Smt Rukshana Khanum Vs Sri Abdul Bashid

(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N.A., ADVOCATE FOR R1 AND 3; SMT. RASHMI JADHAV, ADDL. SPP FOR R4; VIDE ORDER DATED 22.04.2024,

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APPEAL AGAINST R2 STANDS ABATED)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C PRAYING TO MODIFY THE JUDGMENT DATED 23.11.2017 PASSED BY THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) IN S.C.NO.32/2014 AND PUNISH THE ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC AND THE ACCUSED NOS.2 AND 3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 307 AND 498(A) OF IPC.

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IN CRL.A NO.1988/2017:

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BETWEEN:

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ABDUL BASHID S/O ABDUL GAFAR AGED ABOUT 40 YEARS WORKING AS WELDER R/AT KONGALAKERE DOOR NO.7/23 HOSAKURUBARA BEEDI KOLLEGALA TOWN-571 440.

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...APPELLANT

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(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N.A., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KOLLEGALA TOWN POLICE STATION, KOLLEGALA CHAMARAJANAGARA DISTRICT-571 111 REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR.

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...RESPONDENT

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(BY SMT. RASHMI JADHAV, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 23.11.2017 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) IN S.C.NO.32/2014 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 R/W SECTION 34 OF IPC.

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HC-KAR

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IN CRL.A NO.936/2018:

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BETWEEN:

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THE STATE BY KOLLEGALA TOWN POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001.

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...APPELLANT

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(BY SMT. RASHMI JADHAV, ADDL. SPP)

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AND:

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ABDUL BASHID S/O ABDUL GAFAR AGED ABOUT 44 YEARS R/O KONGALAKERE DOOR NO.7/23 HOSAKURUBARA BEEDI KOLLEGALA TOWN-571 401.

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...RESPONDENT

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(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N.A., ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF DATED 23.11.2017 PASSED BY ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) IN S.C.NO.32/2014 THEREBY ACQUITTING THE RESPONDENT NO.1/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and

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HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard learned counsel for the appellant-accused in Crl.A.No.1988/2017, learned Amicus Curiae for the appellantcomplainant in Crl.A.No.736/2018 and learned Additional Special Public Prosecutor for the State in Crl.A.No.936/2018 as against the conviction and acquittal.

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The factual matrix of the case of the prosecution is

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that marriage of the husband and wife was solemnized in 2002. That on 20.09.2013 at about 9.30 a.m., accused No.1 is alleged to have forcibly administered mosquito repellent liquid (Goodknight and Mortein) into the mouth of P.W.1 by closing her nose/nostrils with an intention to eliminate her permanently. The background of this incident is that P.W.1 was given in marriage to accused No.1 about 14 years prior to this incident and thereafter, accused No.1 and P.W.1 were living in their matrimonial home at Kollegala Town. The accused No.1 was in a habit of doubting fidelity/character of his

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wife and frequently suspected her having illicit relationship and used to treat her with cruelty both physically and mentally and was locking her in a room/house to ensure that she does not come in contact with any of his family members/outsiders.

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In this background of the matter, on the previous day of the incident, when C.W.1 was cleaning the dining table after dinner, the accused No.1 is said to have picked up a quarrel with her stating that she was trying to entice his male family members and provoked her to commit suicide which led to administer Goodknight and Mortein liquid. It is also the allegation that accused Nos.2 and 3 being the parents of accused No.1 were always mute spectators to the cruelty meted out to her by accused No.1 and on several occasions, accused Nos.2 and 3 have provoked accused No.1 to intensify/inflict cruelty by accused No.1, more so in respect of getting money from the parents of P.W.1, since accused No.1 decided to start a new/expand his business. Hence, invoked the offence punishable under Sections 498(A) and 307 read with Section 34 of IPC. The police based on the statement of the victim as per Ex.P1 registered the case, investigated the matter

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and filed the charge sheet. The accused persons were secured and they were on bail and accused did not plead guilty and claims trial.

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The prosecution in order to substantiate their case examined P.W.1 to P.W.12 and also got marked documents Exs.P1 to Ex.P8 and M.Os.1 and 2. The Trial Judge having closed the evidence of prosecution recorded the statement of accused under Section 313 of Cr.P.C. But, accused denied the incriminating evidence put to their mouth and not led any defence evidence.

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The Trial Court having considered both oral and documentary evidence of the prosecution witnesses comes to the conclusion that it is not a case for invoking the offence under Section 307 of IPC and the fact that accused No.1 forcefully administered Goodknight and Mortein into the mouth of P.W.1 by closing her nose/nostrils with an intention to eliminate her permanently was not accepted and acquitted the accused Nos.2 and 3 for the offence punishable under Section 498(A) and 307 read with Section 34 of IPC and acquitted accused No.1 for the offence punishable under Section 307

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read with Section 34 of IPC. However, the Trial Court taking note of the material available on record and cruelty meted out to P.W.1 comes to the conclusion that there is a case against accused No.1 and invoked the offence under Section 498(A) and convicted accused No.1 for the said offence and imposed simple imprisonment for a period of three years and to pay fine of Rs.10,000/- to victim P.W.1. Being aggrieved by the order of conviction, Crl.A.No.1988/2017 is filed before this Court.

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Learned counsel appearing for the appellantaccused No.1 in Crl.A.No.1988/2017 would vehemently contend that though the Trial Court disbelieved the case of prosecution with regard to the offence under Section 307 of IPC, but committed an error in relying upon the evidence of P.W.1 with regard to cruelty is concerned. The counsel would vehemently contend that there was incompatibility in between the appellant and P.W.1 and the same will not amount to cruelty. The counsel also vehemently contend that the appellant is not a literate and P.W.1 is a graduate and had completed her computer course training and due to this reason itself the incompatibility was found between the accused and P.W.1. The

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counsel would submit that marital discord or incompatibility of temperament in between the spouse cannot be treated as cruelty. The act of cruelty must be intentional or willful with an intention to harass and pester her wife to commit suicide. The counsel also vehemently contend that having noticed that P.W.1 was pretending that she has consumed Goodknight and Mortein informed the accused and immediately, the accused himself rushed to the spot and taken her to the hospital and no dispute with regard to the fact that accused himself shifted her to the hospital. The counsel also would vehemently contend that P.W.1 pretended as if she had consumed the poisonous substance. It is also contended that the evidence of P.W.8Doctor is also very clear that no such material with regard to consumption of Goodknigt and Mortein is concerned and the evidence of P.W.8 is also very clear and the same has been appreciated by the Trial Court while rightly coming to the conclusion that it was not administered by the accused. However, the Trial Court committed an error in invoking Section 498(A) of IPC against the appellant. The counsel also vehemently contend that P.W.4-father-in-law, who is economically sound was insisting his daughter to visit his house

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very often and her ornaments were taken by him and regarding this some differences developed. The appellant was also insisting his wife to follow religious practices and to remain at home which was not liked by P.W.1. Hence, a false allegation is made that she was confined in a room and not allowed to move out and the same is also exaggerated by the prosecution. The counsel would submit that independent witnesses, who have been examined as P.W.7 and P.W.9 have denied any panchayath held regarding quarrel between P.W.1 and appellant and they have not supported the case of prosecution. When the Trial Court comes to the conclusion that P.W.7 and P.W.9 have not supported the case of prosecution, ought to have come to the conclusion that there is no material before the Court to come to a conclusion that appellant meted out cruelty on P.W.1. Hence, it interference of this Court to acquit the accused No.1 for the offence punishable under Section 498(A) of IPC.

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Per contra, learned Amicus Curiae appearing for the appellant-complainant in Crl.A.No.736/2018 would vehemently contend that the Trial Court committed an error in acquitting

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the accused for the offence punishable under Section 307 of IPC and also acquitting accused Nos.2 and 3 for the offence punishable under Sections 498(A) and 307 read with Section 34 of IPC and proceeded in an erroneous approach convicting accused No.1 only for the offence under Section 498(A) of IPC. It is contended that the learned Trial Judge failed to consider the fact that to constitute an offence under Section 498(A) of IPC, it is sufficient that if the husband or any of his relatives by any willful conduct of such a nature, which is likely to cause grave injury or danger to life, limb or health of the woman. In the instant case, it is the specific allegation by the appellant that accused No.1 was treating her with cruelty by casting aspirations on her character and constantly demanding for dowry. He would also vehemently contend that though in the complaint at Ex.P1 it is not specifically mentioned with regard to dowry, but it is very clear that both the husband and also inlaws were insisting her to get gold ornaments from the house of her parents, that too, in order to expand the business. He also vehemently contend that the Trial Court committed an error in acquitting accused Nos.2 and 3, when specific allegation is made in the complaint Ex.P1 as well as when

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P.W.1 categorically deposed the same and also father and mother, who have been examined as P.W.4 and P.W.5 also reiterated with regard to forcing her to get the gold documents. He would further submit that P.W.6-maternal uncle also supported the case of the prosecution and even though panchayathdars P.W.7 and P.W.9 have not supported the case of prosecution, but the Trial Court committed an error in acquitting the accused persons. Hence, it requires interference of this Court to convict accused Nos.1 to 3 for the offence punishable under Sections 498(A) and 307 read with Section 34 of IPC.

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Learned Additional Special Public Prosecutor for the appellant-State in Crl.A.No.936/2018 would vehemently contend that the Trial Court committed an error in acquitting all the accused for the offence punishable under Section 307 of IPC. She would vehemently contend that the Trial Court not considered the material available on record in a proper perspective and not appreciated both oral and documentary evidence of the prosecution witnesses and committed an error

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and it requires interference of this Court to reverse the findings in respect of the offence under Section 307 of IPC.

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Having heard respective counsels appearing for the

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appellants and also learned counsels appearing for the respondents in all the appeals, the points that would arise for consideration of this Court are:-

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(i) Whether the Trial Court committed an error in acquitting accused Nos.1 to 3 for the offence punishable under Section 307 of IPC and acquitting accused Nos.2 and 3 for the offence punishable under Section 498(A) of IPC as contented by learned counsel for the appellant-complainant as well as learned Additional Special Public Prosecutor the State and whether it requires interference of this Court?

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(ii) Whether the Trial Court committed an error in convicting accused No.1 for the offence punishable under Section 498(A) of IPC and whether it requires interference of this Court?

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(iii) What order?

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Point Nos.(i) and (ii):

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Having heard respective counsels for the appellants and respondents, we have given anxious consideration to both oral and documentary evidence available on record. Having considered material available on record, no dispute with regard to the fact that marriage between P.W.1 and accused No.1 was solemnized in the year 2002. It is also important to note that after acquitting accused Nos.2 and 3, accused No.2 also passed away. Hence, the appeal against accused No.2 is abated. Now, this Court has to consider the material only against accused Nos.1 and 3. The accused No.1 is the husband and accused No.3 is the mother-in-law of P.W.1. It is also not in dispute that incident has taken place on 20.09.2013 almost after 11 years of marriage. It is also the case of the prosecution that on the previous date of incident i.e., on 19.09.2013, there was quarrel between husband and wife. It is also the case of the prosecution that accused himself forcefully administered Goodknight and Mortein holding her mouth/nostril and made her to consume the same and if it is a forceful act, there would have been injuries on P.W.1, even there is no scratch mark.

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But, no explanation on the part of the prosecution with regard to the same. The wound certificate issued by the Doctor, who treated the injured, except mentioning the identification marks not stated anything about the injuries caused to her.

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It is also important to note that the evidence of P.W.8-Doctor is very clear that not found any substance of both Goodknight and Mortein. However, learned counsel for the complainant brought to notice of this Court that P.W.1 categorically deposed that she was made to consume Goodknight, but not Mortein. No doubt, such answer is found in the evidence of P.W.1, the Court has to take note of not only the chief evidence, but also the cross- examination. In the cross-examination of P.W.1, there is an admission on her part that when the accused sprayed Mortein spray, she made an attempt to escape from the clutches of the accused. At that time, cap of the spray had fallen down and M.O.1 was there in the showcase on the previous day and also M.O.2. But, claims that accused No.1 administered the same in the hall and Doctor also enquired what had happened. She also claims in the crossexamination that accused insisted not to disclose anything with

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the Doctor and caused threat and she was conscious, but was tired. But, Doctor when P.W.1 vomited, the said substance was not collected to send it to FSL to get the report whether she was forcefully administered Goodknight and Mortein.

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The P.W.1 also admits that accused himself shifted her to hospital and police recorded her statement at 07.00 p.m. and taken signature on Ex.P1. But, while giving statement, she gave the statement that accused himself administered Goodknight and Mortein. However, in the cross-examination, she says that when panchayath was held, on her behalf, only her parents had attended and claims that she was locked in the house. But, categorically admits that when the dispute had started after 3 years, herself and her husband started living separately and this galata was not known to anyone, except her parents. It is also elicited that prior to lodging of the complaint, she says that panchayath was held in Kollegala Town Police Station, but she is not having any document to that effect. It is also her evidence that when she was staying along with her children at Nanjangud in her parents' house, accused used to come and go and also admission was given

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that thereafter her children were admitted to Nanjangud School and accused himself got held panchayath, however she was having life threat. It is her evidence that on the previous date, she was questioned why she is standing in a particular place and enticing anybody and on that date, she slept separately and husband slept along with the children. She also claims that, at that time accused Nos.2 and 3 were there in the very same house and categorically given the admission that accused No.1 not administered Mortein, but only administered Goodknight.

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Having taken note of these admissions on the part of P.W.1 and when the evidence of P.W.8 is also read conjointly, P.W.8-Doctor in his chief evidence says that on enquiry, she revealed that husband himself forcibly administered both Mortein and Goodknight. It is also very clear in paragraph No.1 of the evidence of P.W.8 that victim came to hospital with the history that she has consumed Mortein and Goodknight and there are two versions in her statement. One version is that victim herself consumed Goodknight and Mortein and another version is that she had informed the Doctor that accused himself forcibly administered the same. But, P.W.8

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also says that on enquiry, P.W.1 said that her husband-Abdul Bashid and also in-law forcibly administered the same and the same is mentioned in Ex.P5. Having considered this evidence, it is an improvement against all the accused. Having considered the different versions given by P.W.1 before the Doctor, at one breath, she says that it was consumed by herself, at another breath she says that it was administered by her husband and once again, she says that accused Nos.1 to 3 administered the same. When such inconsistent evidence is available before the Court and the same also not corroborates with the evidence of P.W.8 as well as the evidence of P.W.4, P.W.5 and P.W.6, who are the relative witnesses, the evidence of P.W.1 cannot be relied upon with regard to forcibly administering Goodknight and Mortein and the evidence of the Doctor is very clear that the said substance was not found and the FSL report also goes against the State. Hence, the learned Additional Special Public Prosecutor for the State cannot contend that Trial Court committed an error in acquitting accused Nos.1 to 3 for the offence punishable under Section 307 of IPC.

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Now this Court has to consider with regard to invoking Section 498(A) of IPC and in respect of the allegation against accused Nos.1 to 3 for the offence punishable under Section 498(A) of IPC and considering the complaint at Ex.P1, allegation is made against all the accused Nos.1 to 3. But, no material is found against accused Nos.2 and 3. The Trial Court while considering the material on record, particularly in respect of accused Nos.2 and 3 in paragraph No.27, taken note of evidence of P.W.1, who in her cross-examination stated that accused Nos.2 and 3 were never there in the house when the incident took place and also with regard to the allegations of harassment under Section 498(A) and so also taken note that complaint was lodged as per Ex.P1, that too in the evening not immediately after the incident and a statement was made before the police that accused Nos.2 and 3 were forcing her to get the gold ornaments from the parent's house, in order to expand the business. But, in order to substantiate the same, except the oral evidence of P.W.1, nothing is stated and the same is taken note of by the Trial Court, particularly in paragraph No.30 of the judgment that charge/allegation leveled against accused Nos.2 and 3 is not established by the

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prosecution and P.W.1 herself admitted in her deposition that accused Nos.2 and 3 were not present in the house when the incident took place i.e., on 20.09.2013 and only allegation is that they were witnessing the cruelty as mute spectators. But, no such specific instance is stated when they were sitting idle when the cruelty was meted to P.W.1 by her husband and only an omnibus allegation is made against accused Nos.2 and 3 and the same is also taken note of in paragraph No.31 of the judgment of the Trial Court. Hence, we do not find any ground to reverse the order of acquittal passed against accused Nos.2 and 3.

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Now coming to the aspect of convicting accused No.1 for the offence punishable under Section 498(A) of IPC is concerned, it is the specific case of P.W.1 that there was quarrel on the previous day on 19.09.2013 and the incident has taken place on 20.09.2013. We have already taken note of the immediate statement given by the victim and particularly, the document of wound certificate which is marked as Ex.P5, wherein the Doctor has said that it is said to have been caused on and due to having consumed one bottle of liquid Maretin and

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liquid Goodknight at 09.30 a.m. on 20.09.2013 at her residence which was forcefully fed to her by her husband and in-laws and the examination commenced at 10.15 a.m. on 20.09.2013. This Court has already comes to the conclusion that no corroborative piece of evidence with regard to accused No.1 himself administered Goodknight and Mortein to P.W.1. But there is no dispute with regard to strained relationship between the parties is concerned. During the course of crossexamination of P.W.1 itself, it is suggested to P.W.1 that relationship was strained.

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Learned counsel for the appellant/accused also in his argument would contend that merely because the relationship is strained, it does not amount to cruelty to invoke the offence under Section 498(A) of IPC and there is no material before the Court that she was treated cruelly. But, in the complaint at Ex.P1 itself she has stated that on the previous date on 19.09.2013 after providing food to in-laws when she was cleaning near the dining hall, accused came and questioned why she is standing there and also quarreled to whom she is enticing. As a result, she was humiliated in view of

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the act of the accused and to teach a lesson to him and her inlaws, she left the house along with her children. But, it is the specific case of the victim that she was staying alone and he took the children and slept separately. Hence, it is very clear that there was an incident on the previous day and though suggestion was made to the witness P.W.1 that no such incident has taken place and also even doubting the fidelity of the wife amounts to cruelty.

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It is also important to note that it is an admitted fact that due to the differences between them earlier harassment was made to P.W.1 and though no document is produced before the Court, but it is clear that matter had even gone to Kollegala Town Police Station and thereafter, she went and stayed in her parent's house. It has also emerged during the course of cross-examination, subsequently, the accused went and brought P.W.1 and got admitted the children to Nanjangud School. These are the factors which clearly disclose that they were not in cordial terms and also reason is assigned by P.W.1 that accused No.1 was suspecting her fidelity and also telling her to go and live with anybody else. When all these

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materials were taken note of and no doubt, the Trial Court comes to the conclusion in paragraph No.34 while considering the case of accused No.1 is concerned that accused No.1 got intensified even after conciliation, brought her back and started harassing her. Though, it is held in paragraph No.34 that accused No.1 started harassing her more on the monetary aspects, but it is for additional dowry. But the Trial Court also taken note that accused No.1 was suspecting her fidelity and apart from that considering the document of Ex.P1-complaint which was given evening in the hospital, wherein also categorically deposed that her husband and in-laws were insisting her to get the gold ornaments from her parents, in order to expand the business and nothing is elicited with regard to contents of the document of Ex.P1 and also in the crossexamination of P.W.1 with regard to demand and subjecting her for cruelty. When such material is taken note of, though it is mentioned it is for the monetary reason, but the allegation that accused No.1 was insisting her to get the gold ornaments subsequent to P.W.1 was brought to the house of accused No.1 is not specifically controverted. When such being the case and material available before the Court, we do not find any grounds

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to interfere with the findings of the Trial Court in respect of the offence punishable under Section 498(A) of IPC against accused No.1.

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The P.W.1 also in her evidence specifically deposed before the Court that husband was suspecting her character that she was having illicit relationship with her husband’s father and he used to lock her in the room putting latches and also used to abuse her in filthy language and the said act continued and the intention of the accused was P.W.1 should not come out from the room and if any person comes to the house also, accused No.1 was making an allegation that she is having an affair with him and used to quarrel with her taking the same. It is also narrated in page No.4 of the evidence of P.W.1 that harassment means abusing and making an allegation that she is having an affair and so also, particularly in respect of the incident happened on 19.09.2013 questioning that when she was cleaning the dining table after dinner, the accused No.1 picked up a quarrel with her stating that she was trying to entice someone else. This evidence clearly disclose that the allegation is made against the accused in her chief evidence

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and the same has not been specifically controverted in the cross-examination of P.W.1 and though the order of the Trial Court is cryptic with regard to invoking Section 498(A) of IPC, but with regard to the harassment is concerned, the same is not controverted in the cross-examination of P.W.1 in respect of the references which have been made in the chief evidence. When such being the material available on record, though the order of the Trial Court is cryptic in invoking the offence under Section 498(A) of IPC, the contention of learned counsel for the appellant/accused cannot be accepted that the same will not amount to cruelty and it amounts to only a difference between the accused and P.W.1, since there was strained relationship between both the P.W.1 and accused No.1 and the said contention cannot be accepted when specific evidence is deposed by P.W.1 with regard to meted out cruelty. When such being the material on record, we answer point Nos.(i) and (ii) accordingly that the State as well as appellant-complainant have not made out any ground to convict the accused No.1 for the offence punishable under Section 307 of IPC and reverse the judgment of the Trial Court in respect of accused No.3 is concerned, since appeal against accused No.2 is already abated

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and the Trial Court has not committed any error in convicting accused No.1 for the offence punishable under Section 498(A) of IPC.

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After having dictated the judgment, at this juncture, learned counsel for appellant-accused brought to notice of this Court judgment of the Apex Court in CHELLAMMAL AND ANOTHER vs. STATE REPRESENTED BY

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THE INSPECTOR OF POLICE reported in 2025 SUPREME (SC) 685 regarding invoking Section 360 of Cr.P.C and Section 4 of Probation of Offenders Act and brought to notice of this Court paragraph No.28, wherein the Apex Court has discussed with regard to invoking Section 4 of the Probation of Offenders Act and also legislative wisdom to consider the same. In this judgment also, it is made clear that the question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper, it means the question of grant of probation could be decided either way.

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The counsel also relied upon the judgment of the

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Apex Court in MOHD. HASHIM vs. STATE OF UP & ORS. reported in 2016 SUPREME (SC) 989, wherein also scope of Section 4 of Probation Act is discussed and learned counsel brought to notice of this Court paragraph No.23, wherein also the Apex Court taken note of earlier judgment in DALBIR SINGH vs. STATE OF HARYANA AND OTHERS reported in

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AIR 2000 SC 1677 and it has been held that Parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is the “nature of the offence”.

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Learned counsel for the complainant-appellant would submit that the harassment is continuous in nature and the records also clearly reveal that the incident has not taken place only the particular date and even on the earlier date also, the harassment was made. Thereafter, the victim and the children left and settled in the parental house. But, accused himself inspite of having made panchayath, brought them back

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to the matrimonial home and again continued the harrassment.

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Hence, this Court has to take note of the same.

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Having heard learned counsel for the appellants as well as learned Additional Special Public Prosecutor for the State, no doubt having considered the penal provisions of Section 498(A) of IPC, the same is extendable for a period of three years and maximum punishment is given and shall also be liable to pay fine. In the case on hand, this Court has to take note of the fact that only this particular incident has taken place in between P.W.1 and the accused No1. The material before the Court is that earlier also the wife had left the company of the accused along with children and stayed along with her parents and subsequently, after lapse of some years, brought her back and continued the harassment. Hence, the principles laid down in the judgments referred (supra) by the learned counsel for the appellant will not come to the aid of the appellant and if it was the only incident, there would have been force in the submission of learned counsel for the appellant. No doubt, the incident has taken place in the year 2013, but the fact is that since for almost 13 years the children and the wife

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are living separately and not living along with the accused, even after the expiry of 13 years of the particular incident. When such being the case, it is not a case for invoking either Section 360 or Section 4 of Probation of Offenders Act. However, taking note of maximum punishment awarded by the Trial Court, ought to have considered the same in a lenient approach, since both of them lived together after the marriage in the year 2002 and thereafter, differences arose between them and relationship was strained. Hence, it is appropriate to reduce the sentence of 3 years to 1 year with a fine of Rs.30,000/-

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Point No.(iii):

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In view of the discussion made above, we pass the

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following:

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ORDER

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(i) The appeals filed by the State and complainant-victim in Crl.A.No.936/2018 and Crl.A.No.736/2018 respectively are dismissed.

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(ii) The appeal filed by the appellant/accused is allowed in part reducing the sentence of three years to one year and enhancing the fine amount from Rs.10,000/- to Rs.30,000/- and the entire amount is ordered to be paid in favour of P.W.1 on proper identification after the deposit.

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(iii) The appellant/accused is entitled for set off under Section 428 of Cr.P.C.

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(iv) The Registry is directed to pay the fee of Rs.10,000/- to learned Amicus Curiae, who appeared on behalf of the appellant in Crl.A.No.736/2018 for giving able assistance in disposal of the case.

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Sd/(H.P.SANDESH) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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List No.: 1 Sl No.: 18

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MD,ST

Smt Rukshana Khanum v. Sri Abdul Bashid

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Smt Rukshana Khanum v. Sri Abdul Bashid

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