Syed Yakub vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellant Smt. Sumithra appearing amicus curiae, for the appellant, since the counsel for the appellant had consistently remained absent, and the learned State Public Prosecutor.

This appeal is filed by Accused No. 1 against his conviction for offences punishable under Sections 498A and 304B of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC, for brevity) and Section 3 of the Dowry Prohibition Act, 1961. The facts of the case as alleged by the prosecution are as follows:

That on 18.06.2001 at about 6.00 a.m., Syed Eesa Accused No. 3 is said to have come to the house of his father-in-law Amzad, where he was informed that Akthar Banu, wife of Accused No. 1 was no more and that she had died on account of an illness, and further asking Accused No. 3 to inform about her death to her brothers and family members. Syed Amzad then had informed about the death to the complainant PW-8 Nijamuddin, the brother of Akthar Banu and to PW-9 Buden, who had rushed to the house of the accused along with other relatives and saw the dead body of Akthar Banu. Again, it transpires that the complainant had proceeded to inform other relatives and thereafter while returning to the house of the accused, he had found the house to be locked. He found that they had shifted the dead body to the house of one Syed Jakria and thereafter, the complainant had rushed to that place. It was noticed by the women folk while preparing the body for burial, that there were several wounds on the body of the deceased, especially her neck portion and it was suspected that the cause of death may be homicidal and informed the same to the complainant and others. Therefore, the complainant and his relatives had verified Akthar Banu''s body to find that there were several signs of injuries on her body and at 5.00 p.m., Nijamuddin is said to have lodged a complaint with the Chennapatna Police. The Chennapatna police Sub-Inspector had registered a complaint and submitted the same to the court on the same day at about 9.00 p.m. who had taken up further investigation and had visited the house of the accused and thereafter visited the house of Syed Jakria and had seen the dead body of Akthar Banu and had deputed his staff to keep watch over the dead body overnight and requested the Tahsildar Channapatna to conduct an inquest. On 19.06.2001, the Tahsildar, Channapatna had conducted the inquest of the dead body and on the same day, the Police Inspector had conducted the panchanama of the place where the dead body was found and on 20.06.2001, after obtaining the inquest report from the Tahsildar, Channapatna, had submitted a requisition to the Court to incorporate the offences punishable under Section 304B of the IPC. At 2.00 p.m., Syed Yaqub Accused No. 1 and Syed Yusuf were arrested and were interrogated and the voluntary statement of Syed Yaqub was recorded, leading to the discovery of firewood with which deceased was said to have been assaulted and the same was seized under a panchanama and was produced before the Court. On 22.06.2001, the clothes worn by the deceased were sent for post-mortem examination apart from other sealed properties being sent to the Forensic Science Laboratory for opinion.

The Magistrate after taking cognizance and after further proceedings, had committed the case to the Court of Sessions. The court after hearing the parties, had framed the charges. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined witnesses PW-1 to PW-27 and had marked several exhibits and material objects. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 and after hearing the arguments of both the sides, the court framed the following points for its determination:

"(1) Whether prosecution proves beyond reasonable doubt that the death of Smt. Aktar Banu, W/o. Syed Yaqub (A1) between period from 17.6.2001 midnight to 18.6.2001 6 a.m. is a homicide/homicidal death?

(2) Whether prosecution proves beyond reasonable doubt that accused subjected Smt. Aktar Banu to physical and mental cruelty?

(3) Whether prosecution proves beyond reasonable doubt that accused caused death of Smt. Aktar Banu in furtherance of common intention by assaulting with firewood piece and strangulating the neck?

(4) Whether prosecution proves beyond reasonable doubt that accused demanded and received cash Rs. 10,000/-, watch, gold ring, valuable household as dowry at the time of marriage of Smt. Aktar Banu with A.1 Syed Yaqub S/o. Syed Eesa?

(5) What order?"

The court below answered Points 1 and 2 in the affirmative and Points 3 and 4 in the affirmative against Accused No. 1 and has ultimately convicted the Accused Nos. 2 to 4 for simple imprisonment for a period of one month five days, three months seven days and seven months 24 days respectively and to pay a fine of Rs. 5,000/- each. Insofar as Accused No. 1 is concerned, he was sentenced to undergo rigorous imprisonment for a period of two years for an offence punishable under Section 498A IPC, for a period of eight years for an offence punishable under Section 304B IPC and for a period of five years for the offence punishable under Section 3 of the Dowry Prohibition Act, 1961. It is that which is under challenge in the present appeal.

It is contended that the Trial Court has relied entirely on the testimonies of PW-8 the complainant, PW-13 Pyarejan, PW-15 Usman, PW-16 Hussain Khan, PW-21 Hasina and PW-22 Syed Phareeda Banu.

The learned counsel would contend that from a reading of the evidence of these witnesses, it is evident that there is no consistency and there is also no corroboration. None of them claimed to be eye-witnesses to any assault by the accused on the deceased and it is on mere speculation and hearsay. Hence, it could not have been the basis for the court below to have arrived at positive findings to hold that the prosecution has established its case beyond all reasonable doubt.

It is further contended that according to the prosecution, that on 8.12.1996, the complainant''s sister was married to Accused No. 1 and from the very inception, there was continuous demands for dowry and on that account, Akthar Banu was treated with extreme cruelty and there were constant complaints of the same, ultimately leading up to the death of Akthar Banu.

However, this ought to have been established by the evidence of independent witnesses which is not forthcoming, except the say of the aforesaid witnesses whose only intention was to ensure that the accused was punished for the death of Akthar Banu, which is not tenable. The burden was cast on the prosecution to establish the case against the accused through cogent and reliable evidence and not the nature of evidence that is sought to be relied upon.

It is further pointed out that the appellant was married to the deceased knowing fully well the financial status of the family of the deceased and it could not be said that the appellant could have expected any dowry. Even if there was a demand, as the family of the deceased were not in a position to provide any such dowry, it is therefore not to be presumed that there was constant harassment and demands for dowry, when it was impractical for the family of the deceased to have provided any such dowry. Hence, the theory Akthar Banu was constantly harassed and treated with cruelty and ultimately murdered, would require strict proof, which the prosecution has not furnished. It is particularly pointed out that the evidence of PW-8 Nijamuddin, the brother of the deceased does not support the case of the prosecution as would be necessary to bring home the charges. Further, the evidence of other witnesses is clearly hearsay and they were not eye-witnesses at all. It is in this vein that the learned counsel would seek to defend the case of the appellant.

On the other hand, the learned State Public Prosecutor would seek to justify the judgment and would even go to the extent of contending that the court below was lenient and clearly in error in restricting the punishment on the footing that the conduct of the accused would clearly bring the offence as one falling under Exception-4 to Section 300 of the IPC and would lament that the State had erred in not filing an appeal questioning the said finding in order to enhance the punishment imposed on the accused and would draw attention to the categorical finding of the Trial Court that the death of the deceased was homicidal in nature and therefore, the finding that the conduct of the accused would come under Exception 4 to Section 300, was clearly a contradiction in terms and ought to be set at naught.

Insofar as the reasoning of the court below in arriving at its findings is concerned, the court proceeds on the footing that the entire case rests on circumstantial evidence. The first suspicious circumstance which the court has noticed is that the dead body of Akthar Banu which was initially in the house of the accused which the complainant had seen, was shifted soon after to the house of Syed Zakria. This is compounded by the fact that the body was discovered with several contusions in the region of the chest, upper and lower limbs, neck, back with partial marks of strangulation and particularly the six serious injuries that were found on several parts of her body. And the court has noticed that the accused who had sought to urge that from the evidence of PW-3 and PW-17 who were the Medical Officers, have stated that there were no fingertip marks or hand marks on the neck of the deceased, which is usually common in cases of throttling and that asphyxial death may be due to disease and that the Medical Officers have reserved their final opinion for the cause of death till receipt of report from the Forensic Science Laboratory. In this regard, the Trial Court had held that it was for the accused to establish that though asphyxial death was due to serious disease or ailment as contemplated under Section 113B of the Evidence Act, 1872, since there was no explanation to the ante mortem injuries, it was evident that the deceased had been beaten to death and throttled and as pointed out by the learned State Public Prosecutor, the final opinion in fact has been recorded in the post-mortem report after receipt of the FSL Report to the effect that death was due to throttling. Further, the FSL report would only indicate whether there were any poisonous substances present on the body of the deceased leading to her death and when that is ruled out, the Doctors having expressed that the death was due to throttling, clearly pointed the finger at the accused. The court also has taken account of the fact that the accused had not informed about any illness of which Akthar Banu was suffering, to her brothers and that the ante mortem external injuries described in the inquest and the post mortem report probabilised assault and murder belying asphyxia due to illness or disease. The court has then proceeded to express that crimes involving domestic violence in the form of physical and mental cruelty can hardly be proved by direct evidence. In the case of death of a victim such as the one on hand, information can only be gathered from the relatives and well-wishers of the matrimonial home of the deceased, more so, in the absence of any dying declaration of the victim.

Insofar as the demand for dowry by the appellants are concerned, the court has again discussed the evidence of the several witnesses, particularly PW-8, PW-5 as well as PW-7, the neighbourer and a maternal uncle of the complainant, PW-9. Though the said witnesses were cross-examined on the footing that in the community it was impermissible for male members to look at the naked body of the female and therefore, they were not privy to the injuries found on the body of the deceased, the court has trashed such a contention. When the injuries have been proved by reference to medical evidence, it was not also necessary that the witnesses speak of the specific injuries found on the dead body and has reiterated that the shifting of the dead body from the appellant''s house to the house of someone else''s, was wholly unnatural and was engineered only to cover-up the gruesome murder of Akthar Banu. The Trial Court has categorically found that the death was within seven years of their marriage which was unnatural and homicidal and the death was in the house of the accused and it was also found by the Trial Court that dowry was received even in spite of which harassment continued immediately before the death and for a period of four years prior to the death. It is on these findings that ultimately the court has chosen to convict Accused Nos. 2 to 4 and sentenced them to nominal punishment, whereas substantial punishment has been imposed on Accused No. 1.

In the opinion of this Court, there is no fault to be found in the reasoning of the Trial Court notwithstanding that there were no eye-witnesses to the incident. The circumstances and the evidence available would clearly point the finger at Appellant No. 1 as being responsible for the death of Akthar Banu. Therefore, the judgment is in order and does not warrant interference, especially on the vague grounds on which the present appeal is filed. Though the learned counsel for the appellant has sought to make the best of the same, there is no warrant for interference. The appeal is dismissed.

The counsel Smt. Sumithra is entitled to Rs. 5,000/- as her legal fees.