State of Karnataka vs Shoukat Ali and Others

P.D. Waingankar, J.—By judgment and order dated 28.02.2011 in S.C. No. 288/2006 on the file of the Fast Track Court-XVI, Bengaluru City, all accused Nos. 1 to 6 have been acquitted of the charges levelled against them for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and Sections 498-A, 302 r/w Section 34 of IPC. Therefore, the State has preferred this appeal.

The facts which gave rise to this appeal in a nutshell are as under:

Accused No. 1-Shoukat Ali is the husband of deceased- Noorjahan @ Jaiba. Accused No. 2 is the mother, accused No. 3 is the father, accused Nos. 4 (now deceased) and 5 are the brothers and accused No. 6 is the sister of accused No. 1. The marriage of accused No. 1 with deceased-Noorjahan was performed on 12.02.2004. The deceased was subjected to ill-treatment and harassment within a period of 15 days from the date of her marriage by all the accused. The deceased used to complain the ill-treatment meted out to her for the sake of dowry by the accused to her parent, who inturn used to advice her to adjust somehow and lead a life in the company of her husband, as they were poor and not in a position to provide additional dowry as demanded by the accused. They used to help her according to their capacity. On 04.11.2005, on Ramzan festival day, accused No. 1 returned to home at about 6.00 p.m. He did not take meals. He abused the deceased/his wife in filthy language. At about 10.00 p.m. he asked the deceased/his wife to give a matchbox to smoke a cigarette. She gave matchbox to accused No. 1 Accused No. 1 by lighting a cigarette looked at her from top to bottom to her Chudidar and enquired as to who gave Chudidar. When she replied that it was given by her mother, accused No. 1 scolded her, poured kerosene on her person and set fire and sat on a cot with her child. The deceased shouted for rescue. She came out of the house by opening the door. Neighbours came and doused the fire with the help of bed sheet. They brought her back to her house. Accused No. 1 did not come forward to extinguish the fire. Instead, he threatened her that if somebody ask her as to how she caught fire she should tell that she caught fire on account of stove burst. Later, accused No. 1 took her to a Nursing Home at Byatarayanapura, from there she was shifted to KIMS Hospital, followed by Victoria Hospital, where her statement came to be recorded in the presence of doctor-Dr. Shankrappa M. (PW.11) as per Ex.P5 by PW.28-PSI, Chandralayout Police Station. On the strength of Ex.P5, a case in Crime No. 239/2005 came to be registered against accused Nos. 1 to 6 for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and Section 498-A, 307 r/w Section 34 of IPC. She had 43% burn injuries. As such, she was admitted in Victoria Hospital in Burns Ward, where her statement Ex.P8 came to be recorded by Special Tahsildar, Bengaluru North Taluk, Bengaluru at about 5.45 p.m. on 05.11.2005, wherein she enunciated that accused No. 1/her husband asked her to as to who brought Chudidar which she was wearing and when she replied that it was brought by her mother, he scolded her at about 10.00 p.m. on 04.11.2005, poured kerosene and set her fire. While undergoing treatment, she died on 20.11.2005 at 3.15 a.m. and thereby Section 302 of IPC came to be inserted Thereafter, Special Tahsildar conducted inquest proceedings over the dead body followed by post mortem examination and after recording the statement of the witnesses, charge-sheet came to be filed against all the accused persons for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and Sections 498-A, 302 r/w Section 34 of IPC.

In order to prove the charges, the prosecution in all examined 29 witnesses as PW.1 to PW.29, got marked 27 documents as Exs.P-1 to P-27 and 5 material objects as MO.1 to MO.5. On behalf of defence, 3 witnesses were examined as DW.1 to DW.3. Ex.D1 to D9 were marked. The learned Sessions Judge upon hearing the submissions made by the Public Prosecutor and the defence counsel and on appreciation of evidence, acquitted all the accused of all the charges levelled against them by the impugned judgment.

We have heard the submissions made by the learned Government Pleader for the State and the learned counsel for respondents-accused.

Learned Government Pleader would submit that though there was clinching evidence placed on record by the prosecution particularly two consistent dying declarations of the deceased recorded by the Special Tahsildar, the learned Sessions Judge by assigning some untenable reasons acquitted all the accused and therefore, he has sought to set aside the judgment of acquittal and to convict all the accused for the offences with which they were charged.

Per contra, learned Senior counsel Sri. H.S. Chandramouli, appearing for the respondents/accused would submit that the Court below, on proper appreciation of the evidence and taking note of two conflicting dying declarations of the deceased recorded by the Police Officer and Special Tahsildar, has rightly held that both the dying declarations are unreliable and thereby acquitted all the accused and as such, no interference is called for by this Court. Hence, learned counsel sought for dismissal of the appeal. The leaned counsel placed reliance on the decision of this Court in the case of State of Karnataka Vs. Aslam alias Aslam Pasha, (2000) CriLJ 1167 : (2000) 4 KCCR 115 SN and decision of the Supreme Court in the case of State of Punjab Vs. Parveen Kumar, (2005) 1 DMC 89 : (2004) 10 JT 388 : (2004) 10 SCALE 81 : (2005) 9 SCC 769 in support of his argument.

PW.1-Asgar Pasha a pancha to seizure panchanama Ex.P1 has deposed that at the instance of accused No. 1, MOs.1 to 3 (a plastic can, a matchbox, two burnt matchsticks) were seized under Ex.P1 from the kitchen of the house of accused No. 1. He has deposed that accused No. 1 took the police and panchas to his house which was locked. Accused No. 1 opened the door with a key and pointed out MOs-1 to 3 which were lying in the kitchen.

PW.2-Sajeeda Begum, mother of the deceased, PW.3- Yasmin Taj, sister of the deceased, PW.4-Saleem, PW.8-Rafiq, brothers of the deceased and PW.9-Kaleem @ Jameer the sister''s husband of the deceased have deposed about the ill-treatment, harassment and cruelty meted out to the deceased by all the accused for the sake of dowry. They have also deposed that on 04.11.2005, Ramzan festival day, the deceased was wearing a Chudidar brought to her by her mother-Sajeeda Begum, at about 10.00 p.m. accused No. 1 looking at the Chudidar which the deceased was wearing, enquired with her as to who gave the Chudidar and when she replied that it was given to her by her mother, accused No. 1 scolded her, poured kerosene and set fire to her by bolting the door of the house from inside; when she raised hue and cry for her rescue and came out of the house by opening the door, the neighbours rushed to her rescue and extinguished the fire with the help of bed sheet. They have further deposed that thereafter accused No. 1-husband took her to a Balaji Nursing Home, Bytarayanapura, Bengaluru and forced her to furnish the history as accidental fire on account of stove burst. The doctor at Balaji Nursing Home, Bytarayanapura, Bengaluru referred her to KIMS, Bengaluru and from KIMS she was referred to Victoria Hospital, Bengaluru, where her statement came to be recorded as per Ex.P5 by PW.28 at about 10.00 a.m. on 05.11.2005 and her another statement as per Ex.P8 was recorded by Special Tahsildar PW.12-A.S.Patil at about 5.45 p.m. wherein she has stated that accused No. 1 her husband poured kerosene and set fire to her.

PW.6-Iqbal, President of Heera Masjid and PW.7-Anwar, the member of Jamat of Bapujinagar Masjid have deposed regarding the conflict, bickerings that were going on between the deceased and her husband/accused No. 1 for money, that accused No. 1 was insisting the deceased to bring more money and dowry and was assaulting her. They have also deposed that the mother of the deceased had given a complaint to the Masjid in pursuance of which both the deceased and accused No. 1 were called and a panchayath was held wherein accused No. 1 was advised.

PW.10-Narasimhamurthy N., is a police constable, who carried the burnt clothes of the deceased to F.S.L. Bengaluru.

PW.11-Dr. Shankrappa M., from Victoria hospital has deposed that he certified the condition of the deceased to give a statement as per Ex.P5 by making an endorsement on Ex.P.5 to that effect.

PW.12-A.S. Patil, Special Tahsildar has deposed having recorded the statement of the deceased as per Ex.P8 on 05.11.2005 at about 5.45 p.m., in response to the requisition of the Investigating Officer after certification of the conditions of the deceased by PW.24-Dr. Varalakshmi.

PW.13-Dr. V.K. Gopal, Chief Medical Officer, KIMS Bengaluru. He has deposed that in the intervening night of 04.11.2005 and 05.11.2005 at 00.30 hours, while he was on duty, the patient by name Noorjahan (deceased) was brought to the hospital with burn injuries. He gave her first aid treatment and directed to take her to Victoria hospital.

PW.14-Dr. Ramesh, Casualty Medical Officer from Victoria hospital has deposed that on 20.11.2005 at about 3.30 a.m. deceased died in Victoria hospital while undergoing treatment. Accordingly, he gave intimation to the police outpost at Victoria hospital as per Ex.P11.

PW.15-Abdul Suban and PW.16-Hafiz Khan are the maternal uncles of the deceased. They were supposed to depose about the dowry demand, harassment and ill-treatment. But they have not supported the case of the prosecution. Both of them have turned hostile to the case of the prosecution.

PW.17-Smt. Mobin Taj, PW.19-Syed Khan are the neighbours of deceased and accused No. 1 and PW.18-Shahanaz is the owner of the house, wherein the deceased and accused No. 1 were residing at the time of the incident. All of them have turned hostile to the prosecution case.

PW.20-Dr. P.K. Devdas of Victoria hospital conducted post mortem examination over the dead body and issued post mortem report as per Ex.P18. He has opined that the death was due to Septicemia as a result of burns sustained.

PW.21-Srmivas Shetty is the police constable working in Chandralayout Police Station who carried Ex.P19 to the jurisdictional Magistrate. PW.22-Nayaz Pasha and PW.23-B.H. Narasimhamurthy are panchas to panchanama, whereunder the clothes of the deceased were seized. But both of them have turned hostile to the prosecution case.

PW.24-Dr. Varalakshmi, the medical officer of Victoria hospital, Bengaluru, has deposed regarding the second dying declaration recorded by PW.12-Special Tahsildar as per Ex.P8 in her presence. She has deposed that PW-12-Special Tahsildar approached her in order to ascertain the condition of the injured to give statement and accordingly, she examined the patient and certified that the patient was fit to give statement by making an endorsement on Ex.P8 as per Ex.P8(b) and her signature is at Ex.P8(c).

PW.25-Rajanna, A.S.I. of Jagjeevanramnagar Police Station. He has deposed that on 29.08.2004 at about 5.00 p.m., deceased- Noorjahana appeared before him in the police station and gave a complaint against her husband complaining the ill-treatment and harassment by her husband, he registered the complaint in Crl.Misc. No. 325/2004 and produced her husband/accused No. 1 before P.S.I., who in turn obtained an undertaking from husband stating that henceforth he would not ill-treat or harass his wife Smt. Noorjahan.

PW.26-Shanegowda, A.S.I. of Chandralayout Police Station, who apprehended accused No. 1 on 07.11.2005 and produced before the Investigating Officer.

PW.27-P.N. Seshadri is a police constable, who accompanied accused No. 1 to his house at the time of seizure of MOs. 1 to 3 under Ex.P1 and also wrote Ex.P3 the inquest panchanama at the instance of PW.12-Speical Tahsildar.

PW.28-B.K. Narasimhaiah is the P.S.I. of Chandralayout Police Station who recorded the first statement of the deceased as per Ex.P5 in the presence of PW.11-Dr Shankrappa N. after ascertaining the conditions of the injured from PW.11.

PW.29-H.M. Omkaraiah is the Investigating Officer, who filed the charge-sheet against the accused persons for the offences under Sections 3, 4 and 6 of the Dowry Prohibition Act and Sections 498-A 302 r/w Section 34 of IPC.

Thus, the prosecution mainly relies upon the two dying declarations Exs.P5 and P8 recorded by PW.28 and PW.12 respectively apart from the evidence of PWs.2, 3, 4, 6, 7, 8, 9, 11, 12, 20, 24, 28 and 29.

The incident as such had taken place in a rented house No. 1342, 9th cross, Lawerpalya, Gangondanahalli, Bengaluru, belonging one Shahanaz (PW.18), wherein deceased-Noorjahan and her husband/accused No. 1-Shoukat Ali were the only two persons residing at the time of the incident. The incident occurred on Ramzan festival day on 04.11.2005 in the night at about 10.30 p.m. It is borne out from the records that after the incident she was taken to Balaji Nursing Home, Byatarayanapur, Bengaluru by accused No. 1/her husband, where she was given first aid treatment and was referred to Kempegowda Institute of Medical Science (KIMS), Bengaluru, since she had 42% burns. The doctors at KIMS referred her to Victoria hospital on the ground that there is no burns ward in KIMS. Accordingly, she was shifted to Victoria hospital, Bengaluru on the same night. In the medical records of KIMS and Victoria hospital Exs.D3 and D5, the history furnished was accidental burns due to stove burst while boiling milk. Curiously in Ex.D5 the inpatient record of Victoria hospital, it is mentioned that she was brought by her husband. It is also written that after she was taken to the burns ward and detail enquiry was made as to how she sustained burns, she disclosed that her husband poured kerosene and set fire to her and while shifting to the hospital he warned and directed her to disclose the history as accidental burns on account of stove burst. In view of the disclosure made by her, PW.11-Dr. Shankrappa gave a requisition to the concerned police to record her statement and accordingly, PW.28-P.S.I. of Chandralayout Police Station rushed to the hospital, enquired with PW.11 as to her condition to give statement. PW.11, inturn after examining her, certified that she was in a condition to give a, statement and accordingly, her statement came to be recorded by PW.28 in the presence of PW.11-Dr. Shankrappa as per Ex.P5. In her statement Ex.P5, she has stated that her marriage with accused No. 1 was performed on 12.02.2004 and within 15 days of the marriage, she was subjected to harassment and ill-treatment by her husband and in-laws for bringing more dowry. She has also stated that her husband burnt all her clothes given to her at the time of marriage by her parents on the ground that they are of inferior quality. She was also neglected and deserted by her husband many times and finally, while she along with her husband residing separately at Gangondanahalli, on 04.11.2005 during night hours, accused No. 1 by seeing the Chudidar which she was wearing, scolded her, poured kerosene and set fire to her. Thus, in Ex.P5 the first dying declaration, she has made it very clear that she was subjected to ill-treatment and harassment by all the accused and accused No. 1 and the deceased living separately at Gangondanahalli in a rented house and the accused poured kerosene and set fire to her.

Since Ex.P5 is the dying declaration recorded by the police officer, PW.12-Special Tahsildar, Bengaluru, was requested to record another dying declaration. Accordingly, PW.12 recorded her dying declaration as per Ex.P8 in question and answer form after obtaining certification as to her condition to give statement from Dr. Varalakshmi, Casualty Medical Officer, Victoria hospital in her presence. In Ex.P5, she has stated that on 04.11.2005 Ramzan festival day, accused No. 1 came to the house at about 6.00 p.m., but he did not take food. At about 10.00 p.m. he enquired the deceased as to who gave Chudidar that she was wearing. When she replied that it was given to her by her mother, accused No. 1 scolded her, poured kerosene and set fire to her by lighting the match stick by bolting the door from inside and when she raised hue and cry and went out side the house by opening the door, the neighbours came to her rescue and extinguished the fire with the help of bed sheet; but accused No. 1 did not come forward; after some time since she had 42% burns, accused No. 1 took her to a nursing home and from there to KIMS followed by Victoria hospital. Thus, in both the dying declarations she has made categorical statement that it is accused No. 1/her husband who poured kerosene on her person and set fire to her. She has stated that while shifting her to the nursing home, accused No. 1 prevailed upon her to disclose that she sustained burns on account of accidental fire due to stove burst while boiling the milk and accordingly, false history was furnished as accidental burns on account of stove burst by accused No. 1/husband of the deceased which is false.

Immediately after her admission to Victoria hospital, when she was taken to burns ward, she disclosed that it was accused No. 1/her husband who poured kerosene and set her ablaze as could be seen from Ex.D5 the Victoria hospital records dated 05.11.2005, wherein it is mentioned "when she was shifted to ward and asked in detail she revealed that her husband (Shoukhad) poured kerosene over her and lit fire due to some domestic quarrel at around 11.30 p.m. on 04.11.2005 and asked her to give that she got fire accidentally. She was brought here by her husband. Above statement is true to the best of my knowledge and I have been explained in my own language." Her signature was obtained on Ex.D5 along with the signature of the sister who wrote Ex.D5 while admitting the patient to Victoria hospital.

PW.1 has deposed that at the instance of accused No. 1, based on his voluntary statement, police seized 5 litres capacity plastic can, one match box, 2 burnt matchsticks (MOs.1 to 3) from the kitchen of house of accused No. 1 under mahazar-Ex.P1. PW.1-Asgar Pasha, pancha to Ex.P1 has spoken that on 07.11.2005, accused No. 1-Shoukat Ali took the police and panchas to his house No. 1342, 9th cross, Lawerspalya, the house was locked, accused No. 1 with the key in his pocket opened the lock and the door of the house; household articles were spread here and there. He took them to the kitchen room and by showing the spot, he pointed out MOs.1 to 3 which were seized by the police in the presence of PW.1. If it was really a case of accidental fire due to stove burst as made out by the defence, accused No. 1 as well could have pointed out the stove that was burst apart from the vessel wherein the milk was boiled. The very fact that no such articles like stove and utensils used for boiling the milk were found the spot itself falsify the defence theory and the defence evidence given by DW.1 to DW.3 to the effect that deceased suffered accidental burns while trying to heat milk on the stove. On the other hand, the recovery of MOs.1 to 3 from the kitchen of the house of accused No. 1 based on the voluntary statement of accused No. 1 further fortifies the case of the prosecution that it was accused No. 1, who poured kerosene from a can and set fire to the deceased.

There is ample evidence as to the ill-treatment, cruelty and harassment meted out to the deceased by her husband which has been spoken to by the parents of the deceased, sisters of the deceased, brothers of the deceased and the sister''s husband of the deceased. All of them have deposed that within 15 days of the date of the marriage, she was subjected to harassment, ill-treatment and cruelty by all the accused for more dowry. It has also come in their evidence that they even burnt the clothes given to her at the time of marriage on the ground that they were of inferior quality. She was also dragged out of the matrimonial house. The showcase, cupboard belonging to her were damaged. The evidence of parents, sisters, brothers is corroborated by the evidence of independent witnesses namely PW.6-President of Masjid and PW.7-member of the jamat who have deposed that on the complaint given by the deceased to the jamat regarding the ill- treatment and harassment given to her by her husband, he was called by the jamat, warned and an undertaking was also taken from him. Further, the evidence of parents, sisters, brothers is supported by the evidence of PW.25-Rajanna who has deposed that while he was working as A.S.I. in Jagajeevanramnagar Police Station, on 29.08.2004 at about 5.00 p.m. deceased-Noorjahan appeared before him and gave a complaint against her husband complaining the harassment and ill-treatment given to her; that he registered complaint in Crl.Misc.325/2004 and produced accused No. 1 before the P.S.I. before whom accused No. 1 gave an undertaking.

Coming to the authenticity of both the dying declarations, it is borne out that in both the dying declarations, she has stated that on 04.11.2005, accused No. 1/her husband returned to house at 6.00 p.m., he did not take meals; at about 10.00 p.m. he asked for a matchbox; when the deceased gave a matchbox, he lighted a cigarette and while smoking cigarette he looked at the Chudidar which she was wearing, asked her as to who gave the said Chudidar; when she replied that it was given to her by her mother; he scolded her, poured kerosene and set fire to her.

We have gone through both the decisions cited by the learned counsel for the accused on the point of appreciation of dying declaration and its reliability. We are conscious of the fact that when there are more than one dying declaration, the Court should be extremely careful before placing reliance on it. If there is inconsistency between two dying declarations, it is unsafe to base conviction on the basis of second dying declaration. It is well settled that a truthful and reliable dying declaration may form the soul basis of conviction even though it is not corroborated. However, the reliability of dying declaration should be subjected to close scrutiny and the Court must be satisfied that the declaration is truthful.

On keen scrutiny of Exs.P5 and P8 the two dying declarations made by the deceased, we do not find any perceptible inconsistency between the two dying declarations. In both the dying declarations the date and time of recording is mentioned. So also, the state of mind of the declarant while recording her statement has been certified by the doctors PW.11-Dr. Shankrappa and PW.24-Dr. Varalakshmi. Both the dying declarations were recorded in the presence of doctors PWs.11 and 24 respectively. Both the doctors have also put their signatures at the end of the declarations by making an endorsement that it was recorded before them. There is also an endorsement on Ex.P5 first dying declaration for having examined the declarant by PW.11-Dr. Shankrappa in burns ward and having certified that she was conscious, well oriented, mentally and physically fit to give statement and that PW.28 thereafter was permitted to record statement by PW.11. So also, there is an endorsement on Ex.P8 the second dying declaration that she was examined and found physically and mentally fit to give statement at 5.45 p.m. on 05.11.2005. It is not a case where the deceased sustained 90% to 95% of burns. The medical evidence discloses that she had hardly 42% burns. The dying declarations were recorded within a short period of time from the time of the incident when she was conscious and oriented. She died after 15 days from the date of the incident. There is nothing to doubt the authenticity of the dying declarations. Her condition at the time of recording both the dying declarations was fairly good. The very fact that the husband brought her to a private nursing home after the ghastly incident wherein she sustained 42% burns itself speaks the guilty mind of the accused No. 1/her husband. No wife would falsely implicate her husband in a serious offence like murder unless the husband is responsible for the same. Further, after admission of the deceased to Victoria hospital, accused No. 1 was not at all seen until his arrest on 07.11.2005. The contents of Ex.P5 the first dying declarations are corroborated by the evidence of PW.11 Dr. Shankrappa from Victoria hospital and PW.28-B.K. Narasimhaih, P.S.I. of Chandralayout Police Station who recorded Ex.P5 the dying declaration. PW.11-Dr. Shankrappa has deposed that on 05.11.2005 at about 10.00 a.m., he received a requisition from the Chandralayout police to certify the physical and mental condition of the deceased so as to record her dying declaration and accordingly, PW.11 examined the deceased on 05.11.2005 at about 10.00 a.m. and certified that she was in a fit condition to give statement and thereafter PW.28-the police officer recorded the statement of deceased as per Ex.P5 and endorsement made by PW.11 regarding her mental conditions on Ex.P5 is at Ex.P5(a), the signature of PW.11 is at Ex.P5(b) and he also made an endorsement that it was recorded before him.

PW.28-B.K. Narasimhaiah has deposed that on 05.11.2005 at about 7.00 a.m. while he was Station House Officer of Chandralayout Police Station, he received information over telephone from Victoria Hospital Outpost stating that deceased-Noorjahan was admitted with burn injuries and her statement is required to be recorded. Immediately, he rushed to burns ward of Victoria hospital and on consultation with Dr. M. Shankrappa (PW.11) regarding the mental and physical conditions of the deceased to give a statement, recorded a statement of the deceased as per Ex.P5 and obtained thumb impression of deceased-Noorjahan and also he put his signature on Ex.P5. Thus, the contents of Ex.P5 the first dying declaration are fully corroborated by the evidence of PWs.11 and 28.

Coming to the authenticity of Ex.P8 the second dying declaration, we have the evidence of PW.12-Speical Tahsildar, Bengaluru North, Bengaluru and PW.24-Dr. Varalakshmi. PW.12-A.S. Patil, has deposed that on 05.11.2005 he was requested by Chandralayout police to record the dying declaration of deceased-Noorjahan and accordingly he went to burns ward of Victoria hospital at about 5.00 p.m.; he approached PW.24 the doctor who was treating her and made enquiry as to her conditions to make a statement. PW.24, inturn gave an endorsement stating that she was in a condition to give statement. Thereafter, PW.12 enquired with the deceased in the presence of the doctor as she was conscious and oriented. She had bum injuries. He has deposed that the deceased stated before him that on 04.11.2005 at about 10.30 p.m. the accused No. 1 picked up quarrel with her as she was wearing Chudidar given to her by her mother, accused No. 1 bolted the door of the house from inside, poured kerosene and set fire to her. Accordingly, he recorded her statement as per Ex.P8 and obtained a right hand thumb impression and handed over the statement to the Investigating Officer. PW.24-Dr. Varalakshmi has deposed that on 05.11.2005 while she was Casualty Medical Officer in Victoria Hospital PW.12-Special Tahasildar, Bengaluru North, Bengaluru, came to the hospital at about 5.30 p.m. in order to record the statement of the deceased, he enquired with her regarding the conditions of the deceased to give her statement, she examined the patient who was in a fit condition and accordingly, she gave an endorsement to that effect. Thereafter, PW.12 recorded the statement of the deceased as per Ex.P8. The endorsement made by the doctor regarding the conditions to give statement is at Ex.P8(b), signature of the doctor is at Ex.P8(c). Though all these witnesses were cross-examined, nothing has come out of it so as to disbelieve their testimony. Moreover, all of them were official witnesses having no interest either in the victim or accused. Thus, the contents of Ex.P8 are also fully corroborated by the evidence of PWs.12 and 24.

On behalf of the defence, DWs.1 to 3 were examined. They are said to be neighbours of deceased and accused No. 1. They deposed that when the deceased came out of her house engulfed by flames and raised hue and cry, DWs.1 to 3 went to her rescue and extinguished the fire by bed sheet. They have further deposed that on enquiry the deceased told them that she caught fire on account of stove burst while boiling milk. Though their evidence is admissible under Section 6 of the Evidence Act, their evidence does not inspire the confidence of the Court, since neither the stove nor the vessel used for boiling milk were found on the spot when accused No. 1 took the police and panchas to the kitchen room by opening the door of the house on 07.11.2005. Needless to say that they deposed just to help the accused being the neighbour since his wife deceased is no more in this world.

Thus, the prosecution with the evidence of PWs.1 to 7 and 25 established the ill-treatment, cruelty and harassment meted out to the deceased by her husband/accused No. 1. Though the allegations of harassment, cruelty and ill-treatment were also levelled against the other accused who are the in-laws of the deceased, the prosecution has failed to establish the allegations against them. So also, the prosecution has failed to establish the complicity of accused Nos. 2 to 6 in the commission of murder of deceased, inasmuch as the deceased and accused No. 1 were residing separately in a rented house at Gangondanahalli and accused Nos. 2 to 6 were residing in different house No. 13, 11th ''B'' Cross, Hosahalli Main Road, Padarayanapura, far away from the house of accused No. 1. Though there was harassment to the deceased by accused No. 1, the harassment was not for the sake of dowry. So the charges levelled against accused No. 1 under Sections 3, 4 and 6 of the Dowry Prohibition Act and Section 498-A of IPC are not sustainable. So far as charge under Section 302 of IPC is concerned, it is proved beyond reasonable doubt by cogent, convincing, acceptable and reliable evidence. The observation made by the learned Sessions Judge that PWs.11 and 24 the doctors were not at all present while recording dying declarations Exs.P5 and P8 and both the dying declarations were created is contrary to material on record. The learned Sessions Judge failed to evaluate the evidence of PW.12-Special Tahsildar, PWs.11 and 24 the doctors in its proper perspective. Had he assessed the evidence of these witnesses in its proper perspective, the only view that could be taken was to convict accused No. 1 for the offence punishable under Section 302 of IPC. There was absolutely no scope for the learned Sessions Judge to take any other view so far as accused No. 1 is concerned. The view taken by the learned Sessions Judge is perverse and not plausible view having regard to the evidence placed on record. As such, accused No. 1 is liable for the offence punishable under Section 302 of IPC for having committed murder of his wife. Accordingly, we pass the following

ORDER

i) The appeal is allowed-in-part.

ii) The judgment and order dated 28.02.2011 passed by the Fast Track Court-XVI, Bengaluru City in S.C. No. 288/2006 in so far as acquittal of accused No. 1/Shoukat Ali for the offence under Section 302 of IPC is hereby set aside.

iii) Accused No. 1 is convicted for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand only) and in default, to undergo further rigorous imprisonment for a period of two years.

The rest of the judgment and order passed by the Court below is confirmed.

Send the copy of the judgment to the Court below for implementation of the order.