The State Through Adarsh Nagar ... vs Akalak Ahamed S/O Allabax Mulla ...
2022 Latest Caselaw 4676 Kant

                           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

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

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.

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

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,

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

Chandrappa and others Vs. State of Karnataka

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,

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

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.

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

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

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

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

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

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

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