MEHIBOOBSAB ABBASABI NADAF versus STATE OF KARNATAKA

MEHIBOOBSAB ABBASABI NADAF v.

3TATE OF KARNA TAK.A

AUGUST l, 2007

[S.B. SINHA AND H.S. BEDI, JJ.]

Penal Code, 1860:

s.302134-Death of woman allegedly caused by her husband and parents-in-law by setting her ablaze-Four dying declarations of deceased recorded-High Court acquitting parents-in-ldw by giving them benefit of doubt but maintaining conviction of husband-Held, conviction can indisputedly be based on dying declaration provided that the same is held to have been rendered voluntarily and truthfully-Consistency in dying declaration is relevant factor for placing full reliance thereupon-On facts, deceased had taken contradictory and inconsistent stand in different dying declarations-Keeping in view the fact that in two of the dying declarations she attributed the acts primarily on her parents-in-law and they having been acquitted, it cannot be said that husband alone was responsible for causing her death-Conviction of husband also set aside.

Evidence Act, 1972-Dying declaration-Contradiciions and inconsistent stands in different dying declarations-Effect of

The appellant alongwith his parents was prosecuted for allegedly causing death of his wife by setting her afire. The prosecution case was that the appellant, on his asking and his wife refusing to put on shirt on their son, got annoyed and thrashed her with broom stick. When she fell down, her parents-in-law poured kerosene on her and ~et her ablaze as result of which she died in the hospitai. On the basis of her four dying declarations, the accused were convicted u/s 302/34. In appeal, the High Court acquitted the parents-in-law of the deceased giving them benefit of doubt but maintained the conviction of the h•1!.band, who filed the instant appeal.

On the question: Whether having regard to the contradictory and/or inconsistent stands taken by the deceased in her dying declarations, the prosecution has established its case against the accused beyond reasonable

doubt

Allowing the appeal, the Court

HELD: 1.1. Conviction can indisputably be based on dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations, which, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied. (Para 6( (717-C, DJ

1.2. The deceased had made four dying declarations; two before the medical officers, one before the Executive Magistrate and one before the police officer. From bare perusal of these dying declarations, it is evident that whereas in one, the victim has attributed the incident to have taken place · accidentally, in another, she attributed the act of abusing and setting her oit fire to her parents-in-law and only in one of the dying declarations she attributed to all the accused the act of pouring kerosene and lighting the same leading to her death. Keeping in view the fact that in two of the dying declarations, the deceased attributed the acts primarily to her parents-in-law and they having been acquitted, it is difficult to hold that the appellant alone was responsible for causing her death. The impugned judgment is, therefore,

set aside accordingly. (Para 3,5,7 and 10) [716-A; 717-8, C, E, F; 718-E)

Mohammed Arshad v. State of Maharashtra & Ors., (2006) 9 Supp. SCR 359=2006 (12) SCALE 370, relied on.

Maniben WIO Danabhai Tulshibai Maheria v. State of Gujarat, (2007) 7 SCALE 93, distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.130 of 2006.

From the Judgment & Order 09. l l .2005 of the High Court of Kamataka at Bangalore in Criminal Appeal No. 1827 of2005.

Kiran Suri, for the Appellant.

Sanjay R.Hegde, for the Respondent

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Appellant herein is the husband of the deceased Hussainbi. They were living at village known as Dodwad. On 29.05.2004 at 'about 11.00 a.m., the appellant is said to have asked the deceased to put shirt on their son Inayat. She allegedly did not do so. Appellant is said to have assaulted her with broomstick. She was also allegedly abused by her mother-in-law and father-in-law. When allegedly she had fallen down, the accused No. 3 (mother-in-law) brought wick stove and poured kerosene on her body and the accused No. 2 (father-in-law) ignited the matchstick setting her on fire. She suffered serious bum injuries. She was taken to the District Hospital. She was later on shifted to KLE Hospital Belgaum where she succumbed to her injuries on 3.06.2004.

on All the prosecution witnesses viz., PWs I to 7 and 9 to 12 who were [c ]

material to prove the prosecution case turned hostile. Even her own parents, brothers and sister-in-law did not support the prosecution case. Appellant and his parents, however, who stood their trial for commission of murder of the deceased Hussain bi, were convicted for commission of the alleged offence under Section 302/34 of the Indian Penal Code relying on or on the basis of the dying declarations allegedly made by the deceased. The High Court, however, by reason of the impugned judgment while holding that the deceased suffered homicidal death opined that despite the clear statement made by the deceased attributing the act of abusing her, pouring kerosene oil on her and setting her fire by parents-in-law acquitted them, while upholding the judgment of conviction passed by the learned Sessions Judge against the appellants, stating:

" ... On reading both the dying declarations, though we find there is possibility of the accused Nos. 2 and 3 also taking part in the ghastly act, the second dying declaration having excluded their participation in setting her on fire, benefit of doubt has to be given to the accused Nos. 2 and 3. This is also in view of the fact that Ex. P22 dying declaration recorded by the A.S.l. shows an attempt by the accused No. 2 to extinguish the fire by pouring water on her. Taking into consideration all these factors, we find that the prosecution has proved the guilt of the accused No. I to the hilt. But as regards the accused Nos. 2 and 3, the circumstances create doubt about the participation of those twl persons and the benefit has to be given to them."

2. short question which arises for consideration before us is as to whether having regard to the contradictory and/ or inconsistent stands taken

by the deceased in her dying declarations, the impugned judgment can be ~~~m~.

3. The deceased had made four dying declarations; two before the medical officers, one before the Executive · Magistrate and one before the police officer. In her statements before .the medical officers, she alleged that while she had been cooking in her ho.use in.the morning at_ 11.00 hours on 29.05.2005, accidentally, the stove burst and she sustained bum injuries. In her dying deciaration recorded by Parappa Gurappa Thotagi, ASI Doddawada Police Station on 30.05.2004 at about 8.30 a.m., she alleged:

"I have been married with Sri Mehbooba Saheb Mamadapur 6 years ago. I have three children. My husband is driver. He was again and again troubling me, beating me. My mother-in-law, father-in-law and husband were forcing me to bring golden chain. They have been giving harassment to me in this manner.

On 29.05.04, in the morning at about 9.30 when I was in the house again my father-in-law, mother-in-law and husband started abusing me. My husband trashed me on my back. As soon as I fell down, they poured kerosene which was in the stove on my body and by lightenmg the match box they burnt me. I do not know what happened thereafter. Now I came to know that I have come to KLE Hospital and am availing medical treatment here. I came to know that my body has been. fully . burnt. As my husband, father-in-law and mother-m-Iaw are responsible for pouring kerosene and burning me. I am giving this statement for getting appropriate punishment to my father-in-law, mother-in~law and to my husband and written on my telling and heard.'.'

4. Yet in another purported dying declaration made by the deceased, which was recorded on 31.05.2004 by the Executive Magistrate, she alleged:

"That on 29.05.04 in the morning at about 11 o'clock when I was in the home, my husband Mehabooba asked to put shirt to Inayetha. I refused to do so. By saying that I have not obliged his words, he took the broom stick lying there and started to trashing me from its handle;: on my back. By then I fell down. My father-in-law Abbas Ali and mother-in-law Gorima both abusing me took t.he stove w.hich was then (sic) and poured the kerosene from it and put fire. Because of the .burning inflation I started shouting and rushed towards bath room. By then my husband and father-in-law poured water on my

body as my body was burning high, they brought me out from my house. The people in the lane gathered by then. My husband brought vehicle over there. The elders in our lane Rajasaheb Nadaf and Hubballi Rajesab and my husband brought me to Dharavada Government Hospital for treatment..."

5. We have been taken through the evidence of PWI3 Dr. Balappa Basappa Oni, PW14 Dr. Rajashekara Chennabasappa Angadi and PW16 Parappa Gurappa Thotagi before whom the aforementioned purported dying declarations were made. From bare perusal of their depositions in regard to recording dying declarations of the deceased, it is evident that whereas in one, she attributed the· incident to have taken place accidentally, in another, attributed the act of abusing and setting her on fire on her parents-in-law and only in one of the dying declarations she attributed the act of pouring kerosene and lighting the same leading to her death on all the accused.

6. Conviction can indisputably be based on dying declaration. But, before it can be acted upon, the same must be held to have been rendered ·voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.

7. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the State, however, submitted that the entire act of abusing, beating and setting the deceased on fire constitutes one transaction. Assuming the same to be so, keeping in view the fact that in two of the dying declaration~, the deceased attributed the acts primarily on her parents-in-law and they having been acquitted, it is difficult to hold that the appellant alone was responsible for causing her death.

8. In Mohammed Arshad v. State of Maharashtra & Ors;, (2006) 12 SCALE 370, this Court opined as under:

"So far as the appeal preferred by Mohammed Ashraf is concerned, we are of the opinion that he is entitled to benefit of doubt. He was not named in.the first two dying declarations. He was named only in the 3rd dying declaration. No injury by stick was found on the back of the deceased. The motive ascribed as against him did not find place in the First Information Report. Evidently, the . deceased made

improvement in his .3rd dying declaration before the Police Officer.

K~eping in view the backdrop of events, we fail to se~ any reason as to why appellant Mohammed Arshad would not have been named in the I st or 2nd dying declarations if the rmftive for his involvement was non-payment of sum ,9f Rs.60,000/- as was disclosed by the deceased.

This Court in Balbir Singh & Anr. v. State of Punjab, (2006) 9 SCALE 537 relying upon several decisions of this Court including State of Maharashtra v. Sanjay s/o Digambarrao Rajhans, [2004] 13 SCC 314 and Muthu Kutty & Anr. v. State by Inspector of Police, T.N., [2005] 9 sec 113 held:

"We are of the opinion that whereas the findings of the learned Sessions Judge as also the High Court in regard to guilt of Appellant No. I must be accepted, keeping in view the inconsistencies between the two dying declarations, benefit of doubt should be given to Appellant No.2. We, however, uphold the conviction and sentence of both the Appellants under Section 498-A IPC." ·

· 9. We are not oblivious that in Maniben W/O Danabhai Tulshibai Maheria v. State of Gujarat, (2007) 7 SCALE.93, this Court relied upon the dying declarations but consistent statements had been made by the deceased E. therein.

IO. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. Appellant, who is in custody, shall be released forthwith, if not required in connection .F with any other case.

Appeal allowed.