Karnataka High Court
Moosa Ibrahim Gorekhan vs The State Of Karnataka on 24 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24th DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No. 2574/2006
BETWEEN:
1. Moosa Ibrahim Gorekhan,
Aged about 29 years,
Occ: Cycle repairer,
R/o 1st Cross, Subhash Nagar,
Belgaum.
2. Ibrahim S/o Meerasab Gorekhan,
Aged about 60 Years,
Occ: Petty Merchant,
R/o 1st Cross, Subhash Nagar,
Belgaum.
3. Smt.Zahirabi W/o Ibrahim Gorekhan,
Aged about 51 Years,
Occ:House-hold work,
R/o 1st Cross, Subhash Nagar,
Belgaum. .... APPELLANTS
(By Sri Bahubali A.Danawade, Advocate)
AND:
2
The State of Karnataka. ...RESPONDENT
(By Sri V.M.Banakar, Advocate)
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure, 1973 by the advocate for the
appellants against the judgment dated 18.11.06 passed by the
Presiding Officer, Fast Track Court-I and Additional Sessions
Judge, Belgaum, in S.C.No.105/06 - convicting the
appellants/accused Nos.1 to 3 for the offences punishable under
Sections 498-A, 306 of Indian Penal Code,1860 and sentencing
them to undergo simple imprisonment for a period of 2 years
for the offence punishable under Section 498-A of Indian Penal
Code,1860 and also liable to pay a fine of Rs.2000/- each and in
default of payment of fine they are also liable to undergo
simple imprisonment for a period of 6 months and further
sentencing them to undergo simple imprisonment for a period
of 3 years for the offence punishable under section 306 of
Indian Penal Code, 1860 and they are also liable to pay a fine
of Rs.3,000/- each and in default of payment of fine they are
also liable to undergo simple imprisonment for a further period
of 9 months and further sentencing them to undergo simple
imprisonment for a period of one year for the offence
punishable under Section 4 of Dowry Prohibition Act,1961 and
also liable to pay a fine of Rs.1000/- each and in default of
payment of fine they are also liable to undergo simple
imprisonment for a further period of 3 months. All the
substantial sentences shall run concurrently.
This appeal coming on for Hearing this day, the Court
made the following:
JUDGMENT
3 Heard the learned counsel for the appellants and the learned Additional State Public Prosecutor.
2. The appellants are the accused, who have been convicted for offences punishable under Sections 498A, 306 and 304B of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) and Section 4 of the Dowry Prohibition Act, 1961 (Hereinafter referred to as the 'DP Act', for brevity).
3. The brief facts of the case are as follows:-
According to the complaint of one Appalalbaig Subanbaig Mulla, a resident of Murgod, before the Mahila Police Station, Belgaum, to the effect that his daughter Nasimabi, was married to accused no.1 Moosa Ibrahim Gorekhan, who along with accused nos.2,3 and 4, namely, his father, Ibrahim Meerasab Gorekhan, his mother, Zahirabi Ibrahim Gorekhan, and his sister, Basirun Rajak @ Raja Vijapusre, had subjected Nasimabi, to cruelty and harassment 4 for additional dowry. The relentless harassment and cruelty had driven Nasimabi to commit suicide by consumption of poison. It was the complainant's allegation that his daughter had died within 7 years from the date of her marriage with accused no.1 and it would be a dowry death punishable under Section 304B of the IPC. It was further alleged that even at the time of the marriage, the accused had demanded and accepted cash and other gold ornaments towards dowry and it is after the marriage that there was demand for additional dowry and even after the death of Nasimabi, the accused had failed to return cash and other articles received by way of dowry and hence had committed an offence punishable under Section 4 of the DP Act.
On the basis of those allegations, the Police had registered a case in Crime No.1/2006 and took up further investigation. The Corps of Detectives, Anti-Dowry Cell assumed investigation of the case and conducted further investigation. Insofar as the demand for dowry was concerned, 5 it was alleged that the accused had demanded a sum of Rs.1,00,000/- or in the alternative 2 acres of land ought to be registered, in favour of the deceased in Murgod. It is further stated that the deceased who had gone to her parental home for delivery of a child, was not visited by the accused at any point of time even after the birth of a male child and the accused refused to take her back even after two and half years, on the ground that unless the dowry was provided, the deceased cannot enter the matrimonial home. It is in this background that there was a conciliation at the instance of a Khazi, who had issued notice to the deceased and her father, the complainant and though the conciliation had failed, the deceased had finally joined accused no.1 in the matrimonial home, in the belief that he would set up a separate home for the deceased and accused no.1. But however, since accused no.1 had failed to set up a separate house and the deceased having been continuously harassed after she returned with her 6 child to the matrimonial home, she had finally taken the step to commit suicide by consuming pesticide.
It is on those allegations that a charge-sheet was filed. The accused having pleaded not guilty and claimed to be tried, the prosecution had examined 31 witnesses and produced 37 documents and Material Objects, Mos.1 to 5 in support of their case. The trial court had framed the following points for its consideration:-
1. Whether the prosecution has proved beyond all reasonable doubt that Nasimabi wife of accused No.1 consumed poison and died due to poisoning and if so she died a suicidal death?
2. Whether the prosecution has proved beyond all reasonable doubt that while Nasimabi was living with accused no.1 in his house he (Accused No.1) along with his parents accused no.2 and 3 and his sister accused No.4 subjected her to cruelty by their willful conduct which is of such a nature as is likely to drive her to commit suicide and harassed her to bring cash of Rs.1 lakh towards additional dowry or else to get 2 acres of land from her parental 7 house and for this reason subjected her to physical harassment by beating her very often with a view to coerce her and her father to meet their unlawful demand for additional dowry thereby committed an offence as alleged against them?
3. Whether the prosecution has proved beyond all reasonable doubt that Nasimabi committed suicide by consuming poison in the house of the accused situated at 1st cross, Subhash Nagar, Belgaum on 2.1.2006 in the morning and these accused No.1 to 4 by their willful conduct of ill-treatment and harassment meted towards her with a view to coerce her to bring additional dowry of Rs.1 Lakh or 2 acres of land from her parental house, thereby abetted her to commit suicide thereby committed an offence as alleged against them?
4. Whether the prosecution has proved beyond all reasonable doubt that the death of Nasimabi since occurred otherwise than under normal circumstances within 7 years of her marriage with accused No.1 and soon before her death these accused No.1 to 4 have subjected her to cruelty and harassment in connection with demand for 8 additional dowry of Rs.1 Lakh or else 2 acres of land, thereby accused No.1 to 4 have committed an offence of "Dowry Death" as alleged against them?
5. Whether the prosecution has proved beyond all reasonable doubt that accused No.1 to 4 demanded and accepted 3 tolas of gold ornaments worth Rs.30,000/- to be given to the bride and also demanded 5 grams of gold along with clothes and household articles, thereby accepted these articles and cash towards dowry from the parents of Nasimabi at the time of her marriage with accused No.1 and further started demanding cash of Rs.1 lakh or 2 acres of land towards additional dowry, subsequent to the marriage and further failed to return the articles, cash etc., received towards dowry within 3 months after the death of Nasimabi thereby committed offences under the provisions of Dowry Prohibition Act?
The court below answered point No.1 in the affirmative and point nos.2 and 3, in the affirmative as against accused nos.1 to 3 and in the negative insofar as accused no.4 was 9 concerned and point no.4 in the negative and held that insofar as point no.5 is concerned, that accused nos.1 to 3 had committed an offence punishable under Section 4 of the DP Act and sentenced, accused nos.1 to 3 to undergo simple imprisonment for a period of 2 years for an offence punishable under Section 498A of the IPC and to pay a fine of Rs.2,000/- each; to undergo to simple imprisonment for a period of 3 years for an offence under Section 306 IPC and to pay a fine of Rs.3,000/- each and also to undergo simple imprisonment for a period of 1 year for an offence punishable under Section 4 of the DP Act and also to pay a fine of Rs.1,000/- each. It is that which is under challenge in the present appeal.
4. The learned Counsel for the appellants would take this court through the record at length and would contend that insofar as an offence punishable under Section 498A of the IPC is concerned, the evidence of PWs.1,6 and 27 is referred to. PW.1 was the complainant. PW.6 was the mother of the 10 deceased and PW.27 was the brother of the deceased. Since these witnesses were closely related to the deceased, they were certainly interested in ensuring that the allegations were established and the evidence by these witnesses is not first- hand evidence of having witnessed the actual alleged harassment and cruelty meted out to the deceased. The allegations are more in the nature of a deemed harassment, in that, it is on record that the claim of PWs.1 and 6 as well as PW.27, to the effect that on their several visits to the matrimonial home of the deceased and on their request that the deceased be sent along with them, to perform harike, the accused had deliberately refused permission to accompany her parents and brother, on more than two occasions. This had caused much pain and suffering to Nasimabi. Further, it was their case that Nasimabi had intimated of the constant demand for dowry by the accused. Though PW.6 has stated that there was a direct demand for dowry on several occasions by PW.2 and 3, the learned counsel would repeat that such evidence is 11 only to bolster the allegations and cannot be treated as corroborative evidence of an independent witness. They were certainly affected by the death of their daughter and wanted that the accused suffer on account of the same and it is for this reason that the three witnesses have consistently claimed that there was a constant demand for dowry. The further circumstance that the deceased, when she had come to her maternal home for her confinement and delivery of the child, the accused never having visited her for more than two and half years is cited as a further example of harassment and ill- treatment. This, the court below has accepted, as amounting to cruelty under Section 498A. There is no direct averment of any physical cruelty on the deceased. Except the evidence of the parents and the brother of the deceased of such cruelty, though other witnesses have been examined in support of the case of the prosecution, to the effect that there was a constant demand for dowry and therefore, there was harassment, there is no evidence elicited from the said witnesses, as for instance, 12 PW.12, who had accompanied the brother of the deceased. PW.11 would only indicate that his statement that he was told by PW.1 of the demand for dowry, is clearly hear-say evidence and cannot be treated as corroborating evidence supporting the case of the prosecution. Hence, he would submit that the findings of the court below as regards the offence punishable under Section 498A having been established, is not tenable and results in a miscarriage of justice.
It is further contended that it is not in dispute that the deceased had died on account of having consumed poison. The same would amount to suicide by the deceased. It is inexplicable that the present accused have been shown to have abetted the suicide by the deceased. The learned Counsel would submit that in order to constitute abetment, there must be abetment as defined under Section 107 of the IPC. Section 107 requires that in order to contend that a person has abetted the commission of the offence, he should have instigated that other person to do or commit the crime. There is no such 13 instigation that can be demonstrated. Instigation would be to encourage, to goad or to aid a person. In the instant case, it is the allegation of the prosecution that the accused had constantly harassed the deceased, which drove her to commit suicide. This cannot be construed as an instigation. Secondly, it cannot also be said that the ingredients of abetment as contained under Section 107 of the IPC, would not even arise for consideration in the present case on hand. Therefore, the question could be, whether the appellants had instigated the deceased to commit suicide and whether the alleged harassment meted out by the accused would amount to instigation. The learned counsel would submit that going by the dictionary meaning of 'instigation', it cannot be said that the accused had instigated the commission of suicide by the deceased. Insofar as Section 4 of the DP Act is concerned, even assuming that there was demand for money by the accused, accused no.1 was in dire need of funds to improve a cycle shop that he was running for his livelihood and therefore, his request 14 for financial aid has been construed as an illegal demand of dowry and that has been exaggerated by the witnesses for the prosecution as being an harassment and a constant demand for dowry. If at all, he had made this request, it is in order to improve his livelihood and also that of the deceased and not for any illegal or immoral purposes and therefore, the ingredients of Section 4 of the DP Act were again absent, in holding that the accused were guilty of the offence punishable under Section 4 of the DP Act. Therefore, he would submit that the elaborate findings of the court below are not tenable, as the court below has generally reiterated the evidence of the several witnesses while generally holding that the offences alleged have been established beyond all reasonable doubt and therefore, the learned counsel would submit that the appeal be allowed and the conviction be set aside.
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5. While the learned Additional State Public Prosecutor, on the other hand, would vehemently oppose the appeal and would justify the findings of the court below.
He would submit that the assertion of the learned Counsel for the appellants that the findings of the court below are general in nature is an incorrect and uncharitable assertion. He would submit that the court has examined all aspects of the matter in great detail and depth and has left no stone unturned in examining the evidence on record and has arrived at categorical findings on every single aspect of the matter. Therefore, there is no justification in reversing the well reasoned judgment of the court below.
He would submit that insofar as the punishment is concerned, the court has been very reasonable in exercise of its discretionary power and has restricted the punishment to a nominal term, while also acquitting the accused no.4 and therefore, there is no miscarriage of justice and the judgement cannot be challenged on the grounds that have been raised. 16 Insofar as Section 498A is concerned, the definition of 'cruelty' is wide enough to take within its breadth the various degrees of harassment and cruelty that are capable of being countenanced. In the instant case, the court below has given several instances, which would certainly amount to harassment and cruelty, which was sufficient to drive the deceased to commit suicide. The highly technical assertion that no offence could be made out under Section 304 of the IPC, for the reason that there was no abetment of suicide by the appellants is also not tenable. Abetment need not necessarily be restricted to encouraging or aiding the deceased to commit suicide. It is sufficient if the person committing suicide was driven to commit suicide by constant harassment by the accused and therefore, a narrow view sought to be taken insofar as the definition of 'abetment' is concerned, is unfair and therefore, the court below having found that the constant harassment was sufficient to have driven the deceased to commit suicide cannot be faulted. Insofar as an offence punishable under Section 4 of 17 the DP Act is concerned, the learned Additional State Public Prosecutor would submit that admittedly, the accused was seeking financial assistance, which is a polite term for demand for dowry and the justification sought to be put-forth by the appellants cannot be accepted. The court below having arrived at its finding that there was a constant demand for dowry would certainly attract Section 4 of the DP Act and in the light of which, the punishment imposed for an offence punishable under Section 4 cannot also be faulted. He would hence submit that the appeal be dismissed.
6. On these several grounds, it is to be remembered that the relationship between the accused and the deceased is not the same. It is accused no.1, who was the husband of the deceased. His relationship with the deceased could have been most intimate and the same cannot be said of the relationship of accused nos.2 and 3 with the deceased. Their interrogation would be on a different level and would be limited to certain 18 aspects. In that view of the matter, the prosecution having proceeded on the basis that the intention of all the three accused is identical, cannot be readily accepted. The court below also has proceeded on the same footing, which is incorrect. The demand for dowry is essentially by accused no.1. Accused nos.2 and 3, as parents of accused no.1, were intent of ensuring that his demands were met and to that extent they might have encouraged and supported him as and when occasion arose to reiterate such a demand. That circumstance would not place them on the same pedestal as accused no.1. Therefore, though a serious attempt has been made by the learned Counsel for the appellants to hold that cruelty for purposes of Section 498A has not been established, cannot be accepted. As rightly found by the court below, there were any number of instances, which cannot be denied by the accused, which would indicate that there was a constant demand for dowry and it is that which spoiled the relationship between accused no.1, especially and the deceased. Further, it is also a circumstance where the 19 deceased did not come back to her matrimonial home for more than two and half years after the birth of a child. This was apparently for the reason that she was at her tether-end in having to face the constant demand for dowry through the medium of not only the accused no.1, but also accused nos.2 and 3 as well. It is for this reason that she had insisted that a separate home be set up for herself and accused no.1 and their child, which was the reason apparently for her having refused to go back to her matrimonial home. It is on the pretext that a separate home could be set up that accused no.1 had taken her back to her matrimonial home. It is six months later that she had committed suicide. Therefore, the cruelty that is contemplated under Section 498A of the IPC, can definitely be said to be present in the case on hand which drove the deceased to commit suicide.
Coming to the question whether there was abetment to commit suicide for an offence punishable under Section 306 of the IPC, Section 107 of the IPC has indicated as to what 20 constitutes abetment of a thing. As rightly pointed out by the learned Counsel for the appellants, for the purpose of the present case, it can only be established that the appellants had abetted the commission of suicide by the deceased, if they had instigated her to commit suicide. To instigate would mean to stimulate or goad to an action, especially, a bad action. As the deceased was married to accused no.1 in the year 2002 and she had committed suicide in the year 2006 and if the allegation was that there was a constant demand for dowry through out the period six months from the date of their marriage, it is difficult to believe that the instigation or the abetment has come about over such a long period. There is no evidence to indicate that there was demand for dowry immediately preceding the commission of suicide, if a finding that the appellants, accused nos.1 to 3 had abetted the commission of suicide by the deceased. Therefore, even if the definition of abetment can be stretched to a situation where constant demand for dowry by the accused had driven the deceased to commit suicide, would 21 also fall under the scope of abetment of a thing. The sequence of events would not support that contention, as it ought to have been an escalated demand for dowry, which had driven her to commit suicide. Therefore, mere commission of suicide by the deceased, which may be for several reasons, cannot be construed as having been abetted by accused nos.1 to 3. Therefore, the finding that the appellants were guilty of an offence punishable under Section 306 of the IPC has not been established beyond all reasonable doubt. Insofar as Section 4 of the DP Act is concerned, the acceptance of cash and valuables even prior to the marriage and the demand for dowry also having been established during the subsistence of the marriage, the court below having found the appellants guilty of an offence punishable under Section 4, also cannot be disturbed. In which event, the next question that would arise for consideration is, having regard to the circumstances of the case, whether the court below was justified in imposing the quantum of punishment that it has, by its judgment, for offences under 22 Section 498A of the IPC and Section 4 of the DP Act. The Court below has thought it fit to impose a common punishment of simple imprisonment for two years for an offence punishable under Section 498A and a fine of Rs.2,000/- each, and simple imprisonment for one year with a fine of Rs.1,000/- each for an offence punishable under Section 4 of the DP Act. As already pointed out, the court below could not have put the three accused in the same bracket. It ought to have imposed the punishment of varying degrees on the said accused for the kind of relationship that existed between the deceased and the accused. Therefore, it would be necessary for this court to modify the quantum of punishment. Secondly, the degree of punishment also would have to be taken into account. The maximum punishment that could have been imposed for an offence punishable under Section 498A was three years and the court below having thought it fit to impose two years on all the accused is, therefore, disproportionate. Thirdly, insofar as the punishment for an offence under Section 4 of the DP Act is 23 concerned, it could extend to a maximum punishment of six months. However, that again appears to be disproportionate insofar as the accused are concerned. Further it is also stated, which is not in dispute, that accused no.1 has already spent eleven months in custody during the trial. Similarly accused no.2 has spent three months in custody. Accused no.3 has managed to remain on bail throughout, but she is now aged about 57. Having regard to the fact that the son of the deceased, who is now residing along with accused nos. 1 to 3 is aged about 12 and he is school-going and has been taken care of by the accused, in order to ensure that the punishment of imprisonment that accused nos.1 and 2 have undergone already, would be held adequate punishment for offences punishable under Sections 498A and Section 4 of the DP Act. Insofar as accused no.3 is concerned, since she is a woman and now aged 57, it would suffice if she is convicted and sentenced to undergo imprisonment, by directing that she be detained in the trial court on 27th August 2012, from the time of its 24 commencement till it rises for the day. Accordingly, the punishment stands modified in terms as above. The appellants are acquitted of an offence under Section 306 IPC.
The appeal stands disposed of.
Sd/-
JUDGE nv