Lower courts convict husband on wife’s flimsy oral testimony . Husband fights back 8 years to get justice !!

Karnataka High Court

Syed Samad Pasha Ahmed vs State Through Mahila P.S. on 15 March, 2013

Author: Dr.Jawad Rahim

1

IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT GULBARGA

DATED THIS THE 15TH DAY OF MARCH, 2013 BEFORE

THE HON’BLE Dr.JUSTICE JAWAD RAHIM

CRIMINAL R. PETITION No. 2601/2011

BETWEEN

SYED SAMAD PASHA
S/O SYED AHMED
AGED 30 YEARS, OCC: PRIVATE WORK
R/O LATUR,
MAHARASHTRA STATE.

… PETITIONER

(BY SRI USTAD ZAKIR HUSSAIN, ADV.)

AND:

STATE THROUGH
MAHILA P.S.
GULBARGA.
… RESPONDENT

(BY SRI S.S.ASPALLI, HCGP)

CRL.REVISION PETITION IS FILED U/S 397 READ WITH SEC.401,Cr.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY PRL.SESSIONS JUDGE, GULBARGA, IN CRL.A.37/11 BY ORDER DATED 23.11.2011 CONFIRMING THE ORDER PASSED IN C.C.2649/05 DT.6.4.2011 BY II ADDL.CIVIL JUDGE (JR.DN.) & JMFC, GULBARGA.

THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING ORDER

Concurrent finding of guilt recorded against the appellant for the offence punishable under Section 498A, I.P.C. is brought in question in this revision under Section 397, Cr.P.C.

2. Heard at length learned counsel for the appellant, Sri Ustad Zakir Hussain and Sri S.S.Aspalli, learned HCGP for the respondent-State. Perused records in supplementation thereto. It reveals:

a) PW1-Gulnaz Begum lodged report against her husband-Syed Samad Pasha and his parents, Syed Ahmed Pashal and Aleemabee alleging they tortured her mentally and physically with a view to extract dowry and also caused harm. They threatened her of dire consequences. Thus a case was registered for the offences punishable under Sections 498A, 223, 504 and 506, I.P.C.

b) It was investigated and final report was filed in C.C.2649/05 on the file of Additional Civil Judge, (Junior Divn.) & KMFC, Gulbarga. The accused being summoned, pleaded not guilty encessitating trial and in the trial that ensued, prosecution examined 9 witnesses and produced 10 documents.

c) Accused put up defence of denial simplicitor and did not lead evidence in defence.

d) The learned trial judge, anlyzing the evidence on record, opined it inculpates the 1st accused-husband for the offence under Section 498A, I.P.C. but exculpates him and accused nos.2 and 3 for the other offences alleged. In this manner, the husband was convicted while the parents were acquitted.

e) The consequent sentence imposed on him was assailed in Crl.A.37/11 before the Principal Sessions Judge, Gulbarga. Despite grounds in the appeal that the evidence of PW1 and other witnesses did not bring out material to substantiate the offence under Section 498A, I.P.C., the learned appellate judge confirmed the finding of the trial court and dismissed the appeal.

f) Assailing both the judgments, he is in revision under Section 397, Cr.P.C.

3. Sri Ustad Zakir Hussain, learned counsel for the revision petitioner would submit, the evidence of PW1- Gulnaz Begum and her witnesses do not even remotely bring out a case that she was harassed or tortured, physically or mentally. There is no material to hold she suffered at the hands of the petitioner in any manner during her matrimony with him. He would submit, accused has successfully brought out he is a resident of Maharashtra and was employed at Latur; complainant and her parents were residents of Gulbarga and they wanted him to settle in Gulbarga which he did not do. He has also pointed out through cross-examination that she had no problem in living with him, but on her own volition did not like to live with him in Maharashtra because there were too many members in his family. Learned counsel would submit, such statement is an admission of fact that life of the complainant with the accused was neither torturous nor there was any threat to her life or limb. He would submit, evidence failed to prove the charges and it was ignored by the trial court despite accused specifically pointing out to such circumstances. He would submit, the appellate court also erred in not giving any credence to the grounds in appeal against the finding of the trial court with reference to the evidence on record.

4. Several other contentions are urged with reference to the evidence on record which have received my consideration.

5. In negation of these grounds and contentions, Sri S.S.Aspalli, learned HCGP, would persistently contend for the charge under Section 498A, I.P.C., it is enough if the woman deposes that the conduct of her husband was cruel and it made her life miserable. He would submit depriving food, affection or consortium of married life itself would amount to cruelty to attract the ingredients of the offence, and no further evidence would be required. He read out to me the evidence of PW1-Gulnaz Begum to show she has in clear terms stated for 2-3 months after marriage, accused started demanding money and sent her to the parental home to get money failiing which she need not return to him. He would submit, she was deprived of medication when required and she was not allowed to live in peace. These circumstances bring out a case supporting the charge under Section 498A, I.P.C.

6. I have bestowed my concern to what both sides have urged and re-appraised the records and evidence tendered by witnesses.

7. Though there is a concurrent finding of the courts below and the scope of revision under Section 397, Cr.P.C. is limited, that limit has been enlarged as I have treated this petition as one under Section 401, Cr.P.C. since records have been called for. Consquently it confers on this court, that is, High Court, any of the powers conferred on the court of appeal by Sections 386, 389, 390 and 391, Cr.P.C.

8. On re-appraisal of evidence, it is quite evident, no doubt Gulnaz Begum sought punishment of her husband- 1st accused and her in-laws. But her ocular testimony was devoid of any incriminating aspects against accused nos.2 and 3. This was noticed by the trial court and rightly they were acquitted.

9. So far as 1st accused is concerned, she did speak about being not treated well, being sent to her maternal home to get money and warned that if she fails, she can continue to remain there and not to join him. There is evidence by her that she was not given food, but absolutely there is no statement on fact as to the nature of overt acts inculged into by the petititioner. As the charge is for the offence under Section 498A, I.P.C., prosecution would succeed only if the ingredients which constitute the offence are established.

10. It is necessary to emphasize the language of Section 498A since if proved, the husband or any relative who has indulged in cruelty will be visited with imprisonment for a term which may extend to 3 years. What is ‘cruelty’ is also explained. It means, ‘willful conduct which is of the nature as is likely to drive a woman to commit suicide or cause grave injury or danger to her life or limb.’ Therefore, even if the conduct was willful to compel a woman to drive her to commit suicide, it would not be enough. The conduct must be of such nature as to compel her to do so. A combined reading woud show, there must be material on record from the victim or any other acceptable legal evidence establishing that the conduct was so willful and of such natutre as to compel her to commit suicide or endanger her life or limb.

11. PW1-Gulnaz Begum has given a narrative account of her life from the time of marriage which is just a general statement without stating any particular form of harassment; there is only a general statement that she was harassed. Merely compelling her to go to her parents’ house to get money or else to stay there, would undoubtedly fall not within the mischief of Section 498A, I.P.C. She merely states he asked her to get money and her parents had expressed difficuclty to meet his demand. She has referred to cheque having been issued to him to make payment of some money but there is no statement in her evidence it was only towards dowry. It shows, either she is a truthful witness who did not want to exaggerate, or no incident occurred which would fall within the mischief of Section 498A, I.P.C.

12. Be that as it may, conviction can be based only on inculpating material on record which translates into legal evidence and not otherwise. De hors her statement, the other evidence on record, at the most, may show all was not well in the life of the couple. Accused can no doubt either demolish the case of prosecution pointing out lack of incriminating aspects or show by preponderance of possibilities that the incident did not occur in the manner alleged. In this case he has done so. He has elicited from PW1 itself that he was a resident of Latur village in Maharashtra where he was gainfully employed, but PW2 declined to lead llife with him there; she wanted him to migrate to Gulbarga and live with her and her parents which he declined. Hence she left his company, which otherwise can be termed as desertion. This defence certainly accrues to his benefit to create a reasonable doubt in his favour against the charge for the offence alleged.

13. The learned trial judge and appellate judge have both been over enthusiastic in accepting her statment in evidence that the accused harassed her as sufficient to indict him without orealizing that it is a case of charge for the offence under Section 498A, I.P.C. and if proved he would have been in jail for 3 years which could have ruined the matrimony instead of being saved.

14. For the reasons discussed above, and taking into consideration all other material to establish the charge, the impugned judgments passed by the trial court and appellate court certainly are unsustainable and therefore, set aside. The petitioner succeeds in his revision. His conviction for the offence under Section 498A, I.P. C. is hereby set aside. Fine amount if any, deposited by him, is ordered to be refunded.

Sd/-

JUDGE

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