Mohammed Asif Vs State of Karnataka by

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 06.11.2023 IN S.C.NO.4/2017 BY THE COURT OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (ITINERARY SITTING AT KARKALA), CONVICTING THE APPELLANT / ACCUSED NO.1, FOR THE OFFENCE U/S 498A OF IPC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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HC-KAR

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ORAL JUDGMENT

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The appellant who is the husband of the deceased –

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Reshma Banu has filed this Criminal Appeal being aggrieved by the judgment of conviction and order on sentence dated 06.11.2023 passed in S.C.No.4/2017 on the file of II Additional District and Sessions Judge, Udupi (Itinerary Sitting at Karkala) filed this appeal seeking to set aside the said judgment of conviction.

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Factual matrix of the case:

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The case of the prosecution is that accused No.1/appellant is the husband of the deceased – Reshma Banu, accused Nos.2 and 3 are the parents of the accused No.1. The marriage between the accused No.1 and deceased was taken place on 09.06.2013 in a Masjid situated at Kasaba Village, Karkala Town. It was the second marriage to both accused No.1 and the deceased. After the marriage, for about 10 days the deceased stayed in the matrimonial house. Thereafter, the accused No.1 went to Muscat on his job. After some days, the accused Nos.2 and 3 and the deceased had joined accused No.1 and started residing with him at Muscat. It is stated that during their stay in Muscat, the deceased had been ill-treated by the

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HC-KAR

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parents of the accused No.1. Further, on 07.10.2013, Visa of the deceased was cancelled and accused No.2 had dropped her back to her parent’s house. There she was taken to the hospital for treatment, however, on the following day i.e., on 08.10.2013 the deceased had committed suicide. Hence, a complaint came to be registered against the accused persons. The respondent – Police registered a case in Crime No.120/2013 for the offences punishable under Section 498(A), 306 read with 34 of Indian Penal Code (for short I.P.C) . The respondent – Police after conducting investigation submitted the charge-sheet.

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To prove the case of the prosecution, the prosecution examined 17 witnesses as PW-1 to PW-17 and got marked 36 documents as Ex-P1 to P-36 and also identified 12 material objects as MO-1 to MO-12. The Trial Court after appreciating the oral and documentary evidence on record opined that the accused Nos.2 and 3 have not committed any offences and they have been acquitted. Whereas, the appellant herein has been convicted for the offences punishable under Section 498(A) of I.P.C. However, he has been acquitted for the offences punishable under Section 306 read with 34 of I.P.C.

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HC-KAR

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Heard Sri. Nishit Kumar Shetty, learned counsel

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for the appellant and Smt. Waheeda M.M., learned High Court Government Pleader for respondent.

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Learned counsel for the appellant submits that the judgment of conviction and order on sentence passed by the Trial Court is contrary to the evidence on record, therefore, the judgment of conviction has to be set aside.

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Learned counsel for the appellant further contended

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that when the alleged incident occurred at Muscat, common allegations are made against the accused in the complaint, and also the charge-sheet has been filed against all the accused on similar set of allegations regarding the offences, convicting the appellant and acquitted the other accused is impermissible. In fact, the petitioner also standing on the same footing, the benefit of acquittal ought to have been extended to the present petitioner also. Making such submissions, learned counsel for the appellant prays to allow the appeal.

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Per Contra , learned High Court Government Pleader

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for respondent vehemently justified the conviction passed by the Trial Court and opined that a suicide note had been written

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HC-KAR

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by the deceased, it has been marked as Ex-P.22. It clearly indicates as to how the incident had occurred and how she had been subjected to cruelty. On considering the oral and documentary evidence on record, the Trial Court has rightly convicted the appellant which is proper and appropriate. Therefore, there are no grounds made out by the appellant to substantiate his case. Hence, the appeal has to be dismissed. Making such submissions, learned High Court Government Pleader for the respondent prays to dismiss the appeal.

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Heard learned counsel for the respective parties and perused the findings of the Trial Court in recording the conviction. The entire dispute is revolving around the death note along with evidence of the parents of the deceased. The death note is marked as Ex-P.22. It appears from the record that the deceased had came to her parents house from Muscat on 07.10.2013 and on the following day i.e., on 08.10.2013 around 9.00 p.m., she had committed suicide in her parents house on account of having been subjected to harassment by the parents of her husband. However, the said death note has been written on 09.10.2013. It is an admitted fact that FSL Report would indicate that the handwriting and the signature

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HC-KAR

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found on the said death note is of the Reshma. However, FSL

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report is not a conclusive proof to substantiate that the deceased had been subjected to harassment. Moreover, the date mentioned on the said death note would create doubt regarding its genuineness.

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It is also relevant to note that routine quarrel that had taken place in the matrimonial house cannot be termed as harassment. It is settled principle of law that to attract the ingredients under Section 498(A) of I.P.C., the harassment of which the women subjected to would drive away to commit suicide. Mere petty reasons or petty quarrels that had taken place in the matrimonial home cannot be construed as ‘harassment’.

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It is also relevant to take note of the evidence of P.W.1, who is the father of the deceased. According to him, the entire incident of harassment and cruelty had taken place in Muscat. Other witnesses who are the relatives of the deceased had deposed in consonance with the evidence of P.W.1, all the witnesses are consistent in their evidence that the incident of harassment or cruelty had taken place in Muscat. However, no such incident had occurred in the matrimonial home situated in

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Karnataka. None of the independent witness can depose the alleged harassment and cruelty, of which the deceased had been subjected to in her matrimonial home in India. It is settled principle of law that the evidence of related witnesses has to be scrutinized properly because they are the interested witnesses.

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In the present case, on careful reading of the evidence of all the witnesses and also the death note, I am of the considered opinion that the Trial Court has rightly acquitted the parents of the appellant for the offences punishable under Section 306 of I.P.C. Having considering the same, it is also appropriate to set aside the order passed by the Trial Court even in respect of offence punishable under Section 498(A) of I.P.C against the petitioner.

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