Karnataka High Court
State Of Karnataka Rep By Ramanagaram ... vs Shafiulla S/O Mohammed Khan @ Bajan on 14 February, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.312/2008
BETWEEN
State of Karnataka
Represented by Ramanagaram
Town Police Station. ...Appellant
(By Sri.N.S.Sampangiramaiah, HCGP)
AND:
1. Shafiulla
S/o. Mohammed Khan
@ Bajan, aged about 25 years.
2. Ashia
W/o. Ahmed Khan @ Bajan
Aged about 60 years.
3. Rafi @ Rafiq Khan
S/o. Ahmed Khan @ Bajan
Aged about 22 years.
(A.1, A.2 and A.4 are resident of
Masjid Mohalla
Railway Station Circle
Ramanagaram Town. ... Respondents
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(By Sri.M.Parthasarathy, Adv.,)
This Crl.A. is filed under Section 378 (1) and (3)
Cr.P.C. praying to grant leave to file an appeal against
the judgment and order of acquittal dated 11.9.2007 in
S.C.No.2/2002 passed by the Ad-hoc Dist & S.J., P.O.,
F.T.C., Ramanagaram, acquitting the
respondents/accused for the offence p/u/S. 498- A &
304- B r/w. 34 of IPC and under Sections 3, 4 and 6 of
the D.P. Act. A.1 is also acquitted under Section 302 of
IPC.
This Crl.A. coming on for hearing this day,
H.S.Kempanna. J., delivered the following:-
JUDGMENT
The State has preferred this appeal challenging the legality and correctness of the judgment and order dated 11.9.2007 passed in S.C.No.2/2002 by the Ad- Hoc District and Sessions Judge and Presiding Officer, Fast Track Court, Ramanagaram, acquitting the respondents/accused of the offences punishable under Sections 498-A, 304-B r/w. Section 34 of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 and A.1 of the charge of the offence under Section 302 of IPC.
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2. It is the case of the prosecution that the deceased Reshma is the daughter of PWs.4 and 5. She had been given in marriage to accused No.1 on 2.5.1996 and their marriage was performed at Ahmed Khan Shadi Mahal at Ramanagaram Town. Accused Nos.2 and 3 are parents of A.1 and accused No.4 is the younger brother of A.1.
2.1 It is further the case of the prosecution, at the time of marriage accused had demanded a sum of Rs.10,000/- and gold ornaments worth of Rs.30,000/- apart from the other articles. The same was given by PWs.4 and 5 to the accused as dowry. After the marriage, the deceased Reshma was living in her marital home with the accused at Ramanagaram. Thereafter, it is the case of the prosecution, the accused started demanding additional dowry and accepted a sum of Rs.17,000/- stage by stage. Despite the same, the accused demanded additional sum of Rs.20,000/-. This was not able to be met by PWs.4 and 5. On account of this, it is the case of the prosecution, the 4 accused were subjecting the deceased to cruelty and harassment.
2.2 It is further the case of the prosecution, the accused in furtherance of their demand for dowry on the intervening night of 18 and 19th December,1999 they doused the deceased with kerosene and set fire to her, on account of which, she sustained burn injuries and succumbed to the same while undergoing treatment at Victoria Hospital on 24.12.1999. In respect of the death of the deceased initially a case was registered in UDR No.520/1999 by OPI Victoria Hospital, which was later transferred to Ramanagaram Town Police Station. It is also the case of the prosecution, after the death of the deceased, the police got inquest held over the body of the deceased by issuing a requisition to the Taluka Executive Magistrate, who in pursuance of the same, held inquest over the body of the deceased and drew up inquest panchanama as per Ex.P.2. At the time Ex.P.2, they noticed burn injuries and on the basis of the said report, PW.9 - ASI of Ramanagaram Town Police Station 5 registered a case in Crime No.218/2009 for the offences under Sections 498 - A, 304 - B, 302 r/w. Section 34 of IPC and under Sections 3, 4 and 6 of D.P. Act, 1961 and issued FIR to the Jurisdictional Magistrate as per Ex.P.8. Thereafter, PW.9 handed over further investigation of the case to PW.11- Investigating Officer. PW.11 thereafter got the body subjected to postmortem examination by issuing a requisition, in pursuance of which, PW.7 - Medical Officer held autopsy over the body of the deceased and issued postmortem report - Ex.P.6. PW.11 during the course of investigation also drew up the scene of offence panchanama as per Ex.P.12 and he also got the sketch of the house of the accused where the occurrence has taken place prepared as per Ex.P.12. Thereafter, he made efforts to trace the accused. During the course of investigation, A.3- father of accused Nos.1 and 4 expired. Other accused namely, A.1, A.2 and A.4 appeared before the police in pursuance of anticipatory bail granted in their favour. They were arrested and released on bail as per the order 6 of the Court. Thereafter, PW.11 on obtaining the relevant documents from the concerned authorities, since the investigation had been completed, submitted final report against the accused before the Jurisdictional Magistrate, who in turn committed the case of the accused to the Court of Sessions, which in turn, on receipt of the records, secured the presence of accused Nos.1, 2 and 4, framed the charges against them as aforesaid, to which they pleaded not guilty, but claimed to the tried.
3. The prosecution in support of its case in all examined PWs.1 to 11 and got marked Exs.P.1 to P.19. The accused during course of examination of the prosecution witnesses got marked Ex.D.1.
4. After the closure of prosecution evidence, the accused denied all the incriminating circumstances put to them found in the evidence of the prosecution witnesses in their examination under Section 313 of Cr.P.C. Thereafter, they examined two defence witnesses 7 in support of their case as DWs.1 and 2 and got marked Exs.D.2 and 3 through them. Total denial of the prosecution case is the defence of the accused.
5. The learned trial Judge thereafter, on considering the oral and documentary evidence placed on record came to the conclusion that the prosecution has failed to establish all the charges levelled against the accused and accordingly, by the impugned judgment and order acquitted the respondents/accused.
6. The State being aggrieved by the judgment and order of acquittal is in appeal before this Court.
7. Sri.N.S.Sampangiramaiah, learned High Court Government Pleader, assailing the impugned judgment and order contended that the trial Judge without appreciating the evidence of PW.4-mother of the deceased Reshma has come to an erroneous conclusion in holding that the prosecution has failed to establish the charges. He further contended that the evidence and material on record also goes to show that the 8 deceased had been subjected to cruelty and harassment both mentally and physically on the ground of demand for dowry and despite this material on record, the trial Judge without appreciating the same in its right perspective has come to the conclusion that the prosecution has not proved the charges levelled against the accused and the said finding is contrary to the evidence on record, which cannot be sustained, it be set aside and the respondents/accused be punished in accordance with law.
8. Countering the submissions made by the learned High Court Government Pleader, learned counsel for the respondents/accused supporting the impugned judgment and order contended that absolutely there is no evidence to show that the accused had subjected the deceased to cruelty and harassment either mentally or physically. The evidence on record reveals the deceased was leading cordial marital life along with accused No.1 in her marital home. The prosecution has suppressed the relevant materials by not examining the material 9 witnesses. The evidence of DWs.1 and 2 clearly goes to show that the deceased died on account of burn injuries in an accidental fire. The evidence of DW.1 and the documents Exs.D.2 and D.3 clearly go to show that the accused are in no way connected with the deceased sustaining burn injuries and succumbing to the same. He further contended that except the evidence of PW.4, there is no evidence placed on record by the prosecution to show that there was any demand made by the accused for dowry. The evidence of PW.4 does not corroborate with the evidence of PW.5 -her husband and hence it is untrustworthy. The learned trial Judge on a close scrutiny of the evidence on record has come to the right conclusion in holding that the prosecution has failed to establish the charges levelled against the accused, which finding does suffer from any infirmity calling for interference in this appeal and therefore, it be dismissed.
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9. Taking the rival submissions, the evidence and documents on record, the point that arises for our consideration is:
"Whether the impugned judgment and order of the trial Judge calls for any interference?"
10. The admitted facts are the deceased is the wife of accused No.1. After the marriage, she was living with A.1 in her marital home at Ramanagaram. According to the prosecution, the accused had demanded dowry at the time of marriage and also after the marriage and the same was met by PWs.4 and 5. Despite the same, the accused were persisting the deceased to bring additional dowry of Rs.20,000/- and in that direction they were subjecting the deceased to cruelty and harassment and as the same was not met, on the intervening night of 18th and 19th of December, 1999, they doused her with kerosene and set fire to her, due to which, she sustained burn injuries and succumbed to the same while undergoing treatment at Victoria Hospital on 24.12.1999.
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11. The prosecution in order to establish that the deceased was being subjected to cruelty and harassment on account of demand for dowry has relied upon the evidence of PWs.1, 4, 5, 6, 8 and also PW.10. Among these witnesses, except PW.4 - mother of the deceased, all other witnesses including the father of the deceased have turned hostile to the prosecution. They in their evidence have stated that the deceased was leading cordial marital life with accused No.1 and the accused had not subjected the deceased to cruelty and harassment on the ground of demand for dowry. PW.5 is none other than the father of the deceased. He has stated that the amount that had been given to the accused was customary and there was no demand for dowry made by the accused. Though PW.4 - mother of the deceased has stated about the demand for dowry, as in the cross-examination she has stated that it was PW.5 who gave the money and she had no knowledge about it, her evidence that dowry had been paid and the accused had demanded the dowry, cannot be believed. 12 Apart from this, there is no evidence on record to show that the deceased reported to the parents about the alleged demand for dowry by the accused. Therefore, under these circumstances, the charge for demand for dowry projected by the prosecution is not established.
12. Now coming to the actual occurrence. According to the prosecution, it took place on the intervening night of 18th and 19th of December, 1999 at about 2.30 a.m. in the house of the accused at Ramanagaram. The evidence on record reveals that immediately after the occurrence the deceased was first removed to the Government Hospital at Ramanagaram and from there to Victoria Hospital at Bangalore. Unfortunately, the prosecution has failed to examine the Medical Officer, who had seen the deceased either at the Ramangaram Hospital or at Victoria Hospital immediately after she was taken to the said hospitals after the occurrence. The evidence of DW.1, who has seen the deceased immediately after the occurrence, reveals that the deceased has given history that she is sustained burn 13 injury in an incidental stove burst and that was put off by her husband - A.1. This is further corroborated from Ex.D.3 - the statement of the deceased recorded by DW.2 while she was undergoing treatment at Victoria Hospital. This piece of evidence has been suppressed by the prosecution in not placing these two documents i.e. Exs.D.2 and D.3. A perusal of the evidence of DW.1 goes to show that the history that is furnished to him when he treated the deceased at the first instance is that she sustained burn injuries in an accidental fire while she was preparing food in the early hours on account of observation of Ramzan fasting. This piece of evidence is also not seriously challenged to by the prosecution. This is amply proved by the evidence of DWs.1 and 2, inasmuch as the deceased sustaining burn injury in an accidental fire on account of stove burst while preparing food. The material on record reveals in the month of December 1999, it was the period of observing fasting on account of Ramzan and it is needless for us to say that on account of fasting, food will be prepared at the 14 early hours. The history of burns that has been recorded by DW.1, which reveals that she sustained burn injury in an accidental fire is also fortified from the evidence of DW.2. The evidence of DW.1 further reveals that the history furnished is to the effect that the accused No.1 put off the fire by pouring water and thereafter, removed the deceased to the hospital for treatment. The learned trial Judge on a close scrutiny of the evidence on record has come to the right conclusion in holding that the prosecution has failed to establish the charges levelled against the accused, which finding, in our view, does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not find any merit in this appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SA