3.1. The appellant in Criminal Appeal
No.100323/2017 is the wife of Sri. Shabbir Haidarali Khoja
as per the Muslim rites and customs. Out of the said
Zarika.
3.2. After the marriage, the appellant joined the
accused Nos.2 to 4 in a same house. Within a short span
of time, her father-in-law died. It is alleged that she was
a complaint with Tilakwadi Police Station by the appellant.
4. Police after registering the case thoroughly
with Section 34 of Indian Penal Code, 18601.
5. Learned Trial Magistrate took cognizance of the
aforesaid offences and issued process. After securing the
presence of the accused persons, charges were framed. All
the accused persons pleaded not guilty. Therefore, trial
6. In order to bring home the guilt of the accused
marked as Ex.P1 to P17. Among them, PW5 - Ismath is
7. Thereafter, accused's statement as is
denied all the incriminatory materials.
8. After hearing the arguments, learned Trial
9. Being aggrieved by the same, it is the accused
10. The State also filed an appeal before the First
11. Learned Judge in the First Appellate Court after
The complainant has set the criminal law into
motion by lodging the complainant as per
Ex.P6 on the same day without any delay and
accordingly, PW7 registered the case against
the accused persons as per Ex. P16-FIR.
Further investigation done by PW 11 and after
completion of the investigation he has filed
the charge sheet against the accused persons.
Nothing has been elicited in the cross
examination of PW 7 and 11 to discard their
evidence with regard to the investigation.
NC: 2026:KHC-D:2973
HC-KAR
The substantial evidence of PW 5-complainant
clearly corroborates with the medical evidence
and circumstantial evidence of PW 6 & 9.
Ex.P5 Wound certificate shows that the
complainant suffered with injuries on her
face. E-mails produced at Ex.P11 to 15 and
filing of a petition under Section 12 of D.V.
Act by the complainant before the Court at
Mumbai, support the case of the complainant
with regard to harassment by accused No1.
So, the minor contradictions in the evidence
of victim about the timings of incident are not
fatal to the case of the prosecution.
Therefore, the evidence of PW5, 4, 6, 9 and
Investigating Officer clearly establishes the
fact of harassment to the complainant by
accused No.1 and assault on her on
12.07.2010. As per the admission of
complainant herself, accused No.2 to 4 are
residing at Ghataprabha, while herself and
accused No.1 along with daughters were
residing in Samarth Apartment, Angol Road,
Belagavi. By this admission the involvement
of accused No.2 to 4 in commission of alleged
offences is not believable. The trial court by
evaluating the evidence on record, has rightly
convicted the accused No.1 for the offences
punishable under Section 498(A), 323 & 324
- 10 -
NC: 2026:KHC-D:2973
HC-KAR
of IPC and acquitted accused No.2 to 4 from
the alleged offences, which in my opinion is in
accordance with law and as such, I do not find
any reason to interfere with the findings of
the trial court. Therefore, I answer point No.1
in the negative."
12. Being further aggrieved by the same, accused
No.1 and the defacto complainant have filed the present
revision petition and appeal.
13. Learned counsel for the petitioner/accused No.1
reiterating the grounds urged in the revision petition
contended that when the learned Trial Magistrate and the
learned Judge in the First Appellate Court have recorded
the acquittal for the remaining accused on the same set of
material evidence ought not to have convicted the present
revision petitioner and sought for allowing the revision
petition.
13.1. He would further contend that the material
evidence in the form of oral testimony of PW1 to PW3 are
not sufficient for recording an order of conviction insofar
- 11 -
NC: 2026:KHC-D:2973
HC-KAR
as the appellant has turned hostile to the case of the
prosecution though initially they supported the case of the
prosecution.
13.2. He would further contend that material
evidence in the form of oral testimony of PW5 who is the
wife of the revision petitioner is so artificial that no
prudent person can vouchsafe the reasoning recorded by
the learned Trial Magistrate and the learned Judge in the
First Appellate Court insofar as conviction of the revision
petitioner for the aforesaid offences and sought for
allowing the revision petition.
14. Per contra, learned High Court Government
Pleader and Sri. Mahesh Wodeyar, learned counsel for the
defacto complainant would support the impound orders.
15. Learned counsel for the defacto complainant
would further contend that an appeal is filed by the
defacto complainant before this Court challenging the
acquittal of accused Nos.2 to 4 is for the first time and
- 12 -
NC: 2026:KHC-D:2973
HC-KAR
therefore, appeal of the defacto complainant needs to be
allowed by re-appreciating the material evidence on record
despite the fact that the State has filed an appeal against
the order of acquittal before the District Court which was
per-se not maintainable and sought for allowing the appeal
and dismissal of the revision petition filed by the husband.
16. Having heard the arguments of both sides, this
Court perused the material on record meticulously.
17. On such perusal of the material on record,
following points would arise for consideration.
i. Whether the prosecution has successfully
established all ingredients to attract the
offences punishable under Sections 323,
324 and 498A of IPC insofar as accused
No.1/revision petitioner?
ii. Whether the defacto complainant has
made out a ground that accused Nos.2 to
the aforesaid offences?
- 13 -
NC: 2026:KHC-D:2973
HC-KAR
iii. Whether the impugned judgment of the
learned Trial Magistrate which was
confirmed by the First Appellate Court is
suffering from legal infirmity or perversity
and thus calls for interference?
iv. Whether the sentence ordered by the
learned Trial Magistrate confirmed by the
First Appellate Court insofar as accused
No.1 needs modification?
v. What order?
Regarding Point Nos.(i) to (iv):
18. In order to avoid the repetition of facts, this
Court has taken all these points together.
19. In the case on hand, admittedly the revision
petitioner is the husband of PW5. Their marriage took
place as per the Muslim rites and customs on 15.09.2002
as soundly.
20. About three months after the marriage, father-
in-law of the complainant died and she spent her marital
- 14 -
NC: 2026:KHC-D:2973
HC-KAR
life with the revision petitioner at Ghataprabha and
thereafter, in Belagavi.
21. In the marriage, two daughters are born
namely Alina and Zarika. Revision petitioner was doing the
business of tours and travels.
22. It is the specific contention of PW5 that revision
petitioner used to assault the elder daughter and
whenever questioned, he used to physically and mentally
harassed the complainant as well. There was a Panchayath
convened with regard to the harassment and the revision
petitioner had agreed before the Panchayath members
that he would not harass the complainant and her
daughters and a bond was executed before the
Panchayathdars.
23. On 12.07.2010, when the revision petitioner,
complainant and daughters were sleeping, at about 03.00
a.m., when her daughter urinated in the bed, revision
petitioner started assaulting her and when she tried to
- 15 -
NC: 2026:KHC-D:2973
HC-KAR
rescue, revision petitioner assaulted her also and pulled
her hairs and then dashed her head to the wall and twisted
her right hand. She has taken a photograph of the
incident.
24. It is also the case of the defacto complainant
that accused Nos.2, 3 also joined the accused No.1 in the
said assault and accused No.4 has abused her in filthy
language.
25. Police after registering the case investigated the
matter and filed charge sheet.
26. Before the Trial Magistrate, the complainant
was examined as PW5 and reiterated the above aspects
with graphic details as to what transpired on 12.07.2010.
27. In her cross- examination, it is elicited that
accused No.4 resides in Ghataprabha and so also accused
No.3 who carries on the business at Ghataprabha. She
admits that soon after the marriage, all of them lived in
Ghataprabha.
- 16 -
NC: 2026:KHC-D:2973
HC-KAR
28. She further admits that within fifteen days of
marriage, she had visited her parents' house. She also
admitted that soon after the death of her father-in-law,
she had come back to Ghataprabha. She admits that in
the year 2004, herself and revision petitioner stayed in
Sangali for a brief period. But, others resided in
Ghataprabha.
29. She admits that she had worked as an
employee in a Sales Company for about one month. She
admits that as on the date of cross- examination for last
four years, she was not residing with accused No.1. She
also admits that in the year 2007, through jamath, a
panchayat was held.
30. She further admits that since April 2010,
accused No.1 has established a separate house at Belagavi
and accused Nos.3 and 4 stayed in Ghataprabha itself. She
admits that she had joined as an employee in Maratha
- 17 -
NC: 2026:KHC-D:2973
HC-KAR
Mandal Dental College and there were servants to look
after the domestic work and they had a luxurious life.
31. In her further cross-examination, she denies
the suggestion that the injury caused her as per the
wound certificate is a self-inflicted injury. Detailed cross-
examination of PW5 on three different occasions did not
yield any positive material so as to deny the fact that she
sustained the injury as is found in Ex.P.5.
32. PW6 is a witness who is the sister-in-law of
complainant, she has supported the case of the
prosecution and in her cross-examination, it is alleged that
mother of accused No.1 used to reside in Ghataprabha and
there was a separate house in Belagavi established by the
accused No.1. She also admitted that she is not an
eyewitness to the incident, but she received the telephone
call on 12.07.2010 between 03.00 a.m. to 04.00 a.m.
33. Yet another independent witness who supported
the case of the prosecution is PW9 deposed that on
- 18 -
NC: 2026:KHC-D:2973
HC-KAR
12.07.2010, there was a telephone call and PW5 and her
daughter were taken to District Hospital on account of the
assault made by accused No.1.
34. Testimony of remaining witnesses are formal in
nature.
35. In the accused's statement except denying the
incriminatory circumstances, accused did not offer any
explanation to the incident. Stray suggestion made to PW5
that the abrasion injury found near her eye is a self-
inflicted injury. There is no other material to disbelieve the
testimony of PW5.
36. Taking note of these aspects of the matter,
learned Trial Magistrate convicted accused No.1 and
acquitted the other accused persons as there was no
positive material evidence on record so as to hold that
accused Nos.2 to 4 were also involved in the said incident.
- 19 -
NC: 2026:KHC-D:2973
HC-KAR
37. Learned Judge in the First Appellate Court as
referred to supra has dealt in detail the material evidence
in Criminal Appeal No.125/2014 and upheld the conviction.
38. Therefore, having regard to the scope of the
Revisional Jurisdiction, this Court did not deem fit to
interfere with the concurrent findings of the fact that
accused No.1 assaulted PW5 and used to harass PW5 and
her children physically and mentally.
39. Having said so, against the order of acquittal
insofar as accused Nos.2 to 4 are concerned, the State
should have filed an appeal before the High Court instead
an appeal came to be filed before the District Court.
40. Learned Judge in the First Appellate Court did
not raise a point as to maintainability of the appeal before
the District Court and did not assign any reason as to the
maintainability of the appeal before the First Appellate
Court.
- 20 -
NC: 2026:KHC-D:2973
HC-KAR
41. Nevertheless, a single point is raised stating
that whether the conviction of accused No.1 and acquittal
of accused Nos.2 to 4 needs interference.
42. Such an approach by the First Appellate Court
was per-se wrong.
43. Nevertheless, since the appeal itself was not
maintainable before the District Court, non-assigning
proper reasons for dismissal of the appeal of the State
cannot be called in question by the defacto complainant in
the appeal filed by her before this Court.
44. However, a separate appeal being filed by the
defacto complainant, with a delay of 1070 days, which
came to be condoned by this Court by order dated
27.02.2018, thereafter, the appeal is admitted. Therefore,
the appeal filed by the defacto complainant is heard on
merits as well.
45. It is the argument of the defacto complainant
that accused Nos.2 and 3 also joined hands with accused
- 21 -
NC: 2026:KHC-D:2973
HC-KAR
No.1 in assaulting her and her daughter who had urinated
in the bed on 12.07.2010. Accused No.4 said to have
abused the complainant and her daughter.
46. Admittedly, material evidence on record
including the admission made by PW5 would be sufficient
enough to address this issue inasmuch as a separate
house has been established by accused No.1 at Belagavi
and there were servants in the house to attend the
domestic work.
47. It is also admission of PW5 and PW9 that
remaining accused persons stayed at Ghataprabha alone.
48. Even according to the prosecution, incident has
occurred on 12.07.2010 at about 03.00 a.m. It is highly
unimaginable that accused Nos.2 to 4 who are residing at
Ghataprabha would be present in the house at Belagavi
and joined the hands with accused No.1 in assaulting PW5
and her daughter.
- 22 -
NC: 2026:KHC-D:2973
HC-KAR
49. It is to be noted that as per Ex.P4, no external
injuries are noted on the body of her daughter. Therefore,
taking note of these aspects of the matter, order of
acquittal recorded by the learned Trial Magistrate needs no
interference even after re-appreciation of the material
evidence on record.
50. There are no specific instances cited regarding
the alleged physical or mental harassment earlier to the
incident that occurred on 12.07.2010.
51. The alleged bond executed by accused No.1
before the Jamat, where the panchayat has taken place,
does not mention about the harassment imparted to the
complainant by accused Nos.2 to 4.
52. All these factors when viewed cumulatively, this
Court does not find any good reasons to interfere with the
order of acquittal insofar as accused Nos.2 to 4 are
concerned.
- 23 -
NC: 2026:KHC-D:2973
HC-KAR
53. More so, having regard to the fact that an order
of acquittal would reinforce the innocence of the accused
and if two views are permissible in a given set of a defacto
complainant, despite the fact that a non maintainable
appeal came to be filed by the State before the First
Appellate Court in Criminal Appeal No.140/2014.
54. From the above discussions, the conviction of
accused No.1 and acquittal of accused Nos.2 to 4 needs no
interference in this revision petition and appeal in the light
of settled principles of law that an order of acquittal
reinforce the innocence of an accused and any amount of
suspicion would not take the seat of proof.
55. Having said so, the sentence ordered by the
learned Trial Magistrate confirmed by the First Appellate
Court for the proved offences against accused No.1 is just
and proper in the attendant facts and circumstances of the
case and no mitigating circumstances are placed either
- 24 -
NC: 2026:KHC-D:2973
HC-KAR
before this Court so as to interfere with the order of
sentence.
56. Since the appeal of the defacto complainant is
only with regard to the acquittal of accused Nos.2 to 4,
there is no scope for enhancement of the sentence insofar
as accused No.1 is concerned.
57. Accordingly, Point No.(i) is answered in the
affirmative and Point Nos.(ii) to (iv) are answered in the
negative.
58. Regarding Point No.(v):
59. In view of the findings of this Court on Point
Nos.(i) to (iv) as above, the following:
ORDER
i. Revision Petition filed by accused No.1 in
Criminal Revision Petition No.100181/2017
is hereby dismissed.
- 25 -
NC: 2026:KHC-D:2973
HC-KAR
ii. Appeal filed by the defacto complainant in
Criminal Appeal No.100323/2017 is hereby
dismissed.
iii. Revision petitioner is directed to surrender
before the Trial Court for serving the
remaining part of the sentence on or
before 15.03.2026.
iv. Office is directed to return the Trial Court
records with copy of this judgment.
Ordered accordingly.
Sd/-
(V.SRISHANANDA)
JUDGE
SMM / Ct-cmu
LIST NO.: 1 SL NO.: 2
