Karnataka High Court
Shaik Ahamed S/O Mahammed Isuf Sab vs The State Of Karnataka By on 9 February, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 804 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.804 OF 2011
BETWEEN:
1. SHAIK AHAMED
S/O MAHAMMED ISUF SAB
AGED ABOUT 33 YEARS,
OCC: COOLIE
R/O APINAKATTE VILLAGE
SHIKARIPURA TALUK
SHIMOGA DISTRICT.
2. SMT. ARIF W/O NOOR AHAMMED
AGED ABOUT 40 YEARS
OCC: HOUSEHOLD WORK
R/O APINAKATTE VILLAGE
SHIKARIPURA TALUK
SHIMOGA DISTRICT.
3. SMT. MAMTAJ
W/O ANWARSAB
Digitally signed
by SANDHYA S AGED ABOUT 59 YEARS,
Location: HIGH OCC: HOUSEHOLD WORK
COURT OF R/O APINAKATTE VILLAGE
KARNATAKA SHIKARIPURA TALUK
SHIMOGA DISTRICT.
...APPELLANTS
(BY SRI. R B DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
SHIKARIPURA POLICE STATION.
...RESPONDENT
(BY SRI. S VISWAMURTHY, HCGP)
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CRL.A No. 804 of 2011
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:27/28.7.11 PASSED BY THE
ADDL.S.J., SHIMOGA IN S.C.NO.142/08 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 498-A, 324
OF THE IPC AND SEC.3 AND 4 OF D.P. ACT R/W SEC.34 OF
IPC. AND THE APPELLANT NO.1/ACCUSED NO.1 IS SENTENCED
TO UNDERGO RI FOR A PERIOD OF TWO YEARS AND TO PAY A
FINE OF RS.5000/- FOR THE OFFENCE P/U/S 498-A R/W
SEC.34 F IPC, IN DEFAULT OF PAYMENT OF FINE HE SHALL
UNDERGO R.I. FOR THREE MONTHS AND ETC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of
conviction and order of sentence dated 27.07.2011 and
28.07.2011 passed in S.C.No.142/2008 by Addl. Sessions
Judge, Shivamogga convicting the appellant Nos.1 to
3/accused Nos.1 to 3 for the offences punishable under
Sections 498A, 324 read with Section 34 of IPC and
Sections 3 and 4 of Dowry Prohibition Act, read with
Section 34 of IPC.
2. Appellant/accused No.1 has been sentenced to
undergo R.I. for period of two years and to pay a fine of
Rs.5,000/- with default sentence for the offence under
CRL.A No. 804 of 2011
Section 498A read with Section 34 of IPC. Further,
sentenced to undergo R.I. for one month for the offence
under Section 324 read with Section 34 of IPC. Further,
sentenced to undergo R.I. for five years and to pay a fine
of Rs.20,000/- for the offence under Section 3 of Dowry
Prohibition Act read with Section 34 of IPC with default
sentence. Further, sentenced to undergo R.I. for six
months and to pay a fine of Rs.1,000/- for the offence
under Section 4 of Dowry Prohibition Act read with Section
34 of IPC with default sentence.
3. Appellant Nos.2 and 3/accused Nos.2 and 3 has
been sentenced to undergo S.I. for six months each for
the offence under Section 498A read with Section 34 of
IPC and to pay fine of Rs.1,000/- each with default
sentence. Further sentenced to pay a fine of Rs.500/-
each for the offence punishable under Section 324 read
with Section 34 of IPC with default sentence. Further
sentenced to undergo S.I. for period of six months each
CRL.A No. 804 of 2011
and to pay a fine of Rs.1,000/- each with default sentence
for offence under Section 3 of Dowry Prohibition Act read
with Section 34 of IPC with default sentence and further
sentenced to undergo S.I. for a period of three months
and to pay a fine of Rs.1,000/- each for offence under
Section 4 of DP Act read with Section 34 of IPC with
default sentence. The Trial Court has ordered that all the
three sentences to run concurrently.
4. The factual matrix of the case is that the
appellant No.1/accused No.1 being the husband, appellant
No.2/accused No.2 being the co-sister and appellant
No.3/accused No.3 being the sister-in-law of PW.1-
Shabanabhanu with common intention of extracting more
dowry amount from her, subjected her to cruelty by their
willful conduct which was of such nature as is likely to
drive PW.1- Shabanabhanu to commit suicide, caused
grave injury or danger to her life despite having received
Rs.62,786/- dowry amount and other golden ornaments at
CRL.A No. 804 of 2011
the time of marriage and Rs.50,000/- dowry amount
subsequent to the marriage. Further, on 27.12.2007 at
about 11.30 Am., in furtherance of their common
intention, these three accused persons assaulted her with
hands and fire sticks causing simple injuries. They also
tried to kill her by hanging her to a bamboo pole put
across the wall in the house tying her neck with a veil.
They also demanded more dowry amount and accepted
dowry of Rs.62,786/- besides a golden ring, golden chain
and a watch. Charge came to be filed against appellant
Nos.1 to 3/accused Nos.1 to 3 for the offences under
Section 498A, 324, 307 read with Section 34 of IPC and
Sections 3 and 4 of Dowry Prohibition Act read with
Section 34 of IPC.
5. The prosecution examined 12 witnesses as
PWs.1 to 12 and got marked documents marked as Ex.P1
to Ex.P9 and material objects as M.O.1 -veil and M.O.2-
CRL.A No. 804 of 2011
lock. The statement of accused persons were recorded
under Section 313 of Cr.P.C.
6. After hearing the arguments on both sides, the
Trial Court has framed points for consideration and
convicted the appellant Nos.1 to 3/accused Nos.1 to 3 for
the offences punishable under Section 498A, 324 read with
Section 34 of IPC and Section 3 and 4 of Dowry Prohibition
Act read with Section 34 of IPC and acquitted the
appellants for the offence under Section 307 of IPC. The
said judgment of conviction and order of sentence has
been challenged by the appellant Nos.1 to 3/accused
Nos.1 to 3 in this appeal.
7. Heard the arguments of learned counsel for
appellant Nos.1 to 3/accused Nos.1 to 3 and learned HCGP
for respondent-State.
CRL.A No. 804 of 2011
8. Learned counsel for appellant Nos.1 to
3/accused Nos.1 to 3 argued that the alleged incident
occurred on 27.12.2007 at about 11.30 A.M. but the
complaint came to be filed on 30.12.2007 and there is
delay in filing the complaint and the delay is not properly
explained. The marriage of appellant No.1/accused No.1
and PW.1-Shabanabhanu has been solemnized in the
house of the appellant Nos.1 to 3/accused Nos.1 to 3 and
whatever the amount has been stated to be given to the
appellant Nos.1 to 3/accused Nos.1 to 3 is towards
marriage expenses and not as a dowry. There is no earlier
complaint of any harassment by the appellant Nos.1 to
3/accused Nos.1 to 3 to PW.1- Shabanabhanu. The
alleged illicit relationship with appellant No.1/accused No.1
and appellant No.2/accused No.2 as stated in the evidence
of PW.1-Shabanabhanu is not stated in the complaint. The
ornaments alleged to have been given by the parents of
PW.1-Shabanabhanu are as customary and not as dowry.
The doctor who has examined PW.1-Shabanabhanu and
issued Ex.P4-wound certificate has stated that injury Nos.2
CRL.A No. 804 of 2011
and 3 are old injuries and they are seven days old and she
has been examined by the doctor on 30.12.2007 i.e. after
three days of incident. The panchas to the spot mahazar
at Ex.P2 i.e. PWs.7 and 9 have not supported the case of
prosecution.
9. PWs.4 and 6 have deposed that whatever the
amount given is towards marriage expenses and the said
marriage took place in the house of appellant/accused
No.1. There is no role of appellant Nos.2 and 3/accused
Nos.2 and 3 in commission of the alleged crime. PW.2 has
admitted that the amount given is towards expenses of
marriage. There are material contradictions in the
evidence of prosecution witnesses. With these, he prayed
to allow the appeal and acquit the appellant Nos.1 to 3/
accused Nos.1 to 3 for the offences charged against them.
10. Per contra, learned HCGP would contend that
the appellant Nos.1 to 3/accused Nos.1 to 3 have
CRL.A No. 804 of 2011
demanded dowry of Rs.1,00,000/- and what is agreed to
be paid is Rs.62,786/-. The evidence of PWs.1 to 3
corroborates with each other. PWs.4 and 6 have acted as
mediators to the marriage. Even though PWs.7 and 9
were panchas to Ex.P2 who turned hostile but PW.10-
Investigating Officer has stated regarding drawing up of
spot mahazar at Ex.P2 as shown and seizure of M.O.1 -
veil and M.O.2 - lock. PWs.11 and 12 are neighbours of
PW.1-Shabanabhanu and PW.2 and they have deposed
regarding demand and acceptance of dowry by appellant
Nos.1 to 3/accused Nos.1 to 3 and also harassment given
by them to the victim i.e. PW.1- Shabanabhanu. The Trial
Court appreciating the evidence on record has rightly
convicted the appellant Nos.1 to 3/accused Nos.1 to 3 for
the offences charged against them. With this, he prays to
dismissal of the appeal.
11. On the grounds made out and considering the
arguments advanced by the learned counsel for appellant
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CRL.A No. 804 of 2011
Nos.1 to 3/accused Nos.1 to 3 and learned HCGP for
respondent-State, the following point arise for my
consideration:
"Whether the Trial Court erred
in convicting the appellant
for offences under Section
498A, 324 read with Section
34 of IPC and Section 3 and 4
of Dowry Prohibition Act read
with Section 34 of IPC?"
My answer to the above point is in negative for the
following reasons:
12. Appellant No.1/accused No.1 is the husband,
appellant No.2/accused No.2 is the wife of brother of
appellant No.1/accused No.1 and appellant/accused No.3
is the sister of appellant/accused No.1. The marriage of
PW.1- Shabanabhanu with appellant No.1/accused No.1
was solemnized on 19.02.2006 in the house of appellant
No.1/accused No.1. PW.1 after her marriage went to her
husband's house and stayed there. PW.1- Shabanabhanu
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CRL.A No. 804 of 2011
was happy for about three months, thereafter the accused
persons started ill-treating her by demanding dowry.
13. Pw.1- Shabanabhanu is the wife of appellant
No.1/accused No.1, PW.2 is the mother of PW.1 and PW.3
is the maternal uncle of PW.1 i.e. brother of PW.2. PW.4-
Chandra Naik is acted as mediator in marriage negotiation
and PW.6 is his wife. PWs.11 and 12 are neighbours of
PWs.1 and 2.
14. It is the evidence of PWs.1 to 3 and PW.4-
Chandranaik who negotiated the marriage of PW.1-
Shabanabhanu with appellant No.1/accused No.1, at that
time the accused persons demanded dowry of
Rs.1,00,000/- and it was agreed to pay Rs.62,786/-. The
said amount of Rs.62,786/- has been given to appellant
Nos.1 to 3/accused Nos.1 to 3 prior to the marriage. It is
their further evidence that even after the marriage, the
accused persons demanded Rs.50,000/- and the said
Rs.50,000/- was given by PW.2 to the appellant Nos.1 to
3/accused Nos.1 to 3. The evidence of PW.1-
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CRL.A No. 804 of 2011
Shabanabhanu that appellant Nos.1 to 3/accused Nos.1 to
3 harassed and ill-treated her, demanded dowry and
asked her to go out of their house. PW.1- Shabanabhanu
in cross-examination has stated that the said amount of
Rs.62,786/- is marriage expenses and also dowry. Pw.1-
Shabanabhanu has deposed that even after marriage, her
mother gave Rs.50,000/- and Rs.20,000/- to accused
persons. The said evidence of PW.1- Shabanabhanu is
corroborated by the evidence of PW.2 with regard to
payment of Rs.62,786/- prior to marriage and Rs.50,000/-
and Rs.20,000/- after marriage as demanded by appellant
Nos.1 to 3/accused Nos.1 to 3.
15. The said evidences of PWs.1 and 2 is
corroborated by the evidence of PW.3 with regard to
payment of dowry amount of Rs.62,786/- prior to
marriage and Rs.50,000/- and Rs.20,000/- after marriage.
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CRL.A No. 804 of 2011
16. PW.4 -Chandranaika who has mediated the
marriage of PW.1- Shabanabhanu with appellant
No.1/accused No.1 has also deposed that P.W.2 agreed for
payment of Rs.60,000/-.
17. PW.6 - wife of PW.4-Chandranaika has also
stated that the said marriage talks took place in her house
and Rs.40,000/- to be given for marriage expenses and
Rs.20,000/- for food expenses.
18. PWs.11 and 12 are the neighbours of PW.2 who
have also deposed regarding payment of Rs.62,786/- by
PW.2 to appellant No.1/accused No.1 along with
ornaments, cot, almirah and other articles.
19. Pw.11 has also deposed regarding payment of
Rs.50,000/- by PW.2 to appellant No.1/accused No.1 after
marriage as PW.1- Shabanabhanu has told that the
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CRL.A No. 804 of 2011
appellant Nos.1 to 3/accused Nos. 1 to 3 were harassing
her and demanding dowry.
20. PW.12 has also deposed regarding payment of
dowry of Rs.1,00,000/- by accused persons and PW.2
agreed to pay Rs.62,786/- and payment of Rs.40,000/-
and Rs.20,786/- by PW.2 prior to marriage to appellant
No.1/accused No.1.
21. It is the evidence of PW.1-Shabanabhanu that
appellant Nos.1 and 3/accused Nos.1 and 3 put her veil
around her neck and appellant No.3/accused No.3 lifted
her leg and when she screamed, they left her and at that
time, with fire sticks, they assaulted on her left palm and
below knee and she has sustained burn injuries and
thereafter, she went to the house of PW.4-Chandranaik
and stated that, the incident took place on 27.12.2007 at
11.30 a.m.
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CRL.A No. 804 of 2011
22. PW.4-Chandranaika has also deposed that one
day PW.1-Shabanabhanu along with her child came to his
house and stated that appellant No.1/accused No.1 has
assaulted her and she had stayed in his house and he
asked her to call her mother. Thereafter, mother,
mother's brother came and PW.4-Chandranaika came to
know that they filed complaint against appellant Nos.1 to
3/accused Nos.1 to 3.
23. PW.6 is the wife of PW.4-Chandranaika has also
stated that one day PW.1- Shabanabhanu came to her
house stating that there was a galata between her and
appellant No.1/accused No.1. She had came along with
her child and she has stayed in her house and on the next
day, her mother and three to four persons came and took
her.
24. Pws.2 and 3 have also deposed that they went
to the house of PW.4-Chandranaika and took PW.1-
Shabanabhanu and thereafter, PW.1- Shabanabhanu filed
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CRL.A No. 804 of 2011
complaint against the accused persons. The said
complaint came to be filed as per Ex.P1 on 30.12.2007.
PW.1- Shabanabhanu has been examined on the same day
by PW.5-doctor who has noted three injuries on her. One
on her neck, second one on her left hand ring finger and
third one on her left middle finger and also opined that
injury Nos.2 and 3 are seven days old and injury No.1 is
caused, if the person put veil around the neck i.e. rope
(GgÀļÀÄ). PW.5-doctor has issued wound certificate as
per Ex.P4. The said evidence of PW.1- Shabanabhanu
corroborates with medical evidence of PW.5-doctor. Even
though injury Nos.2 and 3 are stated to be seven days old,
but there is injury No.1 on the neck of PW.1-
Shabanabhanu. The doctor in her cross -examination has
stated that there was tenderness over the neck of PW.1-
Shabanabhanu.
25. The alleged incident occurred on 27.12.2007
and Ex.P1 -complaint came to be filed on 30.12.2007.
PW.1 as she is in the house of PW.4-Chandranaika after
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CRL.A No. 804 of 2011
the incident and only after her mother and maternal uncle
came, she went to police station to file the complaint. She
also deposed that she was not in the habit of move outside
and therefore she has not gone to the police station. There
is delay in filing the complaint and it is properly explained
by the prosecution.
26. Ex.P2 is the spot mahazar where under M.O.1-
veil and M.O.2- lock were seized.
27. PWs.7 and 9 are panchas and they have not
supported the case of prosecution. But there is evidence
of PW.10 -Investigating Officer who has stated regarding
drawing up of spot mahazar as per Ex.P2 and seizure of
M.O.s 1 and 2 from the house of appellant Nos.1 to
3/accused Nos.1 to 3. The prosecution from the
evidences of PW.1 to 3 and PWs.11 and 12 established
that the appellant Nos.1 to 3/accused Nos.1 to 3
demanded dowry prior to marriage and also accepted
dowry and subsequent to the marriage, they harassed
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CRL.A No. 804 of 2011
PW.1- Shabanabhanu and demanded dowry and also
received dowry amount of Rs.50,000/- from PW.2. The
prosecution has also established that from the evidence of
PWs.4 and PW.6 and also the doctor who has examined
PW.1- Shabanabhanu that she has sustained injury as
appellant No.1/accused No.1 assaulted her and appellant
Nos.1 and 3/accused Nos.1 and 3 put veil around her neck
and caused injuries. Therefore, the Trial Court properly
appreciated the evidence of prosecution witnesses and
rightly convicted the appellant Nos.1 to 3/accused Nos.1
to 3 for the offences punishable under Section 498-A, 324
read with Section 34 of IPC and Section 3 and 4 of Dowry
Prohibition Act read with Section 34 of IPC. Considering
the gravity of the offence, the sentence imposed by the
Trial Court is just and reasonable.
have not made out any ground for setting aside the
impugned judgment of conviction and order of sentence.
Hence, the appeal is dismissed.
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CRL.A No. 804 of 2011
29. The judgment of conviction and order of
sentence dated 27.07.2011 and 28.07.2011 passed in
S.C.No.142/2008 by the Addl. Sessions Judge,
Shivamogga is affirmed.
Sd/-
JUDGE
SSD
