IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.992/2012 BETWEEN:
Afroz Pasha Alias Roshan, S/o. Anwar Pasha, Aged about 28 years, R/at 2414, 8th Cross, Kailasapuram, Mysore. ...Appellant (By Sri. B.S. Prasad, Advocate) AND:
The State of Karnataka By Mandi Police Station, Mysore. …Respondent (By Sri. Chetan Desai, HCGP) This Criminal Appeal is filed under Section 374 (2) of Cr.P.C praying to set aside the order dated 09.09.2011 passed by the II Additional Sessions Judge, Mysore in S.C. No.231/2009 convicted the appellant/accused for the offences p/u/s 498 A and 302 of IPC and the appellant/accused is sentenced to life imprisonment for the offence p/u/s 302 of IPC etc.
This Criminal Appeal coming on for hearing this day, BUDIHAL R.B. J, delivered the following:
JUDGMENT This is the appeal filed by the appellant/accused being aggrieved by the judgment and order dated 09.09.2011 passed by the II Additional Sessions Judge in S.C. No. 231/2009 by which the trial court convicted the appellant/accused for the offence punishable under Section 302 and 498A of IPC and sentenced him to life imprisonment and also to undergo R.I. for a period of 3 years for respective offences.
2. The appellant/accused has challenged the legality and correctness of the judgment of the court below on the grounds mentioned at ground Nos.1 to 20 of the appeal memo. Brief facts of the prosecution case as per the complaint averments are: Ex-P4 is the complaint and PW-3 is the mother of the deceased who is the complainant. She has stated that she is residing in the address mentioned in the complaint, having two sons and two daughters. Her eldest daughter Mubin Taj was given in marriage to Afroz Pasha @ Roshan 6 years back and the couple are having a male child of 5 years. After marriage for about one year they led a happy marital life. There afterwards the appellant/accused started giving harassment to the deceased alleging that she is not providing him food properly and she is not paying him money. Stating so he used to send the deceased to her parental place. For about 3 – 4 months the deceased was in the house of her parents. The appellant/accused use to consume alcohol and was insisting her to pay Rs.5,000/- and he was also telling that if they pay Rs.5,000/- then only he will take her back to his house. He has sold two rings, neck chain, ears stud belonging to the deceased and spent all the money in consuming alcohol. In this connection, a complaint was lodged in Women Police Station. Police called him to the station and advised him. Even then he did not stop ill treatment and harassment. The deceased as well as the appellant/accused were staying in the house of PW3. Five day earlier to the incident, accused took the deceased to his house stating that he will look after her properly. There afterwards deceased was doing the job of cleaning the bottles and was getting money of Rs.5,000/-. She was using the money to maintain her son. Even the appellant/accused was picking up quarrel with her, then she used to give the amount she was getting by cleaning the bottles. Once in a week on Friday he use to come to the house in a drunken state picking up quarrel, assaulting the deceased and used to give ill treatment to the deceased. On 15.05.2009, daughter of the complainant went to attend coolie work, after coming she prepared the food. During night at 9.00 p.m. the appellant/accused came to the house, picked up quarrel with the deceased insisting her to give money and he took the kerosene oil, which was in the house, poured the same on his wife and lit fire to her. From the date of marriage, the appellant/accused used to scold the deceased and assault her, insisting her to bring the money and giving ill treatment to her. He made an attempt to commit her murder by setting fire to her and on the basis of the said complaint, case was registered in the respondent police station crime No. 221/2009 for the offences punishable under Section 498(A) and 307 of IPC and she was taken to the hospital. On 20.05.2009 morning, at 5.00 a.m., she expired in the hospital while under treatment. Police made a requisition as per exhibit P-20 requesting the Court to insert Section 302 of IPC. Subsequently, an offence under Section 302 in place of Section 307 of IPC came to be inserted in the case. After completing investigation the Investigating Officer filed the charge sheet for the alleged offences punishable under Sections 498(A) and 302 of IPC. The mother of the deceased PW3 also made the request as per Ex -P17 to the police, to insert offence punishable under Section 3 & 4 of Dowry Prohibition Act. Accordingly, charge sheet also came to be filed for the offences punishable under Sections 498(A), 302, 304 (B) of IPC and Section 3 & 4 of the Dowry Prohibition Act.
3. The concerned trial court, after hearing both sides, framed the charges for the said offences and when the charges were read-over and explained to the appellant/accused, he pleaded not guilty and claims to be tried. Accordingly, matter was posted for trial.
4. The prosecution in order to bring home the above charges, got examined in all 26 witnesses, exhibits P1 to P32 and also had marked material objects MO-1 to 5. On the side of the defense, no witnesses were examined nor any documents were got marked.
5. After hearing argument of both sides, the learned Sessions Judge holding that the prosecution has proved it’s case beyond reasonable doubt, convicted the accused for the offences punishable under Sections 302 and 498(A) and acquitted the appellant/accused for the offence under Section 3 and 4 of the Dowry Prohibition Act.
6. Being aggrieved by the same the appellant accused is before this Court.
7. We have heard the arguments of the learned counsel for the appellant/accused and also the learned High Court Government Pleader for the respondent State. Learned counsel appearing for the appellant/accused, during the course of his arguments, made a submission that important witnesses in the case are PW2, 3, 4, PW-9, 11, 17, 19 and 20. Learned counsel also made the submission that the case of the prosecution wholly based on the dying declaration. There are no direct witnesses to the incident as such. It is also his submission, if the dying declaration is not believed by this Court then there is no case of the prosecution at all. In this connection, learned counsel drew our attention during the course of his argument to the entire materials produced in the case. There are two dying declarations (1) it is as per Ex-P2 –statement of the deceased given before the police and the another dying declaration (2) as per Ex-P3- Statement given before the Taluk Executive Magistrate. Referring to the dying declarations more particularly Ex-P3, he made the submission that there are 6 defects in admitting the said dying declarations, which are totally overlooked by the court below. In this regard, learned counsel made the submission that mentioning the time by the Taluk Executive Magistrate in the beginning of the dying declaration the time between which he recorded the same does not arise at all. It shows the predetermination about the time. (2) the fitness certificate recording the mental condition of the deceased to give the statement, the doctor has not certified at the beginning of the dying declaration on Ex- P3 or in Ex-P2 but certificate is only at the end of dying declarations. Therefore, the counsel submitted that when there is no certificate regarding the mental fitness to give the statement making such certificate at the end of the statement is not sufficient. The third contention that the mother was also present when the dying declaration Ex-P3 was recorded by the Taluk Executive Magistrate. Fourth submission is, as could be seen from the prosecution material and also the doctor’s evidence, the face of the deceased was completely burnt. When that is so, in all probability, she was not in a position to speak and give statement. Fifthly, she cannot speak in Kannada language, she being a muslim woman. Lastly he made the submission regarding the defects in the dying declaration that it was not read over in the language known to the deceased. So on all these grounds, the learned counsel wanted to submit that for the satisfactory proof of the dying declarations these are the things which were required for the prosecution to be answered during the course of the trial. Inspite of that, learned Single Judge completely overlooked these aspects regarding the defects in the dying declaration. It is also his submission that when the body was burnt to the extent of 60% - 65%, as deposed by the doctor and when the face was completely burnt, it clearly goes to show that she was not in a position to speak and not in a position to give both the statements Ex-P2 and Ex-P3.
Further submission of the learned counsel is that mother was present when the Taluk Executive Magistrate recorded the dying declaration. She herself being the complainant would have repeated the complaint and the same are reflected in the dying declaration Ex-P3. So it is the first contention that though deceased being not in a position to speak, it is the mother, PW-3 who got prepared Ex-P3 the dying declaration. Hence, he submitted that the dying declarations Ex-P2 and Ex-P3 were not satisfactorily established with cogent and worth believable material before the trial court. Hence he submitted that looking into the evidence produced, oral and documentary, regarding dying declarations Ex-P2 and Ex-P3 were not at all proved by the prosecution and hence, the entire case of the prosecution is to be disbelieved. It is his further submission that prosecution has not placed any sort of material to show the presence of the accused in the house at the relevant point of time when the incident took place. It is also his submission that his shirt has been shown under MO-5. Learned counsel further made the submission, the other materials by way of evidence of other witnesses also will not make it clear to the court, actually who brought and admitted the deceased before the doctor. It is the submission that the incident took place on 15.09.2009 whereas she expired on 20.05.2009, what is the line of treatment given to the deceased, the case sheets are not before the court. Therefore, unless and until case sheets are before the court, court is not in a position to know what was her mental condition and whether she was really in a position to give statement or not and even this aspect was also not appreciated properly by the court below. On these grounds, learned counsel prayed to allow the appeal and to set aside the judgment and order of conviction passed by the Court below.
8. Per contra, the learned High Court Government Pleader during the course of his argument submitted regarding the presence of the accused in the house as on the date of the alleged incident. The evidence of PW8 –mother of the deceased, itself gives clue, though her statement is not with regard to the presence of the accused when the incident took place. It is also his submission that the shirt of the accused is also seized which is marked under MO-5 during the course of investigation and when the requisition was sent to the expert for examination, this shirt is mentioned as item No.4. Learned High Court Government Pleader drew our attention to Ex-P32, the FSL report and made the submission that there is a possibility regarding the presence of kerosene on the shirt of the accused. Hence, he submitted that this also probabilizes the case of the prosecution and the presence of the accused in the house. He also drew our attention to the 2 witnesses PW5 and PW10, they are the Aunt and Sister of the accused. Though they turned hostile and not supported the prosecution case but their statements were marked as P9, P12 and PW21-I.O during the course of examination, before the court deposed about Ex-P13, to the effect that the statement is given by PW10 before him. Even she has deposed, aunt of the accused also given the statement but specifically his attention was not drawn to the document Ex-P9. Learned High Court Government Pleader further made the submission that the deceased was working as a coolie, cleaning the bottles under PW- 12 employer. PW-12 employer deposed before the court that deceased was working under him cleaning bottles. He used to pay the amount for the said work. It is also his submission that regarding the earlier complaint, PW20-Women Police Constable was examined, she has deposed that there is a NCR case No. 329/2005. Hence, he submitted that this evidence also goes to show that even on the earlier occasion also in 2005 he used to give ill treatment to the deceased and in that connection, the complaint was made and ultimately accused was called to the police station and was warned and also properly advised by the police. Hence, Government Pleader made the submission that these aspects of the matter were properly looked into and appreciated by the court below. Trial court has rightly held the accused guilty of the offence under Section 302 of IPC and rightly convicted him. He made the submission that there is no illegality committed by the court below in coming to such conclusion. Hence he submitted to set aside the order of conviction passed by the court below.
9. We have perused the grounds urged in the appeal memorandum and judgment and order of conviction passed by the court below, oral and documentary evidence of the prosecution, so also the documents produced during the course of the trial. We have also considered the oral submissions made by the learned counsel for both the sides at the Bar. In the statement -Ex-P2, said to have been recorded immediately in the hospital, the deceased has stated that her husband picked up quarrel with her in connection with the food that she has prepared and thus he took kerosene oil, poured on her and then lit fire. We have also perused the another dying declaration Ex-P3 recorded by the Taluk Executive Magistrate, PW22. In this connection we have to consider the submission made by the learned counsel for the appellant regarding the defects that he has canvassed in recording the dying declaration. Doctor has been examined as PW2. We have referred to the oral evidence of PW2 wherein doctor clearly stated in his examination–in-chief that on 15.05.2009, police had come to the hospital to record her statement, she was in a position to make statement and she was conscious. Police recorded her statement in his presence. She stated before the police that on 15.05.2009 about 1.00 p.m. there was a quarrel between her and her husband in connection with the food that she has prepared and thus the husband took kerosene oil, poured on her and then he lit fire. She gave the name of the husband as Afroz Pasha @ Roshan. He has further deposed that in his presence the police recorded her statement as per Ex-P2. She affixed her LTM in his presence as per Ex- P2(a). The endorsement marked as per Ex-P2(b) is not his writing. He has signed that endorsement in Kannada as Ex-P2(c), itself shows the date as 15.05.2009 and the time as 11:15 p.m. are not in his hand writing which are marked as Ex-P2(d). He also deposed in his evidence that he is the very doctor even for recording the dying declaration by the Taluk Executive Magistrate. He has deposed in Para -4 of his deposition in Examination –In-Chief that he has seen from the court records the dying declaration recorded by the Tahasildar. When he was present Tahasildar recorded the dying declaration as per Ex-P3. At the time when Ex-P3 was recorded the deceased was conscious and was in a position to make statement. Ex-P3A is his signature, he has put the date as 16.05.2009 and time as 2:45 a.m. below his signature. The said portion is also marked as Ex-P3B. He has signed Ex-P3A certifying that the statement was recorded in his presence and the deceased was conscious and mentally sound. He further deposed that even while making Ex-P3 deceased stated that on 15.05.2009 by 9:00 p.m. there was a quarrel between her and her husband and her husband poured kerosene oil on her and set her ablaze. Regarding the contention of the learned counsel for the appellant that case sheets are not marked before the trial court during the course of the trial, therefore, the trial court is not in a position to appreciate the material/evidence properly is concerned, the evidence of PW2 doctor at para -5 of his deposition states that he has brought the case sheets pertaining to the deceased. As per the note made in the case sheet, she died on 20.05.2009 by 5:00 a.m.. During the course of his cross examination he deposed that she has sustained 60% - 65% burns to the whole body and face was completely burnt. He further deposed that the deceased gave the statement in Kannada, when Ex-P2 and P3 were recorded. He denied the suggestion that since her mother tongue was Urdu she did not know Kannada. He has shown that she knew bit of Kannada. He denied that she does not know Kannada. He denied the further suggestion that her LTM was taken to the blank paper and there after Ex-P2 was written. He denied the suggestion that deceased was not in a position to make a statement either at the time of Ex- P2 or at the time of Ex-P3.
10. We have also perused the evidence of the Taluk Executive Magistrate who recorded the dying declaration under Ex-P3 who has been examined as PW22. PW22 deposed in his evidence that on a requisition from Mandi Police to record the dying declaration of Mubin Taj who was admitted to the hospital, went to hospital on 15.09.2009 met PW2 who was the duty doctor and ascertained whether the injured was in a position to give statement.
11. P.W.2 stated that she was in a position to give statement and accordingly her statement was recorded as per Ex.P-3 in his presence and Ex.P-3(a) is his signature. Ex.P-3(c) is the LTM of the injured. He has further deposed that injured stated before him that on 15.05.2009 around 9.00 p.m., when she was in the house, quarrel took place between her and her husband and her husband poured kerosene on her and set her ablaze and therefore she sustained burns. In the cross examination of this witnesses, though it was suggested that injured was not in a position to talk and she did not give any statement before him and she did not go to the hospital on that night, all these suggestions were denied by the witness P.W.2. Therefore, looking to the evidence of P.W.2 – Doctor in whose presence Ex.P-2 and P-3 - dying declarations were recorded so also evidence of P.W.22 – Tahsildar in whose presence Ex.P-
3 – dying declaration came to be recorded, their evidence is consistent. During the course of cross examination of these two witnesses, their credibility is not seriously challenged by the defence. Some suggestions were made which were denied by the witnesses both P.W.2 as well as P.W.22.
12. Now coming to the dying declarations, they are relied because of the solemnity. Therefore, if the dying declaration is satisfactorily proved before the Court with cogent and worth believable material, it can be the sole basis of conviction as per Section 32(1) of the Indian Evidence Act, 1872. We are conscious of the fact that dying declaration is made by a person not on oath and also a person making dying declaration will not be subjected to cross examination and because of this reason, the Court will have to be cautious before accepting dying declaration whether it satisfies the requirements of Section 32 (1) of the Evidence Act, 1872 in all respects or not.
13. Now coming to the case on hand, main contention of learned counsel for appellant - accused is regarding the mental fitness of the deceased and her position and ability to give statement after sustaining burns to the extent of 60%-65%. It is also the contention of learned counsel for appellant that when the face was completely burnt, she was not able to give such a statement. In this connection, we have to see the the expert’s opinion. The Doctor who has examined as P.W.2, in respect of both the dying declarations, deposed before the Court consistently that deceased was conscious and was capable to give statement. In this connection, we have also perused the judgment of Hon’ble Apex Court in the case of RAMBAI VS. STATE OF CHHATTISGARH reported in (2002)8 SCC 83, wherein their Lordships laid down the proposition at paragraph 6 of the said judgment and it reads as under:
“6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi (Smt.) vs. Om Prakash and ors., (2001) 6 SCC 118), it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart, from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission to the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 11 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe to rely upon DW.2. In such a situation we are unable to take a contra -view from the one taken by the courts below.”
14. Looking to the principles enunciated in the said decision of Hon’ble Apex Court, wherein it is made clear by their Lordships that even if percentage of burns may be 80% to 85% but that by itself cannot be said that person is not capable of giving statement, if Doctor’s opinion who is the expert in the field is to the effect that in spite of sustaining that much percentage of burns to the body, witness was still capable to give statement, there was a mental fitness to give the statement, the Court has to take into consideration evidence of the Doctor.
15. Coming to the case on hand, in respect of both dying declarations under Exs.P-2 and 3, P.W.2- Doctor’s evidence is consistent and Doctor has deposed that injured was conscious and was in a position to give her statement. Therefore, question before the Court is whether evidence of P.W.2 – Doctor and the evidence of P.W.22, Taluka Executive Magistrate is worth believable or not?
16. We have already referred to the relevant portion in the evidence of P.Ws. 2 and 22 and looking to their evidence, it is cogent and worth believable. In this connection, during the course of arguing the case, learned counsel for the appellant made a statement that mother – P.W.3 was also present when dying declaration of her daughter was recorded by P.W.22. It is true that it has come in the evidence that she is also present but mere presence of mother is not a ground to reject the whole evidence of P.W.2 and P.W.22 so also the documents – Exs.P-2 and P-3 – dying declarations.
Defence was not able to satisfy the Court that because of her presence, Doctor as well as P.W.22 were influenced and they prepared Ex.P-3 as per say of P.W.3 – mother of the deceased. It is not the case made out during the course of trial. In the absence of such material and merely because mother was present when the dying declaration came to be recorded, that itself is not sufficient to accept the contention of learned counsel for appellant that because of her presence, evidence of P.Ws.2, P.W.22 and Exs.P-2 and P-3 are vitiated.
17. Regarding contention of learned counsel for appellant that certification of the Doctor about mental condition of the injured that she was conscious and able to give statement is not in the beginning of dying declaration – Ex.P-3 or Ex.P-2 - statement before the police is concerned, we are of the clear opinion that even if it is not mentioned by the Doctor in the beginning, that itself would not take away the entire case of the prosecution. Again Court has to examine their evidence deposed before Court on oath and looking to their evidence, whether it fulfils the requirement and test and doubt the mental condition of the deceased to give a statement. We have already observed above about the credit worthiness of P.W.2 as well as P.W.22 and at the cost of repetition, we are making it clear that defence cannot be said to have made out a case for rejection of the dying declarations Ex.P-2 and P-3. Even with regard to certification of the Doctor is concerned, it is a rule of caution and it is not a rule of mandate. In this connection also, we are referring to the decision of constitutional Bench consisting of five Hon’ble Judges of Hon’ble Apex Court in LAXMAN vs STATE OF MAHARASHTRA reported in AIR 2002 SC 2973 wherein the Hon’ble Apex Court laid down the proposition regarding certification by the Doctor as under:
“Evidence Act (1 of 1872), S-32 – Dying declaration – Recording of – Absence of certification of doctor as to fitness of mind of declarant – Would not render dying declaration not acceptable – What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind – Certification by doctor is rule of caution – Thus voluntary and truthful nature of declaration can be established otherwise.”
18. Therefore, looking to the principles enunciated in the said decision also and looking to the material in the case on hand, we are satisfied that evidence adduced by the prosecution by way of oral evidence of P.W.2 - Doctor, P.W.22 – Taluka Executive Magistrate, so also documentary evidence – Exs.P-2 and P-3 so also oral evidence of P.W.3 and P.W.4 regarding the ill treatment and harassment meted out to the deceased by appellant – accused herein supports the case of the prosecution. Hence, trial Court has rightly relied upon the material placed by the prosecution regarding dying declaration stated to have been made by the deceased. No illegality has been committed by the trial Court in this regard.
19. Now coming to the contention of learned Advocate appearing for appellant regarding presence of the accused in the house at the relevant point of time when the incident is stated to have taken place, as per the case of prosecution, incident took place at 9.00 p.m. on 15.05.2009 in the house. In this connection, though it is the contention of learned Advocate appearing for appellant that no material has been placed by the prosecution to show that accused was present at the spot, we have already referred to the evidence of P.Ws.2 and P.W.22 regarding dying declaration and in the said dying declaration, deceased clearly stated that when she prepared food, at that time, accused came and took up quarrel with her and then he took kerosene oil and poured on her and lit fire on her. Apart from her evidence, as rightly submitted by learned HCGP, evidence of P.W.8 - mother of accused, if looked into, though she has not supported the prosecution case and turned hostile, it becomes a clue regarding presence of the accused in the house. We have also perused evidence of P.W.5 and 10 in this regard who are aunt and sister of accused. It is true that these two witnesses turned hostile and not supported the case of the prosecution. Their statements during the course of trial which were given before Investigation Officer were got marked as per Exs.P-9 and P-13 respectively. When the Investigating Officer who recorded their statements has been examined as P.W.21 and when he was confronted, he confirmed the statement given by P.W.10 - Ex.P-13 during the course of investigation. Investigating Officer deposed that he recorded statement during investigation.
20. Apart from this oral evidence regarding presence of accused in the house, another documentary evidence is Ex.P-32 – FSL report. We have perused the document Ex.P-32 – FSL report. In the column material examined, Sl.Nos.1 to 4 were mentioned and Sl.No.4 is one shirt and in the opinion column on the overleaf of Ex.P-32, at point No.2 it is mentioned that “ UV Spectrophotometric and thin layer chromatographic methods responded positive for the presence of kerosene residues in Article No.3 & 4.” Therefore, this clearly goes to show that kerosene presence was seen by the FSL in Article No.4 – shirt of the accused person. Therefore, considering all these materials placed on record during the course of trial by way of oral as well as documentary evidence, it made it very clear regarding presence of the accused in the house at the relevant point of time when the alleged incident took place. Therefore, contention of the appellant herein that he was not in the house cannot be accepted at all.
21. It is the case of the prosecution that even on earlier occasion also i.e., in the year 2005 because of such ill treatment and harassment insisting the deceased to bring amount from her parental home, abusing her, beating her, sending her to the parents place, complaint came to be filed before Women Police Station in NCR No.329/2005. In this connection, oral evidence of P.W.20 – Women Police Constable has been placed by the prosecution in order to prove such contention. We have perused the oral evidence of P.W.20. Prosecution has also produced documentary evidence about said case as per Exs.P-23 to 28. We have examined those documents also. They clearly go to show that there are allegations that appellant – accused used to give ill treatment, harassment and he used to beat her. Contents of the documents also go to show that police by issuing notice to the accused, secured him before Police Station and he was advised and also warned. Before police, he has given the statement which is reflected in the said documents that he will arrange separate house for their residence and he will look after his wife properly without giving any sort of ill treatment. Looking to the evidence of P.Ws.3 and 4, parents of the deceased wherein they have clearly stated accused used to insist the deceased to bring ` 5,000/- from her parental place; he was beating her, he was scolding her and used to send her to her parental place. It is also deposed that deceased was staying with them and appellant – accused took deceased to his house 15 days earlier to the incident stating that he will treat her properly. Therefore, all these evidence put together clearly makes out a case of the prosecution that there was ill treatment and harassment in connection with the amount that he was demanding from her.
22. It is also the case of the prosecution that he was not providing any maintenance amount to herself and to her son, she was doing coolie work of cleaning the bottles and in this connection, prosecution has examined the witness – P.W.12 employer under whom deceased was working. P.W.12 – one Sri Akram Pasha deposed in his evidence that he has a factory where empty branded bottles are cleaned and thereafter puffed into liquor companies; name of the factory is “United Bottle Supplier”; about 20 to 25 persons including womenfolk work in his factory. He further deposed that each day his employees earn about ` 100/- to ` 120/- and on every Saturday, he made payment to his employees. He further deposed that he has seen the accused and his wife. Deceased was working in his factory and she worked for about 1 ½ years prior to her death. Deceased used to take money once or twice in a week without waiting till Saturday so that she did not have money for food. Though to some extent, he turned hostile, this witness was treated as hostile witness and when cross examined by the public prosecutor, he admitted as true to a Suggestion, he stated that when he was asking the deceased as to why she was taking money often without waiting till end of a week like other employees, she was telling that accused had cultivated the habit of drinking, she had to earn and make a living and was in difficulties. During the course of cross examination, though a suggestion was made to this witness that she has not told him that accused was drinking, said suggestion was denied by the witness. Except that, in the cross examination of P.W.12, nothing has been elicited from his mouth so as to disbelieve his evidence. Therefore, by these materials, prosecution was also able to establish its case that accused person was not providing food properly to the deceased and because of that reason she was doing coolie work and he used to get even that money also from the deceased for the purpose of consuming alcohol.
23. Though it is contended by accused that he has not committed the alleged offence, but, incident has taken place in a residential house wherein accused and deceased with small kid were staying. When that is so, burden is on the part of the accused to explain the circumstances under which incident has taken place as per Section 106 of the Evidence Act. Accused has to explain about factual aspects because it is only the accused who is having knowledge about circumstances in which death of deceased has taken place.
24. Looking to the evidence of the accused, during the course of cross examination, he has not at all made out a case. Apart from that, we have also perused the statement recorded under Section 313 Cr.P.C. of the accused. Looking to the said statement, when the question was put to accused, no doubt he goes on denying the questions as false, to a question No270 when he was asked as to whether he was having any witness, he says ‘no’ and to question No.271, when he was asked whether he wanted to say anything, he stated in answer to the said question that at 10.30 or 11.00 p.m. on 15th, he was in the premises of K.R.Hospital and police took him to the Police Station and he was informed at about 8.15 p.m. on 15th in the auto stand that boys took the deceased to the hospital and he has not set fire to her. Except that he has not explained the circumstances under which alleged incident said to have taken place. Therefore, regarding burden in such type of situation, we are also referring to the decision of Hon’ble Apex Court reported in Appeal (Cri) No.1341/2005 dated 11.10.2006 (Trimukh Maroti Kirkan Vs. State of Maharashtra). Para 12 of the said judgment reads as under:
“ 12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 \026 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. ”
Therefore, looking to the principle enunciated in the said decision also, we are of the clear opinion that accused person has not explained the circumstances under which death of deceased resulted in the said house.
25. Considering all these materials placed on record, so also perusing judgment and order of trial Court, learned trial Judge made reference to all these materials and discussed about oral and documentary evidence properly and rightly held that accused is guilty of the offences punishable under Sections 302 and 498A IPC and convicted the appellant for the offences under Section 302 & 498A of IPC. We do not find any illegality in the judgment and order of conviction passed by trial Court nor we find any perversity or capricious view taken by the Court below in coming to such conclusion.
26. At this stage, we have also heard learned counsel appearing for appellant on the sentence aspect. Learned counsel appearing for appellant submits that death is not because of the alleged incident of setting fire, but it is because of septicemia death has taken place. Therefore, he submits that it is one of the mitigating circumstances while examining the sentence.
27. Looking to the factual aspect regarding appellant – accused setting fire to the deceased on 15.05.2009, we have already held that there is acceptable and worth believable material against accused which is established by the prosecution beyond any reasonable doubt. In this connection, learned counsel for appellant drew our attention to the opinion of the Doctor as to the cause of death wherein it is stated by the Doctor that death is due to septicemia as a result of the burns sustained. It is the opinion of the Doctor that because of the burns, there is septicemia. During the course of cross examination of the Doctor or any other prosecution witnesses, it is not established by cogent material that there is negligence on the part of Doctors in giving treatment and it is because of their negligence only there is septicemia, otherwise injured could have been survived. When such material was not brought on record during the course of trial, only making a statement that death is due to septicemia, we are not convinced about the statement made by learned counsel for appellant that because Doctor’s opinion is very clear that septicemia is a result of the burns sustained. During the course of cross examination of the prosecution witnesses about the alleged negligence now canvassed by learned counsel for appellant, no such suggestions were made to prosecution witnesses. Therefore, we are unable to accept the submission made by learned counsel appearing for appellant even in this regard also.
28. Doctor who has been examined also deposed in his evidence in para No.5 that deceased was admitted to their hospital on 15.05.2009 and died in the said hospital on 20.05.2009 and therefore he has not mentioned about time and death in the postmortem report. Next evidence is important. If a person pours kerosene and set fire, injuries mentioned in Ex.P-31 can be caused and under the ordinary course of nature, such injuries can result in the death of a person so injured and even in his deposition, he has given a opinion that death was due to septicemia as a result of the burns sustained by the deceased. Therefore, no inference can be attributed to the Doctor who gave treatment to the deceased. Hence, said contention cannot be accepted at this stage.
29. We have also considered the sentence imposed on the appellant – accused. Looking to the offence established, sentence imposed by the learned trial Judge is reasonable and it is proportionate also. Therefore, appellant has not made out a case for interference into the judgment and order of conviction even regarding sentence aspect also. We find no merit in the appeal. Accordingly, appeal is dismissed confirming the judgment and order of conviction passed by the Court below.
SD/- JUDGE SD/- JUDGE BVK/*sp