Karnataka High Court
Sri Jaheer Pasha vs State By K R Puram Police Station on 6 June, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.816 OF 2012
BETWEEN:
1. Sri. Jaheer Pasha,
Aged about 27 years.
2. Smt. Nagarathnamma @ Nasima,
Aged about 24 years.
3. Smt. Begum,
Aged about 51 years.
4. Smt. Shahazadi,
Aged about 54 years.
5. Smt. Sheen Taj @ Mumtaz,
Aged about 32 years.
All are R/a.No.26,
Lakshmanmurthynagar,
Gandhiji Road,
Rammurthynagar,
Bangalore-560016.
..Petitioners
(By Sri.S. Javeed, Amicus Curiae)
Crl.R.P.No.816/2012
2
AND:
State by K.R. Puram
Police Station.
.. Respondent
(By Sri.K. Nageshwarappa, High Court Govt. Pleader)
****
This Criminal Revision Petition is filed by the petitioner under
Section 397 and 401 of the Code of Criminal Procedure, 1973, with
the following prayer:
"a)Call for the records and proceedings in so far as it relates
to the case of the petitioner from the Hon'ble Trial Court (FTC-16)
in Crl.Pet, of S.C.No.887/2007, in the file of the Hon'ble Prl.
Sessions Judge at FTC-16, Bangalore City.
b)may be pleased to set-a-side the order impugned to the
petitioners in S.C.No.887/2011, order dated 28-04-2012, in the file
of the Hon'ble Prl. Sessions judge at FTC-16, Bangalore City for the
alleged offence U/s 498(A), 324, 307, 494, r/w. Section 34 of IPC
up on the application U/s 227 of Cr.P.C seeking discharge of the
petitioners under the above case."
This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day, the
Court made the following:
ORDER
The present petitioners are accused Nos. 1, 2 , 3, 4 and 5 respectively in Sessions Case No.887/2011, on the file of the Crl.R.P.No.816/2012 3 learned Presiding Officer, Fast Track Court-XVI, Bangalore City, (hereinafter for brevity referred to as "the Trial Court") and are facing charge for the offences punishable under Sections 498A, 324, 307, 494 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC").
2. The summary of the allegation made against the accused persons in the complaint is that, the complainant - Smt. Bibijan was given in marriage to the present petitioner No.1(accused No.1) - Sri. Jaheer Pasha, about seven years prior to the date of the complaint, which is dated 18-08-2009. From the said marriage, she has got two children, a son and a daughter, by names Jameer and Sania, who are minor in their age. About four years prior to the alleged incident, the complainant - Bibijan had lodged a Police complaint against her husband, alleging cruelty against him and since then, he was residing away from his wife, i.e. the complainant, and had Crl.R.P.No.816/2012 4 also undergone second marriage. On the night of the date 16-08-2009, which was the early morning of the date 17-08-2009, the husband of the complainant, i.e. accused No.1 joined by his second wife, i.e. accused No.2, his mother, aunt and sister, trespassed into the house of the complainant who was residing separately and demanded her to give them the lease documents of the house. When the complainant is said to have questioned as to why they want the said documents, all the five accused persons were said to have assaulted her including by using a stick that was said to be used in the preparation of raagi balls and they were said to have taken away the golden articles kept in the Almirah and were also alleged to have forcibly administered poison brought by them into the mouth of the complainant. When she yelled and cried for help, her children also started crying, at which time, the neighbours came, and on seeing the neighbours, all the five accused are said to have ran away from the house. According to the complainant, later, her relatives and Crl.R.P.No.816/2012 5 neighbours shifted her to Victoria Hospital, Bengaluru in 108 Ambulance and got her admitted there. The said complaint was registered in the respondent/complainant Station Crime No.309/2009, against the accused persons for the offences punishable under Sections 498A, 307 read with Section 34 of the IPC. After investigation, the Police have filed the charge sheet against all the five accused persons for the offences mentioned above.
3. During the pendency of the case, all the five accused filed an application under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), before the Trial Court, seeking their discharge from the case. The Trial Court, after inviting objections to the said application and hearing both side, by its order dated 13-04-2012, rejected the said application. Aggrieved by the same, all the accused persons in the Trial Court have filed the present revision petition.
L Crl.R.P.No.816/2012 6
4. The Trial Court's records were called for and the same are placed before this Court.
5. In view of the fact that the learned counsel for the revision petitioners/accused failed to appear before this Court on several dates of hearing and also considering the nature of the litigation, this Court by its order dated 24-05-2022, appointed learned counsel - Sri. S. Javeed, as Amicus Curiae for the petitioners.
6. Learned Amicus Curiae for the revision petitioners/accused and learned High Court Government Pleader for the respondent/complainant are appearing physically in the Court.
7. Heard the arguments from both side. Perused the materials placed before this Court including the impugned order and also the Trial Court records.
Crl.R.P.No.816/20127
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
Whether the impugned order passed by the Trial Court warrants any interference at the hands of this Court?
10. The alleged victim herself is the complainant in the instant case. The contents as narrated above in her alleged complaint which is placed before the Court would go to show that, in her complaint, she has specifically stated that, she was subjected to cruelty by all the five accused persons, more particularly, in the alleged incident that occurred on the date 16-08-2009, when all the five accused persons were said to have barged into her house and apart from assaulting her Crl.R.P.No.816/2012 8 physically and also making use of a stick, they are said to have forcibly administered poison to her which made her to fall unconscious on the spot. The complainant has also stated that while the accused were doing all these acts, she raised alarm by raising hue and cry, on seeing which, her two children also started crying and raised alarm. She also stated that, on hearing the yelling noise, her nephew and the neighbours rushed to the spot and shifted her to the Hospital. The charge sheet also contains an MLC extract which would go to show that the patient i.e. the victim was brought to the Victoria Hospital on the night of 16-08-2008 i.e. in the early hours at 4:00 a.m. on 17-08-2009 with the history of forcibly making her to drink poison on 17-08-2009 at 2:30 a.m.
11. Though the learned Amicus Curiae for the petitioners (accused) submitted that the said document (MLC extract) is not reliable for the reason that, except mentioning the history with which the patient was brought and admitted to the Crl.R.P.No.816/2012 9 Hospital, it does not speak anything about the external features of the patient at the time of admission. However, I am not acceptable to the said submission of the learned Amicus Curiae for the petitioners for the reason that, what is placed on record is the MLC extract, which need not necessarily mention the external appearance of the patient at the time when he/she is said to have been brought to the Hospital. However, it cannot be ignored of the fact that the history for bringing the patient to the Hospital immediately after she was being produced in the Hospital was stated as administration of poison just a couple of hours before. Therefore, the allegation made in the complaint that she was forcibly administered poison by the accused persons cannot be ignored at the beginning stage itself.
Learned Amicus Curiae for the petitioners further contended that, a good number of charge sheet witnesses are the family members of the complainant, as such, their Crl.R.P.No.816/2012 10 evidence cannot be believed and therefore the accused shall not be subjected to a tedious trial.
12. A perusal of the statements said to have been given by the charge sheet witnesses before the Investigating Officer under Section 161 of the Cr.P.C., at this stage and prima facie would go to show that, during the course of investigation, the Investigating Officer is said to have recorded the statement of the mother of the victim and three brothers of the victim and not less than four neighbours of the victim. The mother and brothers who were shown as CW-4, CW-5, CW-6 and CW-7 are shown to have stated before the Investigating Officer that, on the very night itself, based upon a telephonic information said to have been given to them by their close relative, Sri.Shabbir, who is said to be the cousin brother of the victim, all of them proceeded to Victoria Hospital on the next day of the incident and collected the details of the incident from none else than from the mouth of the victim Crl.R.P.No.816/2012 11 herself. The details given by the victim corroborates what the nephew Sri. Shabbir had told to them to the effect that all the accused Nos.1 to 5 had barged into the house of the victim in the late night of 16-08-2009 and apart from assaulting her physically, even by using a stick, had forcibly administered poison to her and made her to drink it. Thus, from the mouth of none else than the victim (complainant), CW-4, CW-5, CW-6 and CW-7 are said to have collected the information.
13. In addition to the above, CW-8, CW-9 and CW-10 who are said to be the neighbours, as such, are independent eye witnesses, are shown to have deposed before the Investigating Officer in their statements that, on the ill-fated night of 16-08-2009, while they were sleeping, after hearing the yelling noise from the house of the complainant, they rushed to her house and saw that the victim had fallen unconscious and that her children were standing facing her and crying loudly. When enquired with their children, they Crl.R.P.No.816/2012 12 came to know that all these accused persons had barged into the house of the complainant and had assaulted her and also administered her something to drink. Thus, at this stage, and prima facie, it can be seen that apart from the members of the maternal home of the complainant, even the neighbours in the locality of the complainant also are shown to have spoken about the incident. Admittedly, the present petitioners, in their application filed under Section 227 of the Cr.P.C. itself have stated about the accused No.1 marrying accused No.2 during the subsistence of the first marriage of the accused No.1 with the complainant. In such a situation, merely because the previous complaint of the very same complainant for the offence under Section 498A of the IPC is said to have ended in acquittal, by that itself, the present complaint and its contents including the alleged act of administering poison to the complainant by the accused persons cannot be ignored, but it can be held that the prosecution has collected some materials to subject the accused persons for trial. The Crl.R.P.No.816/2012 13 truthfulness of the statements of the charge sheet witnesses has to be tested at the appropriate stage which would be the trial, wherein both side would have an opportunity to put forth their case, which would enable the Trial Court to elicit the actual truth, as such, since at the stage of considering the application under Section 227 of the Cr.P.C., the Court need not analyse the evidence but is required only to see the availability of the materials to subject the accused for the trial, I am of the view that having noticed the materials which compelled it to subject the accused for trial, the learned Trial Court has rightly rejected the application filed by them under Section 227 of the Cr.P.C. As such, I do not find any reason to interfere in the impugned order passed by it.
Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition stands dismissed as devoid of any merit.Crl.R.P.No.816/2012 14
The Court, while acknowledging the services rendered by Sri. S. Javeed - learned Amicus Curiae for the petitioners, recommends honorarium of a sum of not less than `4,000/- to him, payable to him by the Registry.
Registry to transmit a copy of this order to the Trial Court along with its records, immediately.
Sd/-
JUDGE BMV*