Karnataka High Court Irfan Ahmed Baig @ Irfan Baig vs State Of Karnataka on 10 March, 2014Author: N.Ananda

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF MARCH 2014 BEFORE

THE HON’BLE MR.JUSTICE N. ANANDA

CRIMINAL APPEAL No.818/2009 C/W

CRIMINAL APPEAL No.187/2010 &

CRIMINAL REVISION PETITION No.1261/2010 CRL.A.No.818/2009

BETWEEN:

1. IRFAN AHMED BAIG @ IRFAN BAIG

S/O NOOR AHMED, 30 YEARS

GRANITE WORKS, R/O K.GUNDAPURA VILLAGE KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT

2. SMT. ALEEMA BEGUM

W/O NOOR AHMED, 57 YEARS

K.GUNDAPURA VILLAGE

KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT

3. SMT. TAHSINA BEGUM

W/O. ALEEMA KHAN, 37 YEARS

GALIPURA MAIN ROAD,

CHAMARAJANAGAR TOWN. … APPELLANTS (BY SRI K.A.CHANDRASHEKARA, ADVOCATE) AND:

STATE OF KARNATAKA

BY CHAMARAJANAGAR TOWN POLICE

REP. BY SPP, HIGH COURT BUILDING

BANGALORE – 1. … RESPONDENT (BY SRI B VISWESWARAIAH, HCGP)

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THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 11.09.2009/17.09.2009, PASSED IN S.C.NO.85/2007, ON THE FILE OF THE DISTRICT & SESSIONS JUDGE AT CHAMARAJANAGAR, CONVICTING APPELLANTS-ACCUSED 1 TO 3 FOR AN OFFENCE PUNISHABLE UNDER SECTION 498A R/W 34 IPC & ETC.

CRL.A.No.187/2010

BETWEEN:

STATE OF KARNATAKA, THROUGH

CHAMARAJANAGAR TOWN POLICE. … APPELLANT (BY SRI B.VISWESWARAIAH, HCGP)

AND:

IRFAN AHMED BAIG @ IRFAN BAIG

S/O NOOR AHMED, 31 YEARS

GRANITE WORKS

R/O K.GINDAPURA VILLAGE

KOLLEGAL TALUK. … RESPONDENT (BY SRI K.A.CHANDRASHEKARA, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 377 CR.P.C., PRAYING TO MODIFY THE INADEQUATE SENTENCE DATED 11/17.09.2009, PASSED BY THE DISTRICT & SESSIONS JUDGE AT CHAMARAJANAGARA IN S.C.NO.85/2007, CONVICTING THE RESPONDENT-ACCUSED No.1 FOR OFFENCES PUNISHABLE UNDER SECTIONS 498A & 306 IPC AND ALSO FOR OFFENCES PUNISHABLE UNDER SECTIONS 3 & 4 OF THE D.P.ACT & ETC. CRL.R.P.No.1261/2010

BETWEEN:

NASEER BAIG

S/O ISMAIL BAIG, 53 YEARS

R/AT DOOR NO. 582, 7TH CROSS

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NOOR MOHALLA, KOLLEGAL

CHAMRAJANAGAR DISTRICT. … PETITIONER (BY SRI NAGARAJ DAMODAR, ADVOCATE)

AND:

1. IRFAN AHMED @ IRFAN BAIG

S/O NOOR AHMED, 29 YEARS

R/O K. GINDAPURA VILLAGE, KOLLEGAL TALUK.

2. SMT. ALEEMA BEGUM

W/O. NOOR AHMED, 36 YEARS

R/O K.GINDAPURA VILLAGE, KOLLEGAL TALUK.

3. SMT. TAHSINA BEGUM

W/O. ALEEM KHAN, 36 YEARS

R/O. GALIPURA MAIN ROAD

CHAMARAJANAGAR TOWN.

4. THE STATE OF KARNATAKA

REP. BY CHAMARAJANAGAR TOWN POLICE

SPP, HIGH COURT BUILDING

BANGALORE. … RESPONDENTS (BY SRI K.A.CHANDRASHEKARA, ADV. FOR R1 TO R3; SRI B.VISWESWARAIAH, HCGP FOR R4)

THIS REVISION PETITION IS FILED UNDER SECTIONS 397 & 401 CR.P.C., PRAYING TO MODIFY THE JUDGMENT DATED 11/17.09.2009 PASSED BY THE DISTRICT & SESSIONS JUDGE AT CHAMARAJANAGAR IN S.C.NO.85/2007 BY AWARDING MAXIMUM SENTENCE TO ACCUSED 1 TO 3 FOR OFFENCES PUNISHABLE UNDER SECTIONS 498A, 306 IPC AND ALSO FOR OFFENCES PUNISHABLE UNDER SECTIONS 3 & 4 OF THE DOWRY PROHIBITION ACT.

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THESE APPEALS & REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

Criminal Appeal No.818/2009 is filed by accused 1 to 3 in S.C.No.85/2007. Accused No.1-Irfan Ahmed Baig @ Irfan Baig is the son of Accused No.2-Aleema Begum. Accused No.3-Tahsina Begum is the elder sister of accused No.1 and daughter of accused No.2. Accused 1 to 3 were tried for offences punishable under sections 3 & 4 of the Dowry Prohibition Act, 1961 (for short, ‘the D.P.Act’) and also for offences punishable under sections 498A & 306 r/w 34 IPC. The learned trial Judge has convicted accused 1 to 3 for an offence punishable under section 498A r/w 34 IPC. The learned trial Judge has convicted accused 1 & 2 for offences punishable under sections 3 & 4 of the D.P.Act and convicted accused No.1 for an offence punishable under section 306 IPC. Therefore, accused 1 to 3 have filed Criminal Appeal No.818/2009.

During pendency of these appeals and revision petition, accused No.2-Aleema Begum died and this court 5

vide order dated 10.03.2014 recorded abatement of appeal as it relates to accused No.2.

Criminal Appeal No.187/2010 is filed by the State for enhancement of sentence imposed on accused No.1 for offences punishable under sections 498A & 306 IPC and also for offences punishable under sections 3 & 4 of the D.P.Act. The father of deceased Asma Begum namely Naseer Baig (PW1) has filed Criminal Revision Petition No.1261/2010 to award maximum sentence to accused 1 to 3 for offences punishable under sections 498A & 306 r/w 34 IPC and also for offences punishable under sections 3 & 4 of the D.P.Act.

2. I have heard Sri K.A.Chandrashekara, learned counsel for accused and Sri B.Visweswaraiah, learned HCGP for State.

3. Before adverting to appreciation of evidence and submissions made at the Bar, it is necessary to state inter se 6

relationship of accused and some of the prosecution witnesses and certain facts which are not in dispute:- Accused No.1-Irfan Ahmed Baig @ Irfan Baig is the son of Accused No.2-Aleema Begum. Accused No.3-Tahsina Begum is the elder sister of accused No.1 and daughter of accused No.2. Accused No.1 married Asma Begum (since deceased) on 26.01.2006. PW1-Naseer Baig is the father of Asma Begum (since deceased). PW3-Sharfunnissa is the mother of Asma Begum (since deceased). PW9-Sabreena Begum is the younger sister of Asma Begum (since deceased). When marriage of accused No.1 was performed with deceased on 26.01.2006, parents of Asma Begum (since deceased) and parents of accused were living in different streets of Kollegala Town. After marriage, accused No.1 shifted his residence to Chamarajanagar, where he had secured a job in a quarry. After marriage, Asma Begum (since deceased) was living in the house of accused 1 & 2. On 15.10.2006, parents of accused No.1 performed necessary ceremonies and sent Asma Begum (since deceased) for 7

delivery and confinement. Asma Begum (since deceased) gave birth to a female child after a period of three months.

4. It is the case of prosecution that accused 1 to 3 demanded and accepted dowry of Rs.1,00,000/- in connection with marriage of accused No.1 and Asma Begum (since deceased). When Asma Begum (since deceased) was living in the house of accused 1 & 2, they were constantly harassing her to bring additional dowry of Rs.50,000/-. PW1 had paid a sum of Rs.25,000/- each on two different occasions. Even then, they were demanding Asma Begum (since deceased) to bring dowry. After Asma Begum (since deceased) gave birth to a female child, accused No.1 did not bother to see the child, on the other hand, he had caused a legal notice on 23.04.2007 demanding his wife to come and join him or else to suffer talaq. In the meanwhile, PW1 gave a complaint to police and there was a panchayat. Ultimately, Asma Begum (since deceased) joined accused No.1 on 06.08.2007. Accused 1 to 3 did not mend their behaviour, inspite of advice before panchayat (Jamait). During 8

intervening night of 07/08.09.2007, Asma Begum (since deceased) committed suicide by hanging in the house of accused No.1. The suicidal death of Asma Begum during intervening night of 07/08.09.2007 has not been controverted. The prosecution has adduced medical evidence of PW14-Dr.R.Girish and also produced post-mortem examination report marked as Ex.P.15. It is also not in dispute that death of Asma Begum had taken place within 7 years from the date of her marriage.

5. In view of death of accused No.2 during pendency of these appeals and revision petition, appeal filed by accused against judgment of conviction, appeal filed by State for enhancement of sentence and revision petition filed by the father of deceased to award maximum sentence to accused, the following points would arise for determination:- (1) whether the prosecution has proved that accused No.1 had demanded dowry of Rs.5,00,000/- from PW1 (father of deceased) and accepted dowry of Rs.1,00,000/- in connection 9

with marriage of accused No.1 and deceased Asma Begum, thereby committed offences punishable under sections 3 & 4 of the D.P. Act? (2) Whether the prosecution has proved that accused 1 & 3 were demanding deceased to bring additional dowry and they were coercing and harassing deceased to meet their unlawful demand for money, thereby committed an offence punishable under section 498A r/w 34 IPC?

(3) Whether the prosecution has proved that accused No.1 by subjecting the deceased to cruelty in relation to unlawful demand for dowry with intention to abet the deceased to commit suicide and in furtherance of such abetment, deceased committed suicide during intervening night of 07/08.09.2007 in the house of accused No.1, thereby committed an offence punishable under section 306 IPC?

(4) Whether the learned trial Judge has properly appreciated the evidence on record?

(5) To what order?”

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6. The prosecution has relied on the evidence of PW1- Naseer Baig (the father of deceased), PW3-Sharfunnissa (the mother of deceased), PW9-Sabreena Begum (younger sister of deceased) and also evidence of PW12-Rahmathulla (acquaintance of PW1).

7. PW1-Naseer Baig has deposed; he had four daughters; deceased was third amongst his daughters; he was running a cycle repair shop in Kollegal and he was earning a sum of Rs.500/- to Rs.600/- per day. The financial background of PW1 is relevant to consider whether accused had demanded a sum of Rs.5,00,000/- from PW1. PW1 has admitted that he had performed marriage of his elder daughters and he was sustaining by running a cycle shop. After deceased committed suicide during intervening night of 07/08.09.2007, PW1 lodged first information as per Ex.P.1. In first information, PW1 has not stated that accused No.1 has demanded a sum of Rs.5,00,000/- as dowry and received a sum of Rs.1,00,000/- as dowry. It is vaguely stated that PW1 had given a sum of Rs.1,00,000/-, without 11

specifying to whom he had paid the said amount. PW1 has deposed; marriage negotiations took place about one month prior to the date of marriage in the house of PW1; the mother of accused No.1 (accused No.2) and the father of deceased namely PW1-Naseer Baig had attended marriage negotiations; the parents of accused No.1 demanded dowry of Rs.5,00,000/-, a watch, a ring and household articles as dowry; PW1 pleaded his inability and agreed to give a sum of Rs.1,00,000/- and household articles as dowry. The parents of accused No.1 accepted to receive dowry of Rs.1,00,000/-; about 10 to 12 days prior to marriage, PW1 gave dowry of Rs.1,00,000/- to accused No.1 and his parents.

8. The evidence of PW1 does not reveal that accused No.1 was present at the time of alleged demand for dowry. The evidence of PW1 that he gave a sum of Rs.1,00,000/- to accused 1 & 2 about 10 or 12 days prior to marriage does not inspire confidence. PW1 has not deposed that he simultaneously gave a sum of Rs.1,00,000/- to accused No.1 and his parents. PW1 has admitted that gold ornaments 12

given to accused No.1 and his daughter are customary presents.

9. Contrary to the evidence of PW1, PW3-Sharfunnisa, the wife of PW1 and mother of deceased has deposed; marriage negotiations took place about two months prior to date of marriage; accused No.1 and his parents demanded a sum of Rs.5,00,000/-; PW1 & PW3 gave a sum of Rs.1,00,000/- as dowry about 15 days prior to the date of marriage; PW1 gave a sum of Rs.1,00,000/- to accused No.1 and to his parents. PW3 has admitted that gold ornaments given to her daughter (deceased) and accused No.1 are customary presents.

10. PW9-Sabreena Begum has deposed; accused No.1 demanded dowry of Rs.5,00,000/- and they gave a sum of Rs.1,00,000/- as dowry.

11. The evidence of PW1, PW3 & PW9 cannot be reconciled. PW1 has deposed; accused No.1 was not present when dowry was demanded. PW3 has deposed; dowry was 13

demanded by accused No.1 and his parents. PW9 has deposed; accused no.1 alone had demanded dowry of Rs.1,00,000/-. Even regarding receipt of dowry, there is no consistent and credible evidence.

12. At this juncture, it is relevant to state that accused No.2 is the elder sister of PW1, in that way, PW1 had given his daughter (deceased Asma Begum) to the son of his elder sister (accused No.1). The parties are close relatives. In the circumstances, demand and acceptance of dowry deposed by aforestated witnesses does not inspire confidence.

13. PW13-Syed Irshad Ulla had settled dispute between parties in Jamat. PW13 is an independent witness. PW13 has specifically admitted that when dispute was settled between parties, the parents of deceased had not made allegations of dowry. The learned trial Judge without proper appreciation of evidence has held accused No.1 guilty of offences punishable under sections 3 & 4 of the D.P.Act. 14

Therefore, finding of learned trial Judge that accused No.1 is guilty of offences punishable under sections 3 & 4 of the D.P.Act cannot be accepted. Point No.1 is answered accordingly.

14. As already stated, parties are closely related to each other. PW1 has deposed; after marriage, his daughter (deceased) was staying in the house of accused in Kollegal; PW1 was staying in a rented house in Kollegal; their houses were situate in different streets, however within walkable distance. PW1 has deposed; right from the date of marriage, accused were troubling deceased stating that if accused No.1 had married elsewhere, he would have got dowry of Rs.5,00,000/-; after marriage, accused No.1 started working in a quarry as an unskilled labourer.

15. Considering the nature of avocation pursued by accused No.1 and his financial capacity, it looks rather improbable that he was boasting before deceased that if he 15

had married any other girl, he would have got a sum of Rs.5,00,000/- as dowry.

16. PW1 has deposed; after one or two months, accused No.1 set up a house in Chamarajanagar; accused No.1, the mother of accused No.1 namely accused No.2 were living in the house; accused No.3 was also living in their house. PW1 has deposed; accused 1 to 3 were taunting deceased for her dark complexion. As already stated, accused No.1 is the son of elder sister of PW1. They are close relatives. Accused No.1 had seen deceased before marriage. Similarly, deceased had seen accused No.1 before marriage. In the circumstances, evidence of PW1 that accused were taunting deceased that she was of dark complexion looks improbable. During cross-examination, PW1 has admitted when deceased conceived, she was brought to her parental house on 15.10.2006; accused performed necessary ceremonies in their house and sent deceased to her parental house. PW1 has deposed; he had given a sum of Rs.25,000/- each on two 16

different occasions, however, without specifying the context under which a sum of Rs.25,000/- each was given on two different occasions. PW1 has admitted that deceased was willing to stay with accused No.1 in a separate house; PW1 gave birth to a female child; accused no.2 and her elder son namely Rizwan had come to see child, they had quarreled with PW1; Rizwan (elder brother of accused No.1) demanded a sum of Rs.50,000/- from PW1; after 15 to 20 days from the date of quarrel, accused caused a legal notice, demanding deceased to come and join him or else to suffer talaq; on 26.05.2007, PW1 lodged a complaint with jurisdictional police, who had summoned accused to police station and the matter was sorted out; police gave a decision that PW1 should take deceased and her child and leave them in the house of accused No.1, by then accused No.1 had set up a separate house by taking the house on lease from PW10- Syed Zakriya.

17. PW1 has deposed; after he left deceased in the house of accused No.1, accused 1 to 3 continued to harass the 17

deceased and also demanded her to bring money from her parental house; PW1 had convened a panchayat; panchayatdars secured accused 1 to 3, PW1 and his daughter (deceased); in panchayat, accused No.1 and deceased decided to live peacefully and forget their differences; compromise arrived in Jamat was reduced into writing and the same has been marked as Ex.P.5.

18. From the contents of Ex.P.5, we find that there were no allegations of unlawful demand for money. As per the contents of Ex.P.5, deceased and accused No.1 had agreed to live amicably and accused No.1 had undertaken to take proper care of deceased. As per the contents of Ex.P.5, deceased and accused No.1 compromised the matter and agreed not to quarrel or give room for disputes in future. Accused No.1 had undertaken to take proper care of deceased and deceased had undertaken to be obedient to her husband.

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19. PW13-Syed Irshad Ulla was the President of Haj Committee. PW13 has deposed; relationship of accused No.1 and his wife was strained and they had come to Jamat for settlement of their disputes; parents of accused No.1 and parents of deceased and about 10 to 15 relatives had approached PW13; heads of masjid namely Firoz Khan and Riaz Ahmed had come to panchayat; panchayat was held; they made allegations against each other; PW13 pacified them and advised parties to have cordial relationship between them; accused No.1 and deceased had signed agreement as per Ex.P.5.

During cross-examination, PW13 has deposed; accused No.1 had given a petition to convene a panchayat; at that time, there were no allegations of dowry demand; allegations made by parties were common allegations between husband and wife.

20. PW13 is an independent witness. PW13 was the President of Haj Committee; he was neither interested in 19

deceased nor accused. PW13 had taken pains to settle dispute between deceased and accused No.1. The evidence of PW13 and the contents of compromise deed (Ex.P.5) do not reveal that deceased had made allegations of dowry demand or unlawful demand for dowry against accused No.1; deceased had not made allegations that she was being harassed and ill-treated by accused No.1. PW1 has not disputed Jamat held in the presence of PW13. PW1-father of deceased and PW3-mother of deceased had no grievance about settlement arrived between parties in Jamat. Therefore, it can safely be held that on 06.08.2007, accused No.1 and deceased and their parents had participated in panchayat held in a mosque at Chamarajanagar in the presence of PW13-Sayed Irshad Ulla, President of Haj Committee and others; elders of community sorted out differences between deceased and accused No.1 and suitably advised them. Accused No.1 had undertaken to take proper care of deceased and deceased had undertaken to be obedient to her husband. In the circumstances, evidence of 20

PW1 that deceased was being treated cruelly and she was harassed to bring money from her parental house and he paid a sum of Rs.25,000/- on two different occasions to accused No.1 cannot be accepted.

21. The evidence of PW3-mother of deceased is more or less similar to the evidence of PW1. PW3 has admitted that panchayat was held on 06.08.2007 in a mosque at Chamarajanagar. In view of evidence of PW13 and compromise of dispute between accused No.1 and deceased on 06.08.2007, evidence of PW3 that accused No.1 was constantly harassing deceased to bring dowry from PW1 and she was subjected to cruelty and accused No.1 had not cared to see his child cannot be accepted. Accused No.1 had caused a legal notice on 23.04.2007 to deceased to come and join him at the earliest. Accused No.1 had given a petition to the members of Jamat to convene a panchayat to sort out differences between himself and deceased. Therefore, the evidence of PW1, PW3 21

and PW9 that accused 1 & 3 were continuously subjecting the deceased to cruelty cannot be accepted.

22. The other independent witnesses have not supported the case of prosecution.

23. PW12-Rahamatullah has deposed; accused demanded a sum of Rs.1,00,000/- as dowry and the amount was given 8 or 9 days before marriage in the presence of PW12, however, he did not count the money. PW12 has deposed; he was not aware how much money was paid to accused No.1. PW12 has not deposed about place where the amount was paid by PW1 and to whom the amount was paid as dowry. During cross-examination, PW12 has admitted that he was a friend of PW1 and they were residing in same locality. PW12 has given an improvised version that PW1 apart from running a cycle shop, he was running a milk parlour and an air compressor; PW1 was earning income of Rs.10,000/- to Rs.15,000/- per month.

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24. Thus, we find that PW12 has evinced interest in the case of prosecution and he has given evidence to make it appear that PW1 was financially capable to give a sum of Rs.1,00,000/- as dowry to accused No.1. Therefore, evidence of PW12 cannot be accepted to hold that accused No.1 had demanded and accepted dowry from PW1.

25. In view of above discussion, it is not possible to hold that accused No.1 and 3 were ill-treating and harassing deceased to bring additional dowry from her parental house. The learned trial Judge has held that accused 1 & 3 guilty of an offence punishable under section 498A r/w 34 IPC. The learned trial Judge has not considered the events that had happened from the date of marriage till death of deceased. The learned trial Judge has ignored independent evidence of PW13 and the contents of compromise arrived between accused No.1 and deceased on 06.08.2007, a month prior to date on which deceased committed suicide. 23

26. The learned trial Judge has erroneously held that financial capacity of PW1 is not relevant to appreciate his evidence regarding payment and acceptance of a sum of Rs.1,00,000/- as dowry by accused No.1.

27. The next point for determination is:- “Whether accused No.1 had abetted commission of suicide by deceased?”

28. It is seen from evidence on record that deceased had given birth to a female child and she was carrying three months pregnancy at the time of her death. These facts would indicate that relationship between accused No.1 and deceased was not strained. PW1 has admitted that deceased was interested in living separately with accused No.1. The deceased had expressed her desire to her parents.

29. The evidence of PW1 and PW3 that accused were demanding deceased to bring additional dowry is not consistent and credible. The evidence of PW13 and the contents of compromise (Ex.P.5) would belie the evidence of 24

PW1 & PW3 that accused 1 & 3 were harassing and subjecting deceased to cruelty in connection with demand for additional dowry. In the circumstances, it is not possible to hold that accused No.1 had subjected the deceased to cruelty. It is not possible to hold that accused No.1 had abetted the deceased to commit suicide.

30. The learned trial Judge, without considering the sequence of events and duration of stay of deceased in the house of accused and in her parental house, legal notice caused by accused No.1, demanding deceased to come and join him and panchayat convened in the mosque and compromise arrived between deceased and accused No.1, has held accused No.1 guilty of an offence punishable under section 306 IPC. Therefore, finding of learned trial Judge cannot be sustained.

31. In view of my aforestated findings, the appeal filed by State and revision petition filed by the father of deceased for enhancement of sentence do not survive for consideration. 25

32. In the result, I pass the following:- ORDER

Criminal Appeal No.818/2009 is accepted. The impugned judgment as it relates to conviction of accused 1 & 3 for an offence punishable under section 498A r/w 34 IPC is set aside. The impugned judgment as it relates to conviction of accused No.1 for offences punishable under sections 3 & 4 of the D.P.Act is set aside. The impugned judgment as it relates to conviction of accused No.1 for an offence punishable under section 306 IPC is set aside. Accused 1 & 3 are acquitted of an offence punishable under section 498A r/w 34 IPC. Accused No.1 is acquitted of an offence punishable under section 306 IPC and also of offences punishable under sections 3 & 4 of the D.P.Act. If accused 1 & 3 have deposited the fine amount in terms of the impugned judgment, the same shall be refunded to them. If accused No.2 (since deceased) has deposited fine amount, the same shall be refunded to accused No.1. 26

Criminal Appeal No.187/2010 and Criminal Revision Petition No.1261/2010 are dismissed.

Sd/-

JUDGE

SNN