Bangalore District Court
Started To Reside In The House Of Accused ... vs Persons Had Bad Intention To Extract ... on 14 January, 2020
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-46)
DATED THIS THE 14th DAY OF JANUARY, 2020
PRESENT
Sri. E. .RAJEEVA GOWDA LL.M.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.A. No.1308/2016
BETWEEN
Mrs.Shaguftha,
Aged about 43 years,
W/o. G.Mohammed Tariq,
R/a No.90, Mosque Road,
Frazer Town,
Bangalore-560005. .. APPELLANT
(By Sri G. K. Venkata Reddy, Advocate)
AND
1. State by Frazer Town Police,
Frazer Town, Bangalore,
(Rep by Public Prosecutor)
2. Mr. Mohammed Tariq,
a/a 41 years,S/o Late Mohammed Saleha,
3. Mr. Mohammed Tayub,a/a 46 years,
S/o Late Mohammed Salah,,
Both are r/a No.21/12, M.R.Street,
Pernambut, Vellore District,
Gudiyatham Taluk, Tamilnadu.
4. Mr. Ibrahim @ Mohammaed Ibrahim,
a/a 41 years, R/a No.6 Khazi Street,
Pennambut, Vellore, Tamilnadu.
5. Mr. Saleem, S/o Abdul Jaleel,
2 Crl.A.No.1308/2016
a/a 56 years, R/a No.56,
Mohammad Ali Street, Pernambut,
Vellore, Tamilnadu.
6. Mrs. Rehana, a/a 56 years,
W/o Mohammed Ibrahim,
R/a No.6 Khazi Street,
Pernambut, Vellore, Tamilnadu.
7. Mrs. Shanina, a/a 46 years,
W/o Saleem Basha, r/a No.59,
Mohammad Ali Street, Pernambut,
Vellore, Tamilnadu.
8. Mrs. Mumtaz, a/a 67 years,
W/o Mohammed Saleha,
No.21/12, M.R.Street,
Pernambut, Vellore, Gudiyatham,Tamilnadu.
9. Mrs. Rizwan, a/a 52 years, W/o Ismail,
10. Mr. Ismail, a/a 60 years,
S/o late Abdul Haji,
Both are r/a No.9, Ameena Street,
Pernambut, Vellore, Tamilnadu. .. RESPONDENTS
(By Sri ASN., Advocate)
*****
JUDGMENT
This appeal is preferred by the appellant/complainant U/s.372 of Cr.P.C., praying for an order to set-aside the judgment of the acquittal passed by the learned IV Addl., CMM., Bangalore City, on 24.08.2016 in CC No.18114/2007 and in consequential convict the respondent No.2 to 10 for the offence punishable U/s.498-A and 506 r/w Sec.34 of Indian Penal Code and Sec.3 and 4 of Dowry Prohibition Act. 3 Crl.A.No.1308/2016
2.The rank of he parties referred before the trial Court are referred with the same rank in order to avoid confusion.
3.The brief facts the prosecution case are as under:-
The marriage of complainant with accused No.1 was solemnized on 7.8.2000 at Fathima Community Hall, Frazer Town, Bangalore, according to the rites and customs prevailing in the Muslim Community. On the demand of accused persons, the family members of the complainant gave Rs.50,000/- cash, gold ornaments and house hold articles as dowry on the date of marriage. After the marriage, complainant started to reside in the house of accused at Pernampet, Gudiyatham, Vellore District, Tamil Nadu. The accused persons looked after the complainant very well for few months. Afterwards they started to harass the complainant physically and mentally, abusing her in vulgar langage, as she is a divorcee. But this fact was made known to the accused persons, and also it was very well known to both the families, as the accused No.1 is also a divorcee. The accused No.1 has harassed the complainant and sent her to her parents house to bring more dowry and on many occasions, the father of the complainant has paid Rs.10,000/-, Rs.5,000/-, more eatables and cloths etc., as per their demands. On 15.03.2002, a male child was born to the complainant. After delivery, she had stayed in her parents house at Bangalore for three months. During the said period her husband often visited the house of her parents at Bangalore, and 4 Crl.A.No.1308/2016 during the said period also demanded to fulfill the dowry for his business. In the month of June 2002, the complainant was residing in the house of accused persons, the accused persons have not provided food to the complainant and also milk to the child with an intention to bring money from her parents house. After some days the accused No.1 has brought the complainant and her child to Bangalore, on 2.11.2005 for Ramzaan Festival and informed the father of the complainant that he will stay in Bangalore and start business, and thereby demanded Rs.5,00,000/- cash. The father of the complainant has gave Rs.4,00,000/- cash out of the loan taken from Jammu and Kashmir Bank for construction of house, but the accused No.1/respondent No.2 has stayed in Bangalore till February 2006, and not started business and he was came back to pernampet by assuring the complainant that he will return along with her jewels, furnitures and others things given in the marriage. But surprise of the complainant, he had sent a divorce notice, which clearly reveals that accused persons had bad intention to extract money from the father of the complainant. The complainant had received divorce notice on 21.02.2006, and on 12.06.2006, her husband i.e., accused No.1, who had came to her house along with 4-5 hefty men and threatened to withdraw the divorce case, if all his demands are satisfied. When the father of complainant called the neighbors and family friend Saravana, then her husband and other persons were ran away.
Thereafter, the complainant was constrained to lodge complaint 5 Crl.A.No.1308/2016 against the accused No.1 and other family members of accused No.1 i.e., accused No.1 to 9/respondents No.2 to 10 for the offences punishable U/s.498A and 506 r/w Sec.34 of IPC and Sec.3 and 4 of DP Act. After trial the accused No.1 to 9/respondent No.2 to 10 were acquitted from the said offences by IV Addl., CMM., Bangalore.
4.Being aggrieved by the said judgment of the learned Magistrate the complainant has come up with the present appeal on the following among other grounds:-
a.That the impugned judgment is apposed to law, and facts and probabilities of the case, and hences, liable to be set-aside.
b.The trial Court unnecessarily delayed commencement of evidence and also recording of the evidence of PW.2.
c.The complainant has suffered untold hardship and heavy loss because of the impugned judgment. The complainant and her minor child deserted willfully and neglected by the second respondent without paying any maintenance.
d.The learned IV Addl., CMM., has not properly considered the evidence of prosecution witnesses regarding the pending of proceedings between the complainant and accused No.1. Even though PW.1 to 5 have given satisfactory evidence before the Court below, the Court below has failed to consider the same and misdirected itself in coming to wrong conclusion. 6 Crl.A.No.1308/2016
e. Viewed from any angle the judgment of the Court below is suffers from legal infirmities and material irregularities and liable to be set-aside.
5.Therefore, the learned Magistrate has committed error in acquitting the accused persons under the impugned judgment. Hence, the complainant has prayed for allowing the appeal and thereby to set aside the impugned judgment of the learned Magistrate and thereby convict the accused persons for the offences charge sheeted in the interest of justice.
6. In pursuance of service of notice, the accused persons being respondent No.2 to 9 in the appeal have appeared through counsel. The trial Court records have been called for.
7. Heard the arguments of the learned counsel for complainant police and also the counsel for accused persons, they being respondents in this appeal. Perused the oral and documentary evidence forthcoming on record.
8. Basing on the material available on record and grounds of appeal, the points that arises for consideration of this Court are as under:
(1) Whether the Appellant has made out sufficient grounds to set-aside the judgment passed by the Learned IV Addl.C.M.M., 7 Crl.A.No.1308/2016 Bengaluru in C.C. No. 18114/2007 dated 24.08.2016 ?
(2) What Order?
9.This court has answered the above points are as hereunder:
Point No.1: In the "Negative"
Point No.2: As per final order
for the following:
REASONS
10.Point No.1: It is an admitted fact that the marriage of complainant with accused No.1/respondent No.2 was performed on 7.8.2000 at Fathima Convention Hall, Frazer Town, Bangalore according to the rites and customs prevailing in Muslim community. It is also an admitted fact that after marriage, the complainant has started to reside in the house of accused persons at Pernambut, Gudiyatham Taluk, Vellore District, Tamil Nadu. It is also an undisputed fact that due to the marital relationship she gave birth to a male child. Such being the case, the complainant has lodged the complaint against the accused for the demand of dowry. In view of the complaint lodged by the complainant before Frazer Town P.S., FIR was registered vide Crime No.216/2006 for the offences punishable U/s.498A and 506 r/w Sec.34 of IPC and Sec.3 and 4 of DP Act. The learned IV Addl., CMM., Bangalore has proceeded with the trial of the case and passed judgment on 24.08.2016 of acquittal in favour accused No.1 to 9. 8 Crl.A.No.1308/2016 Against the said judgment of acquittal, the complainant has preferred appeal against the concerned police and accused persons.
11.The learned advocate for complainant has put forth his arguments according to the grounds as shown in the appeal memo. On the other hand the learned advocate for accused persons has vehemently arguments about the verdict given by the trial Court is proper and correct.
12.In the light of the arguments this Court has thoroughly gone through the charge sheet, statements of witnesses, mahazar and also the evidence given by the witnesses PW.1 to PW.5 before the trial Court and also the judgment passed by the learned IV Addl., CMM., Bangalore. The learned IV Addl., CMM., while acquitting the accused persons has observed that there are lot of contradictions in the evidence of witnesses and also the documents placed by the prosecution regarding availment of loan of Rs.9,00,000/- and out of which paying Rs.4,00,000/- to the accused No.1 is doubtful and thereby come to conclusion that accused are entitle for the benefit of doubt and accordingly, acquitted all accused persons, as the offence alleged against them not prove by the prosecution. It is necessary to note the definitions and ingredients of Sec. 498-A, 406 and 506 r/w 34 of IPC and Sec.3 and 4 of DP Act before going for further discussion. 9 Crl.A.No.1308/2016
Sec.498A of IPC reads as under:
i) 498-A of IPC: Husband or relative of husband of a woman subjecting her to cruelty.
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman or
(b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Ingredients of Sec.498A of IPC are as under:
1.Husband or relative of husband of woman subjects to cruelty.
2.any wilful conduct which is of such a nature as is likely drive the woman to commit suicide,
3.any wilful conduct which is likely to cause grave injury or danger to life, limb or health,
4.Such cruelty may be mental or physical, and
5.harassment of the woman will view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security.10 Crl.A.No.1308/2016
Sec.406 of IPC reads as under:
Whoever, commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.
Sec.506 of IPC reads as under:
Whoever, commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Sec.3 of DP Act reads as under:
iii)Sec.3 of DP Act: (a)presents which are given at the time of a marriage to the bride(without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this act.
(b)Presents which are given at the time of a marriage to the bridegroom(without any demand having been made in that behalf): provided that such presents are entered in a list maintained in accordance with the rules made this Act:
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of customary nature and the value thereof is not excessive having regard to the fianancial status of the person by whom, or on whose behalf, such presents are given. 11 Crl.A.No.1308/2016
Sec.4 of DP Act reads as under:
iv) Sec.4 of DP Act: If any person demands, directly or indirectly from the parents or other relatives or guardian of a bride or bridegroom, as the case may, any dowry.
On careful reading of the above ingredients, it is very clear that the prosecution is required to place cogent ioa evidence to establish its case within the ambit of above said sections to prove the allegations made against the accused persons. It is pertinent to note that the concerned police submitted charge sheet against accused persons citing 12 witnesses. Among 12 witnesses, the prosecution has succeeded to examine only five witnesses and got marked documents at Ex.P1 to P8. The prosecution has failed to examine panchas, neighbors and other independent witnesses i.e., other the family members of the complainant and I.O., who has conducted panchanama, recorded statements of witnesses by securing documents and filed charge sheet to prove its allegations made against the accused persons. Witness Saleem Ahamed, Shaguftha and Nadeem Ahamed were examined as PW.1, 2 and 4, who are the family members, and one Saravana examined as PW.3, is the friend of complainants father-Abdul Samad and the witness PW.5 by name H. G. Somashekaraiah is the I.O., It is no doubt the brothers of the complainant PW.1 and 4 and also complainant PW.2 have specifically deposed in their chief-examination about solemnization of marriage of 12 Crl.A.No.1308/2016 complainant with accused No.1 and regarding giving of cash of Rs.50,000/- as dowry at the time of marriage. In addition to that, it is the say of the said witnesses that they have paid Rs.39,000/- for purchase of motorcycle and also given gold ornaments and house hold articles. To substantiate their said version, the witnesses PW.1, 2 and 4 have not produced any bills or receipts. Except oral evidence regarding giving of gold ornaments, household articles and about purchase of motorcycle, no other piece of evidence present on record. It is also the say of the said witnesses that they have paid Rs.4,00,000/- to the accused No.1 out of the amount amount of Rs.9,00,000/- loan borrowed for the construction of the house. But in the cross-examination, the accused counsel has brought out the date of availment of loan and date of alleged payment of Rs.4,00,000/- to accused No.1. The said dates are totally differs with the facts and circumstances of the case, because it is general phenomena that no individual withdraw money from the bank to pay others prior to 4 to 6 months. Generally the common man approach bank or ATM according to his requirement of money. Whereas in the present case, the date of withdrawal of the amount as per the document Ex.P6 and date of alleged payment in favour of accused No1 as dowry creates lot of dobuts in view of above observation. So, the said marked bank statement record is not much helpful for the complainant to prove payment of Rs.4,00,000/- in favour of accused persons as dowry. So, the learned Magistrate has aptly considered and assessed the oral 13 Crl.A.No.1308/2016 and documentary evidence present on record. Though there is a specific allegation by the brothers, father friend and also complainant i.e., PW.1 to PW.4 regarding giving of cash, gold ornaments, household articles to the accused No.1 and his family members, but not supported with single any documentary evidence, the complainant has failed to produce acceptable and believable documents to prove giving of dowry as referred above. So, the version of PW.1 to 4 is not sufficient to prove the ingredients of offences as alleged in the charge sheet.
13.During the time of arguments, the learned advocate for respondents has argued that the first marriage of complainant is still subsisting. Hence, the complainant cannot lodge the complaint against the accused persons. In support of his arguments, has relied upon the following decision of Hon'ble High Court reported in 2004 CRI.L.J. 1974 (Criminal Petn. No.2780 of 2001 dated 12.02.2004 Raghothaman and others-Petitioners Vs., State of Karnataka and another-Respondents). On perusal of the evidence of PW.1, 2 and 4, it is noticed that the learned advocate for accused persons has posed questions regarding Khula alleged to be given by the complainant to her first husband. It is the stand of PW.1, 2 and 4 that complainant had given khula before her marriage with this accused No.1. If the complainant really given Khula according to their customs and ended her marital relationship with her first husband, 14 Crl.A.No.1308/2016 document, then the complainant would have produce the said document before the Court to make it clear that she is legally divorcee and after divorce she married this accused No.1. There is no such document has been put forth before the trial Court or this Court to consider the version of complainant and her brothers. It is very clear that the cross-examination has completely devastated the evidence given by the witnesses PW.1 to PW.4. Mere making allegations of dowry and harassment not sufficient to believe such allegations made against the accused persons in the charge sheet. On the other hand it is the primary duty of the prosecution to place material and cogent oral and documentary evidence to prove the allegations made against the accused persons. So also, according to the decision of the Hon'ble High Court of Karnataka reported in 2004 CRI.L.J. 1974 relied by the learned accused counsel, is very clear that if the wife was married to some other person at the time of her marriage with the accused husband - then her marriage with accused husband is void ab initio and - proceedings against accused is quashed by the Hon'ble High Court of Karnataka, since the offence of dowry demand and cruelty wound not attract due to subsistence of earlier marriage.
14.It is pertinent to note that the prosecution has clearly failed to examine the neighbors and also pancha witnesses. Except the family members and one of the friend of complainants' father, no 15 Crl.A.No.1308/2016 other independent witnesses cited in the charge sheet have been examined by the prosecution to prove the guilt against the accused persons. In the absence of evidence of panch witnesses and other independent witnesses and prime I.O., evidence, the examiantion of PSI by name H.G. Somashekaaiah as PW.5, who has just registered FIR and apprehended some of the accused not make out the case against the accused persons. Except that no, evidence regarding recording statements of witnesses and conducting of mahazar is produced by the prosecution through the I.O., So, the absence of evidence of neighbors, pancha witnesses, and the evidence of I.O., who has completed the investigation is also fatal to the prosecution case. Though there is no material evidence, due to the lodging of complaint by the complainant and preferring appeal, the life of accused persons has become miserable, it is difficult to opt correct pathway to lead their peaceful life. It is nothing but the position of the accused persons is between "devil and deep sea". So, in view of the above reasons, this Court has not find out any error in acquittal of accused persons by the trial Court after appreciating the oral and documentary evidence present on record. As such this Court has answered the point No.1 in the negative.
15. Point No.2: In view of answer of this Court on point No.1, this court pass the following:-
16 Crl.A.No.1308/2016
ORDER The criminal-appeal preferred by the appellant/complainant against the respondents/accused No.1 to 9 U/s.372 of Cr.P.C., against the impugned- acquittal-judgment & order passed by the IV ACMM Court, Bengaluru, in CC No.18114/2007 dated 24.8.2016 is hereby dismissed.
The Judgment and orders of acquittal passed against the accused No.1 to 9 by the trial Court is confirmed. The office shall send the entire LCRs to the trial-
court, along-with the copy of the judgment immediately, within two days from today.
(Dictated to the Stenographer, transcript corrected by me and then pronounced in open Court on this the 14th day of January, 2020) (E. RAJEEVA GOWDA) XLV Addl. City Civil & Sessions Judge Bengaluru.
17 Crl.A.No.1308/2016
Order pronounced in the open court
vide its separate order
ORDER
The criminal-appeal preferred by the
appellant/complainant against the respondents/accused No.1 to 9 U/s.372 of Cr.P.C., against the impugned-acquittal-judgment & order passed by the IV ACMM Court, Bengaluru, in CC No.18114/2007 dated 24.8.2016 is hereby dismissed. The Judgment and orders of acquittal passed against the accused No.1 to 9 by the trial Court is confirmed. The office shall send the entire LCRs to the trial-court, along- with the copy of the judgment immediately, within two days from today.
(E. RAJEEVA GOWDA) XLV Addl. City Civil & Sessions Judge Bengaluru.