Karnataka High Court
Bibibatula W/O B Shamshuddin vs The State Of Karnataka on 17 January, 2017
Bench: Ravi Malimath, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 17TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2830 of 2012
C/w CRIMINAL APPEAL NO.2504 OF 2013
IN CRL.A NO 2830 OF 2012
BETWEEN
BIBIBATULA
W/O B SHAMSHUDDIN
AGED: 40 YEARS,
OCC: GOVERNMENT SERVANT
R/O.NIDASHESHI
DT: BELLARY
... APPELLANT
(By Sri NEELENDRA D GUNDE and
SRI J.M. GANGADHAR, ADV.)
AND
1. THE STATE OF KARNATAKA
BY KUSHTAGI POLICE
REPRESENTED BY STATE PUBLIC
PROSECUTOR, HIGH COURT BUILDING
DHARWAD-1
2. P JEELAN BASHA S/O P AMIR HAMJA
AGE: 28 YEARS, OCC: LOADER OPERATOR
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IN MSPL
3. P AMIR HAMJA S/O MOHAMMED IBRAHIM
AGE: 52 YEARS, OCC: JAMEDAR IN T B
DAM P S
4. KURSHID BEGAUM W/O AMIR AMJA
AGE: 50 YEARS, OCC: HOUSEWIFE
ALL ARE R/O. BEHIND ITI COLLEGE
SIRISINAKALLU VILLAGE
TQ: HOSPET, DIST: BELLARY
... RESPONDENTS
(By Sri V.M. BANAKAR, ADDL. SPP FOR R1
SRI J. BASAVARAJ, ADV. FOR R2. TO R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF THE CODE OF CRIMINAL PROCEDURE SEEKING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
28.07.2012 PASSED IN S.C.NO.20 OF 2011 BY THE FAST TRACK
COURT-III, HOSPET & CONVICT RESPONDENT NOS.2 TO 4 FOR
THE OFFENCES CHARGED AGAINST THEM UNDER SECTION
498-A, 304B, 306 READ WTIH 34 OF THE INDIAN PENAL CODE
AND SECTION 3 & 4 OF DOWRY PROHIBITION ACT.
IN CRL.A NO.2504 OF 2013
BETWEEN
STATE BY DY. SP
HOSPET SUB DIVISION
... APPELLANT
(By Sri V.M. BANAKAR, ADDL. SPP)
AND
1. P. JEELAN BASHA S/O. P. AMIR HAMJA
AGE: 28 YEARS, OCC: LOADER OPERATION
IN MSPL.
2. P. AMIR HAMJA S/O. MOHAMMED IBRAHIM
AGE: 53 YEARS, OCC: JAMEDAR IN T.B. DAM
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POLICE STATION,
3. KURSHID BEGUM W/O. AMIR HAMJA
AGE: 51 YEARS, OCC: HOUSEWIFE
ALL ARE MUSLIMS
R/O. BEHIND ITI COLLEGE
SIRISNAKALLU VILLAGE,
HOSPET, DIST: BELLARY
... RESPONDENTS
(By Sri J BASAVARAJ, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
& (3) OF THE CODE OF CRIMINAL PROCEDURE SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 28.07.2012 PASSED IN S.C.NO.20 OF 2011 ON THE FILE OF
THE FAST TRACK COURT-III, HOSPET AND FURTHER PUNISH
THE ACCUSED IN ACCORDANCE WITH LAW, FOR THE
CHARGES LEVELLED AGAINST THEM.
THESE CRIMINAL APPEALS COMING ON FOR ORDERS
THIS DAY, K.SOMASHEKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
It is the case of the prosecution that marriage of younger daughter of CW.1 by name Irfan Begum was performed with accused No.1-Jeelan Basha about 4½ years back prior to 13.09.2010 as per their custom prevailing in the society. During marriage, CW.1 and her husband gave cash of Rs.50,000/- and 6 tolas of gold to accused No.1 and the marriage was performed at their cost. Irfan Begum lead happy married only for six months. :4: Thereafter, accused No.1 started harassing Irfan Begum physically and mentally and was also assaulting and abusing her by insisting her to bring dowry from her parents' house. Irfan Begum informed about the said ill-treatment to her mother CW-1. At that time, CW-7-Abdul Gafur, CW-13-Abdul Wazeed, CW-30-Abdul Waheed and CW-31-Arun Rashid and CW-1 went to the house of the accused and advised accused No.1 to lead a happy life and also assured of paying the money. On 05.09.2010, CW-1 took Irfan Begum to her house from the house of the accused on the occasion of Ramzan festival with permission of the accused. On 11.09.2010 in the morning, accused No.3 Kurshid Begum informed over phone to CW-1 that she would go along with her husband-accused No.2 to Shivmogga and asked her to send her daughter-in-law to her house. On that day evening, CW-1 took her daughter to the house of the accused at Hospet. On 13.09.2010 at 5.00 am., CW-1 heard over telephone from CW-31 Mastan about the death of her daughter Irfan Begum. Immediately, CW-1 along with CW-12-Alla Bhakshi CW-28- Nasir and CW-29-Jafer came to the house of the accused :5: at Hospet and saw the dead body of her daughter lying on the cot in the bedroom and noticed injury on her neck and a saree was hanging to the fan. On observing these things, CW-1 confirmed that her son-in-law-accused No.1 had murdered her daughter by hanging with saree to the fan for not fulfilling his demand of additional dowry, between the night on 12.09.2010 and 13.09.2010 before 4.00 a.m. CW-1 lodged a complaint against accused N0s.1 to 3 before the Police Sub-Inspector, Rural Police Station, Hospet, for having given mental and physical cruelty for not fulfilling the demand of additional dowry, had murdered her daughter by hanging.
2. On the basis of the complaint, CW-57 the Police Sub-Inspector registered a case in Crime No.168 of 2010 for the offences punishable under Sections 302, 304-B read with Section 34 of the Indian Penal Code and dispatched First Information Report to the court. He arrested accused No.1 and produced before CW-58 to whom the case was handed over for further investigation. CW-58 took up the case for further investigation and after conducting mahazar, recording voluntary statement of :6: accused No.1 and recording the statement of some witnesses, handed over the case for further investigation to CW-59-Dy.S.P. who in turn took up the case and conducted mahazar, recorded the statement of the witnesses and on receipt of the postmortem report from the Medical Officer completed the investigation and submitted charge sheet against all the accused for the offences under Sections 498-A, 306, 304-B read with Section 34 of the Indian Penal Code and under Section 3 and 4 of the Dowry Prohibition Act. The learned Magistrate took cognizance and committed the case to the Court of Sessions. The case was made over to the Fast Track Court. Charges were framed. The accused pleaded not guilty and claimed to be tried.
3. The prosecution, in support of its case, examined PWs.1 to 21 and got marked Exs.P-1 to P-17 and also got marked M.Os.1 to 9. Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstances appeared against them in the prosecution evidence and did not produced or adduced any evidence in support of their defence.
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4. The learned Sessions Judge on hearing the arguments advanced by the learned Public Prosecutor and the counsel for the accused, held that the prosecution has failed to prove the charges leveled against the accused beyond all reasonable doubt and giving the benefit of doubt, acquitted accused Nos.1 to 3 of the offences under Sections 498-A, 304-B, 306 read with Section 34 of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act.
5. Aggrieved by the said judgment PW-1 who is the complainant and the mother of the deceased has filed Criminal Appeal No.2830 of 2012 and the State seeking conviction of the accused has filed Criminal Appeal No.2504 of 2013.
6. Learned counsel for the appellant-complainant submits that the learned Sessions Judge has misdirected and has misread the evidence on record and has not properly considered the deposition of PWs.1 to 6 and PWs.11 and 12 who have consistently deposed about the accused demanding dowry in the form of cash and 6 tolas of gold and the appellant giving cash of Rs.50,000/- and 6 tolas of gold to her daughter and 3 tolas of gold :8: to accused No.1 and that the harassment meted out to the deceased at the hands of the accused. More over, the dead body of the Irfan Begum was found in the house of the accused and no explanation is offered by the accused in his 313 statement. That the prosecution has established the offences against the accused under Sections 498-A, 306, 304-B read with Section 34 IPC and under Sections 3 and 4 of the Dowry Prohibition Act. The same has not been appreciated by the learned Sessions Judge in a proper perspective and it requires to be appreciated in this appeal and hence, prays for reversal of the acquittal judgment passed by learned Sessions Judge.
7. Learned Additional State Public Prosecutor contended that the learned Sessions Judge was required to consider the evidence on record keeping in view the contents at Ex.P-1 which is filed by PW-1 and fulcrum of Ex.P-5-Inquest panchanama which bears the signature of PWs-7, 8 and 15 and the postmortem report at Ex.P-7 which is issued by PW-13- Dr.Raghavendra Prasad who conducted autopsy over the dead body and also noticed legature marks on the neck of the deceased, :9: Ex.P-8 Histopathology report, Ex.P-11 spot panchanma which bears the signature of PW-17, Ex.P-12 siezure panchanama which bears the signature of PWs-17 and 18, Ex.P-15, voluntary statement of accused No.1 based on which the accused lead the police to the spot and M.Os. were seized in the presence of panchas. These evidence are required to be re-appreciated in this appeal and reverse the acquittal judgment held by the learned Sessions Judge against the accused and convict the accused for the offences levelled against them.
8. On the contrary, learned counsel for the accused has taken a contention that the learned Sessions Judge, who has analysed the evidence put forth by PWs.1 to 21 and Exs.P-1 to 17, where the prosecution did not place acceptable evidence by putting forth the cogent, corroborate and consistent evidence to probablise that accused No.1 gave physical as well as mental harassment to the deceased and so also accused Nos.2 and 3 being in-laws of the deceased gave harassment to the deceased and also that accused No.1 had demanded additional dowry, has rightly come to the conclusion that the prosecution has not been : 10 : able to prove the guilt of the accused beyond all reasonable doubt and has acquitted the accused and that the acquittal judgment does not call for any interference in this appeal and requests to maintain the same.
9. Heard learned counsel for the appellant as well as the counsel for the respondents.
10. Having regard to the strenuous contentions, it is relevant to state that the prosecution is entirely relying on the evidence of PWs.1 to 16 and 19 to 21 in support of its case where PW-1 is the mother of the deceased and author of the complaint at Ex.P-1. Based on the complaint at Ex.P-1, Ex.P-17 FIR has been lodged by the investigating Officer by conducting spot panchanam as per Ex.P-11, seizure mahazar as per Exs.P-12 and 13, recorded voluntary statement of accused No.1 at Ex.P-17, Nikha copy at Ex.P-16-wherein the articles exchanged by the bride and bride groom are mentioned.
11. PWs.1 to 6, 11 and 12 being the prime witnesses for the prosecution have spoken about the marriage talks that were : 11 : held in their presence and accused demanding dowry in the form of cash of Rs.1,00,000/- and 6 toals of gold and that PW-1 gave cash of Rs.50,000/- and 6 toals of gold to her daughter and 3 tolas of gold to accused No.1. Subsequent to the marriage with accused No.1, Irfan Begum went to her husband's house wherein she lead happy married life for six months. Thereafter, all the accused were giving harassment both physically and mentally to the deceased by insisting her to bring additional dowry from her parents house. On 13.09.2010 in response to telephone call they came to the house of the accused and saw the dead body of Irfan Begum lying on the cot and also a saree hanging to the ceiling fan touching the ground and after verifying the injuries on the neck, they came to know that Irfan Begum died due to dowry harassment of the accused despite giving cash and gold items at the time of marriage.
12. PW-1 being the author of Ex.P-1 and mother of the deceased, who has set the law in motion, has stated that the investigating officer has conducted the spot mahazar and also took photographs marked as Ex.P2(a) to (e). She has identified : 12 : the saree seized as M.O.1. PW-1 produced wedding card of the deceased and photos at Ex.P-3 and Ex.P-4(a) and (b). Even she has identified the gold ornaments seized as M.Os.2 to 6.
13. PWs.7 and 8 are the residents of Hospet. Both the witnesses have deposed about the Tahsildar conducting the inquest mahazar as per Ex.P-5 in their presence and they came to know that Irfan Begum died due to dowry harassment. PW-7 has admitted that the police wrote the panchanama prior to their arrival and he does not know the name of other persons present. PW-8 has admitted that PW-1 is the daughter-in-law of his junior uncle and he had gone to the hospital at 10.00 a.m. and the Tahsildar came after 3.00 p.m. and on the Tahsildar calling any person related to the deceased for obtaining signature, he has attested his signature and he does not know who wrote the panchanama but they were present at the time of conducting mahazar at Ex.P-5.
14. PW-9 has deposed that 15 days prior to the incident they decided to hold panchayat regarding harassment of the accused. But before holding panchayat, Irfan Begum died. : 13 : According to him, the Tahsildar came to hospital at 11.30 a.m. as per his telephone call and on the statement written by the police, he has attested his signature.
15. PW-15 is the Tahsildar, Hospet, who conducted inquest mahazar as per Ex.P-5 and recorded the statements of PWs.4, 5, 9 and CW-9, during the course of inquest, the witnesses suspected cause of death was by strangulation.
16. PWs.17 and 18 are the mahazar witnesses to not only the spot mahazar and seizure of M.O.1 as per Ex.P-11 but also to the spot mahazar drawn by the Investigating officer on the basis of the voluntary statement given by accused No.1 and gold ornaments were produced by the accused No.1 in his house marked as M.Os.2 to 6 vide Ex.P-12 and seizure of cloths of the deceased vide Ex.P-13 on 13.09.2010 marked as M.Os.7 to 9. This evidence has also been analysed by the learned Sessions Judge and the same is seen in the impugned judgment.
17. It is relevant to state that PW-1 has not only made much improvement regarding dowry demand and receipt of : 14 : dowry during marriage and subsequent to it but also admitted that the Khaji in their community mentions the articles which were given and taken during the marriage in the Nikha Register(Dafter Nikha) but the said register is not produced. Further, the deceased used to come to her house for delivery and on two other occasions. PW-1 does not know CW.10. The deceased sustained injuries after 6 months of marriage due to assault by the accused but they did not provide any treatment in the hospital. According to the evidence of PWs.2 and 3, the marriage was performed in the month of May 2006 and marriage talks were held one month prior to the marriage. Accused demanded cash of Rs.1,00,000/- and 3 tolas of gold and 6 tolas to the deceased. It was agreed to give cash of Rs.50,000/- and 6 tolas of gold to Irfan Begum and 3 tolas to accused No.1. It is proved from the ocular evidence of relatives of deceased coupled with medical evidence of PW-13- Dr.Raghavendra based on P.M. report at Ex.P-7 and Histopathology report at Ex.P-8, the case of death is consistent with asphyxial death due to hanging.
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18. Under these facts and circumstances, the evidence as put forth by the prosecution to prove the guilt against the accused, it is relevant to state that the heavy burden is upon the prosecution to prove receipt of dowry in terms of cash which was demanded by the accused and also the physical and mental harassment given to the deceased which is meted out by the accused and that the prosecution is bound to prove the willful act or conduct of the accused for instigating or aiding the deceased for committing suicide.
19. Ex.P-1-complaint does not disclose either dowry demand or harassment by accused Nos.2 and 3 till the date of the incident. The complainant has made allegations only against accused No.1 regarding demand of money but nothing has been disclosed in Ex.P-1 so far as demand of dowry in the form of cash of Rs.1,00,000/- and 6 tolas or 5 tolas or 3 tolas of gold as demanded by the accused. This evidence was also analysed by the learned Sessions Judge and came to the conclusion that the prosecution has not placed reliable evidence by putting forth, consistent, corroborative and positive evidence regarding offences : 16 : punishable under Sections 304-B, 306 IPC leading the deceased to commit suicide by hanging and also demanding additional dowry under Section 3 and 4 of the Dowry Prohibition Act.
20. This Court having gone through the entire evidence and material on record, keeping in view the evidence of PW-1 who has filed the complaint being the author as well as the mother of the deceased Irfan Begum who had given information to her about the fact that she was being harassed by accused No.1 both physically and mentally and was insisting her to bring additional dowry in terms of cash despite receipt of dowry during marriage in terms of cash and 6 tolas of gold items and that Irfan Begum committed suicide by hanging with means of a saree in the house of the accused, we are of the view that the prosecution has proved the offence under Section 498-A IPC against the accused No.1 as where the deceased met physical as well as mental harassment in the hands of accused No.1 which lead her to commit suicide by hanging. So far as the offence punishable under Sections 304-B and 306 read with Section 34 of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition : 17 : Act are concerned, the prosecution has not place corroborative, cogent, consistent and positive evidence to prove the guilt against accused No.1 beyond all reasonable doubt and the same is seen in the evidence of the prosecution.
21. It is also to be stated that the prosecution did not place corroborative, cogent and consistent evidence to prove the guilt against accused No.2 and 3 that they were also giving physical and mental harassment to the deceased who is their daughter-in-law, moreover they were not present in the house of the deceased when the incident took place. Considering the evidence and material on record, the learned Sessions Judge has rightly come to the conclusion and acquitted accused Nos. 2 and 3 of the offence punishable under Sections 498-A, 304-B, 306 read with Section 34 of the Indian Penal Code and under Section 3 and 4 of the Dowry Prohibition Act as they held charged.
22. In view of the aforesaid reasons and findings, both the appeals in Criminal Appeal No.2380 of 2012 and Criminal Appeal No.2504 of 2013 are allowed in part. Accused No.2 and 3 are acquitted of the offences under Sections 498-A, 304-B, 306 : 18 : read with Section 34 of the Indian Penal Code and under Section 3 and 4 of the Dowry Prohibition Act.
Accused No.1 is convicted for the offence under Section 498A of the Indian Penal Code.
Heard learned counsels regarding sentence against accused No.1 for the offence under Section 498A IPC.
The accused was in custody for a period of three months and twenty two days during the trial. Hence, this period is treated as the period of imprisonment. He shall also pay a fine of Rs.1,00,000/- for the offence under Section 498A IPC. The said deposit shall be made with the Registry in this Court within a period of one week from today. Thereafter the amount to be transferred to the trial Court for compliance of this order. Out of the fine amount, a sum of Rs.20,000/- shall be paid to PW-1 who is the mother of the deceased, as compensation. The remaining amount of Rs.80,000/- shall be invested in fixed deposit in any Nationalized Bank till the minor children of the deceased namely Tehamin Taj and Mohammed Altif, attain the age of : 19 : majority. The interest accrued on the said deposit shall be reinvested in cumulative deposit.
M.Os.2 to 6, shall be returned to PW-1, as ordered by the trial Court is made absolute.
The amount along with the records shall be transmitted to the trial Court to comply with the order.
I.A. No.1 of 2013 is dismissed as being infructuous. Accordingly, the appeals are disposed off.
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JUDGE Sd/-
JUDGE kmv