State vs Mohammed Nakeed, Syed Pasha and Mohammed Mujib

K.N. Keshavanarayana, J.—This appeal by the State is directed against the Judgment and Order dated 4th July 2003 passed by 23rd Addl. City Civil Judge, Bangalore City, in 5.C. No. 201/1996 acquitting the respondents-accused persons of the charges levelled against them for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and Sections 498A and 302 read with 34 of IPC.

Case of the prosecution in brief is as under:

Deceased Nazira Begum was the daughter of P.W.1 Syed Noor Ahamed. She was married to accused No. 1-Mohammed Nakeed Pasha on 19.7.1987. Accused No. 2 S.M. Ghouse Peer and accused No. 3 Jaibunnisa are the parents-in-law and accused Nos. 4 and 5 am the brothers-in-law of the deceased Nazira Begum. During pre-marriage talks, the accused persons demanded dowry in the form of Chetak Scooter, 21/2 sovereigns of gold ring, 5 sovereigns of gold chain, a wrist watch and a site at Bangalore and house to be constructed later on at the costs of the parents of the bride. P.W.1 agreed to comply with all those demands. Accordingly, at the time of the marriage, parents of Nazira Begum fulfilled the above said demands except giving site and construction of the house. After the marriage, the deceased started living with the accused in her matrimonial home. After sometimes accused persons started subjecting the deceased to cruelty and harassment, since her parents failed to provide the site and also to construct the house as agreed earlier. They also insisted her to bring further dowry from her parental house. On 11.5.1990, mother of the deceased had been to the house of the accused to extend the marriage invitation of her another daughter and asked requested the accused parsons to send Nazira Begum to attend the marriage. At that time, the deceased insisted the accused persons to get back her pledged ornaments to facilitate her to attend the marriage of her sister. At that juncture, accused No. 2-father in law of the deceased became angry and quarreled with the mother of the deceased on the ground that they have not yet given the site and constructed the house as agreed. After her mother left the house, all the accused persons with a common intention to finish off Nazira Begum, gathered in the house and at about 6.30 p.m., on the same day, accused No. 4 poured kerosene on the deceased, accused No. 2 lit the fire, on account of which, the deceased sustained burn injuries. Immediately injured-Nazira Begum was shifted to HAL hospital for treatment. On 12.5.1990, while she was taking treatment in the hospital, P.W.13 Head Constable of HAL Police Station recorded the statement of the injured Nazira Begum in the presence of P.W.10 Dr. Nalini Bapat as per Ex.P4. During the said statement, she disclosed the details about the demand of dowry prior to the marriage, cruelty as well as harassment meted out to her by accused persons. She further stated that unable to bear the said cruelty as wall as harassment,, in a bid to commit suicide she doused herself with kerosene and set herself ablaze inside the kitchen of the house. Based on the said statement of the injured Nazira Begum, case in crime No. 94/90 came to be registered for the offences punishable u/s 498A and 306 of IPC read with Sections 3 and 7 of Dowry Prohibition Act and FIR was submitted to the jurisdictional Magistrate as per Ex.P6. On 14.5.1990 Nazira Begum succumbed to the injuries. After receipt of the death memo from the hospital, on the request of the police, P.W.16 B. Nagaraja, Taluka Executive Magistrate conducted the inquest on the dead body of the deceased-Nazira Begum on 15.5.1990 and thereafter, the dead body was subjected to post-mortem examination through P.W.15-Dr.Thiruvasakarusu, who after conducting post-mortem examination opined that the death of Nazira Begum was due to toxemia consequent to burn injuries. Thereafter, the investigation was handed over to COD, Anti Dowry Cell, Bangalore. During investigation, the investigating officer recorded the statement of parents of the deceased and other witnesses. During investigation, it was revealed that on the date of the incident on hearing the screams of deceased Nazira Begum, P.W.6- Sued Azeez a neighbour came near the house of the accused persons and noticed deceased Nazira Begum having sustained burn injuries. On enquiry, the deceased -Nazira Begum informed be P.W.6 that accused No. 4 poured kerosene on her and accused No. 2 lit the fire, as a result, she sustained burn injuries. Based on the statement of P.W.6, the offence u/s 302 read with 34 of IPC was added to the case already registered and investigation was conducted. During investigation, it was revealed that P.W.5 Syed Gafar after coming to know of deceased having been admitted to the hospital with burning injuries, visited the hospital and on enquiry, the injured told him that Syed Pasha (accused No. 4) poured kerosene on her and her father-in-law (accused No. 2) lit the fire. After completing the investigation, charge sheet came to be laid for the offences punishable under Sections 3, 4 and 6 of Dowry Prohibition Act and Section 498A, and 302 of read with 34 of IPC.

During investigation the accused persons were apprehended and produced before the learned Magistrate. Though they were initially remanded to judicial custody, subsequently, they were enlarged on bail. During the pendency of the case before the learned Sessions Judge, accused No. 2 and accused No. 3 parents-in-law of the deceased died therefore case as against them was closed as abated. Accused Nos. 1, 4 and 5 pleaded not guilty of the charges levelled against them and claimed to be tried. To bring home the guilt of the accused, the prosecution examined P.W.1 to P.W.17 and got marked Ex.P1 to Ex.P12. During their examination u/s 313 Cr.P.C. accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. By way of defence, accused persons examined D.W.1 to D.W.3 and got marked EX.D1 and EX.D2. The defence of the accused persons was one of total denial and that of false implication. According to them, the deceased accidentally caught fire in the house, as a result, she sustained burn injuries and later succumbed and that they have not committed any offences alleged against them. The learned Sessions Judge after hearing both sides and assessment of the oral and documentary evidence, by the judgment under appeal acquitted accused Nos. 1, 4 and 5 of all the charges levelled against them holding that the prosecution has failed to prove the guilt of the accused persons. Being aggrieved by the said judgment and order of acquittal, the State has presented this appeal.

Upon service of notice of this appeal, accused Nos. 1, 4 and 5 appeared through their counsel.

Today, learned Counsel for the respondents/accused filed a memo reporting the death of respondent No. 2/accused No. 4 on 6.3.2007. A copy of the death certificate issued by the Registrar of Births and Deaths, C.M.C., K.R. Puram, Bangalore is also produced. In the light of this, the appeal as against respondent No. 2/accused No. 4 is dismissed as abated.

We have heard Sri. Rajasubramanya Bhat, learned HCGP appearing for the appellant-State and Sri. Mohd Usman Shaikh, counsel for the respondents/accused Nos. 1 and 5. Perused the records and also judgment under appeal. In the facts and circumstances of the case, the points that arise for our consideration in this appeal are;

1) Whether the teamed Sessions Judge is justified in acquitting the respondents-accused of the charges levelled against them?

2) Whether the judgment under appeal calls for interference by this Court?

Learned HCGP during the course of arguments contended that the judgment under appeal is perverse and illegal inasmuch as, it is contrary to the evidence on record and that the learned Sessions Judge has not properly appreciated the oral and documentary evidence, which clearly establishes the guilt of the accused persons of the charges levelled against them and therefore, the judgment under appeal is erroneous as such is liable to be set aside.

On the other hand, learned Counsel for the respondents sought to justify the judgment under appeal and contended that the judgment do not suffer from any perversity or illegality. He contends that the learned Sessions Judge has properly appreciated the oral and documentary evidence and is justified in holding that the prosecution has utterly failed to prove the charges leveled against the accused parsons and therefore, ha sought for dismissal of the appeal.

There is no dispute that the deceased -Nazira Begum, daughter of P.W.1 was married to accused No. 1 on 19.7.1987. There is also no serious dispute that Nazira Begum sustained burn injuries on 11.5.1990, while she was staying in her matrimonial home and later she succumbed on 14.5.1990 while taking treatment in HAL hospital.

The case of the prosecution is that prior to the marriage, the accused persons demanded dowry and P.W.1 complied with all those demands except providing a site and construction of the house, which was agreed to be done later. Since he could not comply with those demands immediately after the marriage, the accused persons subjected the deceased to cruelty and harassment. It is further specific case of the prosecution that on 11.5.1990 at about 6.30 p.m. while the deceased was in the house, accused No. 4 poured kerosene and accused No. 2 lit the fire, as a result, she sustained bum injuries and later succumbed. Even according to the prosecution, the death of the deceased was homicidal and therefore, the charge sheet came to be filed for the offence punishable u/s 302 IPC apart from other offences.

As noticed earlier, the criminal law was set on motion on the basis of the statement said to have been made by the deceased Nazira Begum, while she was taking treatment in the hospital which was recorded in the presence of P.W.10 -Dr. Nalint Bapat as per Ex.P4. Thus, according to the prosecution, when Ex.P4 was recorded on 12.5.1990 Nazira Begum was alive. As could be seen from the FIR-Ex.P6, very strangely the SHO, who registered the case in crime No. 94/1990 on the basis of Ex.P4 registered the same for the offences punishable u/s 498A, 306 of IPC read with 3 and 7 of the Dowry Prohibition Act. If Nazira Begum was alive on 12.5.1990, the case for the offence punishable u/s 306 of IPC could not have been registered.

According to the statement said to have been made by the deceased as per Ex.P4, in a bid to commit suicide, she doused herself with kerosene and set herself ablaze. Therefore, according to her, it was a case of attempt to commit suicide. Since she later died, at best it could attract the offence punishable u/s 306 of IPC, if the prosecution proves that the deceased committed suicide on account of the abatement by the accused persons. However, the investigating officer, who filed the charge sheet did not invoke the offence punishable u/s 306 of IPC nor the learned Sessions Judge before whom the accused took their trial framed a charge for the offence u/s 306 of IPC. The charges were framed against the accused persons only for the offences under Sections 3, 4 and 6 of Dowry Prohibition Act and for the offences under Sections 498A, 302 read with 34 of IPC. Therefore, the alleged statement said to have been made by the deceased as per Ex.P4 is of no assistance to the prosecution in proving the charge framed against the accused persons for the offence u/s 302 read with 34 of IPC. The other circumstance relied upon by the prosecution to invoke the offence punishable u/s 302 read with 34 of IPC is the alleged oral dying declaration said to have been made by deceased Nazira Begum. P.W.6 Syed Azeez, in his oral evidence has stated that after hearing the screams from inside the house of accused ha went near the door of the accused persons. At that time, accused No. 3 - Jaibunnita was standing at the door and was not allowing any one to enter the house and after 5 minutes accused Nos. 1, 4 and 5 brought Nazira Begum by lifting bar. At that time, he noticed burn injuries on the body of Nazira Begum. When he enquired with her as to how she sustained burn injuries, she told that accused No. 4- Syad Pasha poured kerosene and accused No. 2 lit the fire. This witness has been cross-examined at length. The learned Sessions Judge has disbelieved the testimony of P.W.6 on the ground that the so-called oral dying declaration said to have been made by the deceased it quite contrary to the alleged statement made by the deceased before the doctor at par Ex.P4, when aha wet in the hospital. Similarly, the evidence of P.W.5 that when he want to the hospital, Nazira Bagum told him that accused No. 4 poured kerosene and accused No. 2 lit the fire, is contrary to the contents of Ex.P4 the alleged oral dying declarations made before P.Ws. 5 and 6, as noticed by the learned Sessions Judge is quite contrary to the statement said to have been made by the deceased before the doctor. It is in the evidence of P.W.10- Dr. Nalini Bapat that when the injured Nazira Begum was brought to the hospital, the history was furnished as stove burst As noticed earlier, as per the alleged statement of the injured -Nazira Begum before the police as par Ex.P4, she doused herself with kerosene and set herself ablaze in a bid to commit suicide. The father of the deceased in his evidence has stated that after coming to know about his daughter having been admitted to the hospital, he came there and on enquiry, he learnt that at about 5.30 p.m. while she was cooking food with the help of the stove, accused No. 4 made the kerosene to come out from the stove, as a result, she caught fire and sustained burn injuries. Thus different versions have been furnished as to how the deceased sustained burn injuries. Under these circumstances, the learned Sessions Judge in our opinion has rightly disbelieved the evidence of P.Ws.5 and 6. Apart from the evidence of P.Ws.5 and 6, there is no other evidence on record to establish the charge for the offence u/s 302 read with 34 of IPC. Even otherwise, the charge u/s 302 read with 34 IPC was framed only against accused Nos. 2 and 4. Both accused Nos. 2 and 4 have died already and case against them has been closed as abated. Therefore, there is no need for us to consider the correctness of the judgment of the learned Sessions Judge regarding the charge for the offence punishable u/s 302 of IPC.

Perusal of the contents of Ex.P4 clearly indicates that even according to the deceased, she had no grievance against her husband accused No. 1 and accused No. 5-her brother-in-law. The only grievance made by the deceased was against the parents-in-law and accused No. 4. As accused Nos. 2 and 3 have died, Ex.P4 is of no assistance to the prosecution to prove the guilt of accused Nos. 1 and 5 for the charges levelled against them. If the evidence of P.W.1 is read as a whole, it would clearly indicate that the articles which were given to the bride and bridegroom at the time of marriage was as per their customs and therefore, they are customary gifts as such, cannot be termed as dowry. There is no satisfactory evidence to prove that prior to the marriage any of the accused demanded dowry either in cash or in kind. Therefore, the learned Sessions Judge has rightly disbelieved the case of the prosecution in respect of the charges under Sections 3, 4 and 6 of Dowry Prohibition Act.

The allegation attracting the offence u/s 498A IPC as noticed above, is only against the parents-in-law and the brother-in-law. The records disclose that accused No. 1 was suffering from vertebral cancer and he was treated as inpatient in the hospital up to 10.5.1990 and was discharged on 10.5.1990, to attend the marriage of his sister-in-law namely, the sister of the deceased. Subsequently, he was again admitted to the hospital during the month of October 1990. He underwent surgery in St. John''s Hospital and later he was treated in Kidwai Hospital during the months of October and November 1990. Even in Ex.P4, the fact of accused No. 1 being treated in the hospital for the cancer of the vertebrae is indicated. Having regard to the situation in which accused No. 1 was placed and he being treated as inpatient in the hospital for the serious ailment, it is highly difficult to believe that accused No. 1 had in any way subjected the deceased to cruelty and harassment In fact, according to the statement of the deceased, till 10.5.1990 she attended her husband in the hospital by carrying food and other materials from her parental house. Therefore, from the facts and circumstances of the case, it is evident that prosecution has utterly failed to prove any of the charges levelled against accused Nos. 1 and 5 as such in our opinion, the learned Sessions is justified in acquitting the accused Nos. 1 and 5 of the charges levelled against them. We find no error committed by the learned Sessions Judge therefore, there are no merits in this appeal.

In the result, the appeal is dismissed.