State of Karnataka vs Shamshad

N. Ananda, J.—The respondent (accused No. 2) was tried in S.C. No. 45/2010 for committing homicidal death of her husband by sharing common intention with accused No. 1 (her paramour) in the house of deceased-Mirasmiya at about 1.20 a.m. during intervening night of 18/19.07.2009. Accused No. 1 was absconding. Therefore, he was shown as absconder in final report.

We have heard Sri. Vijayakumar Majage, learned Government Pleader for the State and Sri. R.B. Deshpande, learned counsel for accused No. 2.

The learned counsel for parties have taken us to the evidence and impugned judgment.

P.W.1-Azgarmiya is the younger brother of deceased-Mirasmiya. P.W.2-Raziya Bi is the neighbour of deceased. P.W.3-Shahina Banu is the younger sister of deceased. P.W.4-Jahurbi is the neighbour of deceased. P.W.5-Mehaboobmiya is the junior uncle of deceased. P.W.10-Rubuna is the daughter of accused No. 2 and deceased. P.W.11-Ellahasmiya is the son of deceased and accused No. 2. P.W.17-Hussainmiya is the father of deceased.

It is the case of prosecution that accused No. 2-Shamshad @ Shamshad Banu had illicit intimacy with accused No. 1-Ejaj Ahammed when her husband deceased-Mirasmiya had gone to work as a taxi driver in Dubai. The deceased had stayed in Dubai for a period of five to six years. After he came back to India and he was staying in his native place. He came to know that accused Nos. 1 and 2 had illicit intimacy. Accused Nos. 1 and 2 had shared common intention to commit murder of deceased to continue their illicit intimacy without any obstruction.

P.W.10-Rubuna and P.W.11-Ellahasmiya are daughter and son of accused No. 2 and deceased. Their presence in the house at the time of alleged incident is not in dispute. They have not supported the case of prosecution. They are declared as hostile witnesses. Whether they had reasons to turn hostile to the case of prosecution or not the fact remains that their evidence is not helpful to prove the case of prosecution.

P.W.1-Azgarmiya and P.W.17-Hussainmiya have admitted that deceased-Mirasmiya was suffering from dehydration since few days prior to the date of incident and they have also deposed that he was under medication. They have deposed that on the date of incident at about 12.40 a.m. (midnight), father of accused No. 2 namely Shabbir came to the house of deceased and informed that health of deceased was in critical condition. P.W.1-Azgarmiya and P.W.17-Hussainmiya came to the house of deceased and took him to private hospital at Bhadravathi. The doctor on examination declared him dead. Thereafter, they had brought the dead body to the house of PW-17 and lodged first information at about 10.30 a.m. on 19.07.2009. The first information was lodged by P.W.1-Azgarmiya. In the first information, P.W.1 has stated that deceased-Mirasmiya having came to know about the illicit intimacy between accused Nos. 1 and 2 committed suicide. The first information was registered against accused Nos. 1 and 2 for an offence punishable under Section 306 r/w 34 IPC. Therefore, it can safely be concluded that close relatives of deceased namely his father and his brother had not suspected homicidal death of deceased-Mirasmiya in his house during the intervening night of 18/19.07.2009.

The prosecution has relied upon the eye witness account given by P.W.2-Raziya Bi, P.W.3-Shahina Banu, P.W.9-Khadarsab. P.W.2-Raziya is the neighbour of deceased and accused No. 2. She has deposed that during the intervening night of 18/19.07.2009 at about 12.30 she heard someone crying "Alla Alla Mergaya" from the house of deceased. P.W.3-Shahina Banu and P.W.9-Khadarsab came near the house of accused No. 2. They broke open the window glasses and peeped through window and saw the deceased-Mirasmiya laying on a cot and accused N.1 was holding hands of deceased and accused No. 2 was squeezing his testicles. P.W.3-Shahina Banu (younger sister of deceased-Mirasmiya) has given similar version. P.W.9-Khadarsab has also given similar version. As per evidence of these witnesses, they had seen accused No. 1-Ejaj Ahammed holding deceased and accused No. 2-Shamshad @ Shamshad Banu squeezed testicles of deceased in the house of accused No. 2 during the intervening night of 18/19.07.2009. They have also deposed that father and younger brother of deceased came and shifted the deceased to private hospital. They did not reveal the acts of accused to the father and younger brother of deceased. Their statements were recorded after a period of 65 days from the date of incident.

P.W.3-Shahina Banu is the younger sister of deceased. If she had seen the incident as deposed by her, she would not have omitted to reveal these facts to her father and her brother. Her silence after seeing alleged ghastly acts of accused would create a reasonable doubt in her evidence. The law is fairly well settled that whether evidence of eye witness can be discredited on the ground that there was inordinate delay in recording statement under Section 161 Cr.P.C. depends upon facts and circumstance of each case such as relationship of the witness with deceased and the availability of witness to the Investigating Officer.

In the case on hand, witnesses are close relatives of deceased and they were very much available to Investigating Officer. The witnesses had not even revealed to father and younger brother of deceased about alleged acts committed by accused. We have already stated that children of deceased and accused No. 2 who were very much present in the house have not supported the case of prosecution. The Investigating Officer had not offered any explanation for recording 161 Cr.P.C. statements of P.W.2-Raziya Bi, P.W.3-Shahina Banu and P.W.9-Khadarsab after a period of 65 days from the date of incident. It is not a case where witnesses were not available to Investigating Officer or witnesses were strangers to deceased/victim.

After going through the contents of post mortem examination report marked as Ex. P10 and the evidence of P.W.8-Dr. T.R. Rangaswamy, we find that medical evidence adduced by the prosecution to prove homicidal death of Mirasmiya is not of conclusive tendency. In the post mortem report marked as Ex. P10, it is shown that there was occlusion of left arteries descending arteries present over left ventricle with pink enfaret surrounding the occlusion measuring 1 x 1 cms. P.W.8-Dr. T.R. Rangaswamy has admitted that in post mortem examination he had noticed the blocking of left anterior descending coronary artery and a part of cardiac muscles was dead. P.W.8 has admitted that after post mortem examination he had come to the conclusion that death was due to heart attack. For the reasons best known to P.W.8, he did not furnish the opinion immediately. On the other hand, he waited for arrival of receipt of report of Forensic Science Laboratory. At this juncture, it is relevant to state that final report was filed on 16.10.2009. The FSL report was received on 15.02.2010 and the final opinion as to the cause of death was furnished on 20.03.2010. It is obvious that Investigating Officer had submitted final report without final opinion regarding cause of death. P.W.8-Dr. T.R. Rangaswamy has admitted that he had given final opinion as to the cause of death in the month of March 2010 when he was at Tumkur. We find from postmortem examination report opinion as to the cause of death was not given separately, however it was written on obverse of post mortem examination report marked as Ex. P10. In the post mortem examination report, it is shown that death was due to Vasovagas shock as a result of injury to vital organs like testis. This opinion is not conclusive. Even otherwise, it is contrary to the evidence of P.W.8 that he had noticed the blocking of left anterior descending coronary artery and he had come to the conclusion that death was due to heart attack. Therefore, prosecution has not proved beyond reasonable doubt that death was due to Vasovagas shock.

The learned Sessions Judge on proper evidence has acquitted accused No. 2. There are no reasons to interfere with the impugned judgment of acquittal. The appeal is dismissed.