Allowed

Hameedkhan S/O Chammansab v. the State of Karnataka by

Karnataka HC8 Feb 2024CRL.A/104/2013

Case brief

AI extract

What is this about?

Appeal against conviction under Section 498A IPC in a case where the accused's wife self-immolated. The High Court found inconsistencies in prosecution witnesses, suppression of a dying declaration attributing injuries to a stove accident, and no prior complaints of harassment, and acquitted the appellant.

What did the court decide?

Conviction and sentence dated 28.12.2012 in S.C.No.84/2010 set aside; appellant acquitted of offence under Section 498A IPC.

Hameedkhan S/O Chammansab Vs the State of Karnataka by — Dowry and Cruelty | Karnataka HC (2024)

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1 - NC: 2024:KHC:5482 CRL.A No. 104 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 104 OF 2013

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BETWEEN:

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HAMEEDKHAN S/O CHAMMANSAB AGED ABOUT 31 YEARS OCC: PETTY BUSINESS R/O 7^TH CROSS, KTJ NAGAR DAVANGERE - 577 001.

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…APPELLANT

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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(BY SRI UMESH P B, ADVOCATE FOR SRI R B DESHPANDE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY WOMEN POLICE STATION DAVANAGERE – 577 001.

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…RESPONDENT

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(BY SRI CHANNAPPA ERAPPA, HCGP)

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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.,

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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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.

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The factual matrix of the prosecution case are as under;

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The deceased Smt.Nazeema Banu, daughter of PW1

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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

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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.

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In order to prove the charge, the prosecution has

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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

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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.

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Heard the arguments of learned counsel for the appellant – accused and learned High Court Government Pleader for the respondent - State.

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Learned counsel for the appellant – accused would

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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.

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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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On the grounds made out and considering the arguments advanced, the following point arises for my consideration;

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“Whether the Trial Court erred in convicting the appellant – accused for the offence under Section 498A of IPC?”

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My answer to the above point is in the affirmative for the following reasons;

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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.

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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.

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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

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the deceased and he did not know how the appellant – accused and his wife - deceased lived together.

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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.

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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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12 -

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ORDER

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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.

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Sd/JUDGE

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List No.: 1 Sl No.: 12

Hameedkhan S/O Chammansab v. the State of Karnataka by

Case brief

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What did the court decide?

Hameedkhan S/O Chammansab v. the State of Karnataka by

Case brief

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