Karnataka High Court
Khasim S/O Late Jamal Sab vs The State Of Karnataka on 8 November, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.219/2006 C/W
CRIMINAL APPEAL No.225/2006
CRL.A.No.219/2006
BETWEEN:
KHASIM
S/O LATE JAMAL SAB
AGED ABOUT 32 YEARS
OCC: ICECREAM MERCHANT
HAGALERI SAKARAYAPATNA
KADUR TALUK
CHIKMAGALUR DISTRICT. ... APPELLANT
(BY SRI VIJAYAKUMAR S MAJAGE, ADV.)
AND :
THE STATE OF KARNATAKA
BY THE POLICE OF SAKHARAYAPATNA
CHIKMAGALUR DISTRICT. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 26.11.05, PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT, KADUR, IN
S.C.NO.112/02 - CONVICTING THE APPELLANT/ACCUSED NO.3
FOR OFFENCES PUNISHABLE UNDER SECTIONS 498(A), 304(B)
IPC & ALSO UNDER SECTION 4 OF D.P ACT & SENTENCING HIM
TO UNDERGO R.I. FOR TWO YEARS AND PAY FINE OF
RS.2000/-, INDEFAULT OF PAYMENT OF FINE FURTHER
UNDERGO R.I. FOR ONE MONTH FOR AN OFFENCE
PUNISHABLE UNDER SECTION 498(A) R/W 34 IPC & ETC.
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CRL.A.No.225/2006
BETWEEN:
ZAINABI
W/O FAKRUDDIN
AGED ABOUT 50 YEARS
OCC: COOLIE
BANUR ROAD, SAKHARAYAPATNA
KADUR TALUK
CHIKMAGALUR DISTRICT. ... APPELLANT
(BY SRI VIJAYAKUMAR S MAJAGE, ADV.)
AND:
THE STATE OF KARNATAKA
BY THE POLICE OF SAKHARAYAPATNA
CHIKMAGALUR DISTRICT. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 26.11.05 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT, KADUR, IN
S.C.NO.112/02 - CONVICTING THE APPELLANT/ACCUSED NO.2
FOR OFFENCES PUNISHABLE UNDER SECTIONS 498(A), 304(B)
IPC & ALSO UNDER SECTION 4 OF D.P ACT AND SENTENCING
HER TO UNDERGO R.I. FOR TWO YEARS & PAY FINE OF
RS.2000/-, INDEFAULT OF PAYMENT OF FINE FURTHER
UNDERGO R.I. FOR ONE MONTH FOR AN OFFENCE
PUNISHABLE UNDER SECTION 498(A) R/W 34 IPC & ETC.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Crl.A 219/2006 is filed by accused no.3 and Crl.A 225/2006 is filed by accused no.2 against judgment of conviction for offences punishable under Sections 498-A, 304-B r/w 34 IPC and also for an offence punishable under Section 4 of the Dowry Prohibition Act, 1961, in S.C.No.112/2002 on the file of Fast Track Court at Kadur.
2. Accused no.1- Afzal is the son of Accused no.2- Zainabi. Accused no.3- Khasim is the maternal uncle of accused no.1.
Accused no.1 to 3 are alleged to have committed aforestated offences. After investigation, final report was filed against accused no.1 to 3 for the aforestated offences. Since accused no.1 was absconding from the date of commission of offence, the case against him was separated, therefore, accused no.2 and 3 were tried and convicted for the aforestated offences. Therefore, they are before this court.
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3. I have heard Sri.Vijayakumar Majage, learned counsel for accused and learned State Public Prosecutor for the State.
4. Before adverting to the submissions made at the Bar, it is necessary to state certain facts which are not in dispute.
PW.1-Athaulla and PW.13-Jarinabi are the parents of deceased Reshma Banu. The deceased was the 3rd amongst the daughters of PW.1 & 13. PW.1 & 13 were residing in Sakarayapatna within the jurisdiction of Sakarayapatna Police Station, Chikmagalur District. PW.12-Nageena Banu and PW.15-Ramizabi are the elder daughters of PW.1 & 13. PW.3-Sanaulla is the younger brother of PW.1. PW.4-Aniff is the husband of PW.15-Ramizabee and son-in-law of PW.1.
Accused no.2 - Zainabi is the mother of accused no.1; Accused no.3- Khasim is the younger brother of accused no.2 and maternal uncle of accused no.1. Accused no.3 had brought up accused no.1 and wanted to provide education to him but, accused no.1 was very dull in studies and he failed 5 in SSLC examination. Thereafter, he was an Ice Candy Hawker in Sakarayapatna.
5. Accused no.1 fell in love with the deceased Reshma Banu about six months prior to 23.04.2002. Before the marriage, the deceased had left her parental house and staying in the house of accused no.1 and 2 situate at Banur road, Sakarayapatna town.
The parents and close relatives of the deceased came to know about the love affair and apprehending that accused no.1 and deceased may elope to marry, contacted accused no.2 and 3. The parents and close relatives of deceased and accused no.2 and 3 were opposed to the marriage of accused no.1 and the deceased however, in order to save the honour of the families and also prevent accused no.1 and deceased eloping from the village and lending themselves in trouble, decided to perform their marriage. Accordingly, the marriage of accused no.1 with the deceased was performed in a mosque of Sakarayapatna on 23.04.2002.
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6. PW.7-Rafiuddi was the Pesh Imam of Mosque of Sakarayapatna. He has deposed that he had performed the nikah of accused no.1 with the deceased on 23.04.2002. He has also caused production of Nikah register-Ex.P5 (in Urdu language) and Ex.P6 (translated version of Ex.P5).
The marriage between the parties in not in dispute. What happened between the parties after the marriage and the cause for unnatural death of deceased within a period of 15 days from the date of her marriage in the house of accused no.1 and 2 in Banur road, Sakarayapatna is in dispute.
7. It is the case or prosecution that accused no.2 and 3 were against the marriage of accused no.1 and deceased. However, after the marriage was performed, accused no.3 took accused no.1 & 2 and the deceased to his house. It is alleged that accused no.2 and 3 were subjecting the deceased to cruelty in connection with dowry demand. Accused no.2 and 3 were demanding the deceased to bring dowry of Rs.10,000/- and they were also scolding the 7 deceased that if accused no.1 had married elsewhere, he would have got dowry of Rs.50,000/-.
8. The law is fairly well settled that close relatives of the deceased would be competent witness to depose about these facts. The offences like dowry demand and dowry related cruelty take place within the four walls of matrimonial home. The court cannot expect the prosecution to lead evidence of independent witnesses. In the circumstances, the evidence of close relatives of the deceased would be relevant to relevant to decide these facts.
9. In this appeal, following points would arise for determination:
1) Whether the prosecution has proved that after the marriage of accused no.1 and deceased on 23.04.2002, they were living in the house of accused no.3 and accused no.2 and 3 were demanding the deceased to bring dowry from her parental house ?
2) Whether the prosecution has proved that after the marriage of first accused with deceased on 8 23.04.2002, when the deceased was staying in the house of accused no.3, accused no.2 and 3 were subjecting the deceased to cruelty with a view to coerce her to meet unlawful demand of dowry and they were demanding the deceased to bring dowry of Rs.10,000/- from her parental house, thereby, accused no.2 and 3 committed an offence punishable under Section 498-A IPC ?
3) Whether the prosecution has proved that the deceased not being able to bear the cruelty meted to her by accused no.1 to 3 committed suicide by setting herself on fire in the house of accused no.1 and 2 at about 6.30 p.m., on 07.05.2002 in Banur Road, Sakarayapatna and soon before her death, accused no.1 to 3 had subjected her to cruelty in connection with the demand for dowry, thereby, accused no.2 and 3 committed an offence punishable under Section 304-B r/w 34 IPC ?
4) Whether the prosecution has proved that accused no.2 and 3 were demanding the deceased to bring 9 dowry from her parental house in connection with the marriage after the marriage of accused no.1 with the deceased on 23.04.2002, thereby, accused no.2 and 3 committed an offence punishable under Section 4 of the Dowry Prohibition Act ?
10. My findings on the above points and reasons thereof are as follows:
It is established from the evidence on record that deceased and accused no.1 had fallen in love about six months prior to the date of marriage and they had decided to marry. The deceased had left her parental house and she was staying in the house of accused no.1 and 2 in Banur Road, Sakarayapatna village. The parents of deceased after coming to know of these facts had approached the deceased who was staying in the house of accused no.1 and 2. Accused no.1 and the deceased had determined to marry, come what may. The parents of deceased approached accused no.2 (mother of accused no.1), accused no.3 (maternal uncle of accused no.1) and the matter was 10 discussed. The parents of deceased so also, accused no.2 and 3 were against the marriage but they were apprehensive of the fact that accused no.1 and deceased may elope and cause disaster to themselves and bring disrespect to their parents.
In the circumstances, in order to give a quietus to the problem, the parents of the deceased and accused no.2 and 3 and elders of the village decided to perform the marriage of accused no.1 with the deceased in a Mosque at Sakarayapatna. Accordingly, the marriage of accused no.1 and the deceased was performed at 8.30 p.m., on 23.04.2002 in a Mosque at Sakarayapatna. There was neither demand nor acceptance of dowry either before the marriage or at the time of marriage.
11. The prosecution has adduced evidence of PW.7- Rafiuddi, Pesh Imam of Mosque and also produced the extract of Nikah register as per Ex.P5 and P6. In the circumstances, the case of prosecution that accused no.2 11 and 3 had demanded dowry in relation to marriage of the deceased and accused cannot be accepted.
PW.1-Athaulla (father of the deceased) during cross- examination has categorically admitted that the deceased had never informed her father (PW.1) that accused no.2 and 3 were demanding deceased to bring dowry and they were subjecting deceased to cruelty in relation to dowry demand. PW.1 has categorically admitted that after the marriage, he had not visited the house of accused. Similarly, his daughter had not come to her parental house. This evidence assumes significance as the married life of deceased was short lived. The deceased committed suicide at about 6.30 p.m., on 07.05.2002 within 15 days from the date of her marriage.
12. PW.13-Zarina Bee is the mother of deceased. PW.13 has admitted that soon after the marriage, accused no.1 and 2 took the deceased to their house in Banur road of Sakarayapatna. PW.13 and her husband (PW.1) had not visited the house of the accused. She has admitted that her sons and daughters had not visited the house of the 12 accused. Therefore, from the evidence of parents of deceased, it is clear that relationship between the parents of deceased and the deceased was strained after the marriage of deceased with the first accused obviously for the reason that deceased had married accused no.1 against the wishes of her parents and she had left her parental house and staying in the house of accused no.1 even before her marriage.
13. PW.3-Sana Ulla is the younger brother of PW.1 and paternal junior uncle of the deceased. PW.3 has deposed; that accused no.1 and deceased had fallen in love. When they were eloping, they were brought from the house of accused no.3 by PW.1 and others. PW.1 and third accused took accused no.1 and deceased Reshma Banu to the mosque in Sakarayapatna where panchayat was convened and it was decided to perform the marriage of first accused and deceased. PW.3 took the initiative to perform the marriage of deceased with accused no.1. He has identified the Nikah register extract. He has admitted that after the marriage, accused no.1 and 2 and the deceased lived in the house of accused no.3 for sometime. After 15 days, the 13 deceased set herself on fire in the house of accused no.1. PW.3 is not aware of the reasons for deceased to commit suicide. This witness was not treated as hostile witness by the prosecution. His evidence has remained uncontroverted.
During cross-examination by the learned counsel for accused, PW.3 has admitted that before the decision was taken to perform the marriage of the first accused and deceased accused no.3 pleaded for sometime as he wanted to perform the marriage of first accused and deceased in the presence of relatives of accused no.1 but for this fact, accused no.3 had not raised any objection to the marriage of accused no.1 and the deceased. There was cordiality between accused no.1 and the deceased. The evidence of PW.3 has remained uncontroverted.
There is nothing on record to indicate that PW.3 was interested in the accused. On the other hand, his evidence would reveal that he had taken initiative to perform the marriage of first accused with the deceased having regard to the fact that first accused and deceased had fallen in love. There are no reasons to suspect the evidence of PW.3. Thus, 14 the evidence of PW.3 would discredit the case of prosecution that accused no.2 and 3 had demanded dowry from the deceased and they were cruelly treating the deceased.
14. PW.4-Aneef is the husband of elder sister of deceased. PW.4 has deposed; that accused had demanded the deceased to bring dowry of Rs.10,000/- cash, a wrist watch and a gold ring. In that connection, they were subjecting the deceased to cruelty. PW.4 has deposed; that the deceased used to meet him and she was informing PW.4 about the cruelty meted to her. After learning about the death of deceased, he had visited the house of deceased and found that the deceased had died of burn injuries.
During cross-examination, he has admitted that he used to vend utensils in the villages by carrying the same on his TVS Moped. He used to leave the house in the morning and come back during afternoon.
As already stated, the married life of deceased and first accused was short lived.
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PW.4 has deposed; that he had witnessed accused no.1 and 3 assaulting the deceased; he had informed the elders of the Mosque of Sakarayapatna. He has deposed; that PW.1 had seen the accused assaulting deceased.
At this juncture, it is necessary to recall the evidence of PW.1 that after the marriage, he had not visited the house of accused till the date of death of deceased and the deceased had not visited her parental house after her marriage. Therefore, evidence of PW.4 that he had seen the accused assaulting the deceased in relation to dowry demand cannot be accepted.
15. PW.5- Sikandar is the maternal nephew of mother of the deceased (PW.13). PW.5 has deposed; that the deceased and accused no.1 had fallen in love and they had decided to marry, therefore, their marriage was performed in a Mosque. Thereafter, accused no.1 and 2 had taken the deceased to their house at Banur road. After 3 or 4 days, he learnt that deceased had set herself on fire. He visited the place and found that deceased had died of burn injuries. 16
PW.5 has deposed; that when accused no.1 and 2 were taking the deceased in an auto rickshaw to their house, the second accused had proclaimed that she would not allow the deceased to live. PW.5 has deposed that the deceased was staying in the house of accused no.3, accused no.2 and 3 were demanding the deceased to bring dowry of Rs.50,000/- form her parental house.
At this juncture, it is necessary to state that close relatives of the deceased have admitted that even before the marriage, accused no.1 had set up a separate house at Banur road, accused no.1 and 2 were living separately from accused no.3. In the circumstances, evidence of PW.5 that accused no.3 was demanding the deceased to bring dowry looks highly improbable. The demand for dowry in the context of events that had preceded the marriage and events that had occurred after marriage looks improbable. The evidence on record does not disclose that PW.1 was capable of meeting dowry demand.
It is categorically admitted by PW.1 that after marriage, he had not visited the house of accused no.1 & 2 17 till the date of death of deceased and the deceased had not visited her parental house after her marriage.
PW.5 has admitted that he was selling utensils in the surrounding villages. His house is at a distance of 1 kilometer from the house of 3rd accused. The evidence of PW.5 that he had informed the matter to the elders of Mosque does not find corroboration from the evidence of PW.1. Therefore, the evidence of PW.5 regarding alleged demand for dowry and the allegations of dowry related cruelty does not inspire confidence.
16. PW.12-Nagina Banu is the elder sister of deceased. PW.12 has deposed; that after the marriage, accused no.1 and 2 and deceased were staying in the house of accused no.3. Accused no.1 and 3 were assaulting the deceased and demanding her to bring dowry from her parental house.
During cross-examination, PW.12 has denied, when her statement was recorded by the Taluk Executive Magistrate she had stated that about 3 months prior to the date of marriage, the first accused had set up a separate 18 house. She has also denied that before the marriage, the deceased had left her parental house and she was living in the house of first accused at Banur road. She has admitted that the house belongs to PW.10-Sakibai, in that house accused no.1 and 2 were living.
PW.12 at the first instance has deposed; that accused no.1 & 2 and deceased were living in the house of accused no.3. Later, she has changed her version by deposing that the deceased was living in the house of accused no.1 and 2 at Banur road in Sakarayapatna. PW.12 has deposed that she was daily visiting the house of deceased; accused no.1 and 2 were subjecting the deceased to cruelty. Accused no.2 was demanding the deceased to bring dowry. The evidence of PW.12 that PW.12 was daily visiting the house of accused no.1 and 2 only to witness the harassment and cruelty meted to deceased by accused no.1 and 2 looks artificial. The evidence of PW.12 does not find corroboration from the evidence of PW.1. PW.1 has categorically admitted that after the marriage, PW.1, PW.13 and his children had not visited 19 the house of accused no.1 & 2 till the death of deceased and the deceased has also not visited her parental house.
17. PW.15-Ramizabi is the elder sister of deceased. She has deposed about the marriage of accused and deceased. PW.15 has deposed; that deceased had eloped with accused no.1 and she was staying in the house of accused 1 and 2 before her marriage. Therefore, the parents and elders of the village decided to perform the marriage of accused no.1 with the deceased and accordingly they performed the marriage of accused no.1 with the deceased.
PW.15 has deposed; that after the marriage, accused no.3 took accused no.1 and 2 and deceased to his house. The deceased had stayed in the house of accused no.3 for a period of 8 - 10 days. Accused no.3 was abusing and scolding the deceased and demanding the deceased to bring dowry of Rs.50,000/-, cot, Almera, gold ring and a wrist watch. Accused no.3 was also assaulting the deceased. PW.15 has also implicated the brothers of accused no.3 against whom the final report was not filed. 20
16. At this juncture, it is relevant to state that other prosecution witnesses viz., the close relatives of the deceased have not deposed that deceased was living in the house of accused no.3 after her marriage. On the other hand, they have deposed that accused no.1 had set up a house about three months prior to the date of marriage and accused no.1 and 2 were living in the said house. Before the marriage, the deceased was staying in the house of accused no.1 and 2 at Banur road, Sakarayapatna village. The evidence of PW.15 gives an impression that she had determined to target accused no.3, who in fact had brought up accused no.1.
17. In the discussion made supra, I have narrated the events that led to marriage of accused no.1 and the deceased. In the circumstances, the evidence of PW.15 that accused no.3 was demanding the deceased to bring dowry from her parental house looks highly improbable.
18. The independent witnesses examined on behalf of prosecution have not supported the case of prosecution. 21
19. Thus, on careful analysis and appreciation of evidence of close relatives of the deceased, we find; that the marriage of first accused and deceased was a love marriage; the first accused and deceased had fallen in love six months prior to the date of marriage viz., 23.04.2002; the deceased had left her parental house and she was staying in the house of accused no.1 and 2 at Banur road, Sakarayapatna. Before her marriage, the parents and close relatives of the deceased after finding the deceased in the house of accused no.1, apprehending that accused no.1 and deceased may elope and cause further disaster had approached the mother of first accused (accused no.2) and maternal uncle of first accused (accused no.3). At the first instance, they were opposed to the marriage. A panchayat was convened and it was decided by the parents of the deceased and accused no.2 and 3 and other well-wishers that it would in the interest of both parties, to perform the marriage of first accused and deceased lest they may elope and land themselves in troubles. Therefore, the case of prosecution that there was demand for dowry either before the marriage 22 or after the marriage looks highly improbable. It is clear from the evidence of PW.1 (father of the deceased) that parents and close relatives of deceased were not visiting the house of accused no.1 and 2 till the date of death of the deceased. The deceased had not visited her parental house after her marriage with the first accused.
20. It may be that accused no.2 being the mother-in- law of the deceased and accused no.3 being the maternal uncle of accused no.1 (who had brought up accused no.1) were dissatisfied with the conduct of deceased and accused no.1 who had determined to elope and marry. In the circumstance, they had anger not only against accused no.1 but also against the deceased. Therefore, the case putforth by the prosecution that accused no.2 and 3 were harassing the deceased and they were subjecting the deceased to cruelty in relation to dowry demand does not inspire confidence.
What was the conduct of accused no.1 after accused no.1 married the deceased who infact had determined to 23 elope and marry the deceased, cannot be considered in the instant appeal since accused no.1 has been absconding from the date of incident.
21. The learned trial judge being swayed away by unnatural death which had taken place within 15 days from the date of marriage has held accused no.2 and 3 guilty of offences punishable under Sections 498-A, 304-B r/w 34 IPC and also of an offence punishable under Section 4 of the Dowry Prohibition Act.
The learned trial judge has not considered the broad probabilities of the case. The learned trial judge has failed to notice that marriage of first accused and the deceased was against the wishes of parents of the deceased and accused no. 2 and 3. The parents of deceased and accused no.2 and 3 were forced to perform the marriage of first accused with the deceased to prevent accused no.1 and deceased from eloping and lending themselves in troubles. In the circumstances, there was no occasion for accused no.2 and 24 3 to demand dowry from the parents of deceased or the deceased.
22. From the evidence on record, it is apparent that accused no.3 has been deliberately implicated and there were attempts to implicate the younger brothers of accused no.3. It is true that the deceased had committed suicide within a period of 15 days from the date of her marriage. As already stated, what had transpired between accused no.1 and the deceased cannot be discussed in this appeal as accused no.1 has been absconding since the date of commission of offence. Therefore, the impugned judgment cannot be sustained.
23. In the result, I pass the following:
ORDER Crl.A 219/2006 and Crl.A 225/2006 are accepted. The appellants (accused no.2 and 3) in S.C.No.112/2002 on the file of Fast Track Court, Kadur are acquitted of offences punishable under Sections 498-A, 304-B r/w 34 IPC and 25 also of an offence punishable under Section 4 of the Dowry Prohibition Act.
The fine amount, if any, deposited by the accused shall be refunded to them. Their bail bonds stand cancelled.
Sd/-
JUDGE Np/-