Excerpt:In criminal cases the Court should not look into the defence of the accused first. It is the fundamental duty of the Courts to examine the case of the prosecution to ascertain whether the prosecution has proved the case beyond reasonable doubt. The prosecution has to stand on its own legs. If the prosecution is able to show that the case of the prosecution is probable by cogent and convincing evidence, then only the Court has to look into such evidence to ascertain whether the circumstances of the prosecution case have been disproved by preponderance of probabilities.
1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 14TH DAY OF SEPTEMBER 2017 PRESENT THE HON'BLE MR. JUSTICE K.N.PHANEENDRA AND THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO CRIMINAL APPEAL No.3538/2011 Between: Tajmul Ahmed @ Mohd. Tajmul Ahmed Junied S/o Maqbul Ahmed Age: 46 years, Occ: Govt. Servant (Conductor NEKRTC) R/o Tuppar Toda Mohalla Humnabad, Dist. Bidar At present R/o Kalagi Tq. Chittapur, Dist. Gulbarga. ...Appellant (By Sri Asadulla, Advocate and Sri Jayanandayya, Advocate as amicus curiae) And: The State through Kalagi Police Station Gulbarga. ...Respondent (By Sri Prakash Yeli, Addl. S.P.P.) 2 This Criminal Appeal is filed under Section 374 (1) of Cr.P.C., praying to allow the appeal and set aside the judgment and order passed in S.C.No.135/2010 on the file of the I Addl. Session Judge at Gulbarga dated 27.01.2011 convicting the appellant for the offence under Section 498A, 504, 302 of IPC and acquit the accused/appellant of the alleged offence. This appeal coming on for hearing, this day, K.N.PHANEENDRA J., delivered the following: JUDGMENT
The present appeal is preferred against the judgment of conviction and sentence passed by the learned Sessions Judge, Gulbarga in S.C.No.135/2010 for the offences punishable under Sections 498A, 504 and 302 of the Indian Penal Code (hereinafter referred to as the ‘IPC’ for short).
2. The brief factual matrix of the case is that, the accused is the husband of the deceased by name Kausar Begum. Kausar Begum was working as a Teacher in a school. They were residing together at Kalagi village in Chittapur taluk, Gulbarga district. The incident of death of the deceased occurred after 14 years of their marriage. The accused was also working as Conductor in Gulbarga KSRTC Depot. The accused and the deceased were blessed with three children by name Mohammad Navaz Ahemad, Mohammad Toupeer Ahemad and Nisha Apras. They were all residing in a rented house.
3. It is the specific allegation of the prosecution that, the accused was addicted to alcohol since one year prior to the incident and used to be in the house always and was not going to the work and also used to ill-treat and harass the deceased in demand of money for the purpose of his vice habits. The deceased was pulling on the life with him with a fond hope that he may turn into a good person on a future day. But her expectation went in vain. In this background, it is further alleged by the prosecution that, on 03.11.2009 in the morning hours the accused demanded money from his wife and he forcefully took out money and also ATM card belonging to the deceased. The deceased in fact snatched out the ATM card and money from him. In this background, there was some quarrel between the husband and wife. Due to such quarrel the deceased stayed back in the house and children went to school. At about 12.30 p.m. when the deceased was cooking food in the kitchen at that time she was pouring kerosene to the stove for the purpose of cooking. At that time the accused went there and snatched the kerosene can and poured kerosene on her and lit fire, due to which she sustained sever burn injuries.
4. It is the further case of the prosecution that immediately the neighbours of the accused and deceased shifted the injured to the hospital i.e. at the first instance to Kalagi hospital wherein it appears some first aid was given and thereafter she was shifted to Basaveshwara Hospital at Gulbarga and further shifted to Miraj Hospital on 04.11.2009. On 05.11.2009 the Police Constable attached to Kalagi Police Station visited Miraj Mission Hospital and on 06.11.2009 he recorded the statement of the deceased and came back to Kalagi Police Station on 08.11.2009 and on the basis of said complaint lodged by the deceased, a case has been registered against the accused in Crime No.133/2009 for the offences punishable under Sections 498A and 307 of IPC. It appears, the said lady died on 11.11.2009 in the hospital. In pursuance of the death of Kausar Begum, the case has been converted for the offence punishable under Section 302 of IPC. The Police have investigated the matter, recorded the statement of the witnesses, collected the evidence, arrested the accused and after completing the investigation, submitted a charge sheet against the accused for the above said offences. After committal proceedings, the learned Sessions Judge, after securing the presence of the accused, framed charges against the accused for the above said offences. As the accused pleaded not guilty, the trial was commenced.
5. The prosecution, in order to bring home the guilt of the accused, has examined 21 witnesses PW-1 to PW-21 and got marked Exs.P-1 to P-16 documents and M.O.s-1 to 14 material objects. After examining the accused under Section 313 of Cr.P.C. the accused was also called upon to enter the defence evidence if any. In fact, in this particular case, accused himself got examined as DW-1 but he did not produce any documents.
6. After analysing the oral and documentary evidence on record, the learned Sessions Judge has convicted the accused for the offences punishable under Sections 498A, 504 and 302 of IPC and sentenced the accused to undergo rigorous imprisonment for three years with fine of Rs.5,000/-, with default sentence of one year simple imprisonment for the offence punishable under Section 498A of IPC. Two months simple imprisonment with fine of Rs.500/- with default sentence of simple imprisonment for a month for the offence punishable under Section 504 of IPC and also sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence of simple imprisonment for two years for the offence punishable under Section 302 of IPC, which judgment and sentence is called in question before this Court.
7. We have heard the arguments of learned counsel for the appellant and as well as the learned Additional State Public Prosecutor. We have also carefully re-evaluated the materials available on record and re-appreciated the oral and documentary evidence.
8. The learned counsel for the appellant strenuously contends before this Court that if the entire case of the prosecution is visualized, it creates no confidence in the mind of the Court that the accused has committed such offences. If the evidence of the prosecution witnesses are read in proper perspective, it clearly indicates the concoction and padding up by the prosecution in order to, by hook or crook, bring the accused behind the bars. He also contends that except the evidence of PW-5 Nawaz son of the accused and the deceased there is absolutely no evidence available to implicate the accused. All other witnesses appear to be hearsay witnesses or circumstantial witnesses and those circumstances projected by the prosecution has also not been established. There are serious lapses on the part of the investigating agency in not timely recording the statement of the injured and the relevant witnesses. The entire case of the prosecution is shrouded with mysteries and is unexplained. Therefore, the learned counsel strenuously contends before this Court that the accused is entitled to be acquitted.
9. Per contra, learned Addl. S.P.P. submits that, the trial Court in fact has considered all the above said grounds which are urged by the learned counsel for the appellant before this Court and by giving proper reasons the Court came to the conclusion that inspite of several abrasions in the prosecution case, the prosecution has established the guilt of the accused beyond reasonable doubt. Therefore, he pleaded for dismissal of the appeal.
10. After hearing the arguments and re-appreciating the materials on record, the point that would arise for consideration of this Court is:
Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the trial Court?
11. In order to answer the above said point for consideration, it is just and necessary for this Court to go through the evidence of the prosecution in detail. Of course there is serious dispute with regard to the homicidal death of the deceased. According to the prosecution it is the accused who actually poured kerosene on the deceased and committed her murder. But according to the defence of the accused deceased herself got fire while cooking and it is only an accidental fire incident due to which she succumbed to the burn injuries. In this background, before answering whether it is a homicidal or accidental death, it is just and necessary for us to, in toto, visualize the entire materials on record.
12. In this backdrop, now we would like to look into the evidence of the prosecution sequence wise.
13. PW-1 is the father of the deceased. He has stated about the relationship between himself and the accused and the deceased. He stated about the accused and deceased living together and that they were blessed with three children. He stated that about 12 years back the accused was looking after the deceased with all love and affection and thereafter he was addicted to bad habits like consuming alcohol and due to which the accused was often assaulting and ill-treating the deceased. In this background, he stated that on 03.11.2009 at about 12.00 in the afternoon, he received a telephonic message from one Mahesh (PW-2) that, accused has poured kerosene and lit fire on the deceased and the said Mahesh (PW-2) has shifted the injured to the hospital at Kalagi. Immediately, this witness and his wife went to the hospital at Gulbarga in Basaveshwar Hospital and they saw, the injured had sustained burn injuries and they enquired her, she disclosed that the accused has actually poured kerosene on her and lit fire. The injured was shifted to the hospital at Miraj but on 11.11.2009 she succumbed to the injuries. Very peculiarly enough, this witness in the course of cross-examination admits that though he came to know about the incident on 03.11.2009 itself and he went to Basaveshwar Hospital and came to know from the mouth of deceased about the incident and the conduct of the accused, however, he never informs anybody about this aspect much less to the jurisdictional police or to anybody. His answer to the question put to him as to, on what date he informed about the incident to the police, was that, only after the death of the deceased. He further stated that he had been to Miraj hospital also but the police at no point of time recorded his statement prior to the death of the deceased. He says that though the police had been to Miraj Hospital, he did not disclose anything to the police nor the police have recorded the statement. It is suggested to this witness that his daughter only stated that due to accidental fire she sustained burn injuries. But subsequently after due deliberation between himself and his son etc., a false case has been foisted against the accused. However, this suggestion has been denied.
14. The fact remains so far as this star witness is concerned that he being the father, who came to know about the incident on the date of the incident itself, he is the last person to screen the real incident. He should have informed the police immediately on the same day so as to enable the police to take appropriate action against the accused, if really the incident happened as projected by the prosecution. Therefore, it creates a serious doubt as to in which manner the incident happened whether it was due to an accidental fire or due to the act of the accused. This doubt has not been clarified through this witness.
15. Another important star witness to the prosecution is PW-2 Mahesh who actually saw the deceased at the first instance. PW-2 in fact has stated what exactly happened on that day. He stated that at about 12.30 p.m. he was proceeding towards a mill and he observed lot of people gathered near the house of the injured. Injured was standing near her house with burn injuries. At that time one Ramesh came along with his motor cycle and this witness PW-2 made Kausar Begum to sit on the motor cycle and thereafter Ramesh took the said Kausar Begum to the hospital. At that time one Banubee was also present. He pleads his ignorance so far as the presence of the accused at that particular point of time. He also says that deceased was in a condition to speak and she herself requested PW-2 to shift her to the hospital. This witness was treated hostile so far as the prosecution projected case is concerned as he did not support the case of the prosecution as per Ex.P-1. It is suggested that actually on that day Kausar Begum has disclosed before him that the accused poured kerosene on her and lit fire. He never deposed in any manner to support the case of the prosecution. Even considering that, this person has informed PW-1 about the overt acts of the accused, but when this witness himself has turned hostile not stated that he informed PW-1 about the conduct of the accused, in such an eventuality the evidence of PW-1 also becomes suspicious.
16. PW-3 Banubee is also a neighbour of the accused and the deceased. She also stated in a similar fashion that on the date of the incident at about 12.30 she saw Kausar Begum was standing near her house having suffered burn injuries and the door was locked from outside. She was screaming for help from inside the house. Lot of people gathered there and thereafter some person opened the door of the house of the deceased, she came out. Thereafter, Mahesh and Ramesh shifted the injured to the hospital. She has also never stated either in the examination-in-chief or in the course of cross- examination that injured has stated anything against her husband and as to how the incident happened. She denied suggestion the made by the prosecutor that she stated before the police that the injured disclosed before this witness that, the accused has poured kerosene on her and lit fire. Therefore, the so-called witnesses PW-2 and PW-3 who have actually seen the injured at the first instance have never spoke about any declaration made by the deceased against her husband. PW-2 and PW-3 also not stated about the presence of the accused at that relevant time.
17. PW-4 is a formal witness who was the panch witness to Ex.P-3 and it is the inquest panchanama of the deceased. The accused never denied the death of her wife even in his examination as DW-1. His claim is that he was not present at the time of the incident and the incident happened in an accidental manner while the deceased was cooking food. Therefore, the evidence of this witness becomes insignificant with reference to the death of the deceased.
18. PW-5 is the star witness to the prosecution who is no other than the son of the accused and deceased. He deposed before the Court that on 03.11.2009 he was in the school at about 12.30 in the afternoon. His father went to the school and told this boy that he has committed the offence and burnt his mother i.e. Kausar Begum. Except this one sentence nothing has been elicited from the mouth of this witness as to how he could know about the incident from any other source. Very peculiarly enough he further says that on 02.11.2009 there was a quarrel between his mother and father. On the next day also there was quarrel between them and on that day he had been to school and came back to the house and took some books and went back to his school once again. At that time his father abused him and told that before he comes back from the school he would see what would happen to his mother. Thereafter this witness went to the school. It is very peculiar that he went to the hospital and then enquired his mother, she also told that the accused poured kerosene on her after quarrel and lit fire. But very peculiarly enough the Investigating Officer did not care to record the statement of this witness till 08.11.2009 for the reasons best known to the police though the police came to know about the incident on 03.11.2009 itself when she was admitted to Kalagi hospital.
19. In this background, it is relevant to note before appreciating the cross-examination of this witness the evidence of PW-18 Sharnabasappa who has stated that on 03.11.2009 itself the Head Constable informed him about the injured being admitted to the hospital. This man went to the hospital and came to know that the injured sustained burn injuries due to stove burst and thereafter she was shifted to Gulbarga Hospital. In the course of cross-examination he admitted that, when he visited the hospital on 03.11.2009 he has recorded the statement of Kausar Begum and she gave the statement that she suffered injuries due to stove burst. Therefore, it is clear from the evidence of this witness that PWs-1, 2 and 3 were all knowing, that, on 03.11.2009 itself, about the real incident that had happened. But nobody cared to inform the police and the police PW-18 though informed the same to P.S.I., neither PW-18 nor the P.S.I. have cared to record the statement of these witnesses including PW-5 who was very much present with the injured in the house. In this background, the presence of this witness itself is doubtful. Therefore, the cross-examination of this witness has to be meticulously looked into.
20. PW-5 says that he has been residing in his grand parents’ house. In fact he was often visiting the house of the father and mother. That goes to show that he was not permanently residing with his father and mother. He further deposes that, his school is situated at about 1 k.m. from the said house in Kalagi. He further deposes that on 02.11.2009 he has not visited the house of his father and mother. Except the evidence of this witness, though PW-3 is a neighbour and PW-1 and PW-2 are grand father and another neighbour, they never disclose about the presence of this witness throughout, at any point of time till the death of the deceased. Even otherwise, the evidence of this witness is only to the extent of extra judicial confession of the accused not more than that. If at all the accused has committed the murder of his wife, could it be expected that he would go to the school only for the purpose of informing his own son so as to create evidence against himself, knowing fully well that boy has been residing with the grand parents and the child will be forced to give evidence against his own father. Therefore, the above said circumstances of extra judicial confession does not satisfy the conscious of the Court and as well it will not create confidence in the mind of the Court to rely upon the same in order to draw any inference against the accused.
21. PW-6 Mohammed Muktar Ahmed and PW-8 Mohammed Akhalaq Hussainare the brothers of the deceased. They are the hearsay witnesses who came to know about the incident after enquiring from their sister in the house. According to them, on 03.11.2009 at about 1.30 p.m. PW-6 received an information and PW-8 also received the information at about 1.15 p.m. Both of the them had been to Basaveshwar Hospital and came to know about the incident. But none of these two witnesses disclose the same to anybody much less to the police when such ghastly incident happened to their sister and when it is emphatically stated by the injured before them about the incident, what made them not to disclose the same to the police on the right point of time on 03.11.2009 itself, is not properly explained by them.
22. In this background, the evidence of PW-6 play a dominant role. It is admitted that he is a Police Constable working at Roja Police Station, Gulbarga. Basaveshwar Hospital is also situated in Gulbarga. On 03.11.2009 itself he came to know about the incident. Being a dutiful citizen of a country particularly, working in a Police Department, he has not lodged any complaint but he does not give any explanation even in his examination- in-chief as to why he did not lodge any complaint on 03.11.2009 or atleast on the next day. He has admitted that this witness has been residing along with his father and mother and also admitted that PW-5 Nawaz also resides along with them. So this creates a serious doubt, perhaps this witness is the master mind, who might, after the death of the deceased created all the story of accused burning the deceased and this witness made use of police power in order to get a case registered on 06.11.2009. He also never stated that he had visited Miraj hospital and shifted the deceased to the Miraj hospital so as to take care of his sister nor he stated that, he was very much present when her statement was recorded. Therefore, the evidence of all these three witnesses who are related witnesses who are the brothers and father of the deceased does not repose confidence in the mind of the Court so as to place absolute reliance upon their statement.
23. PW-7 Bhagirathi is the another important witness who spoke about the deceased working in their school at Kalagi Government School. On the date of the incident the deceased did not go to school. She also admits that the children of Kausar Begum also studying in the same school. She never stated anything about the accused going to school on that day and meeting his son Nawaz on that particular day so as to substantiate the evidence of PW-5 that the accused on that day had been to school and told his son about the incident.
24. PW-9 is the employer of the accused who gave a certificate as per Ex.P-5 to the effect that accused did not attend the work on that particular day. This becomes insignificant in view of the statement of other witnesses. PW-10 is the another person who is a Village Panchayat Secretary who gave Ex.P-6 which is the record pertaining to the house of the accused and deceased. This is also not in dispute as the accused never disputed that he had been living with his wife. PW-11 is a Junior Engineer who prepared the spot sketch. This also, in our opinion, is not significant document as there is no denial. PW-12 is the person who translated the inquest report as per Ex.P-8.
25. Now comes the recording of the dying declaration i.e., Ex.P-11 by PW-16. PW-16 has deposed that on 06.11.2009 he went to the Miraj Hospital and recorded the statement of the injured and on 07.11.2009 he brought that back and on the basis of which on 08.11.2009 a case appears to have been registered. A very shabby evidence has been lead by the prosecution from the mouth of this witness. This witness never stated that whether he had visited the doctor who had treated the deceased before meeting the deceased and he also never stated that, whether he has taken any opinion from the doctor with regard to the physical and mental status of the deceased. He also never stated atleast that, he was satisfied with regard to the physical and mental status of the deceased before recording her statement so that, the Court could treat the same as a dying declaration after the death of the said lady. It is not disputed that on 11.11.2009 the said lady died. In the absence of any material to show that this witness, after satisfying himself, recorded the statement of the injured, such statements cannot be taken into consideration as dying declaration because the dying person will not be available for cross- examination by the accused. Whatever stated by the injured cannot be taken as a gospel truth unless it passes through the judicial scrutiny and the same has been recorded after following all legal requirements. In this background, whether she could have given such statement, is also to be looked into even accepting that such a statement was given by her.
26. In this background, the evidence of PW-13 Dr. Kedarnath also play a dominant role. This doctor was working at Kalagi who treated the injured at the first instance at about 1.00 p.m. on 03.11.2009. He stated that she had suffered 60% to 70% burns. She was admitted to the hospital on the same day. At that time lot of people gathered near the hospital who had brought the injured to the hospital. In fact, this witness has informed the Kalagi Police and in fact the police also visited the hospital and examined the injured and recorded her statement. Kausar Begum the victim was in a position to give statement which is fully supported by the evidence of PW-18 which we have discussed his evidence. To some extent he has stated that, on 03.11.2009 he came to know about the incident and went to Kalagi hospital on the information given by the Head Constable. He enquired the doctor PW-13 and thereafter came to know that she sustained injuries due to stove burst. Thereafter he came back to the police station and then sent one of his police personnel to Miraj hospital for recording the statement of the injured. In the course of cross-examination, he has admitted that when he visited the Kalagi hospital he examined the injured and recorded the statement of the injured and she has stated before him that she suffered burn injuries due to stove burst. Therefore, this earliest statement of the injured has been fully supported by the doctor and as well as PW-18. The peculiar circumstance as we found is that though the police personnel PW-18 records the statement of the injured, he did not register any case nor he placed on record the statement of the injured. Whatever may be the statement of the injured that should have been made as part and parcel of the case of the prosecution. That creates a serious doubt whether the prosecution wants to suppress the real genesis of the incident or want to cook up or concoct the story against the accused, later. This is a serious lapse on the part of investigating agency in not making available the statement of the injured, admittedly recorded at the earliest point of time. Therefore, in our opinion, there are allegedly two statements of the injured, one is Ex.P-11 which is placed for consideration of the Court and another as admitted by PW-13 and as well as PW-18 the earliest statement of the injured. When the police have suppressed the earliest story, then in fact the suppression swallows the subsequent statement also from consideration.
27. PW-17 and PW-19 are the investigating agencies who have recorded the statement of some of the witnesses and submitted the charge sheet.
28. PW-21 is Dr. Milind Kesar Khane who conducted the postmortem examination on the dead body of the deceased. There is no much dispute with regard to the death of the deceased and conducting of the inquest on the dead body and also postmortem examination. However, the doctor has not stated anything about the homicidal death of the deceased. However, it is stated that the death was due to dis-seminated intravascular coagulation, septicemic shock, endotoxic shock due to 60% superficial to deep burns. The doctor has also given certificate as per Ex.P-16.
29. As we have referred to all the above said circumstances, there are two doubts available to the Court. One on the basis of the distracted evidence of the witnesses that, the accused might have poured kerosene on the deceased and due to which she sustained burn injuries. Another is due to stove burst she might have sustained burn injuries. Both the possibilities are evident from the records. When such two doubts are available to the Court, the view which is favourable to the accused, has to be normally preferred by the Courts unless a strong impeccable evidence is available to support the other view.
30. In this background, the evidence of the accused, in our opinion, also to be looked into as to the conduct of the accused and his wife. Accused was examined as DW-1. He has stated that on that particular day he was present in the hospital at Kalagi when the police recorded the statement of his wife. She told that she was suffering from epilepsy and due to it while pouring kerosene to the stove, she sustained burn injuries and therefore she was admitted to hospital. He says that his son was also present throughout in the hospital but his wife was not in a position to speak. He also stated that after the incident he was taken to the house of PW-1 and he was confined. Therefore, he could not come out and disclose the factual aspects to the police etc. Though the evidence of DW-1 may not be isolatedly accepted by the Court, but what he has stated is also supported by the surrounding circumstances as we have already explained. The version that deceased sustained burn injuries due to stove burst is fully supported by the evidence of PW-18 and PW-13 doctor.
31. Under the above said facts and circumstances, we are of the opinion that the prosecution cannot be said to have proved the case beyond reasonable doubt. The doubts which we have expressed about, should have been given to the benefit of the accused but the learned Sessions Judge must have perused persuaded himself morally so as to bend the evidence to bring home the guilt of the accused. The learned Sessions Judge also extracted some cross-examination portions of the witnesses and imagines the defence of the accused that the accused has taken the defence but he has not proved the same beyond reasonable doubt. The said observation of the learned Sessions Judge is against to criminal jurisprudence. In criminal cases the Court should not look into the defence of the accused first. It is the fundamental duty of the Courts to examine the case of the prosecution to ascertain whether the prosecution has proved the case beyond reasonable doubt. The prosecution has to stand on its own legs. If the prosecution is able to show that the case of the prosecution is probable by cogent and convincing evidence, then only the Court has to look into such evidence to ascertain whether the circumstances of the prosecution case have been disproved by preponderance of probabilities. This basic principle has not been taken care of by the trial Court.
32. Under the above said facts and circumstances, we are of the opinion that the accused is entitled to be acquitted, by setting aside the judgment of trial Court. Hence, we answer the point formulated by us in the affirmative and proceed to pass the following:
ORDER The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the I Additional Sessions Judge, Gulbarga in S.C.No.135/2010 is hereby set aside. The accused/appellant is acquitted of the offences punishable under Sections 498A, 504 and 302of IPC. The accused/appellant is set at liberty if he is not required in any other case.
Registry is hereby directed to send the operative portion of this judgment to the concerned Jail Authorities to release the accused/appellant forthwith if he is not required in any other case.