Iliya @ Mohammed Iliyas Katagi vs The State Of Karnataka

K. Sreedhar Rao J.

The material facts of the prosecution case disclose that one Smt. Razia Begam is the deceased. The appellants are accused Nos. 1 to 3(for short A-1 to A-3) before the trial Court. A1 and A2 are brothers-in-law of the deceased and they are absconding. The case against them is split up. A-3 faced the trial and he is convicted for the offences punishable U/S 498A, 302 r/w Section 34 of IPC. The deceased Razia Begam teas married to one Mohammed Asif who is the elder brother of the appellant, Mohammed Asif Katagi is the husband of the deceased. Mohammed Asif was working at Dharwad as a Security Guard. The deceased was staying with accused persons and her husband was working at Dharwad and used to visit her during weekends and holidays. The accused persons suspected the fidelity of the deceased and they were quarreling with her not to go outside and to talk with neighbors. The deceased was subjected to physical and mental harassment.

On 05.03.2005 at 5.45 P.M., when the deceased was cooking A-2 came from behind, doused her with kerosene and A-1 lit fire. The deceased tried to run out of the house. A-3 closed the doors to prevent her from going out and uttered she should die. The deceased by self effort got the fire extinguished near water tank. All the neighbors came and took the deceased to hospital and later on taken to KIMS hospital. The statement of the deceased is recorded as per Ex.P15. On the basis of Ex.P15, the case is registered by PSI in the presence of Doctor R.S. Mali who is examined as PW.13. PW-11 Tahasildar recorded dying declaration as per Ex.P-13 in the presence of doctor PW-13. The deceased succumbed to the burn injuries. The PM report discloses that the death is due to burn injuries on account of septicemia. The appellant-accused has been charged for the offences punishable U/S 498A, 302 R/W Section 3-4 of IPC.

In the trial Court, the husband of the deceased is not examined. PSI recorded the statement of the deceased as per Ex.P15. The statement is recorded in the presence of Doctor-P.W.13. The evidence of P.W.13 disclose the deceased was in a fit condition both mentally and physically to give statement. The Tahasildar PW-11 is examined and he has supported the case of the prosecution to the effect that deceased gave dying declaration before him as per Ex.P13. Ex.P13 is recorded in the presence of P.W.13. Both the witnesses support the case of the prosecution.

The prosecution case discloses that PW-12 Abdulsab and PW-16 Nazeerahammad are uncles and PW-17 is the mother of the deceased, The dying declaration of the deceased discloses that A-1 to A-3 caused her death. The PM report discloses that the death is due to burn injuries. The trial Court on the basis of said evidence convicted the appellant-accused.

Sri. Basavaraj M. Mekki, learned counsel for the appellant submits that the order of conviction is bad in law. The PSI who recorded the statement as per Ex. P15 is not examined and the case sheet of the the deceased is not examined and the case sheet of the hospital not produced. The deceased with such extensive burn injuries could not have been made dying declaration. Therefore the dying declaration produced by the prosecution are concocted, The dying declaration does not disclose any acts of cruelty on the part of the appellant prior to the incident. The dying declaration is recorded after arrival of her parents. The said fact suggests that dying declaration was made under undue influence of the parents. In view of the above discrepancies it is argued that the order of conviction is bad in law.

The State Public Prosecutor argued that non-production of case sheet does not have any impact to dent the credibility of the dying declaration. The Doctor-P.W. 13 and the Tahasildar P.W. 11 were the independent witnesses, have clearly testified to the fact of dying declaration made by the deceased as per Ex.P.13. The evidence of the Doctor also discloses that deceased was mentally in a fit condition to give statement. Won examination of the husband is of no consequence to the case of the prosecution. The dying declaration discloses the motive for the commission of the offence and the overt act of the accused persons, The evidence of P.W.12, 16 and 17 who are the uncle, brother and mother of the deceased disclose that they are residing at Dharwad and they came to know about the incident by phone and they came near the house of the accused and they were informed that the deceased was admitted to KIMS hospital and thereafter they went to KIMS hospital, The evidence of Tahasildar discloses that the deceased was in a fit condition while giving the dying declaration statement as per Ex.P15, The postmortem report discloses that the death is homicidal. In that view of the matter the order of conviction is sound and proper and does not call for interference.

On carefully going through the facts and evidence we find that the P.S.I. who recorded the complaint as per Ex.P.15 is not examined. Nonetheless the statement is not recorded in the presence of P.W.13. He supports the case of the prosecution. His evidence discloses that the statement of the deceased as per Ex. P. 13 is recorded in his presence and that deceased was in a fit condition to give the statement. Second dying declaration is recorded by the Tahasildar in the presence of the Doctor-P.W.13. The Doctor and the Tahasildar both of them have supported the case of the prosecution that the deceased gave dying declaration as per Ex.P.13. The Doctor has also stated chat at the time of recording Ex.P.13 the deceased was having a sound mental state.

The dying declaration of the deceased clearly indicts A3 with the overt act of preventing her from running out of the house after she was set fire. The said dying declaration also indicts A1 and A2 with the overt acts. However that may not be taken at this stage because A1 and A2 are absconding and they have not faced trial and it is only the appellant-A3, who has faced trials. On overall assessment of the evidence available in the dying declaration coupled with the evidence of the Tahasildar and the Doctor it becomes explicit that the prosecution has proved the guilt of the appellant-A3 beyond reasonable doubt. The order of conviction is sound and proper. Appeal is dismissed.