Karnataka High Court
S Mahaboob Basha S/O S Valisab vs State Of Karnataka on 29 October, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
CRL.REVISION PETITION No.2148/2010
BETWEEN:
S MAHABOOB BASHA
S/O S VALISAB
AGE: 45 YEARS, R/O. PLOT NO. 270
EX-SERVICEMAN COLONY
NEAR GOLDSMITH COLONY,
C B BALLARY
... PETITIONER
(By Sri RAVI HEGDE, ADV.)
AND
STATE OF KARNATAKA
BY ITS PUBLIC PROCECUTOR
HIGH COURT OF KARNATAKA
CIRCUIT BENCH DHARWAD.
... RESPONDENT
(By Sri V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED U/S
397 R/W 401 SEEKING TO SET ASIDE THE ORDER PASSED
BY THE FAST TRACK COURT-I,BELLARY IN CRIMINAL
APPEAL NO. 74/2009 DATED 01.04.2010 IN CONFIRMING
2
THE JUDGEMENT, ORDER OF CONVICTION AND SENTENCE
PASSED IN C.C.NO, 505/2003 DATED 03.04.2009 ON THE
FILE OF PRINCIPAL JMFC, BELLARY.
This petition coming on for hearing this day, the court
made the following
ORDER
Revision is against the judgment in Crl.Appeal No.74/09 by which his conviction for the offences punishable under Sections 323 and 498A, I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act as recorded by the trial court in C.C.505/03 is affirmed.
2. Heard learned counsel for the petitioner, Sri Ravi Hegde and Sri V.M.Banakar, learned Addl. SPP for the respondent-State. Perused records which reveals:
a) On the basis of querimony submitted by Noorunnisa, case was registered and after due
investigation, final report has been filed in C.C.505/03 raising charges against the petitioner for the offences indicated above against the petitioner and his father. In support of the charges, complainant alleged she was 3 married to the petitioner according to Islamic rites and she entered matrimony after satisfying the demand raised by him and his father to pay Rs.1,00,000/- as dowry, 25 tolas of gold, silver ornaments and other valuable appliances. However, they could arrange Rs.50,000/- in cash and requested him to accept. He accepted cash ofRs.50,000/- and other valuables and entered Nikah with the complainant.
b) During her stay in his house at Gandhinagar, petitioner as also his parents are alleged to have renewed their demand for dowry and to secure it, indulged in physical and mental torture. On 25.5.2001 at 9.30 p.m., petitioner is alleged to have gone to her parents' house where he abused her in filthy language, pulled her and kicked her; there was nobody to rescue her. When her younger brother-Nazeer and his friend Rajesh tried to rescue her, he held threat to kill them. However, she endured the onslaught and continued her efforts to reconcile which was of no avail. In the said incident, petitioner is alleged to have assaulted Nazeer causing 4 injury. When her father-Sultansab saw the incident, he could not bear and suffered heart attack and had to be hospitalised. Thereafter the relationship could not improve and the petitioner is said to have continued threats and attempts for additional dowry.
c) Report in this regard was registered in Crime No.101/01 by Dy.S.P. (CW5) who visited the place of occurrence, prepared spot mahazar and recorded the statements of witnesses. Since prima facie case was made out, charge sheet was filed. Petitioner and his father were arrested and they were put to trial in which they took up defense of denial simplicitor.
d) In the trial that ensued, complainant tendered evidence as PW1, her brother tendered evidence as PW2, her father was examined as PW3, mother as PW4, another brother as PW5. All of them have in unison spoken about the violence perpetrated by the petitioner and his father in harassing the victim. Prosecution examined in all 17 5 witnesses and placed reliance on 6 documents; no material objects were seized.
e) Considering the evidence on record, learned trial judge found prosecution established the charge and convicted both of them for the offences indicated above and imposed consequent sentence. The petitioner preferred appeal in Crl.Appeal No.62/09 while his father preferred Crl.Appeal No.74/09. Both the appeals were clubbed and heard together. Learned appellate judge opined the charge against 2nd accused was not established beyond reasonable doubt and recorded acquittal while confirming conviction of the petitioner against which he is in revision.
3. Learned counsel for the petitioner would contend the allegation of payment of dowry was raised only to subject the petitioner to humiliation. He submits he is a man of means and owns several immovable properties and indulged in no crime. He denies the allegation of alleged physical and mental cruelty as no complaint is lodged about any such incident. Lastly he 6 would submit petitioner is a victim in the hands of the complainant who had independent character and there was no compatibility of temperaments. Consequent to such mismatch, the marriage did not work. He read out to me the evidence of the complainant, her mother and brother to show there is no consistency in their version with regard to alleged demand for dowry or assault. He submits, marriage had taken place 10 years prior to the complaint during which period no report was lodged. This itself would show complaint was belatedly filed as complainant did not want to live with the petitioner. Several other contentions are raised by him to seek acquittal.
4. Learned Addl. SPP, Mr.Banakar has supported the impugned judgment of the trial court, but admits that prosecution has not challenged acquittal of the 2nd accused. In this fact situation, we have to now see whether the material evidence on record establishes the charge against the petitioner for the offences indicated above. 7
5. PW1-Noorunnisa is the complainant and wife of the petitioner. According to her, on 6.2.1994 she was married to the petitioner after giving Rs.50,000/- towards dowry and 25 tolas of gold ornaments, besides other valuable appliances and utensils. For five months her life was a bliss, but on the fateful night, petitioner quarrelled with her demanding Rs.50,000/- more to make it Rs.1,00,000/- and from that date, she had nightmarish experiences. He was taken to ill-habits like alcohol and harassed her. His father- 2nd accused joined him and both humiliated her verbally and tortured her physically. She endured the onslaught for 2 years and when it was unbearable, she went to her parents' house and narrated the incident to her father-Nazeer Ahmed; Panchayat was convened and report was also lodged, but Panchayat members advised settlement. Hence complaint was dropped.
6. About her marriage with the petitioner, there is no dispute. Therefore no reference need be made to documentary evidence which is Ex.P2-wedding card and Ex.P3-Nikahnama as also Exs.P4 to P6-photographs. It is 8 her case she delivered two daughters out of the wedlock but the accused did not improve his conduct. However, several Panchayats were held and thereafter accused for some time did not harass her. She therefore thought of good times, but again he started pressurizing her. He demanded her father to transfer the house to his name but was advised to wait for some time. In this manner his demands continued. It is alleged, on 25.5.2001 at 9.30 p.m. when she had gone to her parents' house, accused held her and indulged in verbal altercation and tried to strangulate her. When her brother-Nazeer and his friend-Rajesh came to her rescue, he assaulted them also. Thus in her testimony she has referred to her life with the petitioner and also what transpired on 25.5.2001 on which day the complaint was filed. She has been subjected to thorough cross- examination in an attempt to negate her allegation of demand for dowry; a suggestion is put that accused did not make any demand which is denied. Several suggestions are made to her but it is of no avail. Accused could not salvage anything worthy to support his defense that he had 9 not collected any money in the form of dowry or that he had not raised demand thereafter.
7. As far as reference to the 2nd accused is concerned, her ocular testimony did not bring out direct incriminating aspects as she did about the 1st accused. Consequently the material evidence from her testimony tends to establish charge against the petitioner only and not against his father. To this extent it could be said acquittal of the father is justified.
8. Apart from her, there are two witnesses, viz., PW4- Mymonnisa (mother) and PW2-Nazeer Ahmed (brother). Their version is in line with her in reiteration of alleged demand for dowry, physical torture and also assault on PW2. There is no need to incorporate the details of their statement. Suffice to say their evidence supports her version and from the corroborated testimony of all the three, it clearly manifests that the accused had indulged in acts of violence few years after the marriage itself. Though the marriage worked for 10 years, according to PW1, her 10 nightmarish experiences ultimately culminated in filling of report after the incident on 25.5.2001.
9. No doubt petitioner's counsel had urged, had there been any incidents in the past, complainant would not have kept quiet for 10 years. But we are dealing with a case of matrimony where there is always an attempt to patch up, and non-lodging of complaint cannot go against the victim. Be that as it may, she has taken the decision of lodging complaint after the incident on 25.5.2001. Therefore what transpired on that date is material. In law, even the Evidence Act prescribes that conduct of the accused should be taken into consideration. Therefore his conduct is important. If we go by the statement of independent witnesses like Rajesh (PW5), he has spoken of assault on the complainant and her brother-Nazeer (PW2) on the night of 25.5.2001.
10. It is well settled that to prove mental and physical torture, though desirable, it is not essential for an independent witness to be examined. Offences of this type 11 are committed in closed-doors where we can hardly expect any witness. The torment and physical harassment will be spoken to only by the victim. It is not in dispute she was a lone entrant in the house occupied by the petitioner, she was one against them. In such a scenario, what transpired can be assessed from her testimony, and that is exactly what she has deposed. Accused was entitled to demolish her version through cross-examination which opportunity he has availed, but could not succeed in negating her statement or to bring out any malice or mala fides in her action.
11. Besides if we consider the evidence in totality, we do not find any reason why she would, after 10 years of marriage, seek to prosecute her husband if he had not indulged in any crime. PW12-Shafi Khaja is the witness who has turned hostile. PW13-Syed Abdul Rawoof Sab has spoken about holding of Panchayat and other Panch witnesses have spoken of seizure mahazar. But so far as giving of dowry is concerned, though she has mentioned cash of Rs.50,000/- was given as also other articles in the 12 form of gold and appliances, it is not known why the I.O. did not seize any of the items which would have proved the charge. The statement in the complaint indicts petitioner of demand and receipt of dowry and the best mode was to seize the articles given to him. But that has not been done. In the circumstances, the charge for offences under Sections 3 and 4 of the Dowry Prohibition Act have remained only as allegation without sufficient proof. Therefore in the absence of proof of giving the articles mentioned by her, the charge under Sections 3 and 4 of the Dowry Prohibition Act for which the petitioner is convicted can be held as not proved.
12. So far as harassment is concerned, the contention of petitioner's counsel that there is no medical evidence is of no avail. Cruelty can be physical or mental. Therefore we do not expect medical evidence when mental cruelty is alleged. Of course for physical cruelty or injury of any nature, we expect medical evidence. IN the instant case, the tenor of the complaint and allegations made therein indicate she had undergone mental torture continuously and 13 also physical assault. Regarding physical assault her version is, he was beating her and on the date of incident he tried to strangulate her. She admits she has not sought medical help but that does not justify absolving the petitioner of the charge. In the circumstances, the consistent evidence of the victim, her mother, brother, his friend (PW5) supports the finding of the learned trial judge for the charge under Section 498A, I.P.C.
13. However, I find evidence with regard to assault on the brother-PW2-Nazeer and threat to other witnesses is not fully established and hence Learned appellate judge has rightly confirmed acquittal of the petitioner on that charge.
14. This is a revision under Section 397, Cr.P.C. and having given the petitioner the benefit of Section 401, Cr.P.C. and on re-appraisal of the evidence on record, I cannot summon myself to differ from the view taken by the trial court. Being of that view, I confirm the conviction of the petitioner for the offence under Section 498A, I.P.C. but 14 acquit him of the charge for the offence under Sections 3 and 4 of the Dowry Prohibition Act.
15. So far as punishment is concerned, the trial court has sentenced him to undergo imprisonment for one year and a fine of Rs.3,000/-. That does not appear to be very harsh. However taking into consideration all attending circumstances the sentence of imprisonment for one year is reduced to six months, but fine is enhanced to Rs.10,000/-, in default to undergo SI for 2 months. On recovery of the fine, the same is ordered to be paid to PW1 as permissible under Section 357,Cr.P.C. The revision petition is disposed of in terms stated above.
SD/-
JUDGE vgh*