Karnataka High Court

Sri Showkath Ali vs State Of Karnataka on 1 April, 2022

Bench: Mohammad Nawaz

                          1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU


         DATED THIS THE 1ST DAY OF APRIL, 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO. 297 OF 2022


BETWEEN

SRI. SHOWKATH ALI
S/O CHAMAN SAB
AGED ABOUT 35 YEARS
DEVARAHATTI VILLAGE
DAVANAGERE TALUK & DISTRICT-577004.
                                            .... APPELLANT

[BY SRI HAREESH BHANDARY T., ADVOCATE]

AND

1.    STATE OF KARNATAKA
      BY DAVANAGERE RURAL POLICE STATION
      REPRESENTED BY STATE PUBLIC PROSECUTOR
      HIGH COURT BUILDINGS
      BENGALURU - 560 001.

2.    GUNDI BAI
      W/O. POOJARI KAALANAIKA
      AGED ABOUT 45 YEARS
      DODDAOBBAJJIHALLI THAANDA
      DAVANAGERE TALUK & DISTRICT-577004.

                                       ....RESPONDENTS

[BY SRI. R.D. RENUKARADHYA, HCGP FOR R-1;
     R-2 SERVED AND UNREPRESENTED]

                         ***
                                 2




      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14-A
OF THE SC/ST (POA) ACT, PRAYING TO ENLARGE THE
APPELLANT ON BAIL AND SET ASIDE S.C.NO.114/2021
(DAVANAGERE RURAL P.S., CRI.NO.146/2021) ON THE FILE
OF II-ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
REGISTERED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498-A, 304-B AND 302 R/W 34 OF IPC AND
SECTIONS 3(1)(r), 3(2)(v-a) AND 3(2)(v) OF SC/ST(POA)
ACT, 1989.

      THIS CRIMINAL APPEAL COMING ON FOR ORDERS,
THIS DAY, THE COURT PASSED THE FOLLOWING:

                            JUDGMENT

This appeal is preferred by accused No.1 in

Cr.No.146/2021 of Davanagere Police Station, to set aside the

order dated 16.08.2021 passed by the Court of II Additional

District and Sessions Judge at Davanagere in

S.C.No.114/2021, whereby his petition filed under Section

439 of Cr.P.C has been dismissed.

2. Heard the learned counsel for appellant, the

learned HCGP for respondent - State and perused the

material on record. Inspite of service of notice on CW.7,

namely brother of the victim, there is no representation.

3. Brief facts of the prosecution case are that

accused Nos.1 and 2 are husband and wife. Their marriage

was performed about six years prior to the incident in

question. They have two children in their wedlock. Before his

marriage with accused No.2, accused No.1 was in love with

the deceased - Savitha and after three years of his marriage,

he married the deceased and it was a inter-caste marriage.

Subsequent to the marriage, accused No.1 had forced the

deceased to change her name as Shaeeda Banu. The

deceased was staying in the same house with the accused

Nos.1 and 2 and their children. Accused persons started ill-

treating and abusing the deceased insulting her caste and

started giving mental and physical torture telling her not to

follow the practice of her religion. She was being neglected

and even when she was suffering from ill-health she was not

taken to hospital for treatment. Unable to tolerate the

physical and mental torture meted to the deceased, she

committed suicide by hanging in the house of accused on

07.06.2021 between 10 to 11.15 a.m.

4. Learned counsel for the appellant has drawn the

attention of the Court to the further statement of the

complainant recorded on 10.06.2021 wherein, she has stated

that the marriage of her daughter - Savitha with accused

No.1 was a love marriage and they had objected for the

marriage and since it was a love marriage, they have not

given any dowry and even after the marriage no dowry in the

form of gold or cash was given and at no point of time

accused persons assaulted the deceased.

5. The learned counsel contends that in the

complaint it is alleged that it was a case of murder. However,

while filing charge sheet, offence under Section 302 has been

deleted. He contends that even if the entire allegations are

accepted, the offence under Section 304-B or 306 are not

made out and even the offence under the provision of SC/ST

(POA) Act are not made out. He contends that the allegations

against accused No.1 and 2 are one and the same and

accused No.2 is already enlarged on bail. The appellant is

having two minor children. Now the investigation is

completed and charge sheet has been filed. He has further

contended that the reasons assigned by the Sessions Court to

reject the bail petition filed under Section 439 of Cr.P.C is not

in accordance with law. The learned Sessions Judge

proceeded on the basis that it is a case of homicidal death

and not taken into consideration the further statements of the

first informant. Therefore, he prays to allow the appeal.

6. Learned HCGP on the other hand contends that

the deceased has committed suicide in the house of the

accused. Therefore, the reason for her to commit suicide is

within the special knowledge of the accused, which he has to

satisfactorily explain. He contends that during the course of

investigation, the statement of witnesses are recorded

wherein, they have clearly stated that the accused was ill-

treating the deceased both physically and mentally. He

contends that the learned Sessions Judge has considered the

entire facts and circumstances of the case and assigning

reasons has rightly rejected the bail petition. Therefore,

seeking to dismiss the appeal.

7. FIR is registered on the basis of the complaint

lodged by the mother of the deceased against accused Nos.1

and 2 for offences punishable under Sections 302, 304B 498A

read with Section 34 of IPC and Sections 3(1)(r) and 3(2)(s)

of SC/ST (POA) Act, 1989. It is alleged by the complainant

that her daughter married accused No.1 about one and half

year prior to the date of incident and it was a inter-caste

marriage. Prior to the said marriage accused No.1 had

married accused No.2 and they have two children. The

accused were abusing her daughter and forcing her to convert

to Islam and also torturing her to bring cash from her

parental home etc. It is alleged in the FIR that accused

persons committed murder of her daughter. However, in the

further statement recorded on 10.06.2021 she has stated that

since it was a love marriage they did not give any cash or

gold at the time of marriage and even after the marriage the

appellant has not demanded dowry and he has not tortured

the deceased in connection with dowry.

8. According to the charge sheet material, both the

accused as well as the deceased were living under one roof.

The accused were harassing the deceased both physically and

mentally for petty reasons and also abusing her in filthy

language insulting her caste and also they were forcing her

not to follow the practice of her religion. Further, appellant

herein neglected her without taking her to the hospital when

she was unwell. Whether the appellant has intentionally

aided or abetted the deceased to commit suicide is a matter

which has to be established in a full fledged trial. In her

further statement, the complainant has specifically stated that

at the time of marriage no cash or gold was given as dowry

and even after the marriage the appellant has not demanded

the same.

9. The learned Sessions Judge at para 8 of the order

has observed that the prosecution has made out a prima facie

case that the deceased died a homicidal death due to hanging

and further observed that in the complaint it is alleged that

accused Nos.1 and 2 have committed murder of the deceased

and they have hanged the dead body of the deceased, to

show that she has committed suicide. The said observation is

not proper since the case of the prosecution itself is that

deceased committed suicide and therefore, while filing charge

sheet Section 302 was deleted and Section 306 was added.

The allegations against the accused have to be proved by the

prosecution in a full-fledged trial. Accused No.2 is already

enlarged on bail. Now the investigation is completed and

charge sheet has been filed. The accused is in judicial custody

from 07.06.2021. He is not required for further investigation.

In that view of the matter, the impugned order is liable to be

set aside. Accordingly, the following:

ORDER

Criminal appeal is allowed.

The impugned order dated 16.08.2021

passed by the Court of II Additional District and

Sessions Judge, Davanagere in

S.C.No.114/2021 is set aside. Consequently,

application filed under Section 439 of Cr.P.C., is

hereby allowed. The appellant/accused No.1

shall be enlarged on bail in S.C.No.114/2021

pending on the file of II Additional District and

Sessions Judge, Davangare, (Crime

No.146/2021) of Davangere Rural Police

Station, subject to following conditions;

i. The appellant/accused shall execute a personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for likesum to the satisfaction of the jurisdictional Court.