Karnataka High Court
State By Hal Police vs Mohammed Nakeed on 29 June, 2010
Equivalent citations: 2010 (4) AIR KAR R 199
Author: K.L.Manjunath
Bench: K.L.Manjunath
IN THE HIGH COURT OF KARNATAKA, DATED 11-us THE 29*" DAY OF JUNE 2010M 2 PRESENT THE HON'BLE MR. JUSTICE :§;L;MAm:fJi4 AT}-S 'V AN9 THE HON'BLE MR. JUSTICEk;. fi;~«KEsHAVANA§zA?ANA amween STATE av HALvPGL';iCEV' } % % H M APPELLANT (By Sri. sr~&_Afi HCGP) Arm: % V % : U 1 u,2:.wHAMb'ist> fdwfiKEE[V) ' « ~$10 S,|'-1. GHGUVSEAVPEER * é 'L30 YRS' % 3ANGALoaE - 17 k % Lk 2 ?.YE'D.PA$HA syn cgnouse 95552- A ~ :25 was ago? f~lO.2?l1, ISLAMPURA HAL POST : BANGAi.0RE - 17 % 3 MOHAMMED Mum 5/0 GHQJSE PEER 26 YRS RJOF |'\lO.27/1, ISLAMPURA HAL POST €-/ BANGALORE - 17 RESPONDENTS
{BY SR1. MOHD USMAN SHAIICH, ADVOCIATE) cam. FILED u1s.37s(1) a. (3) CR.P.C av P.P. FOR THE STATE PRAYING THAT THIS HO.b£'--5uLE..CC5URT V % MAY BE ?LEfi5ED To GRANT LEAV%$E 'f'{)"F1vLE AGAINST THE JUDGEMENT oT.4.7.2Lm:a;%%9AssEz) -av. xxv ADDL. cm 5.1., BANC§AL§)RE' 'f.i'TY_ 201x94, ACQUI-TTING THE RESlv5G§§'fiEVNT4ACCUSEt5f§ NCL1 FOR THE OFFENCES P/U13, 4934AAaa:2%%3o2 OFIPC AND U13. 3, 4 a 6 or 0.9. ;wuJa«¢cus%E%r§i mo. 4 a 5 or THE OFFENCE P/uzs. 498~fis'A!iDV3Q2_ This hearing this day, K.fi.KE5HAVhHARgfiYflflJ§"*«r;;s!ivered the following- This afibegi by is directed against the .f 'J':.3dgrs5;:nt:,.§nd. z€)rd:éHr""'¢iited 4*" July 2903 passed by 23"' Bangaiora City, in S.C. No.201i1996 acq.u'i!;;t:i:ig feépondents-accused persons cf the charges afiinst them for the offences punishable under ' 3, 4 and s of the Dowry Prohibition Act and .._ $oc t:ions 498-15» and 302 read with 34 of IPC.
2. Case of the prwution in brief is as und¢r:-
M Deceased Nazira Begum was the daughter of Syed Noor Ahamad. She was married to accused Mohammad Nakeed Pasha on 19.7.1937.
5.M.Ghouse Pear and accused no.3....Jaibur:niaa*.::avre"'fl'*3 parents-in-law and accused nos.-4 and 5'_'_'are in-law of the deceased Nazira 1pr§?i:3a«rria§a % talks, the accused persona demand:ed_daavrf in of Chetak Scooter, 2% sovve're¥g.na. 5 sovereigns of gold chain, .3 Marisa wataifiggydv"a_%»cs'ireVv.a§:".i3a.ngaiore and hause to be costs of the parents faiiicampiy with all these demands} '' time of the marriage, parenm of VNa2a:%iI'a fv;i.&firiad the above said demands
---;e'_xcapt usibe a'a¢i..__¢9ristructinn of the house. After the A"'.a1arriage,.vA_gi:g«de:.eased starhed living with the accused in her After sometimes accused ' persons H éahjacfing the deceased" to cruelty and since her parents failed to provide the site
-.£snZa*§a'Ia5a to construct the house as agreed aariier. They T insished her he bring further dowry from her parentai "house. On 11.5.1990, mother of the deceased had been an the heuse of the accused to extend the marriage invimtian 6/ aal-J"'"""
of her another daughter and zeked the accused persons--to send Nazira Bmum to attend the marriage. At fine deteased insisted the accused persons to pledged drnaments to facilitate her of her sister. At that juncture, accused fetfierv in of the deceasw became engdrvfind dua__rr'e.led._: "izfie mother of the deceased vegU1e'Vgre££'L§1d"'thet.tfie5*--..he;re not yet given the site and as agrew.
After her mother persons with a Nazira Begum, Qathered 5.30 P-rn., on the same kerosene on the deceased, accused NoV'.'2.._V%%ii!; xthsd an account of which, the _.~.deceeseduvsustaieed--..b_q_rn injuries. Immediately injured - %"va;a:ira.segu.m..%§9as shifted to HAL hospital fur treatment. she was taking treatment in the 'i'I§$pite'i,.. '§.wd§t13 Head Constabie of HAL Police Station the statement of the injured Nazire Begum in
--'..the'*!§resen¢e of P.W.19 Dr. Nalini Bafat as per Ex.P-4. T "d-ijrjring the said statement, she disciosed the details about xdae demand of dowry prier to the marriage, cruelty as well as harasment new out ta her by accused persons. She further stained that unable to bear the said cruelty as well as harassment, in as bw to commit suicide herself with keresene and set herself ablaze kitchen of the house. Basm on ewe it injured Nazira Begum, case in bee;-1--ie registered for the offences puniehlrle under. and 306 of IPC reed nritli 3"'-end' "?'vvof»i3lowrY 9:-ohibinon Act and FIR wosiiisgutimiiitgeci -iurisdictienal Magistrate as iilozira Begum sucaumbed of the death memo "the....ra:quest of the police, P.W.16 Magistrate conducted the inquestienhh tile of the deceased-Nezire .Baegurf:*..§.':.;,'5::'15v.5.i9@£3..__§!nd thereelter, the dead body was :p.oste-_mortem examination threugh P.W.15- who after conducting post-nzortern ' examination. ooined that the dead': of Nezira Begum was i':.lju.eA' tatoitemia consequent ho hum injuries. Theneeflaer, V."'V-V-It__-the'*§invest%netion was handed over to COD, Anti Dowry Bangalore. During investigation, the investigating ofiiicer recorded the statement of parents of the deceased and other witnesses. During investigation, it was revealed 6/ that on due date of me incident on haaring me SCf'8Bfl"l$ of deceased Nazira Baum, P.w.6- Sued Azeez a neighbour came near me houw of the accused persons and noticgd deceased- Nazira Begum having sustained burn On enquiry, the deceased -Nazira Begum P.W.6 that accused No.4 floured amnionmarina accused Nam? fit the fire, as a sfjas ..é:u4éta_1iri§:d injuries. Based an the sti:bemé_n't.__of Vh under Section 302 readivgith -1:m._»}aIa9."a--dd§d the case aiready rwistaared and" conducted. During invastigat'u:_:=::,_ it "F".W.5 Syed Gafar affiar _§f" deceased having bean admitted to "tag" hoépatiaziwifin burning injuries, visitad ma ihpspitfiaga gn n:ehq:u§_ry, the injured hold him that syed .{ac<A;as&d""-ng.4) pourw kermena can her and her rath.a};sn-zaeizacggiséd no.2) fit use fire. After compaeung ' the iniviestivgdatidn, charge sheet came to has laid for thc A piinishable under Sections 3, 4 and 6 of Down: 9ro:;ibati¢n Act and Section 498--A, and 302 of read with "'4d4'dfIPC.
3. During invstigtion the accused persons wars apprehended yd produced before the teamed Magisu-ate. Though they were initially remanded to judicialcustocly, subsequently, they were enlarged on bail. DufingV.VV_t§1:e~-..v pendency of the case before the learned Sesslcn%A..3uld'g:§'. accused No.2 and accused No.3 perent:s--in%im¥.¥I"_~n§fthe ll deceased died therefore case as e§ct.ins¥;"th:'ein.erec"c'l6§ged as a-bated. Accused ncs.1, 4 plleadlecl the charm ievellecl against ale nomad. To bring harm the guilt prosecuuon examined P.w.1 1:9 P.lhl;V-iii Ex.P1 to Ex.P12. During. ;iln{£é;~'eec.313 Cr.P.C. accused inc:cEm'i§r:atin§ circumstances eppeeringliegainscV:'fi*ie~:in "evidence of the prosecution witnesses. §v«..y&a.5; in accueed perecns examined o,w.1_~ V"amd..__got marked EXD1 and EX.D2. The AV'c!_ei'enc3of.A_l:l'§e persons was one of total denial and V wet' According to them, the deceased ' ncclde'n'tnll§*.iV.ce'e9ht fire in the house, as a result, she « injuries and later succumbed and that the? net commitbw any offences alleged against them. 'flihelllearned Smions fiudge after hearing both sides and ii essessment of the 'oral and documentary evidence, by the judgment under appeal acquitted accused ncs.1, 4 and 5 491/ of all the charges levelled against them holding that the prosecuflon has failed to prove the guilt of the accused persons. Being aggrieved by the said judgment and of acquittal, the State has presented this appeal. ~
4. Upon service of notice of this etzeusetli 4 and 5 appeared through theirbc.euneeE,
5. Today, earned the respondents/accused flies}: the death of respondent No.2/accused mpy of the death '-««l=!eg}Estr*ar of Births and Deaths, is also produced. In the light ol»..this,:Vi as against respondent ~ 24¢. h1e.V"4" 'is. d__i§r.hissed as bated. ' We:'het?e'heerd Sri. Rejesubramanye Bhet, learned the appellant-State and Sri. Mohd Ueman"".'5.h"'a§i<,.V'counse| for the respondents/acaused nes;1 *er_sdi 5;~._PeVi'used the records and also judgment under In we facts and circumstances of the case. the h ' " that arise fog/eur consideration in this appeal are;
"'1) whethm' the learned Sessions Judge is justifia in acquitting the respondentsr:'~...:'f«..:l_'~-_ accused of the charges levelled agai_ii'st««'i,'_~;..._f _ them?
2) Whether the judgment uiideii.-:.4§.p;ié§l':';;a*ll§ For interference by tl1isbC_wrt"??'A
6. baarned HCGP during contended that thejudgnisnt un!:l§?}f'£di5i3§fl{§1ll'b'ii?:..;:aerver*se and illegal inasmuch as, it ifig""dVldSflCB on record and that ia:ii_::-nntl: I-3s,444zVa.$.«:.ii':':1:-'i}§""'."ii:c§ge has not properly qppi':ef.'~lii5$E1d3.; meretary avidence, which cleti_rly_ ».guilt of the amused persons
-of the chargsié th-am and therefore, the _ judgnisnt' under apfifil id: erroneous as such is liable to be I r _ hand, learned counsel for the rhsbonldentsllétinfiht to justify tha judgment under apmal :"..i__%an_?d that the judgment do not suffer from any * néri}¢'rs«ity Nor illegality. He contends that the learned Judge has properly appreciated the oral and V ""d.di:iimentary evidence and is justified in holding that the prosecution has Wrly failod to prove the charges levelled 10 against the accused persons and thoroforo, he sought dismissal of the upper: I.
8. There is no dispute that the ' Begum, daughter of P.W.1 was a;o4used.gAjjo,. .'£9.?.1987. There is also no sef&oud"wdAi§pote Begum sustained burn injuries"'o:I§'«.11.S.i9$G, was staying in her rrno"'tr.in1oniéf"' she succumbed on 14.5.1990 in HAL hotspitah
9. Tho is that prior to the marriag\ demanded dowry and .P.W.1 <;empHed" mfithddoli ti'-xotéo demands except providing 3 VsimoitdcorvstmotionAofhha house, which was agreed to be could not comply with those demands : the marriage, the accused persons '"55:,»-fi$o»b3e¢:bedthe deceased to cruelty and harassment. It is ' case of the prmecuwn that on 11.5.1990 . ':*--'o't'vo§:out 6.30 pm. while tho dacoasod _was in the house, 'v""'»»...'4o'ccuoad no.4 poured kerosene and occoad No.2 lit the fire, as :1 result, she sustained burn injuries and later succumbed. Even according to the prosecution, the death 9/ 11 of the deceased was homicidal and thersfom, the charge sheet came to he fiw for the affence punishable unis}- Secfion 302 IPC apart from other offences.
10. As nctimd earlier, the criminal law" an i' 2 motion on the basis of the statemésjit said? made by the deceased Nazira Ségsgfn, ééhiiié she:
-treatment in the hospital whic:ii"'«.V'§e:v_:s:s_» the prwence of P.W.10 --Dr.Ns.'lini' a1s'L'._iiiair_»»Ex.P4. Thus, according to the pr9sscuti:m,:'_y§hahAA 'irecorded on 12.5.1990 Naziréi be seen from the Fm-E;§c.9s,the she, who registered the case in crisis basis of E-x.P4 registered the sanjafqr tiiis piinishable under Section 49845., 9"f"I(<PC7'if*ga:"d_iwifi1 isaha :' of this Dowry Pnohibition Act.
It mm on 12.5.1990, me case for the V offs:-ins' pg.n'is§isfi'le under Section 306 of IPC could not ' " 1 'j haw; Tbaér: isterw.
According to the statement said to have been flmds by the daceassd as per Ex.P4, in a bid ho commit 'suicide, sha doused herself with kerosene and set herself abiaze. Therefore, according tn her, it was 3 case of 12 attempt to commit suicide. Since she later died, at best it could attract the offence punishable under Section 306.g*of_ IPC, if the prosecution proves that the V. committed suicide on account of the abatemei-£t._::byjV'_the"
accused persons. However, the lnvesltigetirg 7officer;f«.who5' filed the charge sheet did not punishable under Section 306 osfjec or fi§1é.= l.m.a sessions Judge before whom the"'octe5Ve&-._took'their' trial framed a charge For the offence under of 191:. The charges werg..frehfled persons only for the effehceeflonfiier. $ectlvens,"*~~~3./V4 and 6 of Dowry Prohibltionifictéforadvjvfet under Sections 49$-A, 302 read with'i3{ l ofVVVVI?_é.r'._The£efore, the alleged statement 'said V'n1ede___hy the deceased as per Ex.P4 is ef h--o'ss'sista--n_r.eitothe prosecution in proving the charge frarnetl"*sgeVinstj--3_th:eeccusved persons for the offence under if,_eagctioniisozltgreed with 34 of me. The other circuneence by the prwetion to lnvokethe offence ___'p«iJnAiehl:ile under Section 302 read with 34 of IPC is the "elleged oral dying declaration said to have been made by deceased Nazira Begum. P.W.6 Syed Azeez, in his oral evidence has stated that after hearing the screams from I4 P.W.10- Dr. Nelinl Bapat that when the injured Nezlre Begum was brought to the hospital, the furnished as stave burst. As named earlier, alleged statement of the injured -Nazira" it police as per Ex.P4, she doused llkeceeenle sat herself ablaze in a bid to . The'v_:fa'i;hé'r"ei the deceased in his evidence he§ai"s'"u%i§;ed""th.et ceming - to know about his daughter'h'avln.§VbeefiVI_ to the hmpital, he carrie learnt that at about 5.30 p.n:1{ with the help of the ttievgerosene to come out from the fire and sustained burn injurimsillilfhus Vtliffeifc§nt_'"..%eersiaans have been furnished to dec'=ea.5e.d~ sustained burn injuries. Under theee5"'c.ircu_;1*:ste.ni:e§s, the learned Sessions Judge in our apininn"*haev i;l§lfitl'~;lVVllisbie|ieved the evidence ef P.ws.S and evidence of P.Ws. 5 and 6, there is no 'legidance on record to establish the charge for the Vcir..l¢emar Section 302 read with 34 or IPC. em ' "'e&iemise, the charge under Sectien 302 read with 34 IPC uwas framed only against accused nos.2 and 4. Both accused 1105.2 and 4 have died already and case against A 16 me prowcu®n in rwpact of due charges under Sactione~"3,T 4 and 5 or Down; Prohibition Act.
13. The allegation attracting the offarxesfy ii Section 498-13: IPC as noticed abevegis .1-'en"i;i"a_§a'in-sf"Eh? parents-in-law and the bmfliersin-laiir. VTi<;el' disclose that accused no.1 was cancer. and he was treeta:d._Res_Ainpe'tAisnt_'L'in:the hosnital up to 10.5.19% and was to attend the marriage pf sister of the deceased. admitted to the hospital 1990. He underwent surgery in 'St,43ohn's'rldsg§ita'i"'and later he was treated in vKidwei_;i~ivespitaVl the months of October and Ex.P4, the fact of accused No.1 Vin-..'--:'the hospital for the cancer of the srerbeilsrae .3' irédieated. Having regard to the situation in No.1 was placed and he being treated as A in the hospital for the sertous ailment, it is highly to mlieva that accused No.1 had in any way sisbjactaad the deceased to cruelty and harewmant. In fact, according to the statement of the deceased, till 10.5.1990 she athended her husband in the hospital by bringing Food </