State of Karnataka vs Mohammed Peer

N. Ananda, J.

The respondents (hereinafter referred to as accused No. 1 to 5) were tried and acquitted of offences punishable under Sections 498-A, 307 r/w 34 IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act r/w 34 IPC. Therefore, the State has filed this appeal.

We have heard the learned Government Pleader for the Stated and the learned counsel for accused.

The accused were tried for the following charges:

"1. That you A-1 being the husband of CW.1 Naseema Taj while residing in your house at Gubbi in furtherance of your common intention you A1 to A5 subjected CW.1 to cruelty demanding an additional dowry of Rs.50,000/- in cash and abused her and assaulted her with a club and also trampled her and thereby committed an offence punishable under Sec. 498-A IPC r/w 34 IPC and within my cognizance.

That on 03.03.2005 at the said place you A1 to A5 in furtherance of your common intention, poured kerosene on CW.1 and tried to burn her alive and thereby committed an offence of attempt to commit murder punishable under Sec. 307 IPC r/w 34 IPC and within my cognizance.

That at the time of the talks which preceded the wedding dated 08.07.02 in furtherance of your common intention you demanded for payment of dowry in the shape of cash of Rs.75,000/-, golden chain, ring and watch and thereby committed an offence punishable under Sec. 4 of the Dowry Prohibition Act r/w Sec. 34 IPC and within my cognizance.

That on the said date and at the said time and place you received the aforesaid money and other articles as dowry and thereby committed an offence punishable under Sec. 3 of the Dowry Prohibition Act r/w 34 IPC and within my cognizance."

PW.1-Naseema Taj is the wife of first accused; second accused is the younger brother of first accused; third accused is the younger sister of first accused; fourth accused is the husband of third accused; fifth accused is the younger sister of first accused; PW.10-Sahul Hameed is the elder brother of PW. 1; PW.5 is the cousin of PW. 1.

Before adverting to appreciation of evidence of PW. 1, it is necessary to state that marriage of first accused and PW.1 was performed on 08.07.2002. Thereafter, she was living in the house of her husband.

PW.1 has deposed; that on 03.03.2005 at about 9.00 a.m., the accused attempted to commit her murder by spilling kerosene and set fire on her; she ran away from the house of her husband and reached her parental house at Tumkur.

PW.1 has admitted that she is a B.A. Graduate; PW.1 has deposed that even before the date of incident, she had been assaulted by the accused. PW.1 has not given any explanation for lodging first information on 02.06.2005 after a period of three months from the date of incident. There is no medical evidence to prove that accused had spilled kerosene on PW. 1 and accused had assaulted her. PW. 1 has filed a petition under Section 125 Cr.P.C, against first accused. The prosecution has not examined witnesses to prove that on 03.03.2005 at about 9.00 a.m., accused assaulted the deceased and thereafter spilled kerosene on her to set her on fire.

The learned Sessions Judge considering these basic infirmities in the evidence of PW.1 has disbelieved the evidence of PW. 1 that accused attempted to commit murder of PW.1 at about 9.00 a.m., on 03.03.2005 in the house of accused.

It is the case of prosecution that accused had demanded and accepted dowry in connection with the marriage of PW.1 and accused No. 1. The father of PW.1 is not alive.

PW.1 has deposed; that the marriage of PW.1 and accused no 1 was performed on 08.07.2002; the marriage negotiations had taken place about 15 days prior to the date of marriage; her father, her elder and younger sisters and her uncle were present during marriage negotiations; on behalf of accused, the mother of first accused and sisters of first accused were present; on behalf of accused, the third accused (elder sister of accused No. 1) demanded a sum of Rs. 1,00,000/-, a wrist watch, a gold chain and a gold ring as dowry; they also demanded gold ornaments to PW.1; the elders of PW.1 pleaded their inability and agreed to give a sum of Rs.75,000/-, a wrist watch, a gold ring and gold a chain as dowry; after marriage negotiations cash was paid and the marriage was performed; after marriage she was staying in the house of first accused; after three or four months after the marriage, the accused demanded PW. 1 to bring remaining dowry of Rs.25,000/-; she used to frequently visit her parental house; she had brought a sum of Rs.5,000/- on one occasion and a sum of Rs.2,000/- on other occasion; the accused were frequently quarrelling with her and used to assault her. The elders of PW. 1 had given an application to Zamayat people; they summoned the accused and advised them; the accused got enraged after the application was given to Zamayat; in the year 2004, she returned back to her parental house and lodged police complaint against the accused; the police summoned the accused to police station and took bonds (undertakings) from them.

As per first information, the elder brother of PW.1 namely PW.10-Sahul Hameed was present when the marriage negotiations took place. As per the evidence of PW.10-Shahul Hameed, he was not present at the time of marriage negotiations. At the relevant time, he was working in Dubai.

PW.10 has deposed; that he had sent a sum of Rs. 1,00,000/-, a RADO watch through PW.7 to give the same as dowry to the accused. It is interesting to notice that PW. 1 has not deposed that her brother (PW.10) who was staying in Dubai had sent a sum of Rs. 1,00,000/- and a RADO watch and other gold jewels for being given the same to accused as dowry. Therefore, evidence of PW. 1 regarding demand and acceptance of dowry does not inspire confidence.

PW.2-Kenchanna has not supported the case of prosecution. He was declared as a hostile witness.

PW.3-Ayisha Banu, the neighbor of accused has deposed; that she had not only attended the marriage but she had also attended the marriage engagement which took place in the house of accused about 15 days prior to the date of marriage; the persons from the side of accused demanded the persons from the side of PW.1 to give a sum of Rs. 1,00,000/- as dowry; they pleaded their inability and agreed to pay a sum of Rs.75,000/-; at the time of engagement, they gave a sum of Rs.75,000/- and gold articles to first accused; on the date of engagement, the marriage date was fixed; at the time of marriage, a gold chin and a wrist watch were given to first accused.

During cross-examination, she has admitted that there was no cordiality between first accused and PW.1.

PW.3 is the neighbor of accused. She had not seen the accused ill-treating PW. 1 but she heard the same. PW.3 has deposed; that accused no. 1 assaulted PW. 1 after two years from the date of marriage and PW.1 suffered bleeding injuries; PW.1 had not lodged any complaint; on 03.03.2005, accused had spilled kerosene on PW.1 and the clothes of PW. 1 were wet.

In the discussion made supra, we have disbelieved the evidence of PW. 1 that accused had spilled kerosene on PW.1 on 03.03.2005, therefore, evidence of PW.3 does not inspire confidence.

PW.4-Iqbal Pasha (cousin brother of PW.1) has deposed; that accused had come to marriage engagement in the house of PW.1; the accused demanded dowry of Rs. 1,00,000/- and the elders of PW.1 agreed to give a sum of Rs.75,000/- as down the accused also demanded a Rado watch, a gold ring and a gold chain; after 15 days, the marriage of accused no. 1 and PW. 1 was performed in Shadi Mahal. After marriage, PW.1 was staying in the house of accused at Gubbi; they were cordial for a period of two or three months; thereafter, accused were demanding PW. 1 to bring dowry; they were assaulting her and sending her to her parental house; the mother of PW. 1 used to send money to accused through PW.1; after a period of six months or one year, the accused assaulted PW.1 and in that connection PW.1 had lodged a complaint; PW.1 had been taken to Government Hospital at Gubbi; the accused were summoned to the police station; the police took bonds (undertakings) from them.

During cross-examination, PW.4 has deposed that he was not aware of the date of marriage of PW.1 and first accused. He had gone to Gubbi after six or seven months from the date of marriage. He has not given statement before the police that he had seen the accused assaulting PW.1. When accused No. 1 assaulted on the head of PW.1, she had not given any complaint. He does not know the date on which marriage engagement took place. The father of PW. 1 was not doing any work; the brother of PW. 1 was working in Dubai.

From the evidence of PW.4, we find that his evidence is vague. He was not aware of date of engagement and the date of marriage. His evidence that accused demanded dowry on the date of marriage is contrary to the evidence of PW''s. 1 and 3.

PW.5-Afzal is the cousin brother of PW.1. PW.5 has deposed; that about 15 days prior to the date of marriage, marriage negotiations took place in the house of PW.1; the accused demanded a sum of Rs. 1,00,000/-, a wrist watch, a gold ring as dowry; PW.5 and others agreed to give a sum of Rs.75,000/-; during engagement they gave a sum of Rs.75,000/-, a gold wring to the first accused; they had given a RADO watch to the accused; thereafter, they took it back after giving a TITAN watch.

During cross-examination, he has admitted that PW.10 (the elder brother of PW.1) was working in Saudi Arabia he came to India after the marriage of PW. 1 and first accused; at the time of marriage negotiations, PW.10 was not present; PW.5 had negotiated the marriage talks; he was not aware of the date on which marriage negotiations took place.

PW.5 has deposed; that PW.10 (elder brother of PW.1) was the only earning member of parental family of PW.1; PW.10 was staying in Saudi Arabia; PW.5 has not stated where from they got a sum of Rs.75,000/- to give the same to accused.

The prosecution in order to fill up this lacunae has examined PW.7-Syed Ejaj Pasha Pasha to prove that PW.10 who was working in Saudi Arabia had sent a sum of Rs. 1,00,000/-, a RADO watch and a gold chain through PW.7 who at the relevant time had returned to India from Saudi Arabia.

PW.7 has deposed; that he was present when the marriage negotiations took, place, they agreed to give dowry of Rs.75,000/-, a TITAN watch, a gold chain and a gold ring; a sum of Rs.75,000/-, a watch, a gold chain and ring were given on the date of marriage. He has deposed that he had not paid customs duty on the articles which had been sent by PW.10 through PW.7. He has deposed; these articles were given to accused about one month prior to the date of marriage; he was not aware of the date on which marriage engagement took place.

The evidence of PW.7 that PW.10 had sent a sum of Rs. 1,00,000/-a wrist watch, a gold chain and a gold ring through PW.7 from Dubai does not inspire confidence.

PW.10-Sahul Hameed is the elder brother of PW.1. He has deposed; that the marriage of first accused and PW. 1 was performed in the year 2002; he was working in Dubai; he had sent a gold chain, a gold ring, a sum of Rs. 1,00,000/- through his friend Syed Ejaj Pasha (PW.7); After 3 or 4 months, he came to know that accused were harassing PW.1, therefore, he informed PW.7 to go to the house of accused and advise them; after a period of one year he returned back to India; the accused were harassing PW.1 who had given a complaint to the Mosque at Gubbi; a panchayat was held and accused were advised; after few days, he came to know that accused had assaulted PW. 1 and she was admitted in Government Hospital at Gubbi; he had visited Government Hospital at Gubbi and found that PW.1 had suffered injuries on her head; PW.10 came to the house of accused and advised them; accused were summoned to police station; the accused gave an undertaking in the police station; after three months, the accused attempted to commit the murder of PW. 1 by spilling kerosene to set her on fire; PW. 1 escaped from the clutches of accused and came to her parental house at Tumkur.

In the discussion made supra, we have disbelieved the evidence of PW.1 that on 03.03.2005, accused had attempted to commit the murder of PW.1 by spilling kerosene to set her on fire. The evidence of PW.10 that accused had assaulted PW. 1 and she was treated in Government Hospital at Gubbi and she suffered injuries, does not find corroboration from the evidence of PW. 1.

The prosecution has not adduced medical evidence to prove injuries suffered by PW. 1 in the incident of assault. Therefore, evidence adduced by the prosecution that accused had demanded and accepted dowry from the elders of PW. 1 before the marriage and accused were demanding and assaulting PW. 1 to bring dowry does not inspire confidence.

The learned Sessions judge on proper appreciation of evidence has acquitted the accused. We do not find any reasons to interfere with the impugned judgment of acquittal. Therefore, the appeal is dismissed.