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Jafar Hussain @ Khaja Sab vs The State on 24 January, 2020

IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 24TH DAY OF JANUARY, 2020

BEFORE

THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

CRIMINAL PETITION NO.201585/2019

Between:

Jafar Hussain @ Khaja Sab
S/o Raja Hussain @ Raja Ahmed Sab
Age: 30 years, Occ: Driver
R/o Sundar Nagar, Kalaburagi-585105
… Petitioner

(By Sri Shivasharana Reddy, Advocate)

And:

The State through Women Police Station
Kalaburagi
(Representing by learned
Addl. State Public Prosecutor
High Court of Karnataka at Kalaburagi-585105)

… Respondent

(By Sri Mallikarjun Sahukar, HCGP)

This criminal petition is filed under section 439 of
Cr.P.C. praying to issue directions to the respondent police
to release the petitioner on bail in Crime No.79/2019 of
Women P.S. Kalaburagi for the offences punishable under
sections 498(A), 302, 304(B) read with section 34 of IPC
Crl.P.No.201585/2019
2

and sections 3 and 4 of D.P. Act, pending on the file of II
Addl. JMFC, Kalaburagi.

This petition coming on for orders this day, the Court
made the following:

ORDER

The petitioner has sought for regular bail under

section 439 of Code of Criminal Procedure in Crime

No.79/2019 of Kalaburagi Women Police Station,

registered for the offences punishable under sections

498A, 302, 304B read with section 34 of Indian Penal

Code (hereinafter for brevity referred to as ‘IPC’) and

sections 3 and 4 of Dowry Prohibition Act, 1961

(hereinafter for brevity referred to as ‘D.P.Act’).

2. Mother of deceased Tabasum Begum is the

complainant in this case. According to her, her

daughter Tabasum Begum was given in marriage to

the present petitioner (accused no.1) about four years

back and out of the marriage they got a boy born to

them by name Faizan Hussain who is aged about two
Crl.P.No.201585/2019
3

years now. The complainant has alleged that

sufficient dowry in the form of cash and gold was

given at the time of marriage. However, the husband

and in-laws of the deceased were constantly pestering

the deceased to bring more dowry from her parental

house. The complainant says that his daughter was

revealing her about the demand that was being made

in her husband’s house. It is also the allegation in the

complaint that the husband and in-laws also started

suspecting the character of deceased Tabasum. That

being the case, the husband returned to India who

had been in Dubai for about two years. After that, on

15.06.2019 in the afternoon at about 1 o’ clock,

deceased Tabasum telephoned to the complainant

asking for her to send some clothes. The complainant

replied stating that she would send it through her son

when he returns home. However, at 3 o’ clock in the

same afternoon, her son-in-law, who is the petitioner
Crl.P.No.201585/2019
4

herein telephoned to the complainant intimating her

that Tabasum has hanged herself. These people

rushed to the house only to notice the dead body of

Tabasum with ligature mark around her neck and a

belt was also found fallen on the spot.

Suspecting the hands of the accused including

the present petitioner and alleging that it was not a

suicidal death but it was a murder by the husband,

the complainant lodged a complaint in Crime

No.79/2019 of the respondent-police. The same was

registered for the offences punishable under sections

498A, 302, 304(B) read with section 34 of IPC and

under sections 3 and 4 of D.P. Act. After completion

of investigation, the police have omitted accused no.4

from the charge sheet and confining to the accused

nos.1 to 3 wherein the present petitioner is accused

no.1, have filed charge sheet for the said offences.

Crl.P.No.201585/2019
5

3. The learned counsel for the petitioner

submits that admittedly there is no eyewitness to the

alleged incident. Just two hours prior to her death,

when the deceased had called her mother over

telephone, she did not complain about the cruelty

meted to her, if any. This would go to show that

there was no cruelty practiced upon the deceased.

Learned counsel also submits that admittedly the

present petitioner was away from the country for

about two years, as such, he subjecting the deceased

for constant cruelty would not arise. Stating that

there are no evidence to show the presence of the

accused in the house at the time of incident, the

learned counsel prays for enlargement of the accused

on bail.

4. Learned High Court Government Pleader

contends that CW-16 to CW-18 are the neighbours

who have stated about the harassment that was being
Crl.P.No.201585/2019
6

meted to the deceased by the accused and his family

members since her marriage. The postmortem report

also proves the unnatural death. As such, there are

every material to prove the alleged guilt of the

accused in which circumstance the petitioner does not

deserve to be enlarged on bail.

5. A perusal of the charge sheet material at

this stage and prima facie would go to show that

though there are several of the witnesses said to have

given their statement before the police and have

uniformly stated about the accused being subjected to

harassment of dowry demand by her husband and in-

laws, but it appears that none of the witnesses have

stated as to on what basis they have arrived at an

opinion that the death of the deceased was a murder

committed by the present petitioner by strangulating

the deceased with the help of a belt. The postmortem

report at this stage and prima facie would go to show
Crl.P.No.201585/2019
7

that the doctor has opined the cause of death as a

result of constriction over the neck by the ligature.

In that scenario, whether the death of the

deceased was by any external object and by use of

the belt alleged to have been recovered from the spot,

is a question to be considered and decided during the

course of the trial. Though the death of the deceased

appears to be an unnatural and has been caused

within seven years of her marriage, but her marital

life for four years and getting child and the fact of her

husband being away from the country for two years

also cannot be totally ignored at this stage. In the

circumstances, the continuation of the accused in the

judicial custody is not warranted. However, the

apprehension of the prosecution that the accused may

flee from justice may be checked by imposing

reasonable conditions. Accordingly, I proceed to pass

the following:

Crl.P.No.201585/2019
8

ORDER

The Criminal Petition is allowed. The petitioner

be enlarged on bail in Crime No.79/2019 of Kalaburagi

Women Police Station, for the offences punishable

under sections 498A, 302, 304B read with section 34

of IPC and sections 3 and 4 of D.P. Act, subject to the

following conditions that:

(i) The accused/petitioner shall
execute a personal bond for a sum
of `1,00,000/- with two local
solvent sureties for the likesum to
the satisfaction of the enlarging
Court.

(ii) The accused/petitioner to give in
writing about the change in his
address, if any, to the trial Court
as and when such change occurs
and obtain acknowledgement in
that regard.

Crl.P.No.201585/2019
9

(iii) The accused/petitioner shall appear
before the Court on all the dates of
hearing.

(iv) The accused/petitioner shall not
hamper or tamper the prosecution
witnesses and documents in any
manner.

(v) The accused/petitioner shall
surrender his passport to the trial
Court, till the disposal of the main
case and the trial Court to intimate
in writing about the same to the
passport issuing authority
immediately after such surrender
of the passport by the accused/
petitioner.

Sd/-

JUDGE

swk

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