Karnataka High Court
Mr Syed Shabbeer vs State By Deputy S P on 6 September, 2018
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 06TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.317 OF 2018
BETWEEN:
1. MR SYED SHABBEER
S/O MR ABDUL JAMEEL
AGED ABOUT 29 YEARS,
2. MR ABDUL JAMEEL
S/O MR MOHAN
AGED ABOUT 44 YEARS,
3. MR GULJAR BANU
S/O MR ABDUL JAMEEL
AGED ABOUT 39 YEARS,
ALL ARE R/A JENUKAL NAGAR
3RD CROSS, ARASIKERE TOWN,
HASSAN DISTRICT-573103. ... APPELLANTS
(BY SRI: MANJUNATH G KANDEKAR, ADVOCATE)
AND:
STATE BY DEPUTY S P
ARASIKERE SUB DIVISION
ARASIKERE-573103 ... RESPONDENT
2
(BY SMT: NAMITHA MAHESH B.G., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 17.01.2018 AND ORDER OF SENTENCE DATED
18.01.2018 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HASSAN IN S.C.NO.160 OF 2010 -
CONVICTING THE APPELLANT/ACCUSED NO.1 TO 3 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 498(A),304(B) AND
302 READ WITH SECTION 34 OF INDIAN PENAL CODE AND
SECTION 4 OF DOWRY PROHIBITION ACT. THE APPELLANT-
ACCUSED NOS.1 TO 3 ARE SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR 2 YEARS EACH WITH FINE OF RS.3,000/-
EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A)
OF INDIAN PENAL CODE. FURTHER, THE APPELLANT-ACCUSED
NOS.1 TO 3 ARE SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR 7 YEARS EACH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 304(B) OF INDIAN PENAL CODE.
FURTHER, THE APPELLANT-ACCUSED NOS.1 TO 3 ARE
SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO
PAY FINE OF RS.10,000/- EACH FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF INDIAN PENAL CODE. FURTHER, THE
APPELLANT-ACCUSED NOS.1 TO 3 ARE SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR EACH WITH FINE
OF RS.2,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER
SECTION 4 OF DOWRY PROHIBITION ACT. THE ABOVE
SENTENCES OF IMPRISONMENT SHALL RUN CONCURRENTLY
AND THE APPELLANT-ACCUSED NOS.1 TO 3 PRAYS THAT THEY
BE ACQUITTED.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
3
JUDGMENT
The case of the prosecution is that on 22.04.2010, accused No.1 married the deceased Sakeena who is the sister of CW.1. At the time of marriage, accused was given cash of Rs.85,000/- and 64 pavan of gold ornaments. For about a month, they lived happily together. Thereafter, accused No.1 being the husband and his parents, accused Nos.2 and 3 demanded dowry from the deceased in a sum of Rs.45,000/-. Since the same was not given, she was meted out with physical and mental cruelty. On 05.07.2010, accused Nos.1 to 3 picked up a quarrel with the deceased, threatened her with dire consequences and with an intention to commit her murder, at about 1.00 a.m. on 06.07.2010, accused No.1 throttled her. Based on the complaint lodged by PW.1, the brother of the deceased, a case was registered against the accused for the offences punishable under sections 498A, 304B, 302 read with section 34 of Indian Penal Code and sections 3 and 4 of Dowry Prohibition Act. Investigation was taken up and the charge sheet was filed. In order to prove its case, the prosecution in all examined 15 4 witnesses, marked 12 exhibits along with 13 material objects. The accused pleaded innocent and claimed to be tried. By the impugned judgment, accused Nos.1 and 3 were convicted for the offence punishable under section 498-A of Indian Penal Code and sentenced to undergo simple imprisonment for two years each and to pay a fine of Rs.3,000/- each. Accused Nos.1 and 3 were convicted for the offence punishable under section 304-B of Indian Penal Code and sentenced to undergo simple imprisonment for a period of 7 years each. Accused Nos.1 and 3 were convicted for the offence punishable under section 302 of Indian Penal Code and sentenced to undergo life simple imprisonment and to pay a fine of Rs.10,000/- each. Accused Nos.1 and 3 were convicted for the offence punishable under section 4 of Dowry Prohibition Act, 1961 and sentenced to undergo imprisonment for a period of one year each and to pay a fine of Rs.2,000/- each. The above sentence of imprisonment was directed to run concurrently.
2. Aggrieved by the same, all the three accused have filed this appeal.
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3. Learned counsel for the appellants contends that the Trial Court failed to consider the evidence and material in the right perspective. That the prosecution has failed to establish its case, not only with regard to section 302, but also with regard to sections 498A, 304B as well as sections 3 and 4 of the Dowry Prohibition Act. That all the witnesses being related to the deceased, their statements cannot be accepted. Hence, he pleads that the appeal be allowed, by acquitting all the three accused.
4(i) Same is disputed by the learned HCGP. She contends that, substantial evidence has been let in to prove the case of the prosecution against the accused. That the witnesses have stated with regard to the harassment meted out to the deceased. That the same was communicated to the other witnesses. Therefore, the offences under sections 498A and 304B of Indian Penal Code have been amply proved, by the prosecution, including section 4 of the Dowry Prohibition Act.
4(ii) So far as section 302 of IPC is concerned, the medical evidence supports the case of the prosecution, that the 6 cause of the death, was due to throttling. That all the accused have committed the act of throttling the deceased. Hence, there is no error committed by the trial Court that calls for any interference. The judgment of the trial court being based on evidence and material on record, there is no ground to interfere with the same. Hence, she pleads that the appeal be dismissed.
5. Heard learned counsels and examined the material on record.
6.(a) PW.1 is the brother of the deceased. He has stated that accused No.1 married his sister on 22.04.2010 and they lived happily for a month or so. Thereafter, accused No.1 along with the other two accused, started demanding her to bring more dowry. That at the time of marriage, Rs.50,000/- in cash was given to accused No.1 and Rs.35,000/- in cash and 8 pavan gold was given to accused No.3. Even then, accused Nos.1 to 3 demanded the deceased to bring additional dowry of Rs.45,000/-.They subjected her to cruelty. They would not give her food. Whenever he telephoned his sister, the deceased would narrate the acts of cruelty meted out by the accused. She 7 had even stated that if the demand is not met, they would kill her. On coming to know of the death of the deceased, he and his parents along with ten members of his family, went to the house of the accused. They found the dead body of the deceased. They noticed nail marks on the neck and bruises on the nose as well as both feet. That the bed was scattered. Based on this, he lodged the complaint. That the clothes worn by the deceased were torn. Inspite of cross-examination, he has reiterated the statements made by him in the examination-in- chief. He has narrated about the ill-treatment.
(b). PW.2 is another brother of the deceased. His evidence is similar to that of PW.1. Nothing worthwhile is elicited in his cross-examination to disbelieve his evidence.
(c). PW.3 and PW.4 are paternal uncles of the deceased. They are circumstantial witnesses. They also speak of the harassment being meted out to the deceased.
(d). PW.5 is the panch witness to Ex.P2 -spot mahazar. 8
(e). PW.6 identifies his signature at Ex.P3. He has turned hostile.
(f). PW.7 -Taluka Tahsildar is the witness for the inquest Ex.P4.
(g). PW.8 and PW.9 are the Doctors who conducted the post-mortem and submitted the post-mortem report at Ex.P5.
(h). PW.10 is the Assistant Engineer who drew the sketch Ex.P6.
(i). PW.11 is working as FDA in the Municipality Office of Arasikere. He has produced the Tax Demand Register Extract at Ex.P7.
(j). PW.12 is the Police Constable who carried the FIR to the court.
(k). PW.13 is the Police Inspector who received the complaint at Ex.P1 and registered the FIR at Ex.P8. He has also produced PI report at Ex.P9. He identifies his signature on Ex.P1 and Ex.P8.
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(l). PW.14 is the Police Constable who handed over the dead body to the legal representatives, after post-mortem. He identifies his signature at Ex.P3. He is the witness to the photo at Ex.P10. He identifies M.Os.1 to 3 and 13.
(m). PW.15 is the Investigating Officer.
7. Heard the learned counsels and examined the records.
8. The charge framed against the accused reads as follows:
CHARGE I, H.G. Vijaya Kumari B.Sc., LL.B., Additional District and Sessions Judge, Hassan, do hereby charge you accused:-
1. Syed Shabbir, S/o Abdul Jameel, aged about 20 years,
2. Abdul Jameel, S/o Mohan, aged about 35 years,
3. Guljar Banu, W/o Abdul Jameel, aged about 30 years, 10 All are R/o, Jenukal Nagara, 3rd Cross, Arasikere Town.
as follows:-
That you A-1 being husband, A-2 and A-3 being father-in law and mother-in-law of deceased Sakeena, you A-1 married her about 3 ½ months back and ill treated her physically and mentally for bringing more dowry and subjected her to cruelty so as to drive her to commit suicide and thereby you have committed the offence punishable under Section 498-A read with 34 of Indian Penal Code and within the congnizance of Court of Sessions.
That, you A-1 to A-3 have subjected her to cruelty and committed quarrel on 5.7.2010 and said death of deceased-Sakeena is within 7 years after marriage is dowry-death and thereby you have committed the offence punishable under Section 304-B read with 34 of Indian Penal Code and within the cognizance of Court of Sessions.
That, on 6.7.2010 at 1 a.m., you accused no.1 pressed her neck with intention to commit murder and causing death of deceased Sakeena and you A-1 thereby you have committed an offence punishable under Section 302 read with 34 of 11 Indian Penal Code and within the cognizance of court of Sessions That, on the date of marriage you A-1, demanded and received dowry of Rs.85,000/- in cash, 64 grams of gold ornaments and cloths, subsequent to marriage, you have stated abusing and assaulting Sakeena and ill-treated her and thereby committed the offence punishable under Section 3 of D.P.Act and within the cognizance of the Court of Sessions.
That, on and after the date of marriage you all the accused demanded further dowry of Rs.45,000/- in connection with marriage and thereby committed an offence punishable under section 4 of D.P.Act and within the cognizance of the Court of Sessions.
And I direct that you accused be tried on the said Charge.
9. So far as the offence punishable under section 302 of Indian Penal Code with regard to first accused is concerned, the same is supported by the evidence of the prosecution. The charge sheet against the accused No.1 is that he pressed the 12 neck, with an intention to commit the murder of the deceased. The post mortem report in terms of Ex.P5 would indicate that the death was due to asphyxia as a result of throttling. In the evidence of the Doctors PW.8 and PW.9, they have clearly narrated that they having noticed nail marks over the neck of the deceased, have opined that the death was due to asphyxia as a result of throttling. Nothing worthwhile has been elicited in the cross-examination to disbelieve the evidence of PW.8 and PW.9. Therefore, the prosecution has proved its case that the death of the deceased was due to throttling. The charge under section 302 of Indian Penal code is only with reference to the first accused. Therefore, we are of the view that the finding recorded by the trial court so far as section 302 of Indian Penal Code with reference to accused No.1 is concerned, does not call for interference.
10. The charge under section 302 of Indian Penal Code is only with reference to accused No.1. Therefore, it is amply demonstrated that there is no evidence attributable to accused Nos.2 and 3 with reference to section 302 of Indian Penal Code. 13 Therefore, fundamentally, the trial could not have been proceeded with, for the offence punishable under section 302 of Indian Penal Code so far as accused Nos.2 and 3 are concerned. In the absence of a specific charge, the question of conducting a trial and convicting accused Nos.2 and 3, would not arise for consideration. Therefore, we are of the view that the entire trial so far as section 302 of Indian Penal Code is concerned relatable to accused Nos.2 and 3 becomes legally impermissible. Under these circumstances, the conviction of accused Nos.2 and 3 for the offence punishable under section 302 requires to be set- aside.
11. So far as the offence punishable under section 498A of Indian Penal Code and section 4 of Dowry Prohibition Act are concerned, the evidence of the brothers of the deceased PW.1 and PW.2 would be relevant. They have clearly narrated that the deceased would telephone them and intimate them with regard to the harassment being meted out by all the accused. She would narrate that she was not being given proper food. That there was harassment by all the accused. So far as these 14 witnesses are concerned, there is no worthwhile cross- examination of these witnesses to disbelieve such evidence, nor do we find any reason to disbelieve the evidence of these witnesses. The incident has taken place within a couple of months after the marriage. The harassment being meted out, has been narrated by both the witnesses. Even in the evidence of PW.3 and PW.4 with regard to the harassment of the deceased, has been narrated by them in clear terms. In so far as the cross-examination of these witnesses, with regard to the harassment is concerned, we do not find any ground that would persuade us to disbelieve their evidence. Therefore, we are of the view that the charge under section 498A of Indian Penal Code read with section 34 of Indian Penal Code as well as section 4 of Dowry Prohibition Act with reference to accused Nos.1 to 3 has been cogently established by the prosecution. The acts committed by the accused against the deceased in this case have been amply proved. Therefore, we find that the evidence recorded by the trial court so far as offence punishable under section 498-A read with section 34 of Indian Penal Code and section 4 of Dowry Prohibition Act have been substantially 15 proved by the prosecution. Hence, we do not find any error committed by the trial Judge in convicting the accused for the said offences.
12. So far as section 304-B of Indian Penal Code is concerned, the material on record would indicate that the death having been caused by throttling, is attributable only so far as accused No.1 is concerned. The evidence does not indicate throttling by 3 persons. Throttling can be done only by one person and that is accused No.1. Therefore, we are of the view that in so far as accused Nos.2 and 3 are concerned, there could not be a conviction under section 304-B of Indian Penal Code since the material on record would indicate that accused No.1 committed the murder of the deceased being unable to satisfy the demand of dowry. In the absence of any material on record, to indicate that accused Nos.2 and 3 were also involved in throttling of the deceased, the conviction of accused Nos.2 and 3 under section 304B therefore becomes unsustainable.
13. The records would indicate that the accused No.2 has been in custody as an under trial and has undergone 16 imprisonment for a period of 1 year 8 months and 7 days. Accused No.3 has been in custody as an under trial and has undergone imprisonment, in all, for a period of 1 year 3 months and 23 days. Keeping in mind, the age of the accused Nos.2 and 3, we find that it is just and proper to sentence accused Nos.2 and 3 for the offences punishable under section 498A of Indian Penal Code and section 4 of the Dowry Prohibition Act for the period of detention already undergone by them and to pay a fine of Rs.50,000/- each.
14. The conviction of accused No.1 and sentence awarded with regard to sections 498-A, 304-B and 302 of Indian Penal Code of Indian Penal Code and section 4 of Dowry Prohibition Act as convicted and sentenced by the trial court, is sustained.
15. Hence, we pass the following:
ORDER
(a). Criminal appeal is partly allowed. The judgment of conviction dated 17.01.2018 and order of sentence dated 17 18.01.2018 passed in Sessions Case No.160 of 2010 is partly set aside.
(b). The judgment of conviction and sentence imposed on the accused No.1 for the offences punishable under sections 498-A, 304-B, 302 of Indian Penal Code and section 4 of Dowry Prohibition Act, 1961 is confirmed.
(c). The conviction of accused Nos.2 and 3 for the offences punishable under sections 304-B, 302 of Indian Penal Code read with section 34 of Indian Penal Code is set-aside. Accused Nos.2 and 3 are convicted for the offence punishable under section 498A read with section 34 of Indian Penal Code and section 4 of Dowry Prohibition Act, 1961. They are sentenced to imprisonment for the period already undergone by them. However, they are directed to pay a fine of Rs.25,000/- each for the offence under section 498A of Indian Penal Code and a sum of Rs.25,000/- each for the offence under section 4 of Dowry Prohibition Act each within two months.
(d). In default of payment of fine, they shall undergo imprisonment for a period of six months each. 18
(e). On deposit of the fine amount by accused Nos.2 and 3, entire amount shall be paid as compensation to PW.1 brother of the deceased.
Criminal Appeal is disposed off accordingly.
Sd/- Sd/-
JUDGE JUDGE
Bss.