IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CRIMINAL APPEAL No.1115/2012 BETWEEN:
AKRAM PASHA @ AKRAM, S/O LATE ISMAIL, AGED ABOUT 38 YEARS, MECHANIC, RESIDING AT NO.296, BADEMAKHAN, MYSORE.
(BY SMT. VANITHA K.R., ADVOCATE) AND:
STATE BY NARASIMHA RAJA POLICE STATION, MYSORE ... APPELLANT ... RESPONDENT (BY SRI CHETHAN DESAI, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT/ORDER OF CONVICTION DATED 28.07.2010 PASSED BY THE 3RD FAST TRACK JUDGE, MYSORE IN S.C.NO.95/2009 CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING UP FOR HEARING THIS DAY, B. VEERAPPA, .J., DELIVERED THE FOLLOWING.
J U D G M E N T The accused No.1 has filed this Criminal Appeal challenging the Judgment dated 28.7.2010 in S.C. No.95/2009 on the file of the Fast Track Court-III, Mysore convicting him for the offence under Section 302 of Indian Penal Code.
2. It is the case of the prosecution that the deceased Shahin Taj married accused No.1 – Akram Pasha @ Akram about 10 years prior to the incident in question; in the said wedlock, the deceased Shahin Taj begot a son and a daughter; Accused nos.2 and 3 are sisters of accused No.1; On 15.7.2008 at about 8 p.m. some quarrel took place between accused Nos.1,2 and 3 on one side and the deceased Shahin Taj on the other side in connection with bringing loan from Mahila Sangha; In the course of quarrel, suddenly accused No.1 poured kerosene on the deceased Shahin Taj and set her on fire and as a result, the deceased cried of burn injuries; Then accused No.1 with the help of neighbours shifted the deceased Shahin Taj to K.R. Hospital, Mysore, where she was treated in the burns ward. On the basis of the statement given by the deceased Shahin Taj on 15.7.2008 between 10.45 p.m. and 11.45 P.m. at K.R. Hospital, the respondent – Police registered the complaint on 16.7.2008 at 12.05 a.m. for the offence punishable under Section 307 r/w Section 34 of IPC. Thereafter the respondent – Police conducted spot mahazar on 16.7.2008 and recovered kerosene lamp at the place of the incident and the same has been marked as MO.1. Subsequently on 14.9.2008 at about 12.35 p.m. the respondent – Police received the death memo of the deceased Shabin Taj and at about 1.15 p.m., the dead body of the deceased was sent to JSS Hospital, Mysore for post- mortem examination. On receipt of the death memo, the respondent – Police inserted Section 302 of IPC in place of Section 307 of IPC in the First Information Report. The respondent – Police after completion of investigation filed the charge sheet on 10.10.2008.
3. In order to establish its case, the prosecution examined in all 18 witnesses - PWs.1 to 18 and got marked 14 documents – Ex.P1 to Ex.P14 and marked one material object – MO.1. On behalf of the defence, no witness was examined. The statement of the accused under Section 313 of Code of Criminal Procedure was also recorded.
4. The Fast Track Judge on appreciation of the entire oral and documentary evidence acquitted accused Nos.2 and 3 and convicted accused No.1 for the offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month. Being aggrieved by the Judgment & Order of conviction, the appellant – accused No.1 filed the present Criminal Appeal.
5. We have heard the learned counsel for the parties to the lis.
6. Smt. Vanita K.R., learned counsel for the appellant vehemently contended that the impugned Judgment & Order of conviction passed by the Court below is contrary to the material on record. She would further contend that the deceased Shahin Taj was married to accused No.1 about 10 years prior to the date of the incident and throughout the family life of the deceased and the accused No.1, there was no untoward incident and the incident occurred on that particular fateful day due to the sudden provocation and there was no intention on the part of the accused No.1 to commit the offence. She would further contend that neither the deceased stated anything about the harassment to her by accused no.1 nor PW.2 (father of the deceased) would speak about it. She would further contend that the deceased Shabin Taj has not stated either in the first information-cum-Dying Declaration – Ex.P1 recorded before the Police or in Ex.P9 – Dying Declaration recorded before the Taluka Executive Magistrate that there was harassment on her for dowry by the accused No.1 from the date of marriage till the date of incident. She also contended that the eye witnesses have also turned hostile to the case of prosecution. She would further contend that in the absence of any intention on the part of accused No.1 to commit such offence, the trial Court was not justified in convicting the accused no.1 for the offence under Section 302 of IPC. Therefore she sought to set aside the impugned Judgment of conviction. In the alternative, she contended that in view of the surrounding circumstances and the materials on record, it is clear that the occurrence of the offence was due to sudden quarrel for obtaining loan from Mahila Sangha and therefore at the most, the case falls under Part II of Section 304 of IPC. Therefore she sought to modify the impugned Judgment of conviction passed by the trial Court.
7. Per contra, Sri Chetan Desai, learned High Court Government Pleader sought to justify the impugned Judgment & Order of conviction passed by the Court below.
8. The sum and substance of the evidence of the prosecution witnesses is as under:
PW.1 is the aunt of the deceased Shahin Taj. She has deposed that the deceased has told her that her husband (accused No.1) poured kerosene on her and set her on fire on the date of the incident.
PW.2 is father of the deceased. He has deposed that his daughter – deceased Shabin Taj has told him that her husband (accused No.1) poured kerosene on her and set her on fire on the date of the incident.
PW.3 is the doctor working in the K.R. Hospital, Mysore. He has stated that the Police recorded the statement of the deceased as per Ex.P1 in his presence and the deceased was in a position to give statement at that time. He has supported the case of the prosecution.
PWs.4 and 5 are the witnesses for inquest panchanama – Ex.P2.
PW.6 is the witness for mahazar – Ex.P3 under which the kerosene lamp – MO.1 was seized.
PW.7 is the doctor who conducted the post-mortem examination over the dead body of the deceased. The post-mortem report is at Ex.P13.
PWs.8 and 9 are the Police Constables who traced accused Nos.1 and 2 respectively.
PW.10 is the Police Constable who carried the first information report to the jurisdictional Court.
PW.11 is a witness for mahazar – Ex.P13 under which kerosene lamp – MO.1 was seized. She has turned hostile to the case of the prosecution.
PW.12 is the neighbour of the deceased. She has turned hostile to the case of the prosecution.
PW.13 is the Taluka Executive Magistrate who recorded the dying declaration of the deceased as per Ex.P9 in presence of the doctor – PW.18. He has supported the case of the prosecution.
PW.14 is the Head Constable who registered the complaint in the present case.
PW.15 is the Police Sub-Inspector of Police who recorded the dying declaration of the deceased as per Ex.P1, which is also the first information.
PW.16 is the Assistant Sub-Inspector who inserted Section 302 of IPC in place of Section 307 of IPC in the First Information Report on the basis of death memo of the deceased.
PW.17 is the Investigating Officer, who completed the investigation and laid the charge sheet.
PW.18 is the doctor in whose presence PW.13 – Taluka Executive Magistrate recorded the dying declaration of the deceased.
9. It is not in dispute that as per the prosecution case, the marriage between the deceased and accused No.1 took place about 10 years prior to the date of the incident. It is the case of the prosecution that accused NO.1 poured kerosene on the deceased Shahin Taj and set her on fire. The accused No.1 in his statement recorded under Section 313 of Code of Criminal Procedure has denied all the incriminating circumstances appearing against him, but he has not explained as to how the incident occurred and if it was accidental, he could have explained the details.
10. It is also not in dispute that throughout the marital life of the deceased with accused No.1, there was no untoward incident in the family between them. It is not the case of the deceased either in the dying declaration – Ex.P1 recorded before the Police or in the dying declaration - Ex.P9 recorded before the Taluka Executive Magistrate that there was any untoward accident in the family between the husband and wife and that there was any harassment to her for dowry by accused No.1 from the date of the marriage till the date of the incident. It is also not the case of either the deceased or PW.2 (father of the deceased) that there was any untoward incident between the husband and wife prior to the incident in question. Though there are eye witnesses, they have turned hostile to the case of the prosecution. PW.2 (father of the deceased) in his evidence has stated that the deceased revealed the entire incident to him and told that her husband poured kerosene on her and set her on fire. The same is reiterated by PW.1 – Nasreen Taj, the aunt of the deceased. The evidence of PW.1 finds corroboration from the evidence of PW.2.
11. The material on record reveals that there are no material contradictions. In the absence of any contradictions brought out while cross-examining PWs.1 and 2 by the defence, the entire evidence of PWs.1 and 2 has to be accepted. In view of the facts and circumstances, the case of the prosecution that the incident occurred on 15.7.2008 at the instance of the accused No.1 is held to be proved.
12. The material on record also discloses that though there was no explanation in the statement of the accused recorded under Section 313 of Code of Criminal procedure, the circumstances depict that there was no intention on the part of accused No.1 – husband to murder or kill the deceased Shahin Taj by pouring kerosene on her. Either Ex.P1 and Ex.P9 – Dying Declarations or the evidence of PWs.1 and 2 do not disclose any past incident of quarrel between the husband and the wife (deceased). The deceased sustained only 50% of the burn injuries and she was alive for a period of two months in the hospital after the incident and in fact the accused No.1 along with his aunt brought the deceased to the hospital. The conduct of accused No.1 bringing the deceased wife to the hospital immediately after the incident should be considered. In view of these circumstances, it is possible to infer that incident occurred suddenly and when the quarrel took place between the husband and wife, the first accused might have lost control, poured kerosene on his wife and set her on fire. Intention as such to cause her death cannot be seen. Therefore, the learned Fast Track Judge has erred in convicting the accused No.1 for the offence under Section 302 of IPC.
13. In our view, the entire case can be brought down to offence punishable under Part II of Section 304 of the Indian Penal Code. Therefore, to that extent the impugned Judgment & Order of conviction and sentence passed by the trial court has to be modified.
For the reasons stated above, we pass the following order:-
(a) Appeal is allowed in part.
(b) The impugned judgment of conviction and sentence passed by the trial Court is modified and appellant – accused No.1 is convicted for the offence under Section 304 Part II of IPC and we sentence him to undergo rigorous imprisonment for 10 (ten) years, with fine of Rs.2,000/-. In case of default in payment of fine, he shall undergo imprisonment for a further period of one month.
(c) Appellant - accused No.1 is entitled for the benefit of set off as contemplated under Section 428 of Code of Criminal Procedure.
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