Karnataka High Court
Mohammed Ali vs The State Of Karnataka on 7 March, 2024
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CRL.A No. 277 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.277 OF 2012
BETWEEN:
1. MOHAMMED ALI
S/O MOHAMME GOUSE,
AGED ABOUT 32 YEARS,
OCC: COOLIE WORK,
R/O SOMINAKOPPA,
GEJJENAHALLI, SHIMOGA.
2. SMT. TAHIRABI
W/O MOHAMMED GOUSE,
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD WORK,
R/O SOMINAKOPPA,
GEJJENAHALLI, SHIMOGA.
3. SHAHIDA
W/O ABDUL KOUR,
AGED ABOUT 44 YEARS,
OCC: HOUSEHOLD WORK,
Digitally signed by R/O SOMINAKOPPA,
MOUNESHWARAPPA
NAGARATHNA GEJJENAHALLI, SHIMOGA.
Location: HIGH
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. P.B. UMESH., ADVOCATE FOR
SRI. R.B. DESHPANDE., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY MAHILA POLICE STATION,
SHIMOGA.
...RESPONDENT
(BY SMT. SOWMYA .R., HCGP)
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CRL.A No. 277 of 2012
THIS CRL.A. IS FILED U/S.374(2) OF THE CR.P.C PRAYING TO
SET ASIDE THE CONVICTION AND SENTENCE DT.29.02.2012 AND
01.03.2012 PASSED BY THE ADDITIONAL SESSIONS JUDGE,
SHIMOGA IN S.C.NO.172/2008 AND ACQUIT THE APPELLANTS, IN
THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants/accused Nos.1 to 3 have filed this
appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 (hereinafter for brevity referred to as
'Cr.PC'), challenging the judgment of conviction dated
29.2.2012 and order on sentence dated 01.03.2012
passed by the learned Additional Sessions Judge, Shimoga
(hereinafter for brevity referred to as 'the trial Court') in
Sessions Case No.172/2008, convicting accused Nos.1 to 3
for the offences punishable under Section 307 of IPC.
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court. The
appellants are accused Nos.1 to 3 and the respondent-
State is the complainant.
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3. The summary of the case of the prosecution
before the trial Court as could be gathered from the
charge sheet is that, accused No.1 is the husband of the
complainant, Fathimunnisa (PW1), accused No.2 is the
mother of accused No.1 and accused No.3 is the sister of
accused No.1. The marriage of PW1 and accused No.1 was
performed on 04.09.2005. After the marriage, accused
No.1 and PW1 were residing together at Sominakoppa,
their relationship was cordial for couple of months.
Thereafter, accused No.1 started to harass PW1 on
account of demand of dowry. He subjected her to mental
and physical cruelty on account of she giving a birth to a
female child and accused Nos.2 and 3 joined accused
No.1, started to harass PW1 on the pretext that she would
deliver a second female child. Therefore, they forced the
victim with a common intention to abort the child or to
leave the house. When she refused to undergo abortion,
they evicted PW1 from the matrimonial house, hence, she
went to her parental house.
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On 11.10.2007 at 10.00 p.m., in the house of
accused No.1 at Sominakoppa, accused Nos.1 took quarrel
with PW1, at that time, accused Nos.2 and 3 came to their
house and in furtherance of their common intention,
accused Nos.1 to 3 poured kerosene from a stove on the
person of the victim (PW1) and set fire. Thus, PW1
sustained 40% of the burn injuries on her body and she
was taken to Mc.Gann hospital for treatment, where PW2-
Dr.P.Ramachandrappa examined the victim and informed
the jurisdictional Police. Hence, PW13-Smt.P.Leela, ASI,
PW11- Sri.Lakshmana, Head Constable, recorded the
statement of PW1 at Mc.Gann Hospital, Shimoga. Thus,
PW12-Bhagyalaxmi, WHC registered the case in Crime
No.75/2007, which led to the registration of FIR and
investigation.
4. The prosecution in order to prove its case,
examined in all 16 witnesses as PW1 to PW16, 8
documents were marked as Exs.P1 to P8 and material
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objects were marked as MO.1 and MO.2. For the defence,
Exs.D1 and 2 were marked.
5. Assessing the evidence of the prosecution
witnesses, the trial Court acquitted accused Nos.1 to 3 of
the offence punishable under Section 498A of IPC,
however, convicted the appellants for the offence
punishable under Section 307 of the IPC and sentenced
accused No.1 to undergo rigorous imprisonment for five
years and to pay a fine of Rs.20,000/- and in default, to
undergo rigorous imprisonment for one year. Further,
accused Nos.2 and 3 sentenced to undergo rigorous
imprisonment for one year with fine of Rs.1,000/- each
and in default of payment of fine, to undergo rigorous
imprisonment for six months each for the offence
punishable under Section 307 of IPC.
6. Aggrieved by the judgment of conviction and order
on sentence passed by the trial Court, the appellants have
preferred this appeal.
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7. Learned counsel for the appellants has
contended that the judgment of conviction and order on
sentence passed by the trial Court is contrary to law,
evidence and probabilities. The trial Court committed
serious error in convicting the accused persons on the
basis of interested witnesses, such as PWs.1, 5 to 8 and
10. The oral evidence of PWs.1, 5 to 8 and 10 are full of
contradictions, omissions and there are so many
improvements in their testimonies. The trial Court
committed a serious error in holding that the prosecution
proved its case beyond the reasonable doubt. In fact, the
prosecution is guilty of suppression of material evidence
and has not come forward with a true version of the
incident.
a. It is contended that the trial Court committed a
serious error in relying on the interested testimonies of
PWs.1, 5 to 8 and 10 when their evidence is not
corroborated by any independent witnesses. It is
contended that the trial Court should have acquitted the
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accused persons on the ground that there was a delay in
filing the complaint and that the delay has not been
properly explained by the prosecution witnesses. It is
contended that there is no clear, consisting and reliable
evidence against accused Nos.2 and 3, who are the
mother-in-law and sister-in-law of the victim. In fact,
accused Nos.2 and 3 are residing at a distance of 1/2 k.m
from the house of accused No.1 and they never visited the
house of PW1. Therefore, there is no question that, they
abetted accused No.1 to commit crime or they also poured
kerosene on the person of PW1 and set fire.
b. It is contended that PW4-Khaleel, who is the
neighbour of PW1 and PW9-Babu, the owner of PW1 and
accused No.1 were residing in the locality, has
categorically stated that accused Nos.2 and 3 never visited
the house of PW1 and therefore, PW1 with the active
assistance of PWs.5 to 8 and 10 falsely implicated accused
Nos.2 and 3 in this case in order to harass the family of
accused No.1.
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c. It is contended that PWs.1, 5 to 8 and 10 have
stated against accused Nos.1 to 3 in an exaggerated
manner. Further, there is contradiction in the testimonies
of PWs.1, 5 to 8 and 10 and the testimonies of PW4 and
PW9 with regard to accused Nos.2 and 3, who were
visiting the house of accused No.1. It is contended that
PW8-mother of PW1 contended that the house of accused
Nos.2 and 3 is adjacent to the house of accused No.1, but
the remaining witnesses have stated that the distance
between the house of accused Nos.1 to 3 is 1/2 k.m.
d. It is contended that PW1 has filed false complaint
and falsely implicated accused Nos.1 to 3 with the active
participation of PW5 by filing a complaint through PW1.
Hence, the learned counsel contended that accused Nos.2
and 3 were falsely implicated in this case and thus, prayed
to acquit both the accused.
e. It is contended that the sentence passed against
accused No.1 be reduced on the ground that the age of
accused No.2 is more than 75 years as she suffers from
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old age ailments and he has to take care of the health of
accused No.2. Hence, the learned counsel prayed to
reduce the sentence. Further, the matter is of the year
2007 and he was in custody during the trial for 11 months
19 days and after passing sentence, till the bail was
granted by this Court, he was in prison for 22 days.
Therefore, he was in custody for more than one year.
Hence, he prayed to set off the period already undergone
by accused No.1 under Section 428 of the Cr.PC.
8. Per contra, the learned High Court Government
Pleader contended that PW1 is the injured witness. She
has categorically stated that accused No.1 being her
husband, accused Nos.2 and 3 are her in-laws and they
are frequently harassed her, subjected her to mental and
physical agony, so as to meet their unlawful demand of
dowry knowing that it was sufficient to drive her to commit
suicide and on 11.10.2007 at 10.00 p.m., accused Nos.2
and 3 came to the house of accused No.1, accused Nos.1
to 3 with a common intention of committing murder of
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PW1, they poured kerosene on PW1 and set fire.
Therefore, his father PW6 and his friend PW5-P.Thomos
came to the house of PW1 and they shifted the injured to
the Hospital for treatment and she lodged a complaint as
per Ex.P1.
a. It is contended that the circumstantial witnesses
PWs.5 to 8 and 10 have categorically stated that PW1
disclosed the fact that accused Nos.1 to 3 were harassing
her on account of demand of dowry, they insisted PW1 to
get abortion of her second pregnancy and the fact that
they attempted to commit murder of PW1. The oral
evidence of PWs.1, 5 to 8 corroborated with the medical
evidence of PW2-Doctor and the wound certificate-Ex.P3.
b. It is contended that PW11-Lakshmana, who
recorded the statement of PW1 at Mc.Gann Hospital has
stated about the manner of recording the statement of
PW1 and the same was handed over to PW12-
Bhagyalaxmi, SHO, who registered the case.
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c. It is contended that the trial Court has rightly
convicted accused Nos.1 to 3 for the offence punishable
under Section 307 of the IPC. Hence, no interference is
called for.
9. After hearing the learned counsel for both side,
the points that would arise for consideration in the appeal
is:
i. Whether the prosecution proved beyond
reasonable doubt that accused Nos.1 to 3 with an
common intention subjected PW1 to mental and
physical cruelty so as to meet their unlawful
demand of dowry, knowing that it was sufficient
to drive her to commit suicide or cause injury to
her limb or health and on 11.10.2007 at 10.00
p.m., in the house of accused No.1 at
Sominakoppa in furtherance of their common
intention and in order to commit murder of the
victim, accused Nos.1 to 3 poured the kerosene
from a stove on her and set her fire. Thereby,
they attempt to commit murder?
ii. Whether the judgment of conviction and the
order on sentence passed by the trial Court calls
for any interference at the hands of this Court?
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10. As per the case of the prosecution, accused
No.1 and PW1 are husband and wife respectively and
accused Nos.2 and 3 are in-laws of PW1. They subjected
the PW1 to cruelty and attempted to murder her. To prove
this aspect, the prosecution relied upon the evidence of
the victim-Fathimunnisa(PW1). In her evidence, she has
stated that accused No.1 is her husband and accused
Nos.2 and 3 are in-laws. She was residing in Somanikoppa
and her marriage was performed on 04.09.2005. It is her
further evidence that PW1 was conceived and at the
relevant point of time, she was suspected to delivery a
female child. Therefore, accused Nos.1 to 3 insisted her to
get abortion, but she refused to get abortion. Therefore,
they evicted PW1 from the matrimonial house. Therefore,
she went to her parental house. She was subjected to
cross-examination. In her cross-examination, she
admitted her father was a Government servant and she is
only daughter to her parents. She gave birth to a male
child and thereafter, they were residing in the house of
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Bakursab and her in-laws were residing in another house.
Accused No.3 was also residing separately with her
husband and children. She admits that, her parents had
desire that herself and accused No.1 should reside in the
house of her parents situated at Manjunath Layout,
Shimoga. But accused No.1 refused to reside in her
parental house. In this regard, she denied the suggestion
that on the instigation of the parents of PW1, she took
quarrel with accused No.1. She also denied suggestion
that soon after PW1 and accused No.1 residing separately,
the parents of accused No.1 and accused No.3 never
visited their house. She specifically admitted that accused
No.1 never pressurized her to get abortion and she never
complained to her parents or Police alleging that accused
No.1 was harassing her. She further admitted that since
she left her matrimonial house for a period of five months,
accused No.1 lodged complaint to the Police for restitution
of his conjugal rights and thereafter, she was residing with
her husband. She further stated in an exaggerated
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manner that accused Nos.1 to 3 together poured kerosene
on her and together set fire and at that time, she closed
her face with hands.
11. Further, the prosecution relied upon the evidence
of PW5- P. Thamos, a friend of father of the victim, who is
a hearsay witness. He has stated that he came to know
about the incident through PW6-Iqbal Ahammed (father of
the victim), hence, himself and PW6 got admitted to
Mc.Gann Hospital for treatment. In the cross-
examination, he admits that he has not given statement
before the Police as per Ex.D1. He further admits that he
never advised accused No.1 on account of harassment
given by accused No.1 to PW1. He admits that accused
No.1 had lodged complaint against the parents of PW1, in
order to send PW1 with him.
12. PW6-Iqbal Ahammed, father of PW1, has stated
that accused No.1 was harassing his daughter on account
of demand of dowry, hence, several panchayats were held,
once lodged complaint to the Police. He has further stated
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that on the day of incident, during night, accused No.1
informed him stating that his daughter died by setting fire.
Hence, himself and PW5 came to the house of accused
No.1 and shifted PW1 to the hospital. In the cross-
examination, he admits that in Manjunath Nagar of
Shimoga owns another house and he intended PW1 and
accused No.1 to be resided in that house. But, accused
No.1 denied to reside there. He admitted that in-laws of
PW1 were residing separately.
13. PW7-Syed Rasool @ Sopi, who conducted
panchayats of accused No.1 and PW1 has stated about the
marriage held between PW1 and accused No.1, but he has
not stated how PW1 sustained burn injuries. In fact, the
prosecution has not treated him as hostile witness. In the
cross-examination, he admits that he has not given any
statement as per Ex.D2 and he has not given any
statement to the Police.
14. PW8-mother of the victim reiterates the evidence
of PW6.
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15. The prosecution, in order to corroborate oral
testimonies of PWs.1, 5 to 8, have examined PW16-
Investigating Officer, who has stated that PWs.2 and 3
brought kerosene and accused No.1 set fire on PW1,
thereby, he has given different version. Hence, there is
contradictory evidence in the testimonies of PWs.1 and 16.
16. The prosecution examined PW4-neighbour of
PW1, but he has not supported the case of the
prosecution. PW9, the owner, where accused No.1 and
PW1 were residing also turned hostile to the case of the
prosecution. PW10, spot mahazar witness, PW11, Head
Constable, who recorded the statement of PW1 at
Mc.Gann hospital, PW12-WHC, who received the complaint
and registered the case, PW13-ASI, who recorded the
statement of PW1 and conducted spot mahazar as per
Ex.P6, PW14-PSI, who partly investigated the matter and
PW16-Dy.S.P., who investigated the matter further and
filed charge sheet.
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17. After giving a careful thought on the evidence on
record, particularly, having regard to the evidence of
PWs.1, 2 and 5 and also the evidence of PW3-Dr. Vimala
Bai and PW-15 Dr. Madhusudan, it cannot be gathered
that accused No.1 had any intention to cause the death of
PW1. The nature of injuries that have been caused could
not be substantiated in the ordinary course to cause the
death of the injured. Even the evidence of PWs.2 and 15
do not indicate that the injuries could have endangered
the human life, nor that there was any danger to the life of
PW-1 immediately after the injuries caused on her.
18. Further, on a careful perusal of the location of
the injuries sustained by PW-1, it could be seen that all
the injuries are on non-vital parts of the body, except here
and there on neck. Though the injuries are severe and
grievous in nature, none of the injuries either
independently or collectively have caused the death of PW-
1. There would not have any serious enmity to cause the
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death of PW-1. At the most, the alleged offence would
attract Section 326 of IPC.
19. So far as the allegations against accused Nos.2
and 3 are concerned, PWs.1, 6 and 8 have stated that they
often visiting the house of accused No.1, they abetted
accused No.1 and on the date of the incident, they came to
the house of accused No.1, accused Nos.2 and 3 poured
kerosene and they altogether set fire on PW1. But, the oral
testimonies of PWs.1, 6 and 8 are contradictory to the
testimony of Investigating Officer-PW16. PW16 has stated
that PWs.1, 6 and 8 never stated before him that accused
Nos.2 and 3 also set fire. But, PWs.1, 6 and 8 have
deposed against accused Nos.2 and 3 in exaggerated
manner in order to fix the responsibility on them. Even
assuming for a moment, as per the oral testimonies of
PWs.1, 6, 8 and 16, it would indicate that, an offence
under Section 498A of IPC would attract, but the trial
Court acquitted the accused for an offence under Section
498A of IPC, for which, the State has not preferred any
appeal. Further, accused Nos.2 and 3 have primarily the
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double benefit. Firstly, the presumption under law is that,
unless their guilt is proved, accused Nos.2 and 3 have to
be treated as innocent persons in the alleged crime.
Secondly, accused Nos.2 and 3 have already been
enjoying the benefit of judgment of acquittal in respect of
Section 498A of IPC passed under the impugned
judgment. Considering the oral testimony of PWs.1, 6 and
8 and the fact that the neighbouring witness of PW1 has
stated that accused Nos.2 and 3 are residing in a separate
house and they never visited the house of PW1, the
contention of the prosecution that accused Nos.2 and 3
brought kerosene and handed over to accused No.1 does
not arise. Hence, accused Nos.2 and 3 appears to be not
involved in the case and therefore, the offence under
Section 307 of IPC also does not attract against them.
20. The Hon'ble Apex Court in the case of State of
Madhya Pradesh v. Saleem reported in (2005) 5 SCC
554, wherein it was held that "to sustain a conviction
under Section 307 of IPC, it is not necessary that a bodily
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injury capable of resulting in death should have been
inflicted. As such, non-conviction under Section 307 of
IPC on the premise only that simple injury was inflicted
does not follow as a matter for force. The Court has to
see whether the act, irrespective of its results, was done
with the intention or knowledge and under circumstances
mentioned in the Section."
21. The Hon'ble Apex Court in the case of JAGE RAM
& ORS. vs. STATE OF HARYANA reported in (2015) 11
SCC 366 and STATE OF MADHYA PRADESH vs. KANHA
reported in (2019) 3 SCC 605 wherein the Hon'ble apex
Court once again reiterated that "because of a fatal injury
was not sustained alone does not dislodge Section 307 of
IPC. The intention of the accused can be ascertained from
the actual injury, if any, as well as from surrounding
circumstances. Among other things, the nature of weapon
used and the severity of the injuries can be considered to
infer intent."
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22. In the instance case, the nature of the injuries
sustained and the evidence of the witnesses clearly
establish that accused No.1 has definitely caused grievous
injuries to PW-1 and she was admitted to Hospital for a
period of three months as in patient and the evidence of
the doctors would clearly establish that accused No.1 has
caused grievous injuries by pouring kerosene on PW-1,
attracting Section 326 of IPC. The evidence of PW-1 and
the Doctors PWs.2 and 15 clearly establish the offence
under Section 326 of IPC and the finding of the trial Court
require to be modified in that aspect.
23. Upon considering the facts and circumstances of
the case, the Court gathered that there were no
allegations of repeated and severe injuries having been
inflicted upon PW1. The Court also noted that even the
injuries on the complainant were found to be grievous in
nature. Therefore, the conviction under Section 307 of
IPC was unsustainable and that, the only offence under
Section 326 of IPC is made out. Thus, the Court interfered
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with the impugned judgment only to an extent of Section
307 of IPC and modified it to one for the offence
punishable under Section 326 of IPC.
24. Learned counsel for the appellants submitted that
soon after the incident, accused No.1 paid a sum of Rs.5
lakhs as compensation and he returned gold articles to
PW-1. During hearing of this case, PW-1 appeared before
the Court and submits that her second marriage is
performed with one Nadeem Basha and out of her second
wedlock, she got a female child. PW-1 acknowledges the
receipt of gold articles and compensation of Rs.5 lakhs.
Further, accused No.1 appeared before the Court and
submits that his second marriage is performed and has
four children of the said wedlock.
25. Learned counsel for the appellants further
submitted that during trial, accused No.1 was in custody
for a period of 11 months 19 days. Again, he was taken to
custody on 29.02.2012 and was released on 22.03.2012.
Hence, he was in custody for more than one year.
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Therefore, learned counsel for the appellants submits that
the period that had already undergone by accused No.1 be
given set off under Section 428 of Cr.PC.
26. Learned HCGP though orally objected, however,
conceded that accused No.1 has already paid
compensation of Rs.5 lakhs and returned gold articles to
her and both are peacefully settled with their respective
families.
27. Considering the submission made by learned
counsel for the appellants and the learned HCGP and also
the fact that accused No.1 has already paid compensation
of Rs.5 lakhs to PW-1 and returned gold articles and the
fact that PW-1 and accused No.1 have performed their
second marriage and both are living peacefully, it is just
and necessary to invoke Section 428 of Cr.PC and in the
circumstances of the case, I feel that interest of justice
would be met, if sentence of one year is imposed for the
offence under Section 326 of IPC. In the result, the
following:
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ORDER
1. Appeal is allowed in-part.
2. The judgment of conviction dated 29.2.2012 and
order on sentence dated 1.3.2012 passed by the
learned Additional Sessions Judge, Shimoga
convicting accused No.1 for an offence
punishable under Section 307 is modified and
accused No.1/appellant No.1 is convicted for the
offence punishable under Section 326 of IPC and
he is sentenced to undergo rigorous
imprisonment for one year and to pay fine of
Rs.20,000/-. The sentence already undergone
by accused No.1 is given set off under Section
428 of Cr.P.C.
3. The fine amount deposited by accused No.1 shall
be paid to PW-1 within a period of six weeks and
in default, to undergo further imprisonment for a
period of three months.
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4. Insofar as accused Nos.2 and 3 are concerned,
they are acquitted of the offence charged. The
bail bond of accused Nos.2 and 3 and their
sureties stand cancelled.
5. Registry to send back the trial Court records
forthwith along with copy of this judgment.
Sd/-
JUDGE
PN,CH
