ruksana has been recorded by P.W.19 who accompanied
P.W.18.
42. The statement of the victim has been considered as a
complaint and a case came to be registered based on the
said statement. On the following day, the Tahsildar who
is examined as P.W.15 has recorded her statement as
per Ex.P10 in the presence of P.W.17. After the death of
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the victim, these two documents have been considered
as dying declarations. Though there are multiple dying
declarations, in both the declarations it is consistent that
the appellant herein had poured kerosene and set her
ablaze.
43. The Trial Court after having considered the evidence on
record, opined that the incident had occurred due to
sudden provocation and the appellant had no intention to
commit murder of the deceased. Therefore, the Trial
Court recorded the conviction for the offence under
Section 304-ii of IPC. Hence, I am of the considered
opinion that the judgment of conviction passed by the
Trial Court appears to be appropriate and there is no
occasion for this Court to interfere with the said findings.
44. In the light of the observation made above, I proceed to
pass the following:
ORDER
The Criminal Appeal stands dismissed.
Sd/-
(S.RACHAIAH)
JUDGE
