Karnataka High Court
Hussain Peer @ Hussain Sab vs The State Of Karnataka on 17 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No. 2760/2006
BETWEEN:
Hussain Peer @ Hussain Sab
S/o. Faqruddinsab
Age. 35 years,
Occ. Agriculture,
R/o. Asavanna Circle,
Nayakara Street,
Gangavathi, District Koppal.
...Appellant
(By Sri C.H. Jadhav, Advocate)
AND:
The State of Karnataka
By Gangavathi Rural
Police Station, Gangavathi,
Koppal, Represented by the
State Public Prosecutor,
High Court Annex Building,
Bangalore-560 001.
...Respondent
(By Sri V.M. Banakar, Additional State Public
Prosecutor,)
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This Criminal Appeal is filed under Section 374 of
the Code of Criminal Procedure, 1973, against the
judgment dated 22.11.2006 passed by the Presiding
Officer, Fast Track Court-I, Koppal, in S.C. No. 9/2005
and convicting the appellant/accused for the offences
punishable under Sections 498-A and 306 of the Indian
Penal Code, 1860.
This appeal coming on for orders this day, the Court
made the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned State Public Prosecutor.
2. The appellant was the accused before the Court below in the following circumstances-
The Gangavathi Rural Police Station had registered a case in Crime No. 96/2004 against the present appellant for an offence punishable under Section 498-A of the Indian Penal Code, 1860 (for brevity 'I.P.C.'), on the basis of a complaint lodged by one Nooruddinsab @ Kareemsab. It was the complainant's allegations that he had three male and four female children, of whom third 3 daughter Naveena Begum was given in marriage to the present appellant - accused, about nine months prior to the date of the complaint. The appellant was working as an Assistant in a Petrol Bunk and Naveena Begum was his second wife. The appellant was already married to another woman, by whom, he had four children. It was further alleged that, after the marriage, the appellant had provided a separate residence for Naveena Begum. Though, initially, the appellant and the Naveena Begum lived happily, it transpires that there was discord between them after about five months, where the appellant totally ignored the needs of Naveena Begum and even refused to provide rations for her day-to-day living. He was also ill-treating and harassing her and though the complainant and other family members had seen the same and on many occasions he had driven her out of the house and at the instance of the complainant and other well-wishers she had been taken back. It transpires that Naveena Begum was three months pregnant, when she lost the child by mis-carriage on 4 21.07.2004 and after Naveena Begum had aborted she was left with the appellant's elder brother Akbar Basha. It is on account of such ill-treatment by the appellant it is alleged that the deceased had committed suicide by pouring kerosene on herself and setting herself on fire on 24.07.2004 in the house of Akbar Basha. The complainant upon receiving the news, had got her admitted in the hospital. She had suffered burn injuries to the extent of 80%. She was initially admitted in Government Hospital, Gangavathi, and later shifted to VIMS Hospital, Bellary, on medical advise. After admitting his daughter at Bellary, the complainant had returned to Gangavathi and lodged the complaint, making the above allegations. The Gangavathi police had thereafter initiated proceedings and after gathering material evidence, had filed a chargesheet, arrested the accused and produced him before the Court. In the meanwhile, Naveena Begum succumbed to the burn injuries. Thereafter, the appellant was also accused of an offence punishable under Section 306 of I.P.C. On 5 taking cognizance of the offence, a Committal Order was passed by the Court of Magistrate. The appellant, thereafter, having pleaded not guilty and having claimed to be tried, the following points were framed for consideration by the Court below-
1. Whether the prosecution proves that the death of Naveena Begum is suicidal?
2. Whether the prosecution further proves that prior to 24.07.2004 the accused was harassing his wife Naveena Begum for petty reasons and thereby committed an offence punishable under Section 498-A of I.P.C.?
3. Whether the prosecution further proves that on 24.07.2004 at 12.00 noon in the house of Akbar Basha the deceased Naveena Begum without bearing harassment of accused poured kerosene on her body and lit fire herself and died on 6 02.08.2004 at 3.15 p.m. and thereby committed an offence punishable under Section 306 of I.P.C.?
4. What Order?
3. The Court below answered point Nos. 1 to 3 in the affirmative and convicted the appellant and sentenced him to undergo two years rigorous imprisonment and to pay fine of Rs.4,000/- for an offence punishable under Section 498-A of I.P.C. and sentenced him to undergo rigorous imprisonment and to pay fine of Rs.6,000/- for an offence punishable under Section 306 of I.P.C. It is that, which is under challenge in the present appeal.
4. The learned counsel for the appellant would submit that the entire judgment of the Court below seeks to place reliance on the evidence of P.Ws. 11, 12 and 13. P.W.11 is the Investigating Officer, P.W.12 is the 7 Tahsildar, who has recorded the Dying Declaration and P.W.13 is the Medical Officer, who had treated the deceased and had stated about the state of mind of deceased, to be able to make dying declaration. The learned counsel, would therefore submit that the ingredients of Sections 498-A and 306 of I.P.C. in order to be established, it was necessary that there ought to be independent evidence of ill-treatment of the deceased by the complainant.
5. The prosecution had sought to establish the case by tendering evidence of P.Ws. 3 to 5, all of whom have made statements before the police and have been treated as hostile, and significantly P.W.9, who was the elder brother of the deceased has himself stated in his evidence that there was no ill-treatment meted out to the deceased by the accused - appellant and further since the complainant had died during the pendency of the proceedings there was absolutely no evidence of ill- treatment of the deceased by the appellant. In the 8 absence of the primary ingredient of having been treated by cruelty, the question of the offence punishable under Section 498-A of I.P.C., there being established, is out of the question. The formal evidence of P.Ws. 11 to 13, in relation to the Dying Declaration, by itself, would not bring home the guilt of charge, it cannot be said that the offence punishable under Section 498-A of I.P.C. was established beyond reasonable doubt.
6. The learned counsel, would further submit that production of the Declaration made by the deceased as per Ex.P-11, which was recorded by P.W.11, and the Dying Declaration at Ex.P-12 recorded by P.W.12 are inconsistent, and secondly, the statements recorded therein merely does not indicate any instance of ill- treatment or cruelty on the part of the appellant - accused. In any event, there is no independent evidence supporting the allegation of cruelty, except the statement of the complainant in the F.I.R. and the so called Dying Declaration.
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7. Incidentally, Ex.P-11 was not even produced in the first instance and it is only on the intervention of the trial Court during the course of the evidence of P.W.11 that the same has seen the light of the day and this has not been explained. Insofar as Ex.P-12 is concerned, it is again in the format of question and answer and it is not clear as to whether the deceased was in a state of mind to have cogently replied to the questions prompting allegations against the appellant. As it is evident from the questions posed and answers elicited that there was concerted effort to make out a case against the accused by the nature of questions posed. Therefore, reliance being placed on the evidence of P.Ws. 11 to 13 and the documents at Exs.P-11 and 12 would result in a gross mis-carriage of justice, if it is held that the charges have been proved beyond all reasonable doubt. The learned counsel for the petitioner would submit that the entire prosecution case, which rests on this evidence cannot be accepted as it does not make out a case against the petitioner. Further, insofar as the allegation of the 10 offence punishable under Section 306 of I.P.C. is concerned, the learned counsel for the appellant would point out that Section 107 of I.P.C. defines abetment and the ingredients that would have to be established insofar as abatement is concerned. Firstly, there is no indication that there was instigation by the appellant to the deceased to commit suicide. On the other hand, she has committed suicide, while she was residing with his brother in his house and the appellant was not even present therein and she had been sent there after she had aborted. The state of mind, which possibly drove her to suicide cannot be attributed to any cruelty on the part of the appellant. Secondly, he would point out that the question of conspiracy, which is another ingredient of abetment, is absent in the case on hand, owing to circumstances of the case. Thirdly, there was no indication of the appellant having intentionally aided the deceased to commit suicide. Therefore, strictly speaking, the allegation of abetment is alien to the circumstances of the case and it could not be said that the prosecution 11 had made out a case for the offences punishable under the aforesaid Sections beyond all reasonable doubt, and therefore, the appellant claims that the Court below was not justified in proceeding to accept the case of the prosecution, on the basis of the vague evidence, as aforeseen.
8. While on the other hand the learned State Public Prosecutor would seek to justify the judgment of the Court below.
9. As rightly pointed out by the learned counsel for the appellant, it was necessary for the prosecution to primarily establish that the deceased was being treated with cruelty in order that the statements recorded and which are attributed to the deceased be accepted in terms of Exs.P-11 and 12. When the very basic foundation of the case of the prosecution was absent, reliance being placed on the Dying Declaration, which incidentally was not signed by the deceased, though the 12 explanation offered is that she was not in a position to affix her signature, because of the third degree burns that she had suffered, a doubt does arise as to whether the prosecution was justified in allegating the offences punishable under Sections 498-A and 306 of I.P.C. without laying the foundation for the case and other attempt has been made, since the witnesses, who could speak of such cruelty had resulted from the statements and on the other hand when there was evidence of the brother of the deceased himself to state that he was not aware of any instance of cruelty, the benefit of doubt would certainly go in favour of the accused. Accordingly, the appeal is allowed and the judgment of the trial Court is set aside. The amount of fine paid shall be refunded to the accused.
Sd/-
JUDGE hnm/-