Abdul Basith S/O Abdul Ahayyum vs The State Through
2022 Latest Caselaw 1927 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

         DATED THIS THE 08TH FEBRUARY, 2022

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL NO.200113/2016


BETWEEN:

ABDUL BASITH S/O: ABDUL QHAYYUM
NOW AGE: 32 YEARS, OCC: AUTO DRIVER,
R/O: H.NO.10-3-423, ABDUL FAIZ DARGAH,
BIDAR.
                                         ... APPELLANT

(BY SRI. ANIL KUMAR NAVADAGI, ADVOCATE)


AND:

THE STATE THROUGH
TOWN POLICE STATION, BIDAR.
TQ & DIST: BIDAR.
                                     ... RESPONDENT

(BY SRI.SHARANABASAPPA M.PATIL, HCGP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO ALLOW THE APPEAL AND
SET ASIDE THE JUDGMENT OF CONVICTION DATED
30.07.2016 AND ORDER OF SENTENCE DATED 08.08.2016
OF PRL.DISTRICT AND SESSIONS JUDGE, BIDAR IN
S.C.NO.156/2013 AND ACQUIT THE APPELLANT HEREIN
FOR THE CHARGES FOR WHICH HE IS CONVICTED.
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     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING :

                           JUDGMENT

The appellant/accused No.1 who has been convicted

for the offence punishable under Sections 306 and 509 IPC

and sentenced to undergo seven years rigorous

imprisonment and fine of Rs.10,000/- with default

sentence for the offence punishable under Section 306

IPC; and sentenced to undergo simple imprisonment for

two years and to pay fine of Rs.5,000/- with default

sentence for the offence punishable under Section 509 IPC,

is before this Court in this appeal.

2. The brief facts of the case are as under:

A complaint came to be lodged by Sri Syed

Dadasaheb S/o.Ismail Hussain on 7.12.2012 contending

that he has three daughters and his eldest daughter is

married and he was living with two other daughters in a

rented house at Abdul Faiz and at that juncture, first

accused No.1 hereinafter referred to as the appellant, used

to visit their house and used to talk to his daughter and

has expressed that he would marry her.

3. Being unable to bear his pin pricks, he shifted

his residence to Golekhana and hired another rented

house. However, the appellant, visited the said place also

and continued to pester the deceased to marry him. A

panchayath was also convened and he has been advised

not to further his intentions. Despite the same, on

6.12.2012 at about 10.30 pm., appellant visited the house

of the complainant and picked up quarrel and neighbours

also assembled there. With the said incident, the

deceased Syeda Durdana, got frustrated, as she lost her

dignity in the society and the general public, tried to end

up her life by self immolation. She was admitted to

Hospital on 7.12.2012. But, despite the best treatment,

she succumbed to the burn injuries on 7.12.2012 and as

such sought for action against the accused.

4. Based on the above complaint, Town Police

Station, Bidar registered a case in Crime No.99/2012 for

the offences punishable under Sections 509,306 and 109

read with Section 34 of IPC against the appellant herein

and his father - Abdul Quayum. After registering the

case, the police investigated the matter and filed charge

sheet against the appellant and his father for the aforesaid

offences.

5. The learned trial Judge committed the matter

to the Sessions Court after taking cognizance. The learned

Sessions Judge after securing the presence of the accused,

framed charges for the aforesaid offences. The accused

persons pleaded not guilty and as such, trial was held.

6. In order to prove the case of the prosecution,

prosecution examined in all 17 witnesses as PWs.1 to 17

and the prosecution also relied on 16 documentary

evidence, which were exhibited and marked as Exs.P1 to

P16. Half burnt clothes and kerosene can were exhibited

and marked as MOs.1 and 2.

7. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 of

Cr.P.C was recorded. The accused denied all the

incriminatory materials found against them in the

prosecution evidence. However, accused did not chose to

place their version on record by examining themselves or

by placing any written submissions on record as is

contemplated under Section 313(5) of Cr.P.C.

8. Thereafter, learned Sessions Judge heard the

parties in detail and after considering the material

evidence on record, passed an order of conviction,

convicting the accused/appellant for the offences

punishable under Sections 306 and 509 read with Section

34 of IPC and acquitted accused No.2 - Abdul Quayum.

The State did not chosen to file any appeal against the

order of acquittal passed against accused No.2 - Abdul

Quayum and therefore, the case against accused No.2 is

concerned, the matter has become final.

9. Being aggrieved by the order of conviction, the

appellant has preferred this appeal with the following

grounds:

x The impugned Judgment of conviction and order of

sentence passed by the trial court is manifestly

illegal, arbitrary and against the facts and evidence

on record and also against the well established

principles governing the criminal law and hence

deserves to be set aside.

x The court below has failed to appreciate that, the

prosecution case and the evidence adduced on behalf

of it is riddled with bristling inconsistencies,

discrepancies and contradictions. In fact, there is no

even an iota of evidence, let alone prima facie

evidence to connect the appellant herein with the

charges for which he was convicted and the trial

court has failed to appreciate the evidence in its right

and hence the Judgment of the trial court has

resulted i miscarriage of justice.

x That, obviously the only witnesses who supported

the case of the prosecution are the parents and

family members of deceased Syeda Durdana namely

PW2 Syed Daddu Saheb, PW5 Apsari begum, PWE ey

Javeed and PW11 Syeda Sultana and according to

the prosecution they are the star witness for them.

The trial court erred miserably in believing of the

highly interested, uncorroborated and self serving

testimonies PW's 2, 5, 6 and 11, as they have given

a complete goby to the case set up by the

investigating agency and they have invented a new

case for the prosecution in their testimonies before

the trial court and their evidence is not only

contradictory but they destroy the very fabric of the

prosecution case by giving a totally new version

about the incident but they destroy ac in their

testimonies before the trial court. The trial court

ought to believing their The trial court ought to have

rejected their testimonies out rightly as contradictory

in consistent unnatural, improbable and

untrustworthy rather than believing their evidence

and basing a judgment of conviction on it.

x That, it is very pertinent to mention here that there

i1s nothing incriminating in the evidence of PW's 2,

5, 6 &11 to inculpate the appellant herein with the

charges for which he was convicted. In fact the

evidence of PW11 Syeda Sultana the sister of

deceased Syeda Durdana, if believed gives a clean

chit to the appellant herein as her evidence indicates

that both deceased and the appellant herein were on

roaming terms and PW11 Syeda Sultana had once

seen both deceased and the appellant herein

together at Tajlapur Dargah. This in turn falsifies the

prosecution case that the appellant herein was

troubling the deceased to marry her and it further

indicates that if there was any relationship between

the deceased and the appellant herein, it was

consensual relationship. This evidence of PW.11

Syeda Sultana belies and destroys the evidence of

PW2 and PW5 that appellant herein was troubling

deceased Syeda Durdana to marry him and it

destroys the fabric of the prosecution case and the

judgment of guilt of the appellant by the trial court

based on such diametrically opposite evidence is

unsustainable in law.

x The trial court has also relied on inadmissible

irrelevant, and unproved statement made by PW2

Syed Daddu Saheb before the Police Officer and on

which statement the instant case was registered by

the respondent P.S. against the appellant, to give a

finding of guilt U/Sec. 306 of IPC. This statement

/complaint of PW2 marked as ExP2 is hit by Sec. 162

of Cr.P.C. It is respectfully submitted the finding of

the trial court that the appellant herein indulged in

acts of harassment to the deceased and abetted the

commission of the suicide of the deceased is uncalled

for on the basis of such inadmissible, irrelevant and

unproven material. Hence, the interference of this

court is sought for.

x Even assuming for arguments sake that the

deceased set fire to her person for appellant

troubling her to marry him, this in no way is

inculpates the appellant herein for abetment to

suicide as is contemplated U/Sec. 306 of IPC and by

no stretch of imagination can the acts of appellant

herein be held to have abetted the commission of

suicide by the deceased. Hence it is respectfully

submitted that the trial court ought to have given

the benefit of doubt to the appellant herein and

acquitted him of the charges leveled against him.

x The trial court ought to have held that the defense

theory put up and by the appellant herein in the trial

as a reasonable, plausible probable defense and

should have given a clean chit to the accused.

x That, the trial court has proceeded on assumptions,

surmises and conjectures to base its judgment and

the court below has given a complete goby to the

basic concept of proof beyond the reasonable doubt

and this has resulted in grave miscarriage of justice.

x That, viewed from any angle, the impugned

Judgment and order of sentence recorded by the Prl.

Sessions Judge, Bidar in S.C. No.156/2013

convicting the appellant for the charges for which he

was convicted, is even otherwise illegal, improper

and deserves to be set aside.

10. Reiterating the above grounds, the learned

counsel for the appellant Sri Anilkumar Navadagi

contended that the trial Court has failed to appreciate the

material evidence on record and to record an order of

conviction for the offence punishable under Section 306 of

IPC, the prosecution is bound to prove that the action of

the appellant has really abetted the deceased to commit

suicide and no such evidence is forthcoming on record.

11. He further contended that non appreciation of

the material evidence on record in a proper perspective

and convicting the accused/appellant for the aforesaid

offences has resulted in miscarriage of justice and sought

for allowing the appeal.

12. Per contra, the learned High Court Government

Pleader Sri Gururaj V. Hasilkar supports the impugned

judgment and contended that the complaint averments

and the oral testimony of the prosecution witnesses has

been rightly appreciated by the trial Court while recording

an order of conviction of the appellant for the aforesaid

offences.

13. He further contended that even after shifting

the residence from Abdul Faiz to Golekhana, the appellant

persisted his desire to marry the deceased and used to

visit the house of the complainant often. On 06.12.2012

i.e., a day earlier to the death of the deceased, he had

again visited the house of the deceased at 10.30 in the

night and created raucous. By the said action of the

appellant, the deceased lost her dignity in the vicinity,

which resulted in triggering her to commit suicide by self

immolation and therefore, the conviction order to be

upheld.

14. He also pointed out that the appellant has

already married and had two wives as per the complaint

averments and therefore, the complainant had specifically

rejected the offer of the appellant to marry the deceased

and despite the same, he was troubling the deceased and

therefore, sought for dismissal of the appeal.

15. This Court in the light of the arguments

putforth by the parties, perused the records meticulously.

On such perusal of the records, the following points would

arise for consideration:

1. Whether the prosecution has successfully established that the accused/appellant is guilty of the offences punishable under Sections 509 and 306 of IPC?

2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

3. Whether the sentence is excessive?

16. In the case on hand, the complainant is the

father of the deceased. He lodged Ex.P16 - complaint to

the Town Police Station, Bidar on 07.12.2012. The police

after registering the case, investigated the matter

thoroughly and filed charge sheet against the appellant for

the aforesaid offences. The death of the deceased is not in

dispute. The postmortem report marked at Ex.P1 clearly

depicts that the deceased had died due to the burn

injuries. The complainant, who is the father of the

deceased is examined before the Court as PW.2. He has

deposed in line with the complaint averments referred to

supra.

17. Admittedly, the appellant was married as on

the date of the incident. According to the complaint

averments, he had two wives. Despite the same, he had

expressed his intention to marry the deceased repeatedly.

He used to visit the house of the complainant when the

complainant was residing in Abdul Faiz. Unable to bear the

torture given by the appellant, the complainant has shifted

his house to Golekhana. However, the accused followed

the deceased even in Golekhana and expressed his

intention to marry her. The offer made by the accused

was rejected by the complainant repeatedly. Despite the

same, he used to visit the house of the complainant and a

panchayat was also convened in this regard and appellant

was advised not to indulge in such activity. However,

before the Court, the panchayatdars did not support the

case of the prosecution. In the cross-examination of PW.2,

the suggestions made that a false case has been lodged

against the appellant is denied by the appellant. The fact

remains that the appellant did not place his version on

record at the time of recording his statement under

Section 313 of Cr.P.C. He has simply denied all the

incriminatory circumstances found against him. If there is

nothing between the accused/appellant and the deceased

whatsoever, why would the deceased commit suicide and

why would the complainant falsely implicate the accused in

the case, in the absence of any previous enmity and

animosity is a question that remains unanswered on behalf

of the appellant. Taking note of these aspects of the

matter, the trial Court has come to the conclusion that it is

because of the conduct of the appellant, the deceased

thinking that she lost her dignity in the society committed

suicide. What exactly an abetment is defined in Section

107 of IPC. For better understanding, Section 107 of IPC

is culled hereunder:

"107 - Abetment of a thing. - A person is said to abets the doing of a thing, who-

First: Instigates any person to do that thing; or

Secondly: Engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly: Intentionally aids, by an act or illegal omission, the doing of that thing."

18. In order to maintain an order of conviction for

the offence under Section 306 of IPC, the prosecution has

to establish all ingredients to attract the offence of

abetment that is defined under Section 107 of IPC. In the

case on hand, repeated visit of the accused despite telling

him that complainant or deceased are not interested in

having relationship with the appellant, appellant followed

the deceased and used to pester the deceased to marry

him.

19. Whether at all, a person repeatedly asking for

another person to marry would amounts to abetment or

not is a question that is to be decided in the case on hand.

In this regard, when the material evidence on record is

analyzed, the panchayatdars having turned hostile to the

case of the prosecution and in the absence of any previous

complaint to the police, the action of the accused visiting

the house of the complainant on 06.12.2012 at about

10.30 p.m. and creating raucous would not be sufficient

enough to say that the appellant has abetted the deceased

to commit suicide. The degree of proof require to decide a

particular action of the accused, which would amount to

abetment or not is not properly proved by the prosecution

and in the absence of any dying declaration, solely on the

basis of the statement of the complainant and his family

members, whose testimony is interested testimony, this

Court cannot hold that the prosecution has successfully

proved the offence under Section 306 of IPC.

20. Having said thus, the action of the appellant

cannot be lost sight of. Admittedly, the complainant has

specifically deposed before the Court that despite the

complainant and the deceased rejecting the offer made by

the accused to marry the deceased, appellant was visiting

the house of the complainant. The said action of the

appellant could be traced to an offence punishable under

Section 354-D of IPC in judging that the action of the

appellant is one of stalking. Section 354-D of IPC reads as

under:

"354D. Stalking.--(1) Any man who--

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who pursued it proves that--

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on

a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.]"

21. The action of the appellant in following the

deceased even in Golekhana, when the complainant has

shifted his house from Abdul Faiz itself is enough to show

that he has repeatedly made offer, despite the deceased

showing disinterest in the accused. Therefore, this Court

is of the considered opinion that the action of the appellant

must be scaled down from one under Section 306 of IPC to

one under Section 354-D of IPC.

22. In the absence of proper proof of abetment

resulting in suicide of the deceased, the appellant must be

convicted for the offence punishable under Section 354-D

of IPC. Accordingly, point Nos.1 and 2 are answered partly

in the affirmative and partly in the negative.

23. Regarding point No.3: This Court having scaled

down the conviction of the accused/appellant from Section

306 of IPC to under Section 354-D of IPC, this Court is of

the considered opinion that the custody period of 38 days

already undergone by the appellant may be treated as the

period of imprisonment and a sum of Rs.1,00,000/- is

ordered to be paid as fine and out of which, a sum of

Rs.95,000/- is ordered to be paid as compensation to the

complainant, ends of justice would be met. Accordingly,

point No.3 is answered and following order is passed:

ORDER

The appeal is allowed in part.

The judgment of conviction and sentence passed by

the trial Court dated 30.07.2016 in Sessions Case

No.156/2013 by the Principal District Judge, Bidar is

modified.

The appellant is convicted for the offence punishable

under Sections 354-D and 509 of IPC and custody period

of 38 days already undergone by him during trial, is to be

treated as period of imprisonment and ordered to pay fine

of Rs.1,00,000/- for both the offences inclusive of the fine

amount already imposed and paid by the appellant.

The appellant is granted time till 15.03.2022 to pay

the remaining fine amount, failing which, the appellant

shall undergo imprisonment for two years for the offence

punishable under Section 354-D and 509 of IPC.

Out of the fine amount recovered, Rs.95,000/- is

ordered to be paid as compensation to the

complainant/PW.2 under proper identification. The

remaining amount of Rs.5,000/- be appropriated as

defraying expenses of the State.

Office is directed to return the trial Court records

along with a copy of this judgment forthwith.

Ordered accordingly.

Sd/-

JUDGE

PL*/Srt