Karnataka High Court
The State Through Adarsh Nagar Police ... vs Akalak Ahamed S/O Allabax Mulla And Ors on 14 March, 2022
1 CRL.A.No.200073/2014
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 14TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.200073/2014
BETWEEN:
THE STATE THROUGH
ADARSH NAGAR POLICE STATION
BIAPUR
... APPELLANT
(By Sri. GURURAJ V. HASILKAR, HCGP)
AND:
1. AKALAK AHAMED
S/O ALLABAX MULLA
AGE: 43 YEARS
OCC: GOVERNMENT SERVANT
R/O SHOLAPUR (MAHARASHTRA STATE)
2. ALLABAX
S/O DASTAGIRSAB MULLA
AGE: 73 YEARS
OCC: RTD. GOVERNMENT SERVANT
R/O SHOLAPUR (MAHARASTRA STATE)
3. SMT.BANU @ SHAMSHUNISA
W/O ALLABAX MULLA
AGE: 68 YEARS
OCC: HOUSEHOLD WORK
R/O SHOLAPUR
(MAHARASHTRA STATE)
4. MAKSUD
S/O ALLABAX MULLA
2 CRL.A.No.200073/2014
AGE: 47 YEARS OCC: TEACHER
R/O RANGALOLI
(MAHARASHTRA STATE)
5. ABDUL KHALIK
S/O ALLABAX MULLA
AGE: 30 YEARS, OCC: TEACHER
R/O SHOLAPUR
(MAHARASHTRA STATE)
6. ABDULHAFEEZ
ALLABAX MULLA
AGE: 26 YEARS, OCC: LECTURER
R/O SHOLAPUR
(MAHARASHTRA STATE)
7. MAHAJABIN
D/O ALLABAX MULLA
AGE: 33 YEARS, OCC: HOUSEHOLD WORK
R/O SHOLAPUR
(MAHARASHTRA STATE)
8. RUKSANA
D/O ALLABAX MULLA
AGE: 28 YEARS, OCC: HOUSEHOLD
R/O SHOLAPUR
(MAHARASHTRA STATE)
9. PARVEEN ALLABAX MULLA
AGE: 31 YEARS, OCC: HOUSEHOLD WORK
R/O SHOLAPUR
(MAHARASHTRA STATE)
10. SMT.KAMARUN
W/O RASHEED LANGOTI
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK
R/O AKKALKOT
DISTRICT SHOLAPUR
(MAHARASHTRA STATE)
... RESPONDENTS
3 CRL.A.No.200073/2014
(By SRI R.S. LAGALI FOR R1, R3 TO R10
V/O DATED 10.12.2018 R2 ID DEAD)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) & (B) OF CR.P.C WITH A PRAYER TO a) GRANT
LEAVE TO APPEAL, SET ASIDE THE JUDGMENT DATED
10.01.2014 PASSED BY THE I ADDL. SESSIONS JUDGE, AT
BIJAPUR IN CRL.APPEAL NO.41/2012 THEREBY
ACQUITTING THE RESPONDENT/ACCUSED FOR OFFENCE
PUNISHABLE UNDER SECTION 498(A) AND SECTION 149
OF IPC; b) SET ASIDE THE JUDGMENT OF ACQUITTAL
DATED 10.01.2014 PASSED BY THE I ADDL. SESSIONS
JUDGE, BIJAPUR, IN CRIMINAL APEAL NO.41/2012 FOR
OFFENCE PUNSIHABLE UNDER SECTIONS 298(A),
SECTION 149 OF IPC AND CONFIRM THE CONVICTION ON
THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498(A) SECTION 149 OF
IPC, PASSED BY THE TRIAL COURT, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 02.02.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:
JUDGMENT
State has filed this appeal under Section 378(1) (b) of Code of Criminal Procedure, challenging the acquittal of accused persons for the offences punishable under Section 498(A) r/w Section 149 the Indian Penal Code, 1908 (hereinafter referred to as 'I.P.C.' for the sake of brevity) in Crl.A.No.41/2012 on the file of I Addl.District and 4 CRL.A.No.200073/2014 Sessions Judge, Bijapur. Vide the impugned judgment and order, the First Appellate Court has reversed the conviction and sentence of accused in C.C.No.191 and C.C.No.239/2009 by the III Addl. Senior Civil Judge, Bijapur.
2. For the sake of convenience, the parties are referred to by their rank before the trial Court.
3. Accused No.1 is the husband, accused Nos.2 and 3 are the parents'-in-law, accused Nos.4 to 6 are the brothers'-in-law and accused Nos.7 to 9 are the sisters'-in- law of the complainant.
4. It is alleged that complainant is the legally wedded wife of accused No.1. Their marriage was solemnized on 12.04.1999 at Bijapur as per the custom prevailing in their community. At the time of marriage parents of complainant gave 5 tholas of gold, Rs.21,000/- cash, utensils worth Rs.60,000/-. They also gave Rs.25,000/- for purchasing scooter and performed the 5 CRL.A.No.200073/2014 marriage by spending Rs.2,50,000/-. All the accused persons were living together.
5. After the marriage, complainant started living with accused No.1 at Sholapur. After about four months accused persons started harassing and ill treating the complainant to get 10 tholas of gold, cash Rs.50,000/- and also her share in her parental properties or else she would not be allowed to lead marital life with accused No.1. It is further alleged that after eight months of the marriage, complainant went to her parental home for delivery. However, the child did not survive. After delivery, accused persons did not care to visit the complainant. They refused to take back the complainant unless their demand was met. Without any other alternative, complainant got issued a legal notice and when her request was not complied with she filed complaint.
6. During the trial accused pleaded not guilty and claimed trial.
6 CRL.A.No.200073/2014
7. In support of the prosecution, 8 witnesses were examined as PWs-1 to 8. Ex.P1 to 4 are marked.
8. During the course of statement under Section 313 Cr.P.C accused have denied the incriminating evidence. They have not led any defence evidence. However, during the cros-examination of prosecution witnessses, they got marked Ex.D1 and 2.
9. The trial Court convicted the accused persons for the offences punishable under Section 498A r/w Section 149 IPC.
10. In the appeal, the I Addl.District Judge acquitted the accused persons.
11. Being aggrieved by the same, State has come up with this appeal.
12. Heard arguments of both the sides and perused the records.
13. During the course of arguments, the learned HCGP argued that First Appellate Court has not properly re-appreciated the evidence of complainant as well as 7 CRL.A.No.200073/2014 independent witness namely, PW-7 who has specifically deposed with regard to the harassment given by the accused persons to the complainant. The First Appellate Court has wrongly answered point No.2 holding that the trial Court has relied upon Ex.P2 to convict the accused persons. He would submit that the First Appellate Court has totally misread the document and has thus wrongly acquitted the accused persons. He would further submit that the First Appellate Court has wrongly held that Ex.P2 does not contain any fact of cruelty having been meted out by accused persons against the complainant and that it is only an undertaking given by accused No.1 to take back the complainant. The First Appellate Court has acquitted the accused persons based on some minor inconsistency, contradictions and omissions, which does not go to the root of the prosecution case and prays to allow the appeal.
14. On the other hand the learned counsel representing the accused submitted that based on the first complaint in P.C.No.2/2001 when the concerned police filed 'B' report, instead of challenging the same, 8 CRL.A.No.200073/2014 complainant filed P.C.No.181/2001 and when it was pending consideration before the concerned police, she filed one more private complaint in P.C.No.65/2002. After investigation, charge sheet was filed therein in C.C.No.927/2002 and simultaneously complainant prosecuted P.C.No.181/2001 by filing protest petition and cognizance was taken and it was also ended up in registering case in C.C.No.803/2005. In this way, the accused persons were simultaneously prosecuted for the same offences in multiple complaints.
15. He would further submits that ultimately after the trial, both the cases ended up in conviction. However, the First Appellate Court has rightly acquitted accused persons for lack of evidence and now the presumption of innocence in their favour is fortified by their acquittal and relying upon the decision of the Hon'ble Supreme Court reported in (2007) 4 SCC 4151, the learned counsel would further submit that scope of appeal against acquittal is very limited and there are no justifiable grounds to 1 Chandrappa and others Vs. State of Karnataka 9 CRL.A.No.200073/2014 interfere with the acquittal of accused persons and prays to dismiss the appeal.
16. It is an undisputed fact that the marriage of complainant and accused No.1 took place on 12.04.1999. After about 2½ years of her marriage, complainant lodged a private complaint in P.C.No.2/2001 alleging that at the time of marriage, the accused persons demanded and received five tholas of gold, cash of Rs.21,000/- to accused No.1 and utensils worth Rs.60,000/-, Rs.25,000/- to purchase scooter was also given to accused No.1 and marriage was performed by spending Rs.2,50,000/-. She alleges that all the accused were living jointly and after about 4 months, accused persons started harassing the complainant, demanding additional dowry in the form of gold weighing 10 tholas and cash of Rs.50,000/- and that she should also get share in her parental property.
17. P.C.No.2/2001 was referred to GGPS for investigation. Before the said police, accused No.1 gave undertaking that he will take back the complainant after quarter is allotted to him at Shorapur. After investigation, 10 CRL.A.No.200073/2014 the said police filed 'B' report stating that no offence is made out. However, the complainant did not choose to challenge the 'B' report by filing protest petition.
18. On the other hand, she once again filed a fresh complaint in P.C.No.181/2001. It was referred to ANPS for investigation. The said police also filed 'B' report.
19. Complainant filed one more complaint on 29.07.2002 in P.C.No.65/2002. It was also referred for investigation. This time, the concerned police filed charge sheet in C.C.No.927/2002. However, simultaneously, in P.C.No.181/2001, complainant filed protest petition and after recording sworn statement, the jurisdictional Magistrate took cognizance for the offences punishable under Section 498(A) read with Section 149 I.P.C and it was registered in C.C.No.803/2005.
20. Accused challenged both charge sheets in Crl.R.P.No.101/2005 and Crl.R.P.145/2002 before the Additional District Judge. Clubbing both petitions, by a common order dated 16.02.2005, the learned District 11 CRL.A.No.200073/2014 Judge allowed the petitions and discharged the accused persons.
21. Complainant challenged the said order in Crl.P.No.1765/2006 and Crl.P.No.3480/2006 before this Court. Vide a common order dated 16.07.2008, this Court refused to discharge the accused persons and directed the trial Court to decide both the cases together by clubbing them.
22. After the remand, the cases were made over to Addl.CJM, C.C.No.803/2005 was renumbered as C.C.No.239/2009 and C.C.No.927/2002 was renumbered as C.C.No.191/2009.
23. The learned Addl.CJM clubbed both cases, framed charge and after detailed trial vide judgment and order dated 19.06.2012 found the accused persons guilty of the offence punishable under Section 498(A) read with Section 149 I.P.C.
12 CRL.A.No.200073/2014
24. Aggrieved by the same, the accused persons approached the I Addl.Sessions Judge, Bijapur in Crl.A.No.41/2012. Vide judgment and order dated 10.01.2014 the said appeal came to be allowed and all the accused persons were acquitted.
25. Now the state is before this Court in appeal. So far as the allegations that the accused persons demanded the complainant to get her share in the properties of her parents is concerned, as rightly observed by the trial Court, the parents of the prosecutrix were not at all having property more particularly, immovable property and as parties are Mohammdans, the question of children claiming share in the properties of the parents would not arise during their lifetime. Succession to a Mohammadan opens only on the death of the person whose property is to be distributed amongst his/her sharers. Such being the case, the allegations that the accused persons demanded the prosecutrix to get her share in the properties of her parents does not arise and it appears the complainant has made up this ground for the purpose of maintaining the 13 CRL.A.No.200073/2014 complaint. There is no substance in the said allegations and no evidence to establish the same. When the prosecution has failed to prove that the accused persons harassed and ill treated the complainant with a view to get additional dowry, the provisions of Section 498A IPC, so far as first part is concerned is not attracted.
26. Now coming to the allegations that even otherwise the complainant was harassed and ill treated by the accused persons. According to the prosecution, the complainant stayed in the house of accused persons for a period of eight months out of which for the first four months, they took proper care of her and afterwards they started harassing and ill treating her demanding dowry. Admittedly, no neighbours of the accused persons are examined on the aspect of harassment meted out by the accused persons to her. PW-6 Younus is stated to be the person who was staying in the adjacent quarters of the accused persons and he has been examined to prove the allegations of cruelty. He has gone to the extent of deposing that he has seen accused persons assaulting the 14 CRL.A.No.200073/2014 complainant beneath a neem tree, which is situated in front of the quarters.
27. This fact is not even spoken to by the complainant and other witnesses. It is an exaggeration made by PW-6 Younus and as rightly held by the trial Court his evidence does not inspire any confidence in the mind of the Court. While complainant i.e., PW-1 and another witness PW-3 Ismail have spoken to about holding of panchayath at Puttagi Village, PW-6 has deposed that even though the brothers and other relatives of the complainant came to Puttagi Village to convene panchayath, the accused were not available and as such panchayath could not be held. The evidence of PW-1 on one hand and PW-6 on the other hand are contradicting each other. At the same time PW-4 Akbar Shiekh has also deposed that panchayath could not be held which is in consonance with the testimony of PW-6 which in turn contradict the evidence of PWs-1 and 3. Moreover, the evidence of PW-5 Razaq neither speaks with regard 15 CRL.A.No.200073/2014 holding of the panchayath or not holding of the same for non-availability of accused persons.
28. Now coming to the evidence of PW-5 Razaq who has claimed that a panchayath was held in the house of Khazapeer Bhangi during August 2001. However, during his cross-examination he has stated that the said panchayath was convened in 2002. As rightly held by the trial Court, he is also not sure about the time of the panchayath.
29. According to the prosecution, the complainant started filing the complaints during 2001 and subsequent to the filing of the complaint, no panchayaths were held. This also contradict the testimony of PW-5 that panchayath was convened during 2002 to hold that the accused persons have committed the offence punishable under Section 498A IPC. The trial Court has relied upon Ex.P2, an undertaking given by accused No.1 before the GGPS, when the complainant filed the first private complaint which was referred for investigation. The contents of Ex.P2 16 CRL.A.No.200073/2014 makes it clear that when the concerned police called him to the police station and enquired about the allegations made against him, he has stated that he is going to get a quarter allotted within a month and he will see that a separate residence is set up for the complainant and even where quarters is not allotted to him, he has undertaken to set up a rented premises and keep the complainant separately.
30. As rightly held by the trial Court, the contents of this undertaking nowhere establish the allegations of the complainant being subjected to cruelty for any reason. From the contents of this document, it could be ascertained that the complainant was not willing to stay along with the other members of the family and therefore, she wanted a separate residence to be set up and in furtherance of the said, the accused No.1 has given such undertaking. Therefore, the trial Court has erred in holding that Ex.P2, the undertaking given by the accused No.1 establish the allegations of cruelty. One of the circumstances relied upon by the prosecution the 17 CRL.A.No.200073/2014 allegations of cruelty is that after accused persons ill treated the prosecutrix and refused to take her back, she issued legal notice to accused No.1 demanding her to take back, but he has refused to receive the same and therefore it is returned. Admittedly, the prosecution has not produced the office copy of the said notice as well as the returned envelope. The contents of the notice would have supported and established the case of the prosecution. The non production of the same would draw an adverse inference that the contents may not be corroborating the allegations made by the complainant in her complaints.
31. In spite of all the contradictions and omissions in the case of the prosecution, the trial Court has come to the conclusion that the charge is proved. The said findings is contradictory to the evidence on record and as such perverse. However, the First Appellate Court has rightly interfered with the said judgment and passed order of acquittal. The findings of the First Appellate Court is correct and proper. In view of the acquittal of the accused persons by the First appellate Court, the presumption of 18 CRL.A.No.200073/2014 innocence in favor of the accused persons is fortified. There are no justifiable ground to interfere with the findings of the First Appellate Court. As held by the Hon'ble Supreme Court Chandrappa's case cited supra, the scope of the Appellate Court in interference of the judgment and order of acquittal is very narrow where two views are possible on the evidence on record, the one taken by the trial Court in favour of the accused should not be disturbed by the Appellate Court. Thus, from the above discussion I hold that appeal filed by the State fails and accordingly, I proceed to pass the following:
ORDER Appeal is dismissed.
Sd/-
JUDGE RR