Karnataka High Court
State Of Karnataka vs Akram @ Akram Pasha on 24 August, 2010
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
i
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED Tms THE 24th DAY OF AUGUST 2010.» j
PRESENT
THE I-£OI\E'BLE Mr. JUSTICE K.$REEDHAR'R2xQ"""VV: U 'V
.AND _ .
THE I-ION'BLE Mr. JI'IV;3*£f;x()EVE";5-._\}':PI1\¥TQ"V'A
CRIMENAL APpEAE'V§ro;g_g/2664 1 C
BETWEEN: K t '
State ofKarnataka, V ._
By Shanivarasanthe P:.S,___ _ - '...APPELLANT
(By Sri.G.BhaVa:1i 1:}
AND: '''' " "
Akram @ Akajam Pa.shaj-..AA "
Aged about 21 years,' _ "
Sudugalale Co1c"m'y;t V "
Shanivarasanthe," V V
Talukz Somwarpet, "
,if)ist;,Kod.a:gt£.\.---t.A A. ---------- ...RESPONDENT
(By Sri . fiadeefi ; V&-- v
" .S}':i._._L.S'ud_ha1'sV:I'1an, Advs.}
This Ctimtnai Appeal is filed u/s.378{1} & {3} of Cr.P.C., by
"th'eVLState P.P~for the State praying to grant Ieave to file an appeal
'--._""a_gai_'nst the Judgement dt.28.8.03 passed by the Dist. <3: S.J,
" Kttdagu; Madikeri, in S.C.No.22/00 -- aequitting the
f r__espon§dent/accused for the offences p/u/s.498--A, 304~B & 307 of
T 1190 -13E-L1/S.3, 4 8: 6 of D.P.Aet.
%
This appeal coming for hearing on this day, PINTO, J.,
delivered the following:-- _
JUDGMENT
This appeai is filed challenging the order of by the-Sessions Judge, Kodagu, l\/Iadiigeri Judgment dated 28.08.2003 acquittinghi:he.. responderii' of offence under Sections 304-13, 498--2X'i«and 307V'o_fV_ éections V 3, 4 and 6 of Dowry Prohibition,_Act,""" -
2. The case of the prosectitioné was out from the records is that thé.__deeieased'ivv:as In,arrieduVto" the respondent on 27.03.1997 gthegellizirere residing in a house at Shanivarsanthe: alleged to be ill-treating the deceased ';;:,r., on 06.09.1999 in the morning, quarm; bletikufeen herself and the respondent and thereafteir;t?i:e»--.Vresj::'an_dent is alleged to have poured kerosene on v0""---her and set 0 injured succumbed to the injuries when she ..%_0ifa.*«asnbeing "tre"ated in the hospital at Hassan. Thereby, the it..'_:'re.sp'o'nden't_« is aiieged to have committed offence under Sections
0. and 304--B IPC. It is further charged against him that on said place, date and time, the respondent intentionally % committed the murder of deceased Asmath by pouring kerosene on her and setting fire. Thereby, he is alleged to have coiniiiitted offence under Section 302 IPC. It is also further alleged' 27.08.1997 at the time of marriage, the responderitis it have demanded and accepted dowry of ---:
of 30 grams, one chain of 10 grams, grains from the parents of 3; the'''adeceased*-- ,.an.d_"'_= Hfurtherl demanding the dowry from tlie.p.pareViits'.df pg/ipeceased. 'Thereby he is alleged to have committed 3 and 4 of the Dowry Prohibition:.,.Act.':-_ "against him that having demanded' the as aforesaid from the from the parentsAde.ceased Asmath, the respondent has failed to transferpor "articles to the parents of the deceased within'uth.ree~rnonths; thereof, thereby, he is alleged to cofi1rh1tted"loffenceVunder Section 6 of the Dowry Prohibition Act'.'i*neVprosecutio_ri_,. in order to prove the case, has examined in zilmrginessefsfasl P.W.1 to 1=v.w.21 and got marked Exs.P--1 to and produced M.Os.1 to 4. The defence got marked 2 ll~.'_:V'doc'uinents. After hearing the prosecution and the defence, the h Sessions Judge was pleased to acquit the respondent of all charges. Hence, this appeal by the State. i 1- /2
3. P.W.1 is the father of the deceased Asmath. He hasjstated that about two months prior to the marriage, agreement reached between the respondent ' respondent demanded a sum of ..an_d of gold. Since he was not in a position to givethe convened 2 to 3 neighbours and reached an agreernentithat the a sum of Rs.25,000/-- was to" paid P.VflV'.'1V"'t11rough the respondent before and during further stated that he has given jhumaki to his daughter weighing and 10 grams in all.
Further, giviriig"LheAsedartistes';jlniarriagewwas performed. It is in his evidence after the __started and the respondent was ili--treating his" a sum of Rs.50,000/-- as original1uv"----iifiHiereafter, his daughter was sent to their for further dowry. P.W. 1 further says that after"adirising daughter and the respondent. he was sent back requesting not to il1--treat his daughter. It is his case that on ,ddate___of incident, he came to know that his daughter has ;e_ceiVed"br1rn injuries and he himseif and his wife and 2 to 3 V dd peopieiwent to Shanivarasanthe Hospital. In the hospital. it was /% told that his daughter was in Hassan Govt. Hospita}. He thereafter went to the Hassan Govt. Hospital and saw his daughter andfound burn injuries over the person of his daughter. It is his _'cas_'e_that her daughter--the deceased has toid him that poured her with kerosene, lit fire to her _and__ran PV.'.W'Va" it resident of Hippagalle Village,' ShanivarasantE1e.ii'.He regarding the living of the deceas;ec'i'----._yvith"'tvhe respohidentppiaii house at Shanivarasanthe. s He statedregarding the demand of dowry and also pof; the respondent on the occasion of his maniageianri éoid ornaments of 50 grams. which rings and jhumaki with studs. the injury sustained by the deceasedidiirtiie houseof;:_thep"1'espondent. P.W.3-Prema, P.W_4_ Mohiddinfw -P.W.d3Pr3v}ab;."' I'i'.Viié.;Uma and P.W.7--Nazeer turned .£h(é"Casegof theflupirosecution. P.W.8-Ravi has stated that he a' has carried the deceased from her house to x"~v"t.he Sha._;iiVarasaif:the Hospital. P.W.9--If3asheer Ahmed is a _._iii'_j'jsi.gnato1y to inquest report~EX.P-9. P.W.10-Shabeer Hussain. it~«'.VVV'has:g1aIen"statement regarding the demand of dowry and payment . 'V:r'Viof'ht'he'g?sa1ne to the respondent. P.W.11-Zakriya 21150 Submitted iV""A.regarding the dispute in respect of payment of money in P' the effect that he was present at the time when the statement of deceased was taken by the police. He has stated that he.has_rseen the statement of the deceased at Ex.P--19[a}. He stated in the evidence that the patient was in a csndi:t.ion"of giving .. statement. He has further testified that him that her husband has lit fire on-her. V'P_.v.W.20l.-?1it€t€?;.Ti%;¥i1a is . mother of the deceased. She has 'vclorroboratedlthe evidence of deceased P.W.l in respect' "«dow1'vlHdernand. i1l~ treatment and subsequent spetfiflg eceased by the respondent and also given to her by her daughter in the hefore death. P.W.2I is the elder brother oflp. alsollltestified regarding the ill~
-treatment ofA'th_e" "hands of the respondent. It is from the evidence" of all these «vvitnesses that the learned Sessions h'as<'fc.u=nd* that theldieing declaration given by the deceased carinot on this ground. the learned Sessions Judge ..,,,..,¢1as acquitted.the:--; espondent of the offences alleged against him. AA4. Sri.G.Bhavani Singh, learned S.P.P and l learned counselgfor the respondent.
/Q 4 8
5. Learned SP? submits that the order of acquittal passed against the respaondent is against the principles of criminal jurisprudence. The dieing declaration being recorded the presence of the doctor and that the doctor having been i .-
and categorically saying that the injured was in a _& it statement, the learned Sessions Judge :vhasi"e'£'r_ed in the dieing declaration is not genuine. [I-Iie_ subri1its"'thata.e\ten*, though the offence under Section 30:*l;{Li-I) is notptriade otitfthiere isii a specific charge for oil"er1.c'e._under 'Section 3()i2'"Ii-'Ci and the materials on record would clearly I. the respondent alone has poured kerosene oh the_"Jdece'ase.d and has lit fire on her.
The evidence parents of the deceased and also P.W. 18 that the respondent has caused the d.eathu.vdec'easied. Under such circumstances, he isub'n1itsV'irthat"itheiespondent is liable to be convicted for offence learned counsel for the respondent that the order of acquittal passed by the learned Sessions ".__:"Judge.Visfproper and is based on evidence and therefore, no it interference is called for at the appeal stage. 10 dying declaration and the Version of the doctor. Under the circumstances, we hold that; the respondent and respondent himself is responsible for the death of the deceased _ we have no hesitation to hold that the .Arebspon§;leht---"= murder of his wife and therefore, he isv'-liable 'be' as offence under Section 302 IPC. It'is«-further'obsei'xfed.§l:§yV.V the said dying declaration does not 'derriandV}for dowry nor regarding any referencevltco 'dowrylu HvUnder the circumstances, the order of. the learned Sessions Judge is sound and proper. So far dying declaration does not indicate prove the guilt of the respondent 'A:withi.n of Section 304-13 nor any ingredients Section'3..7' 4 :6 of D.P.Act are made out. Under Ztlielvcirciirnstances, the order of acquittal for offence under Sections and 6 of D.P.Act does not call for interference.
9.uuln. the result, the followiing order is passed:
appeal is allowed. The Order of acquittal passed by the h Sessions Judge is modified. Respondent is convicted for offence under Section 302 IPC. Since it is not the rarest of rare //°'«