Karnataka High Court
Hameedkhan S/O Chammansab vs The State Of Karnataka By on 8 February, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 104 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 104 OF 2013
BETWEEN:
HAMEEDKHAN S/O CHAMMANSAB
AGED ABOUT 31 YEARS
OCC: PETTY BUSINESS
R/O 7TH CROSS, KTJ NAGAR
DAVANGERE - 577 001.
...APPELLANT
(BY SRI UMESH P B, ADVOCATE FOR
Digitally signed by SRI R B DESHPANDE, ADVOCATE)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH AND:
COURT OF
KARNATAKA
THE STATE OF KARNATAKA BY
WOMEN POLICE STATION
DAVANAGERE - 577 001.
...RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE CONVICTION AND SENTENCE DATED
28.12.2012 PASSED BY THE PRINCIPAL S.J., DAVANAGERE IN
S.C.No.84/2010 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 498(A) OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 104 of 2013
JUDGMENT
1. This appeal is filed by the appellant - accused
praying to set-aside the judgment of conviction and order
of sentence dated 28.12.2012 passed in S.C.No.84/2010
by the Principal Sessions Judge, Davanagere. The
appellant - accused has been convicted for the offence
under Section 498A of the Indian Penal Code, 1860 (for
short hereinafter referred to as 'IPC') and sentenced to
undergo simple imprisonment for a period of one year and
to pay fine of Rs.25,000/- and in default, to undergo
imprisonment for a period of six months. The Trial Court
has acquitted the appellant - accused of the offence under
Section 306 of IPC.
2. The factual matrix of the prosecution case are as
under;
The deceased Smt.Nazeema Banu, daughter of PW1
- Sri.Bashasab was given in marriage to the appellant -
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accused and their marriage was solemnized about four
years prior to 13.10.2009 and due to wedlock, they begot
two sons. After the marriage, the deceased Smt.Nazeema
Banu was residing with the appellant - accused in his
house with her sons. The appellant - accused was
harassing the deceased by abusing her and assaulting her
and insisting her to leave the house as he intended to
marry another lady and frequently, the appellant -
accused was sending the deceased to her parents' house.
The appellant - accused had sent the deceased
Smt.Nazeema Banu from his house, three to four times,
after abusing her and assaulting her. PW1 had pacified the
deceased and sent her back to her husband's house.
About fifteen days earlier to 13.10.2009, the deceased
Smt.Nazeema Banu had come to her parents' house and
told her parents' that she has dejected in life due to the
harassment given by her husband and wants to die and at
that time, PW1 and his wife pacified the deceased and sent
her back to her husband's house. That on 11.10.2009, in
the evening at about 8.30 am., Smt.Nazeema Banu set
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herself ablaze due to the harassment meted out to her, by
her husband. Immediately, she was shifted to
C.G.Hospital, Davanagere and was admitted there.
Afterwards, she succumbed to burn injuries on
13.10.2009. Thereafterwards, PW1 went to Mahila Police
Station, Davanagere and lodged a report regarding the
incident and a case came to be registered against the
appellant - accused. After investigation, charge sheet
came to be filed against this appellant - accused for the
offences under Sections 498A and 306 of IPC. The case
came to be committed to the Sessions Court. The
Sessions Court framed the charge against this appellant -
accused for the offences under Sections 498A and 306 of
IPC.
3. In order to prove the charge, the prosecution has
examined ten witnesses as PWs.1 to 10 and got marked
the documents Exs.P1 to P8. In the cross examination of
the prosecution witnesses, Exs.D1 to D8 came to be
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marked. The statement of the appellant - accused came
to be recorded under Section 313 of Cr.P.C. The Trial
Court after hearing the arguments, has formulated the
points for consideration and after appreciating the
evidence on record, convicted the appellant - accused for
the offence under Section 498A of IPC and acquitted him
of the offence under Section 306 of IPC and sentenced him
for the offence under Section 498A of IPC, as noted above.
The said judgment of conviction and order of sentence has
been challenged in this appeal.
4. Heard the arguments of learned counsel for the
appellant - accused and learned High Court Government
Pleader for the respondent - State.
5. Learned counsel for the appellant - accused would
contend that the prosecution has suppressed the dying
declaration recorded by the Tahsildar which is at Ex.D6,
wherein she has stated that she has sustained injuries in
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the stove accident. He contends that the alleged incident
has taken place on 11.10.2009 and the complaint came to
be registered on 13.10.2009 and there is a delay in filing
the complaint. There are improvements in the evidence of
PW1 which can be ascertained on going through the cross
examination of PW1. The evidence of PW4 - the younger
sister of the deceased is contrary to the evidence of PW1 -
father of the deceased. PW5 admitted that she do not
know about Smt.Nazeema Banu's husband personally, but
in her evidence, she has stated about the incident as
stated to her by PW1. He contends that PW8, in his cross
examination has admitted that he do not know how the
deceased and her husband lived and his house is situated
at a distance from the house of the appellant - accused
and the deceased. He contends that the Tahsildar in his
cross examination has admitted about, he recording the
dying declaration at Ex.D6. He contends that there is no
complaint by the parents and family members of the
deceased about any harassment by the appellant -
accused to the deceased. The evidence of PWs.1 and 4
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are not consistent and there are improvements. The
deceased in her dying declaration has not stated any
harassment and ill-treatment given by the appellant -
accused before the Tahsildar who recorded it. At the time
of giving the said statement, there is an endorsement at
Ex.D6 that she is fit to give the statement. On these
grounds, he prayed to allow the appeal and acquit the
appellant - accused.
6. Learned High Court Government Pleader for the
respondent - State argued that the Trial Court on proper
appreciation of the evidence on record has rightly
convicted the appellant - accused for the offence under
Section 498A of IPC. She has supported the reasons
assigned by the Trial Court. She further argued that the
evidence of PWs.1, 4, 5, 6 and 8 is sufficient to convict the
appellant - accused for the offence under Section 498A of
IPC. On these grounds, she has sought for dismissal of
the appeal.
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7. On the grounds made out and considering the
arguments advanced, the following point arises for my
consideration;
"Whether the Trial Court erred in convicting the
appellant - accused for the offence under
Section 498A of IPC?"
8. My answer to the above point is in the affirmative for
the following reasons;
Marriage of the deceased Smt.Nazeema Banu with
the appellant - accused has taken place six years prior to
the date of complaint ie., 13.10.2009. The deceased and
the appellant - accused had two sons, one by name
Riyam, aged five years and another by name Ibrahim,
aged four years. The said two sons of the deceased and
the appellant - accused were residing with the appellant -
accused and the deceased. The Investigating Officer has
not chosen to examine the said two sons of the deceased
who were residing with the deceased and the appellant -
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accused. Even though it is alleged in the complaint that
three to four times the appellant - accused had sent the
deceased after harassing her to her parent's house, no
complaint came to be filed either by the deceased or by
her parents. Even though the deceased set fire to herself
on 11.10.2009, no complaint came to be filed by PW1
immediately and a complaint came to be filed only after
death of the deceased.
9. PW1 in his evidence has stated that there was a
Panchayath and in the Panchayath about 20 to 25 persons
were gathered. He further stated that for sixty times, the
Panchayath was held. PW4 - daughter of PW1 and the
younger sister of the deceased has stated that no
Panchayath was held, which is contrary to the evidence of
PW1.
10. Perusal of cross examination of PWs.1 and 2 would
indicate that their evidence in the chief examination is
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improvement from the statements they made before the
Investigating Officer. PW5 do not personally know
regarding the quarrel between the deceased and the
appellant - accused. He states regarding the quarrel as
stated to him by PW1. PW6 is brother of PW1 and uncle of
the deceased and he has only deposed that there were
quarrels between the deceased and the accused and the
same was told to him by his brother PW1. PW8 even
though stated regarding the quarrel between the accused
and the deceased, in his cross examination, he has
admitted that his house is at a distance from the house of
the deceased and he did not know how the appellant -
accused and his wife - deceased lived together.
11. Even though the dying declaration of the deceased
has been recorded, the same has been suppressed by the
prosecution. PW9 - Tahsildar in his cross examination has
admitted about he recording the dying declaration of the
deceased as per Ex.D6, when it was confronted to him.
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The statement of the deceased was obtained by the
accused under the Right to Information Act. In Ex.D6, the
deceased has stated that when she was lighting the
kerosene cooking stove, due to accident, she sustained
burn injuries and it happened due to her fault. In the said
statement, it is mentioned by the doctor who was treating
her that she was conscious throughout the period of
statement. If there is any harassment and ill-treatment
by the appellant - accused to the deceased, she would
have stated regarding them in her dying declaration
recorded by the Tahsildar - PW9.
12. Considering all these aspects, the prosecution has
failed to establish beyond reasonable doubt that the
appellant - accused has harassed and ill-treated the
deceased. Therefore, the benefit of doubt requires to be
extended to the appellant - accused. The Trial Court erred
in convicting the appellant - accused for the offence under
Section 498A of IPC. In the result, the following;
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ORDER
The appeal is allowed. The impugned judgment of
conviction and order of sentence dated 28.12.2012 passed
in S.C.No.84/2010 by the Principal Sessions Judge,
Davanagere is set-aside. The appellant - accused is
acquitted of the offence under Section 498A of IPC.
Sd/-
JUDGE
GH
