FATIMA KOM MASTANSAB NADAF Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) AN interesting aspect of the law has fallen for determination in this appeal preferred by the mother of the original A-2 Rajesab Mastansab Nadaf who incidentally is the mother-in-law of the deceased-wife Mehboob Bi Rajesab Nadaf.

(2.) THIS is one more of the wife burning cases, the death having been occurred within two years of the marriage i. e. , at the beginning of June, 1994. The incident had taken place about 10 days earlier at the matrimonial home and the prosecution alleges that on 29-5-1994 the deceased was preparing to heat the water when the mother-in-law A-1 is alleged to have thrown kerosene on her clothes and set fire to her. Mehboob Bi ran out screaming with her clothes on fire and the neighbours extinguished the flames after which she was taken to the hospital as she had sustained extensive burn injuries about 40% of her body. Her parents were informed and they lodged the complaint with the police on 30-5-94 at about 10-30 p. m. alleging foul play. Thereupon the police arrested the two accused for the offences punishable under Secs. 498-A and 304-B of the I. P. C. and Sec. 304 of the Dowry Prohibition Act. It is necessary for us to record that the parties are relatively poor and as is customary the exchange of some money and ornaments had taken place at the time of marriage, but the allegation of the parents of the deceased is that the husband and his mother were harassing and torturing their daughter to get one tola of gold which they were unable to give her. According to them, this was the reason why their daughter was seriously ill-treated and was ultimately set on fire. Since the condition of Mehboob Bi was rather bad, the Magistrate was requested to record her dying declaration which was done on 31-5-94 and the same is Ex. P-26. This is the central piece of evidence in this appeal and we shall deal with it presently. Mehboob Bi's condition deteriorated and she died about one week later. The investigation was completed and the two accused were charge-sheeted and the learned trial Judge at the conclusion of the trial acquitted A-2 of all the charges and convicted the mother A-1 for the offence punishable under Sec. 302, I. P. C. and sentenced her to rigorous imprisonment for life. The present appeal is directed against this conviction and sentence.

(3.) AT the hearing of the appeal, learned advocate Sri V. M. Sheelavant who represents the appellant submitted that the learned trial Judge has wrongly drawn the presumption that arise under Sec. 304-B, I. P. C. and Sec. 113-B of the Evidence Act. He submitted that it is condition precedent, irrespective of the 7 years' time factor that there must be cogent evidence on record before a Court records presumptions that arise in law under these provisions and his contention is that it is condition precedent that there must be dowry related evidence. Analysing the material on record, learned advocate submitted that the learned trial Judge has overlooked this basic premise and has straightway drawn an adverse inference against the accused. He points out to us that the deceased-Mehboob Bi's clothes did in fact catch fire and that she ran out of the house screaming when the neighbours extinguished the flames after which she was taken to hospital. At that time she had sustained about 40% burns but she was conscious and in a position to speak and the learned advocate places heavy reliance on the entries made at the time of admission to the hospital, wherein the deceased herself has summarised the cause of the injuries by mentioning that her clothes accidentally caught fire while she was cooking. Learned advocate points out to us that this was the version at the earliest point of time and he has also relied on the evidence of the neighbours PWs 1 and 3 who are totally silent with regard to any allegation regarding dowry harassment. More importantly, learned advocate points out to us that if this was the cause for the incident, Mehboob Bi would have most certainly mentioned it to the neighbours who are independent persons and even if for any reason they had suppressed it, that the hospital record would have reflected that position. He has very emphatically contended that apart from this being the earliest point of time, that more importantly, when a question was put to Mehboob Bi by a person in authority viz. , the doctor that she would not have given a version that was incorrect and that therefore, the Court must rely very heavily on this evidence. We need to mention here that the learned Addl. S. P. P. tried very hard to convince us, that Mehboob Bi was a poor orthodox Indian house wife who had been tortured and terrorised and that, therefore, for her own self-protection she would have given a guarded version not having the courage to implicate either the husband or his mother. We find it difficult to uphold this explanation because there is nothing on record to indicate that any such pressures would have been used on Mehboob Bi and the record in fact indicates that the husband was not even present and the same applies to the mother. On the other hand, the Courts need to take judicial notice of the fact that when the incidents such as these take place, there is a tendency to involve and implicate those to whom one is hostile, even if there is no ground and under these circumstances, if there was any justification or truth with regard to the alleged harassment and torture over the one tola of gold there can be no doubt about the fact that Mehboob Bi would have squarely implicated both her husband and his mother. She had undergone a traumatic experience, she was in great pain and if at all there was any truth in the allegation she would never have spared those two persons. This is an important aspect of the case and the appellant's learned advocate is justified in advancing the legal submission, that before the presumptions under Secs. 304-B, I. P. C. and 113-B of the Evidence Act can be held against an accused, that it is condition precedent that there must be unimpeachable evidence in relation to the dowry harassment. That evidence is lacking in the present case and the observations of the trial Court, therefore, with regard to such presumptions are unjustified and are liable to be set aside.