IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 1172/2015 BETWEEN State of Karnataka By Siddapura Police Station Bengaluru-11.
(By Sri. Thejesh .P, HCGP) AND Ayub Abdul Raof @ Ayub Pasha S/o Abdul Rawoof Aged 41 years R/at No.185, K.M. Colony Siddapura (Someshwaranagar) Bengaluru – 11.
(Respondent – served but unrepresented) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the impugned order dated 13.08.2015 passed by the XLV Additional City Civil and Sessions Judge, Bangalore City allowing S.C.No.1537/2013.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER Heard learned HCGP for the petitioner – State. Though respondent is served, he remained unrepresented.
2. Being aggrieved by the order dated 13.08.2015 passed by the XLV Addl.City Civil and Sessions Judge, Bengaluru City partly allowing the application filed by the respondent under Section 227 of Cr.P.C and discharging him of the offence punishable under Section 304(B) of IPC, the present petition is filed by the petitioner – State.
3. The brief facts of the case is that accused No.5 along with other accused persons were charge sheeted for the offences punishable under Sections 498(A), 304(B) r/w Section 34 of IPC. On 30.03.2006 at 18.15 hrs, first FIR was registered against accused Nos.1 to 4 for the offence punishable under Section 498A r/w 34 of IPC on a complaint filed by one Syed Azeez in connection with the burn injuries sustained by his sister Smt.Taseen Taj who is said to be wife of accused No.5 on 30.3.2006 at 1.00 p.m. The husband of his sister works in abroad and had gone to foreign about one and a half years back. When the complainant inquired with his sister, she had told him that her father-in-law had taken the mobile phone from her, abused and gave trouble, therefore, she poured kerosene and set herself ablaze. On 30.6.2006 at 9.30 p.m. the second FIR in Crime No.61/2006 was registered against accused Nos.1 to 4 for the aforesaid offences, after the death of sister of complainant due to burn injuries. On 2.4.2006 at 11.00 a.m. third FIR in Siddapura Police Station came to be registered against accused Nos.1 to 5 for the offences punishable under Sections 498(A), 304(B) r/w 34 IPC on the complaint lodged by Sri Syed Hussain @ Basha, being the father of deceased. It is alleged in the complaint that accused No.5 had gone to Italy for work and he is a green card holder and he had married there. During the course of investigation, the father of accused No.5 was arrested as accused No.1 and subsequently, he was granted bail. Accused No.2 to 4 were granted anticipatory bail.
4. After completion of investigation, charge sheet was filed. Since accused No.5 was working at Italy, the case against him was split up. After he coming back from Italy, this Court had granted anticipatory bail to Accused No.5 and thereafter, he filed application under Section 227 of Cr.P.C. seeking discharge. The trial Court by order dated 13.08.2015 allowed the application in part and accused No.5 was discharged for the offence punishable under Section 304(B) of IPC and further ordered that charge will be framed against accused No.5 under Section 498(A) of IPC. Hence, this petition by the State.
5. Learned HCGP for the State contends that the Court below has failed to consider the entire material evidence collected by the IO, the material documents and statements of witnesses which clearly implicates the accused for the offences punishable under Sections 498A, 304B and Section 3 and 4 of DP Act, r/w 34 of IPC. The court below has not taken into consideration that there was constant demand of dowry from the parents of the deceased by all the accused persons. The court below erred in coming to the conclusion that Accused No.5 was residing at Italy and he is innocent of the alleged offence. On all these grounds, learned HCGP contends that the order of trial Court in discharging Accused No.5 has lead to miscarriage of justice and same needs interference of this Court by allowing this petition.
6. In the context of the contentions as taken by the learned HCGP, it is relevant to note that at the first instance, the brother of the deceased had lodged the complaint. In the first FIR, the allegation was only against accused Nos.1 to 4 and it was registered for the offence under Section 498(A) r/w 34 of IPC. Further, the second FIR was registered under Section 498(A) and 306 r/w Section 34 of IPC. In both first FIR and second FIR, there was no allegation against accused No.5, said to be husband of the deceased. The third FIR was registered on the basis of a complaint filed by the father of the deceased under Sections 498(A), 304(B) r/w Section 34 of IPC.
7. It is relevant to note here that in the dying declaration of the deceased, she has clearly stated in the presence of the complainant that because of accused No.1 – father-in-law who took her mobile phone, she had poured kerosene on her and set ablaze. There is no material to show that the deceased was subjected to physical and mental cruelty by Accused No.5 soon before her death. The trial Court has rightly held that utmost offence under Section 498A of IPC could be attracted against accused No.5 and the offence under Section 304(B) of IPC has not been made out. To attract the punishment under Section 304(B) of IPC, the death of woman has to be caused within 7 years of marriage otherwise than under normal circumstances. It is nowhere mentioned in the charge sheet that soon before her death, the wife of accused No.5 was subjected to cruelty or harassment by her husband for, or in connection with, any demand for dowry. Therefore, as rightly held by the trial court, the ingredients of the offence punishable under Section 304(B) of IPC are not attracted. If the facts which constitute allegations are not supported by any acceptable evidence, it will not be just and proper to hold that prosecution has made out a prima facie case for framing of the charge for the alleged offence. The trial Court has rightly allowed the application in part, discharging accused No.5 for the offence punishable under Section 304(B) of IPC and I find no justifiable ground to interfere with the same. Accordingly, the petition being devoid of merits, deserves to be dismissed.
For the aforesaid reasons and findings, I have to proceed to pass the following:
ORDER The Criminal Revision Petition filed by the State under Sections 397 and 401 of Cr.P.C. is hereby dismissed. Consequently, the order passed by the trial Court in S.C.No.1537/2013 dated 13.08.2015 discharging accused No.5/respondent herein for the offence punishable under Section 304(B) of IPC is hereby confirmed.
DKB Sd/- JUDGE