Iliyas Pasha vs State of Karnataka

N. Ananda, J.—The Appellant (arrayed as accused No. 1) has filed this appeal against the judgment, of conviction for offences punishable under Sections 498-A and 302 IPC.

We have heard Sri Hashmath Pasha, learned Counsel appearing for accused and Sri N.S. Sampangiramaiah, learned HCGP for the State We have been taken through evidence and the impugned judgment.

The Appellant/accused No. 1 and accused No. 2. Sapurabi (mother of accused No. 1), accused No. 3, Allabakash (elder brother of accused No. 1) and accused No. 4, Gulab Jan (wife of accused No. 3) were tried for offences punishable under Sections 498-A r/w. 34 and 302 IPC. The learned trial Judge, acquitted accused 2 to 4 for aforestated offences and convicted accused No. 1 for offences punishable under Sections 498-A and 302 IPC. Therefore, he is before this Court.

In brief, the case of prosecution is as follows: Accused No. 1. Iliyas Pasha is the husband of Shaheen Taj (since deceased). Their marriage was performed about 15 years prior to 26.2.2006. PW-2, Leena is the daughter of accused and deceased. PW-4, Imran is the son of accused and deceased. PW-13, Alla Bakash is the neighbour of accused. PW-14. Athaulla is the younger brother of deceased. The husband of PW-3; Jabeen Taj is the elder brother of deceased. She is also a neighbour of accused. Accused No. 1 was working as a driver of a private bus. Accused No. 1, deceased, PWs.2 and 4 were residing in a house which belonged to PW-1. Mahaboob Sabi. This house was taken on mortgage by the father, of deceased.

It is the case of the prosecution that accused No. 1 used to come home in a drunken state and assault deceased. It was his usual habit. At times, he was also assaulting his children namely, PW.2, Leena and PW-4, Imran. On 21.2.2006, at about 8.00 p.m., accused No. 1 came home in a drunken state and bet. PWs.2 and 4 and also scolded his wife (deceased) for not preparing food. Accused No. 1 took PW.4 to a bakery and got him some bread. Accused No. 1 consumed alcohol and returned home along with PW-4. PWs.2 and 4 were sleeping. Accused No. 1 took deceased to the kitchen to serve him food. Accused No. 1 bolted the door, quarreled with deceased and doused kerosene and set her on fire. The incident was witnessed by PWs.2 and 4. On learning the incident, the neighbours including the younger brother of deceased came near the house of accused, pushed the main door and entered the house arid saw deceased under flames. Thereafter, accused No. 1 left that place. PW-14, Athaulla and other neighbours of deceased shifted her to the Government Hospital at Bagepally, wherein the jurisdictional Police Officer recorded her statement and registered Crime No. 14/2006 for offences punishable under Sections 498-A and 307 r/w. 34 IPO. The deceased, as advised by the Doctors in Government Hospital at Bagepally was shifted and admitted in Victoria Hospital at Bangalore. On 26.2.2006, deceased succumbed to burn injuries at Victoria Hospital. Subsequently, an offence u/s 302 IPC was included. The jurisdictional Police Officer held inquest and the dead body was subjected to postmortem examination which revealed that death was due to septicemia as a result of burn injuries. On completion of investigation, a final report was filed against accused alleging an offence punishable u/s 498-A r/w. 34 IPC against accused 2 to 4 and offences punishable under Sections 498-A and 302 IPC against accused No. 1.

During trial, PWs. 1 to 16 were examined and documents were marked as per Exs.P-1 to P-17 and material objects as per M.Os. 1 to 4 were marked.

Accused No. 1 was examined under 313 Code of Criminal Procedure. He denied all the incriminating circumstances and stated that PW-2 (his daughter) had an affair with a boy. Accused No. 1 had assaulted her and therefore, she has given a false evidence against him.

The learned trial Judge on appreciation of evidence and on hearing the learned Counsel for parties, acquitted accused 2 to 4 and convicted accused No. 1 for offences punishable, under Sections 498-A and 302 IPC.

In order to bring home the guilt of accused No. 1, the prosecution has relied on the following:

i) Motive

ii) Dying declaration said to have been made by deceased

iii) Eye witness account of PWs.2 and 4

iv) Evidence of PW.3. PW.13 and PW. 14-post occurrence witnesses

v) Conduct of accused No. 1 before and subsequent to the incident,

It is not in dispute that PWs.2 and 4 are the children of deceased and accused No. 1. They have given consistent evidence that accused No. 1 used to come home in a drunken state and assault deceased. At times, lie was also assaulting PWs.2 and 4. PWs.2 and 4 are the children of deceased. They had lost their mother. They had no grudge against their father (accused No. 1). Therefore, we have no reasons to suspect the evidence of PWs.2 and 4 that accused No. 1 used to come home in a drunken state and assault deceased and at times, he was also assaulting PWs.2 and 4.

It is the case of the prosecution that when deceased was being treated in Government Hospital at Bagepally, the jurisdictional police officer came and recorded the statement of deceased. As could be seen from the contents of dying declaration, there is no certification by the Doctor about the mental and physical fitness of deceased to give the statement. Above all, the stay of deceased in the Government Hospital at Bagepally was not more than 20 minutes. Considering the evidence given by the Medical Officer and the jurisdictional Police Officer who had recorded the dying declaration, the trial Court has held that there is no positive proof about the mental and physical fitness of deceased to give the statement. Therefore, the learned trial Judge has refused to place reliance on the statement of deceased.

On reconsideration of the evidence, we do not find any reasons to interfere with this finding recorded by the trial judge.

As already stated, PW-2 is the daughter of accused No. 1 and deceased and PW-4 is the son of accused No. 1 and deceased. PWs.2 and 4 have deposed that their maternal grand father had provided a house to them. On the date of incident and at the time of incident, the inmates of the house were accused No. 1, deceased, PWs.2 and 4.

PW-2 has deposed that on the date of incident at about 8.00 p.m., accused No. 1 came home in a drunken state. Accused No. 1 abused deceased and assaulted her. When PWs.2 and 4 intervened, accused No. 1 pushed them aside. Thereafter, accused No. 1 took PW-4 to a bakery to provide him some bread. At about 10.00 p.m., accused No. 1 and PW-4 returned home and PW-4 slept by the side of PW-2. Accused No. 1 took deceased to the kitchen to serve him food and bolted die door from inside; PW-2 heard the sound of beating and PWs.2 and 4 peeped through the cracks of the door and found that deceased had fallen down and accused No. 1 doused kerosene and set her on fire. They pushed the door and found that deceased had been set ablaze. The deceased was crying with pain. PWs.2 and 4 raised hue and cry. Their maternal uncle PW-14 and their neighbours came and pushed the main door and entered the house and extinguished fire by covering a blanket on deceased. They shifted deceased to the hospital. The deceased was in a condition to speak. The deceased told PW-3 that accused No. 1 doused kerosene and set her on fire. On the following day, the police Inspector visited their house and seized the broken pieces of bangles, pieces of cloth, kerosene can and a matchbox. On 26.2.2006, deceased succumbed to injuries in Victoria Hospital at Bangalore.

During cross-examination PW-2 had admitted that accused No. 1 was working as a driver; he used to come home once in four or five days PW-2 has denied the suggestion that her mother (deceased), her brother (PW-4) were residing in ''the house of their maternal grand father. She has deposed that when accused No. 1 came home at about 8.00 p.m., he was drunk. She has denied the suggestion that accused No. 1 picked up quarrel with deceased and therefore, deceased became angry and went to the house of her father and there was a stove burst in the house of her father when deceased was preparing food and the maternal grand father of PW-2 shifted the deceased to hospital. PW-2 has denied the suggestion that when she was going to school, she had not maintained good character. Accused No. 1 had seen PW-2 with a boy and he had assaulted her and therefore, she bore grudge against accused No. 1 (her father). She has also denied the suggestion, that at the behest of PW-14 (her maternal uncle), she had given false evidence against accused No. 1.

The learned Counsel for accused referring to the evidence of PW-2 and Investigating Officer would submit that evidence of PW-2 that by peeping through the cracks of the door of the kitchen, she had seen the accused dousing kerosene on deceased and setting her on fire and the deceased was able to speak, after she came out of the kitchen f has been proved as an omission amounting to material contradiction.

The learned Counsel would submit that the evidence of PW-2 that she had seen the actual incident of accused setting fire on deceased cannot be believed. The learned Counsel submits that the possibility of deceased having committed suicide cannot completely be ruled out. The learned Counsel would submit that on the evidence adduced by the prosecution, two reasonable views are possible and the one which is favourable to accused has to be accepted by the Court.

Alter the appeal was filed and the matter was taken up for hearing, the learned Counsel has produced certain records to show that accused had also suffered bum injuries, when he tried to extinguish the fire on deceased.

The learned Government Pleader would submit that before the trial Court, the accused had come out with a version that deceased had suffered burn injuries in the house of her lather, when she was lifting a stove. There is riot even a suggestion to PW-2 that accused had ever tried to extinguish the name. The learned Government Pleader would submit that these documents, produced before the appellate Court for the first time, cannot be taken into consideration.

On careful consideration of the evidence of PW-2, we find that she did not have any grudge or enmity against her father. When PW-2 was examined before the Court, she was aged about 16 years and when the incident took place, she was studying in 10th standard and was aged about 15 years. PW-2 had lost her mother, she was aware of the consequences of her evidence. We do not find that PW-2 had any oblique motive to give false evidence against her own father alleging that he had committed the murder of his wife (mother of PW-2).

In a decision reported in Dalip Singh and Others Vs. State of Punjab, the Supreme Court has held:

A witness is normally considered to he independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last, person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation for criticism of the evidence is often a sure guarantee of truth.

In the case on hand, considering the relationship of PW-2 vis-a-vis accused No. 1 and deceased, we are of the opinion that PW-2 would be least disposed to implicate her father in the case of homicidal death of her mother. It is true that there are certain proved omissions in the evidence of PW-2. However, these omissions do not detract the credibility of substratum of evidence of PW-2 that accused No. 1 took deceased to the kitchen and bolted the door from inside; thereafter, deceased was set on fire by accused No. 1.

The theory of defence that deceased had gone to the house of her father and she caught fire while preparing food due to stove burst is totally unfounded. Even during examination of-accused under 313 Code of Criminal Procedure he has not narrated the circumstances under which his wife suffered burn injuries.

The learned Counsel for accused relying on the judgment of the Supreme Court reported in 2001 SCC 1148 in the case of Arvind Singh v. State of Bihar, would submit that accused ought to have explained the circumstances under which deceased suffered burn injuries but the initial burden cast on the prosecution to prove the guilt of accused beyond reasonable doubt was always there. Therefore, the mere fact, that accused had not offered any explanation had not relieved the prosecution from the initial burden of proving the guilt, of accused beyond reasonable doubt.

In a decision reported in Trimukh Maroti Kirkan Vs. State of Maharashtra, the Supreme Conrt has held:

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission, of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact, that the relations of the accused with her strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra the Appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the Appellant is under an obligation to give to plausible explanation for the cause of her death in his statement u/s 313 Code of Criminal Procedure. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the Appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Rovindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that be was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him u/s 302 IPC. In State of T.N. v. Rujendran the wife was found dead in la hut which had caught fire. The evidence showed that the accused and his wife were (sic) together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a ease of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of hum injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused(husband) who was the perpetrator of the crime.

In the case on hand, accused No. 1 has come out with a false explanation that deceased had gone to the house of her father, She suffered burn injuries due to stove burst in the house other father.

In addition to the evidence of PW-2, we have the evidence of PW-4, Imran. who is the son of deceased and accused No. 1. PW-4 was aged about 10 years. He was treated as a child witness. PW-4 has deposed; accused No 1 was a bus driver; accused No. 1 used to come home in a drunken state and assault deceased. On the date of incident at about 8.00 p.m., accused No. 1 came home in a drunken state and scolded deceased and later took PW-4 to a bakery and got him some bread. Accused No. 1 asked PW-4 to stay near the bakery and went, to a bar and returned at 10.00 p.m., accused No. 1 and PW-4 returned to their house. Accused No. 1 asked the deceased to serve food to him and took her to the kitchen. Accused No. 1 closed the door of the kitchen from inside and there was a quarrel, PWs. 2 arid 4 pushed the door and saw that deceased had been set ablaze. PWs.2 and 4 raised hue and cry and at that time, their neighbours and maternal uncle came there and thereafter accused No. 1 left that place. PW-14 and others covered deceased with a blanket and extinguished the fire and she was taken to hospital.

During cross-examination, PW-4 has denied the suggestion that deceased had gone to her father''s house and she was caught fire while litting a stove in the house of her father. PW-4 has denied the suggestion that PWs.2 and 4 were under the care and protection of PW-14 (her maternal uncle). PW-4 has denied the suggestion that he had given evidence before the Court as tutored by PW--14.

While appreciating evidence of PW-4, having regard to relationship of PW-2 with accused and deceased, we have held that there are no reasons to discard the evidence of PW-4, The same reasoning would apply for appreciating evidence of PW-4. PW-4 was a boy aged about 10 years. He did not have any oblique motive to depose against his own lather (accused No. 1).

The learned Counsel for accused referring to the evidence of PW-4 would submit that there are certain omissions on material aspects in the evidence of PW-4. Even if these omissions are taken into consideration, the substratum of evidence given by PW-4 that accused No. 1 had taken the deceased to the kitchen and thereafter deceased was set ablaze and the neighbours pushed the door and saw the deceased under flames and thereafter, accused No. 1 left that place does not suffer from any discrepancy. We have no reasons to suspect the credibility of evidence of PW-4.

PW.3-Jabeena, PW.13-Allabakash and PW.14-Athaulla are post occurrence witnesses.

PW-3, Jabeena is the wife of elder brother of deceased. The house of PW-3 and the house of deceased were separated by two or three houses. When the deceased was alive, she used to tell PW-3 that accused No. 1 used to assault her in a drunken state. On the date of incident at about 8.00 p.m., when PW-3 was sitting in front of her house, she heard the noise of quarrel between accused No. 1 and deceased. Thereafter, accused No. 1 took PW-4 to some place. On the same day at about 10.00 p.m., she heard someone crying loudly from the house of accused No. 1. At that time. PWS.3, 14 and others came and knocked the main door of the house of accused No. 1. The deceased had been set ablaze. She came to varandah of the house. PWs.3 and others covered the deceased with a quilt and shitted deceased to the hospital. PW-3 has deposed about the presence of PWs.2 and 4.

PW-13, Alla Bakash, a neighbour of accused has not supported the case of prosecution. He was declared as a hostile witness. Therefore, his evidence is of no assistance to prosecution.

PW-14, Athaulla is the younger brother of deceased. PW-14 has deposed that accused No. 1 used to come home in a drunken state and assault deceased. On 21.2.2006, at about 9.00 p.m. when PW-14 was standing near his house and talking with Allabakash, accused No. 1 and his son (PW-4) returned home. Within five or ten minutes, they heard the noise from the house of accused No. 1. They reached the house of accused No. 1 and pushed the main door and entered the house. Accused No. 1 went out of the house. PWs.2 and 4 were weeping. The deceased had been set ablaze. They extinguished the flames and shifted the deceased to the Government Hospital, Bagepally. When enquired, deceased told him that accused No. 1 had set her on fire. After initial treatment, deceased was admitted in Victoria Hospital. On 25.2.2006, deceased succumbed to burn injuries.

During cross-examination of PW-14 the defence has sought to establish that the marriage of accused No. 1 with deceased was a love marriage and it was opposed by the parents and brothers of deceased. PW-14 has denied the suggestion that deceased was in the house of her father and she was caught lire due to stove burst which took place in the house of her father.

In order to appreciate the contention of accused No. 1 that PW.14 had grudge against the accused No. 1 as the marriage between accused No. 1 and the deceased was a love marriage and the parents and brothers of the deceased were against such marriage, we have gone through the evidence of PW.2, 4 and 14 from which it is clear that the marriage of accused No. 1 and deceased had taken place about 15 years prior to the date of incident. We also notice from the evidence of PW. 14 that the father of deceased had taken a house on mortgage from PW. 1 to accommodate accused No. 1 deceased and their children. Therefore, we find that PW. 14 did not have any oblique motive to falsely implicate accused No. 1.

The evidence given by PW. 15-Dr. Devadas relates to postmortem examination on the deceased. The contents of postmortem examination and evidence of PW. 15 would reveal that the deceased had suffered 60 - 65% of burns and the death was due to septicemia consequent, to burn injuries. The evidence of PW. 1.5 has not been controverted. Therefore, the prosecution has proved that the death was consequent to burn injuries suffered by deceased.

The learned Counsel for accused No. 1 would submit that the evidence given by PW''s.2 and 4 is inconsistent and incredible. Even if the evidence of PW.2 and 4 that the deceased was subjected to cruelty by accused No. 1 and he used to come home in a drunken state and assault the deceased is accepted, the possibility of deceased committing suicide in the kitchen cannot altogether be ruled out.

The learned Counsel for accused has relied on the extracts of wound certificate filed along with appeal memo and certain documents issued by the Government Hospital, Bagepalli filed during hearing of appeal to prove that accused No. 1 had suffered superficial burn injuries on his right hand and he has given the history of injuries that he had suffered burn, injuries while saving his wife from the fire.

When PW''s.2 and 4 (daughter and son of the deceased) were cross-examined before the trial court, there was no suggestion to them that accused No. 1 had tried to extinguish the flames and he had also suffered burn injuries. On the other hand, the evidence-of PW''s.2 and 4 that, accused No. 1 left the house, after the main door was opened by PW.2 and 14 and they extinguished the fire, has not been controverted. Accused No. 1 when examined u/s 313 Code of Criminal Procedure, has not stated that he had tried to extinguish the flames and suffered burn injuries to his right hand. The learned Counsel for accused No. 1 had made false suggestions to PW2 and PW4 that deceased suffered injuries due to stove burst in the house of her father. Therefore, these documents instead of supporting accused No. 1 would lead to an inference that accused No. 1 has no regard for truth. When the prosecution has proved that the deceased had suffered homicidal burns in the presence of accused No. 1, it was the duty of accused No. 1 to explain the circumstances under which his wife caught fire. Accused No. 1 has come out with different versions at different stages. In the first instance, accused No. 1 has denied his presence in the house. Accused No. 1 had also come out with the second version that or the date of incident, after quarrelling with accused No. 1, deceased went to the house of her father and she suffered burn injuries due to stove burst in the house of her father and she was taken to hospital by her lather. Before this Court, accused No. 1 has come with the third version that he had suffered burn injuries while trying to extinguish flames on deceased. Therefore, the conduct of accused subsequent to incident does not support his defence version.

Now adverting to the submission made by the counsel for accused that the possibility of deceased committing suicide cannot completely be ruled out, we reiterate that the presence of PW''s.2 and 4 at the time of incident cannot be disputed. The substratum of evidence given by PW''s.2 and 4 that accused took the deceased to kitchen to serve food to him and closed the door of kitchen and thereafter set her ablaze cannot be discarded. If the accused had taken the deceased to serve food for him, there was no reason for him to close the door of kitchen. If the deceased had set herself on fire, the accused would have immediately opened the door of kitchen and tried to extinguish the flames and would have sought for help from others. On the other hand, we find that PW.2 and 4 had pushed the door of kitchen to see the plight of their mother. PW. 14 and other neighbours had pushed the main door and entered the house to extinguish the fire on the deceased. Accused No. 1 had walked out of the house as if nothing had happened to his wife. Therefore, the submission of learned Counsel for accused that there is possibility of deceased having committed suicide cannot be accepted.

The learned trial judge on proper appreciation of evidence has held the accused guilty of offences punishable under Sections 498-A and 302 IPC. On reappreciation of evidence, we do not find any reasons to interfere with the impugned judgment.

In the result, we pass the following:

ORDER

The appeal is dismissed.