ISMAIL Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS is one more of the wife burning cases but unfortunately, the facts are even more gruesome than the usual ones in so far as the victim wife in this case by the name of Smt. Kursheed Begum was five months pregnant when she was set on fire by the accused as a result of which, not only did she lose her life but the unborn foetus was also killed. The case in question, namely S. C. No. 26/1992 on the file of the Prl. Sessions Judge, Bellary was disposed of on 6-9-1995 and the accused-husband by the name of Ismail, son of Hannur Sab was convicted of the offence punishable under S. 302, IPC and awarded a sentence of imprisonment for life. The present appeal is directed against the conviction and sentence.

(2.) BRIEFLY stated, it is alleged that on the afternoon of 29-12-1991 at about 2 PM at their residential house at Chapparadahalli, Hospet that the accused had returned home and while taking his meals a quarrel ensued between him and the wife Kursheed Begum as a result of which he is alleged to have doused her clothes with kerosene and set fire to her. Kursheed Begum caught hold of the accused and screamed at the same time and the neighbours rushed there. Between the neighbours and the accused the flames were extinguished and she was taken to the hospital. She was very extensively burnt and the hospital records indicated that the burns were to the extent of about 90% and the records also indicated that she was in a semi-conscious condition when she was taken to the hospital at about 3. 20 PM. The accused had also sustained burn injuries and was also admitted to the hospital for treatment of those burns as is deposed to by PW 13 Dr. Shailaja. Being a medico-legal case, intimation was given to the police who came to the hospital but did not record the statement of the injured as she was in a semi-conscious condition. Dr. Shailaja has deposed to the effect that on the next day i. e. 30-12-1991 at about 2. 30 PM. since the patient was fully conscious she informed the police who came there and PW 14 Bimalingamma who is a woman Head Constable recorded the complaint of the patient which is Ex. P. 23. A case was registered under S. 307, IPC but since Kursheed Begum died on the same night the charge was altered to one under S. 302, IPC. The investigations were concluded and the accused-husband was charge sheeted and put up on trial for the offence under S. 302, IPC. The main evidence in the case consisted of the complaint which had been taken down and which was treated as the dying declaration since Kursheed Begum had died on the same night. The learned trial Judge after a careful scrutiny of the evidence held that the prosecution had established the main charge under S. 302, IPC and convicted and sentenced the accused-appellant as indicated by us above. As regards the subsidiary charge under S. 316, IPC. namely causing the death of an unborn child, the learned Judge acquitted the accused of this and we refrain from making any observations about this charge because the State has not appealed against the order of acquittal.

(3.) AT the hearing of the appeal, Smt. Anasuya, learned counsel who represents the appellant-accused submitted before us that apart from the dying declaration and the evidence of the father of the girl who is PW 5 Khaja Sab that there is virtually no evidence on which the prosecution can rely on in this case because none of the other witnesses including the mother of the deceased Khatoon Bee PW 4 have really supported the prosecution. Dealing first with the evidence of PW 5, the learned counsel pointed out to us that the only incriminating part of the evidence is the statement that is attributed to the deceased Kursheed Begum who is supposed to have told Khaja Sab, the father at about 4 PM. that it was the husband who had set her on fire. What is pointed out to us is that the doctor PW 13 has deposed to the fact that when the injured was brought to the hospital she was in a semi-conscious condition and furthermore that even when the police came there pursuant to the intimation from the hospital that her statement was not recorded because she was not fully conscious. The doctor has next deposed to the effect that at 2. 30 PM. on the next day she informed the police that the patient is fully conscious and that was when her statement was recorded. From this evidence, Smt. Anasuya submits that there can be no dispute about the fact that the deceased Kursheed Begum was in no condition to talk or make a statement on 29-12-1991 when she is alleged to have told her father PW. 5 that the accused had set her on fire. She also relies on the fact that Kursheed Begum had sustained 90% burns and that her condition was precarious and the submission is that having regard to her low state and condition that even the doctor did not permit a statement to be recorded by the police and that it was impossible for her to have made any statement to her father on that day. There are two difficulties in the way of accepting this submission, the first of them being that if the defence contends a particular impossibility then it is the duty of the defence to establish that position in the course of the cross-examination of the relevant witnesses. Nothing has been brought on record in the doctor's evidence to establish that Kursheed Begum was continuously in a semi-conscious condition from the time when she was admitted upto 2. 30 PM. the next day when her statement was recorded. These are serious issues and if the defence contends that the girl was in no position to speak to persons around her i. e. her mother and father who were present there, then it should have been established through the evidence of the doctor or the case papers that this was the factual position. In the absence of this specific factual evidence being brought on record merely because the doctor refers to her being conscious at 2. 30 PM. the next day, we cannot discard the evidence of PW. 5 on this ground; moreso because this statement of PW. 5 has not only gone uncontroverted but in the cross-examination what has come on record is that whereas she was not in a fit condition at 3 PM. , that at 4 PM. she had regained consciousness and spoke to her father implicating the accused. Again, PW. 4 has not fully supported the prosecution. As far as PW. 4 the mother is concerned, for reasons best known to her she has not supported the prosecution case and was declared hostile and her evidence is therefore of no avail to the prosecution. Coming back to the evidence of PW. 5, we have already indicated that the defence has not succeeded in overcoming the specific allegation in the father's evidence to the effect that it was the accused who was responsible for the burn injuries caused to the deceased Kursheed Begum.