Karnataka High Court
State Of Karnataka vs Shameer Pasha on 2 July, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRL.A.No.965/2010
BETWEEN:
STATE OF KARNATAKA
BY MAHILA POLICE STATION
SHIVAMOGGA. ...APPELLANT
(BY SRI NASARULLA KHAN, HCGP)
AND:
1. SHAMEER PASHA
S/O LATE RIYAZ AHAMED
AGED ABOUT 35 YEARS
GARAGE WORK
R/O BY THE SIDE OF
VINAYAKA TALKIES
SHIVAMOGGA.
2. MAMTHAZ
W/O LATE RIYAZ AHAMED
AGED ABOUT 45 YEARS
COOLIE, R/O CLARK PET
4TH CROSS, SHIVAMOGGA.
3. SMT.AKTHAR
W/O IQBAL
AGED ABOUT 36 YEARS
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COOLIE, R/O CLARK PET
SHIVAMOGGA. ...RESPONDENTS
(BY SRI DINESH RAO S, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(1)&(3) OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF ACQUITTAL DATED
28.6.2010 PASSED BY THE PRINCIPAL SESSIONS
JUDGE SHIVAMOGGA IN S.C.No.137/2008,
ACQUITTING THE RESPONDENTS/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 498-
A, 306 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal is directed against the judgment dated 28.6.2010 passed in S.C. No.137/2008 by the Principal Sessions Judge, Shivamogga, wherein accused persons were acquitted for the offences punishable under Section 498A and 306 read with Section 34 IPC.
2. Aggrieved by the acquittal of the accused, State has preferred this appeal.
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3. Basically, case was registered for the offence under Section 498A r/w 34 IPC against Shameer Pasha, Mamthaz begaum and others. This case was on the basis of the complaint lodged by one Fyroz Khan said to be the elder brother of Jabeena.
4. The substance of the complaint lodged by one Fyroz Khan, S/o. Shafiulla Khan, R/o. J.C.Nagar, Shivammoga, which is marked as Ex.P2 is that, Jabeena banu @ Jabeena is his sister, aged 22 years and 4 years back, she was given in marriage to accused No.1-Shameer Pasha, resident of 1st cross, Clarkpet, Shivamogga. Marriage was performed at Taha High School Kalyana Mantap in the presence of elders and well wishers. During marriage, as per customs, jewels and household articles were given. Jabeena begot two children one male and female through the wedlock. Marital life was cordial about 6 months. Thereafter, ill- treatment started, as Shameer Pasha, his mother and 4 aunt started humiliating Jabeena claiming that during marriage no dowry was given and to bring dowry. Complainant says that Jabeena had complained about this and also that accused persons were using very bad language about her parents. About 3 months back to lodging of complaint, Jabeena was in the house of complainant only. One week prior to the incident, the parents and relatives advised Jabeena and asked her to stay and reside in the house of the accused. Again, as the torture started as Jabeena did not brought dowry and was asked to go to her parent's house. She was also humiliated on the count that she does not know domestic work, very often visiting mother's house. When she came to parents home on 06.07.2007. she expressed that there was no peace in her life after marriage.
5. On 7.9.2007, morning at 6.00 a.m., Jabeena, doused herself with kerosene and set herself 5 ablaze, when she started screaming, complainant and others went to the spot, put off the fire and taken her to Mc.Gann hospital, Shivamogga. It is stated that she resorted for extreme step only because of the torture by her husband and his other family members.
6. On the strength of the said complaint, police registered a case in Crime No.69/2007 dated 7.9.2007 for the offence punishable under Section 498A read with Section 34 IPC.
7. Time of incident is shown as 6.00 a.m., on 7.9.2007. The complaint is filed at 6.30 p.m. on 7.9.2007. It is necessary to mention that, there has been overlapping of complaint, for the reason that, complaint Ex.P2 filed by the present complainant Fyroze Khan was at 6.30 p.m. i.e. after 12 ½ hours to the incident of self dousing of kerosene by Jabeena. 6
8. Learned counsel for accused would submit that there is another complaint said to have been lodged by the complainant by way of statement in the hospital, wherein he tells about the incident and the torture suffered by his sister Jabeena. Learned counsel would submit that first statement that was given at about 6.30 p.m. on 7.9.2007. It is also stated that the same was recorded by the Head Constable at Mc.Gann hospital and it is of the complainant-Fyroz Khan, wherein he says that accused persons were humiliating his sister using pin pricking words and it was revealed by his sister/victim and yesterday, on 6.9.2007, she came to the house of the complainant stated that she was being again subjected to cruelty and driven out of house by the accused persons. The complainant and family members advised her, consoled her and asked her to wait. On the date of incident i.e. on 7.9.2007, Jabeena doused herself with kerosene and set ablaze and sustained injuries.
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9. The learned counsel for the accused would further submit that another statement of Jabeena was said to have recorded by the Executive Magistrate and the same is marked as Ex.P10, wherein she has stated that she was married to Shameer Pasha four years back and through the wedlock they got one male and one female children. Since marriage with her husband, mother- in- law, aunty of her husband joined together and were mocking her stating that she did not bring anything from parent's house. The parental people are helpless. Accused used to abuse her that very often she goes to parent's house and she is having affair with some person and insulted her and told her to go and die. Her marital people were not tolerating her visits to parent's house. Accused No.3, aunty of the husband was addressing her with pin pricking words. Accused Nos.1 and 2 further stated that three months back they have attended delivery and her parental people have not spend any amount, they are beggars and asked her to 8 go to her parents house and die. Because of which, she came to her parental house one week back. Parental people and relatives advised her and asked to go to marital house, but the accused persons questioned her as to why she came back, instead, she should have stayed with some other and asked her not to go inside the house instead go somewhere and die. Thereafter, she came back to the parental house on the previous day. The parents consoled her and asked her to stay at home as she was being tortured very often by the accused she was unable to bear. On the date of the statement i.e. on 7.9.2007 at 6.00 a.m. she took kerosene that was available in the house, doused herself and set ablaze and sustained burn injuries. Case was registered for the offence punishable under Section 498A IPC against the accused persons. It is stated that she gave her statement and died on 11.9.2007. This statement is relied by the prosecution as dying 9 declaration. By virtue of her death because of committing suicide Section 306 IPC came to be inserted.
10. At this juncture, it is necessary to mention that learned counsel for respondents would submit case was not registered on the basis of the statement dated 7.9.2007 given by Jabeena marked as Ex.P10 as it was said to have recorded subsequent to registering a criminal case in Crime No.69/2007 for the offence punishable under Section 498A IPC.
11. The statement disclosing the cause for attempting to commit suicide is recorded on 7.9.2007 between 7.00 p.m. to 7.25 p.m., and another statement obtained at 7.25 p.m. to 7.40 p.m. is by the Executive Magistrate, Shivamoga, from the victim lady Jabeena. The said document during the evidence is marked as Ex.P10.
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12. The commencement of the said document is with the endorsement by the Doctor as 'patient is physically and mentally fit to give statement'. Then the caption to the said statement which is in Kannada is: 'it was before Tahasildar and Taluk Executive Magistrate, Shivamoga. Statement by: Jabeena Banu, 23 years; wife of Shameer Pasha, house made, R/o Clark pete, Shivamoga. It is written erroneously as "Maranothara Helike" which literally means 'subsequent to death'. It should have been 'Marana Poorva Helike" (Statement given prior to death). The reference document is, the request letter No.MPS/CR.No.69/2007 dated 7.9.2007.
13. The substance of four lined statement is that, "the victim states that on that day in the morning during namaz period her husband abused her on her character stating she wanders here and there and she got disturbed and because of which, she herself poured 11 kerosene and set ablaze. She was married three years back and has two children."
14. It is stated by the Executive Magistrate that while taking statement "the patient is physically and mentally fit and aware."
15. It was in this background, learned counsel for respondent/accused Sri.Dinesh Rao submit that Ex.P1, the initial version of the complainant, brother of the victim Jabeena and there has been radical improvement in the 2nd complaint filed by the very complainant in the evening. On perusal, a document marked as Ex.P1 which is said to have been written by Head Constable who was posted in the hospital and incidentally, it was treated as statement. However, it was not communicated to the police as neither crime number nor name of the accused or complainant is mentioned. It is vague and bald statement recorded by the police wherein it is stated that the marriage of 12 Jabeena, giving amount, jewels and household articles as per customs, the torture and pin pricking words by the accused persons and very often driving out. Thus, the learned counsel for respondent would submit that the complaint that was lodged as per Ex.P2 is an after thought.
16. In between these two documents, one more document is marked as Ex.P13, which is said to be a letter addressed by the Causality Medical Officer, Mc.Gann Hospital, Shivamogga, to the Sub Inspector of Police, Doddapet, Shivamogga, wherein intimation is passed on by the Doctor regarding the admission of patient, Jabeena Banu being brought for treatment with the history of burns. This communication sent by the hospital was sent to jurisdictional Women Police Station. At 7.25 to 7.40 p.m. on 7.9.2007, the statement of Jabeena was recorded by the Executive 13 Magistrate as per Ex.P10 and he has been examined as PW7.
17. Before recording statement of Jabeena, certification by the Doctor is obtained. Doctor has endorsed that, patient is physically and mentally fit to give statement. The sum and substance of said statement which is marked as Ex.P10 wherein Jabeena speaks to Executive Magistrate. The said statement is recorded in reference to letter addressed to Executive Magistrate, wherein, Jabeena says that she was giving statement before the Tahasildar, Taluka Executive Magistrate that on 7.9.2007, in the morning at the time of namaz, her husband addressed her as lady who has no morality, wanders here and there and abused her, she got humiliated because of which, she drowsed herself with kerosene and set ablaze. Further states that she was married three years earlier. Right hand thumb impression of the victim is affixed. Taluka 14 Executive Magistrate has endorsed as "in my presence"
Signed on 7.9.2007 between 7.25 p.m. to 7.40 p.m. by the Taluk Executive Magistrate, Shimoga Taluk Shimoga. He also endorses that while recording statement patient was physically and mentally fit and aware.
18. Further, in the peculiar circumstance, there comes statement of Jabeena, said to have been obtained in the presence of her mother. The sum and substance is regarding the cruelty and torture posed by both her husband and threatening 2nd marriage and three months back abusing by the accused persons, thereafter, she driven out of house. Again she was brought back to marital house and same exercise happening again. She was frustrated over the insult by the accused, coming back to parent's house on 6.9.2007 and next day, i.e. on 7.9.2007 at 7.00 a.m dousing 15 kerosene. The said statement was not required and only tells on the poor quality of investigation.
19. After completion of investigation, chargesheet came to be filed against the accused persons for the offences punishable under sections 498A and 306 r/w Section 34 of IPC.
20. The trial Judge framed the charges against the accused persons for the said offences and they pleaded not guilty, hence they came to be tried.
21. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 17, documentary evidence of Exs.P1 to P23 and MOs 1 and 2. On behalf of defence, Ex.D1 was produced.
22. Among 17 witnesses examined, witnesses who have supported the prosecution case are: PW1- Fyroz Khan, complainant and brother of Jabeena, PW6-
Pyarijan, mother of the victim. PW2- 16 Dr.S.Rudramaurthy, who has conducted postmortem on the dead body of Jabeena on 11.9.2007 and opined that death was due to Septicemia, due to burn injuries. PW3-Erappa, witness to Spot mahazar, Ex.P4. PW4- Lokeshappa, neighbour who took the injured to hospital. PW5-Waseer Sab, Inquest mahazar witness. PW7-Dr.Amareesh, Tahasildar/Executive Magistrate who has recorded the statement of victim as per Ex.P10. PW8-Dr.Ramesh certified the condition of the patient. PW9-Jagannath Reddy is the owner of the house of PW1. PW10-Bhagyalakshmi, ASI who has arrested accused from hospital. PW11-Dronacharya, HC No.572 is the person who has recorded Ex.P1 which is said to be statement of complainant which has not been considered in the records. PW12-Leelavathi, Women Police Constable who has arrested accused No.2. PW13-Dr. Madhusudhan, Senior Specialist in Mc.Gann Hospital, Shivamogga, who has treated deceased and stated that she suffered 98% of burn injuries. PW14-P. 17 Leelavathi, retired ASI who has registered the complaint and recorded the statement of victim Jabeena. PW15- L.K.Gangappa is the Head Constable who has handedover statement of Shameerkhan and HMR to ASI. PW16-N.Mallikarjuna, is the circumstantial witness. PW17-Ahamad Khan is the witness for Ex.P8.
23. On the basis of the above oral and documentary evidence available on file and after assigning reasons, the learned Trial Judge has acquitted the accused as stated above. Being aggrieved by the same, State has preferred this appeal.
24. Learned Government Pleader appearing for appellant/State submits that, learned trial Judge in the course of assigning reasons for acquitting the accused persons erred in holding that the evidence rendered by any of the witness do not even speak symptoms of the ingredients for the commission of offences. He would 18 submit that there was a total admission before the police and the Executive Magistrate.
25. However, learned counsel for accused submits the reasons assigned by the learned trial Judge for acquitting the accused is just and proper. There is no oral or documentary evidence produced by the prosecution to prove the guilt of the accused. There was a clear cut discussion that second complaint is made to come into existence and the same was written in a way suiting the version of the complainant.
26. Learned counsel for accused/respondent would submit that death did not occur nor the incident happened in the house of the accused. But it was in the house of the complainant.
27. In the circumstances, it is to be seen that on the said day, incident happened at 6.00 a.m. and by 6.30 a.m. she was admitted to hospital and her brother 19 gave the complaint/statement in the evening and FIR is registered on the basis of statement given by him at 6.30 p.m. at which moment criminal case registered in 69/2007 for the offence punishable under Section 498A and 306 read with Section 34 IPC against accused persons, viz., husband, mother- in- law and sister of accused No.2.
28. Cruelty is a factor which leaves the infection of desperation or loss of peace of mind and the weapon of worries. In this case, on 6.9.2007 Jabeena left the marital house and went to her parent's house and this exercise has been said to be reckoned as whenever she left marital house and came to parent's house she was advised to go back to her marital house a week before the incident. But the forces at marital house mainly consisting of accused No.1 drove her to the house of her parents and the same also prevails as one of the incident or circumstances of cruelty.
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29. Insofar as, the statement of victim recorded on 7.9.2007 by PW11-Dronacharya, HC No.572, as per Ex.P1 is concerned, he says for having recorded the statement of complainant. However, the said statement other than the dying declaration is not acted upon as crime number is not mentioned.
30. It is necessary to mention that Ex.P13 is a letter gone from the Causality Medical Officer, Mc.Gann Hospital, to the Sub Inspector, Doddpet, Shivamogga stating that patient was admitted because of the burn injuries. Thereafter, the Executive Magistrate came and recorded the statement of victim as per Ex.P10 which is a statement of four lines said to have been given by the victim.
31. Learned trial Judge has found that in Ex.P10- Dying Declaration, there is no allegation against Accused No.2 mother- law- and Accused No.3- Aunty (Sister of Accused No.2), regarding allegation of 21 demand of dowry and physical and mental torture as per the version of PW1. Learned trial Judge finds that in the complaint and the evidence of PWs 1,2,6 and 7 and that of the IOs there was no grounds sufficiently in- criminative to find the accused guilty.
32. In the context and circumstances, finally the offence that came to be considered is 498A and 306 r/w 34 IPC. Regard being had to the fact that accused Nos.1 to 3 was acquitted.
33. Insofar as acquittal of the accused persons are concerned, learned trial Judge hold that there are no circumstances to find the accused guilty of offence committed under Section 498A and 306 r/w Sec. 34 of IPC as prosecution did not demonstrate beyond reasonable doubt regarding the culpability or instigation by the accused to Jabeena to commit suicide. In this connection, agreeing with the learned trial Judge insofar as finding is concerned for the offence u/s 306 IPC it is 22 clouded insofar as lodging of complaint is concerned. There are reasons for not considering the first statement Ex.P1 and also not explaining the circumstances why the document was discarded. Further there is gap of 12 hours for registering FIR. There is no precise and reliable circumstances and evidence to show that specifically the accused persons meant that Jabeena should die through committing suicide and because of which they actively in furtherance of common intention created the circumstances to instigate the Jabeena to commit suicide.
34. Another important circumstance that has surfaced in this case is, Ex.P10, which is said to be the dying declaration of Jabeena. By the time, Ex.P10 was recorded, Ex.P2 was already filed by the complainant. Thus, the complaint in the form of statement was received by the police at 6.30 p.m. on 7.9.2007. However, the incident of attempt to commit suicide was 23 stated to have happened at 6.00 a.m. in the morning. That means there is a clear cut delay of 12 ½ hours between the incident and lodging of FIR. Regard being had to the fact of non considering Ex.P1. In the further circumstance, unmarked document said to be the statement of Jabeena does not contain the features of statement recorded by the responsible officials, like any other statement recorded under Section 161 Cr.P.C. I do not find the worth reason behind it.
35. In the above circumstances, the evidence that are against the accused what was not considered by the trial Judge is, the allegation of cruelty and torture spoken by PWs 1 and 6 plus Ex.P10. The document Ex.P10 whether could be called as 'dying declaration' in the sense that it states the causes for the victim to come to a decision to commit suicide. However, she died subsequently. As stated above, it contains a cause for Jabeena to commit suicide or murder herself by pouring 24 kerosene and setting ablaze. In Ex.P10, the two parts are present. One is, some set-off facts according to Jabeena and second one is, her decision because of the effect of such facts. The facts are that, she doused with kerosene on 7.9.2007 and set ablaze. Her husband during namaz period in the morning addressed her immoral lady, wanders here and there and she get depressed and took extreme step. She was married three years back.
36. The evidence available in the circumstances establish that deceased Jabeena during her life time was subjected to cruelty by her husband within the meaning of Section 498A IPC. However it does not extend to the extent of committing suicide. Insofar as the other accused persons are concerned, there are grounds to hold them guilt and their acquittal is well founded.
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37. The victim is the mother of two offsprings after having become the wife of accused No.1. There is no complaint regarding the mental condition of Jabeena as to insanity, depression or the victim of psychological disorder or hallucination or living in imagination and she lived in the house of the accused barring during circumstances which are stated by her that she was out of the house because of the accused. But the underlining fact is that, she gave birth to two children. In that circumstances, any symptom of suicidal tendency or the reasons to accept something related to it should have been known to accused persons, more particularly, accused No.1 and he could have chosen to tell what exactly he knew regarding the upset after spending marital life for three years and it did not happen. In the circumstances and evidence, I find, except cruelty or humiliation or torture in the hands of accused as per contents of Ex.P10.
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38. In this connection, Section 106 of Indian Evidence Act, is to be looked into. Section 106 of Indian Evidence Act, reads as under:
106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
39. Thus, I find learned trial Judge miserably failed in appreciating the evidence on record, more particularly, Ex.P10. The evidence and the attendant circumstances suggest that there are no grounds to hold the accused guilty for the offence punishable under Section 306 IPC and to this extent the Judgment of acquittal is to be confirmed. However, the learned Judge ought to have bifurcated the scope of application of Section 306 and 498A IPC and should have convicted accused No.1 who is the 1st respondent in this appeal for the offence punishable under Section 498A IPC. However, learned trial Judge is right in acquitting accused Nos.2 and 3. Hence, I pass the following: 27
ORDER Appeal is allowed in part.
The judgment dated 28.6.2010 passed by the Principal Sessions Judge, Shivamogga in SC No.137/2008 acquitting the accused No.1 for the offence punishable under Section 498A read with Section 34 IPC is set aside and modified holding that accused No.1/respondent No.1 herein is guilty for having committed the offence punishable under Section 498A IPC.
However, appeal against the acquittal of the accused No.1 for the remaining offence i.e. under Section 306 read with Section 34 IPC and also against the other accused persons i.e. accused Nos. 2 and 3 for the offences punishable under Sections 498A and 306 read with Section 34 IPC is hereby dismissed. Learned Government Pleader appearing for State submits for imposing three years imprisonment for 28 accused No.1. However, lenient view is sought for by the learned counsel for accused.
In my sincere and firm view, accused No.1 deserves to be sentenced to under go Rigorous imprisonment for 2 years and to pay a fine of Rs.1.00 lac, in default to pay fine, to undergo simple imprisonment for six months.
Out of Rs.1.00 lac, Rs.95,000/- is to be deposited in any Nationalized Bank in favour of minor children of the accused in equal proportion and Rs.5,000/- to the State.
Accused No.1 is entitled for the benefit of set off under Section 428 Cr.P.C.
Sd/-
JUDGE tsn*