Shaheen Sultana W/O Mohammed ... vs Akbar Ali S/O Khayamuddin ...
2021 Latest Caselaw 5154 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 1ST DAY OF DECEMBER 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

          CRIMINAL APPEAL No.200080/2015

BETWEEN:

SHAHEEN SULTANA
W/O MOHAMMED AKBAR ALI
AGE: 24 YEARS
R/O WEAVERS COLONY
TRIPURANT, BASAVAKALYAN
DIST. BIDAR-585327
                                      ... APPELLANT
(BY SRI GIRISH S. KULKARNI, ADVOCATE FOR
 SRI SACHIN M. MAHAJAN, ADVOCATE)

AND:

1.     AKBAR ALI
       S/O KHAYAMUDDIN GYARAFAR
       AGE: 35 YEARS, OCC: BUSINESS
       R/O ALLA NAGAR, BASAVAKALYAN
       DIST. BIDAR-585327

2.     PASHABEE
       W/O KHAYAMUDDIN GYARAFAR
       AGE: 55 YEARS, OCC: HOUSEHOLD
       R/O ALLA NAGAR, BASAVAKALYAN
       DIST. BIDAR-585327
                                  ... RESPONDENTS
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE
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JUDGMENT AND ORDER DATED 26.02.2015 PASSED BY THE
FAST    TRACK      COURT,     BASAVAKALYAN,     DIST.    BIDAR      IN
CRL.A.NO.47/2014        AND    CONFIRM    THE   JUDGMENT     DATED
24.11.2014 PASSED BY THE JMFC AT BASAVAKALYAN IN
C.C.NO.334/2011 BY ALLOWING THE APPEAL.


        THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                              JUDGMENT

Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondents.

2. This appeal is filed under Section 372 of

Cr.P.C., by the complainant praying to set aside the

judgment and order dated 26.02.2015 passed by the Fast

Track Court, Basavakalyan, Dist. Bidar, in

CRL.A.No.47/2014 and confirm the judgment dated

24.11.2014 passed by the JMFC at Basavakalyan in

C.C.No.334/2011 by allowing the appeal.

3. It is the case of the prosecution that marriage

of accused No.1 and P.W.1 had taken place about four-five

years ago and after the marriage, they led marital life. At

the beginning for six months, they were cordial and

thereafter, the accused started to ill-treat the complainant

and demand additional dowry. Accused No.1 was

threatening to contract second marriage. Accused Nos.2

and 3 were abusing her in filthy language. On 11.01.2011

at 11.00 a.m., accused No.1 assaulted the complainant

with stick on her right cheek and caused bleeding injuries

and demanded dowry of Rs.40,000/- and similarly,

accused Nos.2 and 3 abused her in filthy language and

also kicked on her abdomen and thrown her out from the

house. The said incident was pacified by the neighbours.

The police have registered the case, investigated the

matter and filed chargesheet for the offences punishable

under Sections 498-A, 323, 324, 504, 506 r/w Section 34

of IPC.

4. The prosecution in order to substantiate their

case examined PWs.1 to 9 and got marked the documents

as Exs.P1 to P8 and stick was marked as M.O.1. The trial

Court after considering both the oral and documentary

evidence on record convicted accused Nos.1 and 2 for the

offence punishable under Section 498-A r/w Section 34 of

IPC and acquitted in respect of other offences. The Trial

Court acquitted accused No.3 of the offences punishable

under Sections 498-A, 323, 324, 504 and 506 r/w Section

34 of IPC.

5. Being aggrieved by the judgment of conviction

and order of sentence passed by the trial Court, accused

Nos.1 and 2 filed appeal in Criminal Appeal No.47/2014.

The appellate Court noticing the contradiction in the

evidence of P.W.1 and her father reversed the finding of

the trial Court and allowed the appeal. Hence, the present

appeal is filed by the complainant.

6. The learned counsel appearing for the

appellant/complainant would submit that the appellate

Court has failed to take note of the evidence of the

complainant and also medical evidence and erroneously

reversed the judgment of the trial Court. There is no

denial of the fact that the appellant has sustained injuries

and there is no cross-examination to falsify or to deny

narration of injuries. Despite the said medical evidence,

the appellate Court has committed an error in acquitting

the accused.

7. Per contra, the learned counsel appearing for

the respondents would submit that the appellate Court

rightly taking note of the contrary evidence of P.W.1 and

her father particularly, father claims that he witnessed the

incident and he was also subjected to assault, but P.W.1

categorically deposed that P.W.2 was not there in the

house and thereafter, there was delay in lodging the

complaint and hence, the appellate Court has rightly

reversed the judgment passed by the Trial Court.

8. Having heard the learned counsel appearing

for the appellant and the learned counsel appearing for the

respondents and also judgment of the appellate Court, the

point that would arise for consideration of this Court is,

Whether the appellate Court has committed an error in acquitting the accused?

9. Having considered the grounds urged in the

appeal as well as oral submission of respondents' counsel,

the prosecution mainly relies upon the evidence of P.W.1.

According to her, the incident has taken place on

11.01.2011 at 11.00 a.m. It is her evidence that after the

incident she went to her parental house and at that time,

her father was not there in the house. But P.W.2 father of

P.W.1 in his evidence has deposed that he was also

present at the time of the incident. The appellate Court has

extracted the evidence of P.W.2 and having noticed contra

evidence of P.Ws.1 and 2 comes to the conclusion that the

occurrence of very incident and assaulting of P.W.1 is

doubtful. P.W.8 is the medical officer who examined the

injured. He has deposed that the injuries sustained by the

complainant are simple in nature and age of the injuries is

four-six hours prior to examination. It is important to note

that, according to P.W.1, the incident had taken place on

the previous day i.e., on 11.01.2011 at 11.00 a.m., and

admittedly, complaint was given on the next day and

thereafter, she went to the hospital and she was subjected

to examination and it is more than twelve hours, but the

doctor says that age of the injury is four-six hours prior to

examining the injured. Hence, evidence of P.W.8 also does

not corroborate with the evidence of P.W.1. No doubt, the

explanation was given by P.W.8 that by mistake, history is

mentioned as RTA in wound certificate. But the same will

not go to the very root of the case of the prosecution. The

evidence of P.W.8 do not corroborate with the evidence of

P.W.1 and so also, evidence of P.W.2 do not corroborate

with the evidence of P.W.1 When these discrepancies and

contradictions are found in the evidence of P.W.1 and 2,

the appellate Court has rightly reversed the finding of the

trial Court. Hence, I do not find any error in the finding of

the appellate Court in reversing the judgment of the trial

Court and acquitting the respondents herein. I do not find

any merit in the appeal to come to other conclusion and

the judgment of the appellate Court is based on the

evidence available on record. Hence, the question of

restoration of the judgment of the Trial Court does not

arise.

10. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

NB*