SHABEERA HAFIJASAB INAMADAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal presents, once again a set of most atrocious facts and concerns the death of a young wife through burning under most horrifying conditions. The deceased wife Shamshadbi was hardly aged about 20 years and had been married to A-1 about four years prior to the incident. In the early hours of the morning of 2-5-1990 at about 3. 00 a. m. , the prosecution alleges that the three accused were instrumental in dousing her clothes with kerosene and that they set fire to her. The deceased ran and jumped into a tub of water and the flames were ultimately extinguished, but she had suffered 90% burns by that point of time and these burns were also not superficial but were third degree burns which were so deep in certain areas that parts of some of the organs were burnt. It is the prosecution case that the accused had been ill-treating and harassing the deceased among other things on the ground that she had no children. Also, there is some allegation to the effect that A-1 who was a driver had been demanding among other things, a sum of Rs. 2,000/- which the deceased was unable to provide. The incident created a commotion and Shamshadbi was moved to the hospital where she was admitted at about 3. 30 a. m. The police authorities called at the hospital in the morning and recorded her complaint in which she has implicated the three accused persons. According to the police, though the incident took place on 2-5-1990 the accused were absconding for 12 days thereafter and they ultimately surrendered only on 14-5-1990. This is one of the guilty circumstances that have been alleged against the accused. In the complaint statement recorded by the police on the morning of 2-5-1990, the deceased has very clearly stated that the accused used to illtreat her and that it was they who set her on fire. In view of the fact that her condition was bad, the Tahasildar P. W. 19 was asked to record her dying declaration which was done on the evening of that day. On 5-5-1990, Shamshadbi died. The charge-sheet which was originally registered under Section 307, IPC was altered to one under Section 302, IPC and the accused were arrested and put up on trial.

(2.) THE learned Trial Judge after evaluating the evidence took cognizance of the two dying declarations the first one being in the form of a complaint and the second one in the form of a regular dying declaration and he also relied heavily on the evidence of P. Ws. 4 and 5, mother and the brother respectively. These two witnesses have given evidence and their version is identical to the version appearing in the dying declaration and the complaint. The learned Trial Judge accordingly held the three accused guilty of the offence punishable under Section 302 read with Section 34, IPC and convicted and sentenced them to Rigorous imprisonment for life. They were however acquitted of the offence punishable under Section 498-A, IPC. The three appellants have assailed of their conviction through this appeal.

(3.) MR. Deshpande, learned Counsel who represents the appellants, has taken us in some detail through the evidence on record. Pausing here for a moment, we need to allude to one more important factor viz. , that the three neighbours who were P. Ws. 1, 2 and 3 as also P. Ws. 6, 7, 8, 9 and 14 have not supported the prosecution case in so far as they were declared hostile. Again, the learned Additional State Public Prosecutor has pointed out to us that C. Ws. 12 and 13 were not examined and that there is no apparent reason set out anywhere in the record for why this has happened. He has sought to project a strong grievance by submitting that in case after case this Court has been faced with the most unsatisfactory situation of a whole series of prosecution witnesses having turned hostile. The record indicates that they were cited as witnesses because the Investigating Officer found that they had something useful and material to contribute to the prosecution case and despite this position, due to some intervening factors, the witnesses have suddenly somersaulted. The learned Additional State Public Prosecutor submitted that as a result of this state of affairs, in numerous instances the prosecutions virtually fail and the accused go scot-free. It was his contention that appropriate action is very necessary when such a situation manifests itself with alarming regularity and which ultimately results in acquittal orders being passed in favour of the accused in the most serious of cases. On the other hand, Mr. Deshpande, learned Counsel who represents the accused, submitted that the Investigating Officers indiscriminately attribute all sorts of knowledge to the witnesses merely because they may be neighbours or relatives or for any other reason and that in this background, it is only when the witnesses are brought before the Court in the witness box that the real truth comes out. His submission is that there is no presumption that the statements attributed to the witnesses represents the correct state of affairs and that it is only the version which emerges before the Court that is of consequence and in this background he submits that it would be unfair and unjust to even point a finger at the witnesses who had turned hostile or for that matter to assume that the accused had something to do with such a state of affairs. We have considered what has been pointed out by the two learned Counsel and we need to record that the conscience of this Court is disturbed by the manner in which the prosecutions are virtually sabotaged through such extremely improper and down-right corrupt practices. It is impossible for us to accept that the statements and knowledge of the commission of an offence would be indiscriminately attributed to witnesses by the Investigating Authorities. The present case is one in point where P. Ws. 1, 2 and 3 are the immediate neighbours and it is very clear that they would have had not only the knowledge of the background of the case but further-more that when a serious incident of this type took place that they would have seen and' heard a considerable amount. The Investigating Officer was perfectly justified therefore in recording their statements and citing them as witnesses and the same applies to P. Ws. 6, 7, 8, 9 and 14. Despite this position, we find that significantly as large a number as 8 important witnesses have turned hostile. Normally, even if one or two of the crucial witnesses turn hostile, the prosecution case would run into serious difficulties and could fail. The direct beneficiary of this situation is the accused himself and it is therefore impossible for us to accept that when witnesses turn hostile that the accused has nothing to do with it. In our considered view, it is in order to benefit the accused that the witnesses turn hostile. It makes little difference to us that whether the tactics used consists of intimidation or inducement and furthermore, whether the Investigating authorities are taken into confidence or not, the fact remains that the working of the justice dispensation system is being seriously undermined and in this background where it is very necessary that the law be applied correctly and formally, we consider it eminently necessary that specific directions be issued to the Trial Courts in cases where witnesses of any importance turn hostile to hold and enquire as to what is the background in which this state of affairs has emerged and to take stringent action against whosoever was responsible for such a situation be it the accused the lawyers or even any of the investigating Authorities who have joined hands with the accused for purposes of making available to the accused the benefit of such a situation. In our considered view, unless this is done, the disease which has now reached rather malignant proportions is not likely to be either checked or controlled. It is therefore very much necessary in the public interest that an example be made of those of the guilty persons responsible for this state of affairs. We make it clear that if it is disclosed that the police are responsible for bringing about such a situation that the trial Courts shall institute appropriate counter steps against such errant authorities.