Ameer Jan vs State of Karnataka

Mohan Shantanagoudar, J.—The appellant is convicted accused in Sessions case No. 4/2000, by the Addl. Sessions Court, Chickmagalur, vide judgment dated 7.5.2001 for the offence u/s 302 IPC.

The brief facts leading to this appeal are as follows:

Smt. Shahina (deceased) was married to the accused about 25 years prior to the incident in question. The accused led married life with the deceased Shahina for about 5 to 6 years. However, thereafter i.e., about 20 years back, the accused all of a sudden disappeared leaving deceased alone. The marriage of said Shahina was again performed with one Basha Sab and out of the said wedlock, P.W. 13 Habeeb was born. After some time, the said Basha Sab also disappeared leaving Shahina and P.W. 13 Habeeb. Thus Shahina and Habeeb continued to live at Lakkavalli village. About 5 years prior to the incident in question, the accused who is the first husband of Shahina came back to Lakkavalli village re-married Shahina in the year 1994 in the presence of Muthuvalli (P.W. 15). Thereafter, Habeeb (P.W. 13) started residing in the house of his Junior Aunt Kairunnisa.

The accused and deceased took a house on lease from P.W. 1 Kasaiah at Lakkavalli. The accused used to tease and abuse the deceased in a filthy language and harass her both physically and mentally on the allegation that she did not bear good moral conduct. He started suspecting fidelity of the deceased. On prior day to the incident, i.e., on 25.9.1999, the accused came to the house at about 7.00 p.m. and again started quarrelling with the deceased suspecting her fidelity. On the early morning of 26.9.99 at about 5.00 A.M., he got up and after quarrelling with the deceased Shahina, accused gagged the mouth of deceased, tied both her hands with the help of her Saree, poured Kerosene on her and set her on fire. After hearing the cries of Shahina, PW. 1 and PW. 11 came to the house of the accused and opened the door. The accused came out of the house and ran way from scene on seeing P.W.1, 11, and others. P.W.1 entered the house and saw the deceased being burnt severely. P.W.1, 2,11 and others splashed water on the deceased and extinguished fire. P.Ws. 2, 3, 11 and 13 shifted the injured Shahina in a bullock Cart to Primary Health Centre at Lakkavalli. Doctor P.W. 18 gave first aid to said Shahina and sent intimation to Lakkavalli police, PW.21 Station House Officer, Lakkavalli Police Station, came to the Primary Health Centre, Lakkavalli, and recorded statement of Shahina as per Ex.P.15. On the basis of the same, PW. 21 registered a case in Crime No. 106/99, for the offence punishable u/s 307 IPC at about 9.00 A.M., and sent F.I.R. to the Jurisdictional Magistrate as per Ex.P. 16. The said F.I.R. reached the Jurisdictional Magistrate at about 1.05 P.M. on 26.9.99. As the injured Shahina needed higher treatment immediately, she was shifted to MC. Gann Hospital, Shimoga. While she was under treatment at MC.Gann Hospital, Shimoga, her statement as per Ex.P5 was recorded on 4.10.99. The said Shahina succumbed to the injuries sustained by her on 18.10.99 in the said hospital. After completion of investigation, the Inspector of Police - P.W. 23 filed investigation report against the accused for the offence punishable u/s 302 of IPC.

To prove its case, the prosecution in all examined 23 witnesses and got marked 33 exhibits and 10 material objects. The Trial Court after considering the entire material on record convicted the accused for the offence punishable u/s 302 IPC and sentenced him to undergo imprisonment for life.

Since this appeal was presented by the convicted - accused through prison as an indigent person, the Court requested Shri Bhanuprakash, Advocate, to assist the Court as Amicus Curiae. Heard Shri Bhanuprakash, learned Amicus Curiae and Shri H.V. Ramesh, learned H.C.G.P for the State.

6.The learned Amicus Curiae vehemently contended that the so called dying declarations as per Ex.P5 and P15 are wholly unreliable in as much as there is no certificate issued by the doctor evidencing the condition of health of the injured Shahina at the time of making said statements; that there is no material on record to show that the injured Shahina was in a mentally fit position to make such statements as per Ex.P. 5 and P15. Nextly he contended that the presence of P.W. 1 and 11 at the scene of offence is improbable in as much as P.W. 1 does not speak about the presence of P.W. 11 and so also P.W. 11 does not speak about the presence of P.W. 1. He also submitted that the appreciation of evidence by the Court below is not proper and correct in as much as the evidence on record is not appreciated in proper perspective which has resulted in miscarriage of justice.

On the other hand, Shri H.V. Ramesh, learned H.C.G.P. argued in support of the order of conviction passed by the Court below.

8.The incident in question has taken place at about 6.00 A.M., on 26.9.99 in the house of the accused and deceased who are husband and wife respectively. It is not in dispute that except the accused and deceased, no body was residing along with them in their house. The statement of the injured Shahina at Ex.P 15 recorded by the Station House Officer (P.W.21) of Lakkavalli Police Station depicts the motive for commission of crime as well incident as in question. The said statement discloses that on the day prior to the date of incident, the accused came to the house at about 8.00 P.M. from Bommana katti village after finishing his work and started quarrelling with Shahina alleging that she has got illicit relationship with others. Through out the night there was quarrel between the two and that the accused assaulted the deceased with club by threatening the deceased that she would be killed. At about 6.00 A.M. on 26.9.99, accused poured Kerosene on the body of the deceased and set her on fire by flicking a matchstick at her. Consequently, the said Shahina sustained severe burn injuries all over the body. At that point of time, the accused poured water on her. When injured raised hue and cry, and owner of the house (P.W.1) came there. On seeing P.W.1, the accused ran away from the house. Many people came inside the house and after extinguishing the fire, she was taken to Government hospital for treatment. In the said statement, she prays for taking action against her husband.

Looking to the said statement - Ex.P 15 which is naturally spoken to by injured, we do not find any reason as to why the same should be disbelieved, particularly when the said statement is recorded immediately after the incident in question in the hospital. P.W. 21 - the Station House Officer is an independent public servant who does not have any grudge against the accused. As aforesaid, on the basis of the above statement, the Crime No. 106/99 is registered for the offence punishable u/s 307 IPC. The police have initiated further action on the basis of the said statement, by treating it as a complaint. We do not agree with the contention of Amicus Curiae that no weight shall be attached to the statement of the victim at Ex.P. 15 before the police, as it was not attested by the doctor and no endorsement was made there as to show that the statement was made by Shahina while she was mentally and physically fit to make such statement. His submission is misconceived as it proceeds on an erroneous assumption that what was recorded by police officer was a dying declaration. As the police officer recorded Ex.P. 15 as the complaint, it is not necessary for him to keep any doctor present or obtain any endorsement from the doctor. The material on record clearly disclose that the victim Shahina was able to speak clearly and was fit to make the statement on 26.9.99. After the death of Shahina on 18.10.99, the statement at Ex.15 assumed the character of a dying declaration. As the statement of deceased Shahina was initially recorded as a statement/complaint and not as a dying declaration, doctor''s certificate as to the fitness of Shahina to make such statement is not necessary. Thus even in the absence of any certificate of the doctor as to the fitness of the injured to make statement, the dying declaration as per Ex.15 can be relied upon.

The records also disclose that the police have recorded dying declaration as per Ex.P. 5 on 4.10.99 in MC. Gann Hospital, Shimoga, while Shahina was taking treatment in the said hospital. P.W. 21 has deposed supporting the said statement. Added to this, the sister of the deceased P.W. 9 Beebijan and P.W. 11 - Manjunath speak about the oral dying declarations made before them when Shahina was taking treatment in MC.Gann Hospital, Shimoga. Ex.P. 5 and oral dying declarations support the earliest dying declaration at Ex.P. 15. Even excluding Ex.P. 5 and oral dying declarations from consideration, there is no reason to disbelieve Ex.P. 15 in view of the fact that the same is recorded by public servant immediately after the incident i.e, within 2 hours in Lakkavalli Government Hospital. The Trial Court is justified in relying upon the dying declaration at Ex.P. 15 while coming to the conclusion.

The learned Amicus Curiae contended that the alleged incident has taken place on 26.9.99 and that victim Shahina succumbed to the injuries on 18.10.99 i.e, after lapse of about 25 days. Her statement Ex.P. 15 is also recorded on 26.9.99 in as much as at that time, neither victim nor the police officer expected the death of the victim imminently and that thereafter Ex.P. 15 cannot be treated as dying declaration. We do not agree with the said reposition put forth by learned Amicus Curiae. For a statement to be attracted u/s 32(1) of Evidence Act it is neither necessary that the death should have nexus in terms of fixed time with the statement nor that the victim who made the statement should essentially be in apprehension of immediate death. On the other hand, such statement should relate to circumstances surrounding the event (assault) which ultimately led to death. There should be nexus between the circumstances stated by victim and his/her death.

In addition to the dying declaration, the prosecution relies upon the evidence of P.W. 1 and 11 who have seen the accused running away from the scene of offence immediately after the incident.

The evidence of P.W.1 Kasaiah discloses that he is residing in neighbourhood and is owner of the house wherein the accused and the deceased were living at Lakkavalli as lessees. After hearing the cries of the deceased Shahina, P.W. 1 rushed to the house of the deceased and accused and opened the door of the said house. He saw the injured Shahina lying with burnt injuries. The accused who was inside the said house ran way from the house immediately after seeing P.W. 1. Thereafter P.W. 1 along with others extinguished fire on the body of Shahina and made arrangements to shift her to the hospital. The presence of P.W. 1 is spoken to by the deceased herself in her statement at Ex.P 15 which discloses that the owner of the house came to the house of the deceased immediately after hearing the cries. Thus the presence of P.W. 1 who is the owner of the house and residing at neighbourhood cannot be doubted at all. The evidence of P.W.1 is entirely supported by the evidence of P.W. 11 who is also residing near the house of the accused and deceased. He also came to the scene immediately after hearing the cries of the deceased and saw accused holding kerosene can in his hand. On seeing P.W. 11 and others, the accused ran way from the scene. Thus, the evidence of P.W.1 and 11 amply proves the presence of the accused on the spot when the deceased was set on fire. It is relevant to note here itself that there was none in the house except the accused and deceased at the time of incident. Though there are some exaggerations and embellishments regarding apprehending the accused by P.W. 11 and bringing him to police station on that day, that would not take away the effect of the core of his evidence. We find the evidence of P.W.1 and 11 consistent and cogent. Their presence in the scene of offence is natural. We do not find any reason to differ with the approach of the Trial Court in relying and accepting the evidence of PW. 1 and 11.

The motive for commission of the offence is spoken to by P.W. 3, relative of the deceased, P.W. 8 - father of the deceased - aged about 80 years, P.W.9 - Bibijan, sister of the deceased and first wife of the accused and P.W. 13 - Habeeb, who is the son of the deceased through her second husband. Their evidence discloses that the accused used to quarrel with the deceased by alleging that she had illicit intimacy with some others and that the accused was continuously suspecting the fidelity of the deceased. There used to be frequent quarrels between them on the said issue. Having regard to the consistent evidence of these witnesses relating to motive, we conclude that the accused had motive to commit the crime.

In the statement recorded u/s 313 Cr.P.C., the accused pleaded alibi by stating that he had been to his work place at Bommanakate village near Bhadravathi and was not at all present on the date of incident. This fact is not proved by the accused even by preponderance of probabilities. Not even a suggestion is made to the material witnesses more particularly P.W.s 1 and 11 regarding his alleged absence in the house on the relevant day. Thus the plea of alibi put forth by accused is false explanation and cannot be relied upon. This false explanation of the accused also supplies additional link to the chain of circumstances relied by the prosecution.

It is not disputed that the death of Shahina was homicidal. However, the evidence of doctor, P.W. 10 Nanjundappa, discloses that face, neck, chest, abdomen, both upper limbs and both eyes and back of the body except the legs below the knee joint were burnt. The burnt injuries were very deep and infected. The doctor has opinioned that the cause of death was due to septicemia as a result of extensive and deep burns. The evidence of the doctor P.W. 10 coupled with the evidence of P.W. 1 and 11 and dying declarations of the deceased Shahina at Ex.P.5 and P. 15 conclusively prove that the death is homicidal. It is neither shown nor there is any probable reason for the deceased to commit suicide. The possibility of accidental death is also not forthcoming from the evidence on record. Not even a suggestion is put to the material witnesses, more particularly P.Ws. 1 and 11 in this regard. The statement of the accused recorded u/s 313 Cr.P.C. is also silent on this aspect of the matter. Thus, we approve the conclusion of the Court below that the death is homicidal.

We entirely agree with the conclusion arrived at by the Court below after reappreciating the evidence on record. We do not find any illegality in the judgment of the Court below and consequently, we affirm the same. The appeal fails and is therefore dismissed.

In recognition of the able assistance rendered by the learned Counsel / Amicus Curiae Shri Bhanuprakash, we direct the office to pay him Rs. 2000/- as honorarium.