IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS.JUSTICE S.SUJATHA AND THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO CRIMINAL APPEAL No.436/2014 C/W CRIMINAL APPEAL No.774/2015 CRL.A.No.436/2014:
BETWEEN:
SADIQA W/O SYED YUSUF AGED ABOUT 28 YEARS, RESIDENT OF FAKEER PALYA ASHOKANAGARA TUMKUR-572102 ..APPELLANT (BY SRI AHAMED S N., ADVOCATE) AND:
STATE OF KARNATAKA BY TUMKUR RURAL POLICE STATION TUMKUR THROUGH THE S.P.P HIGH COURT BUILDING BANGALORE-560001 ..RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED NO.2 PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED:25/26.03.14 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TUMKUR IN S.C.NO.19/12 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) R/W 34 OF IPC AND 201 OF IPC AND UNDER SECTIONS 3, 4 AND 6 OF D.P. ACT.
AND THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO S.I. FOR 6 MONTHS AND PAY FINE OF RS.2,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 2 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 4 OF D.P. ACT.
AND THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO S.I. FOR 5 YEARS AND PAY FINE OF RS.50,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 3 OF D.P. ACT.
AND THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO S.I. FOR 1 1/2 (ONE AND HALF YEAR) YEAR AND PAY FINE OF RS.5,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) OF IPC.
AND THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO S.I. FOR 3 YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC.
AND THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO S.I. FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 6 OF D.P. ACT.
AND THE APPELLANT/ACCUSED PRAYS THAT SHE BE ACQUITTED.
CRL.A.No.774/2015:
BETWEEN:
SIKANDER S/O SYED ANWAR, AGED ABOUT 25 YEARS, R/AT AUTO DRIVER, 7TH CROSS, MARALURU DINNE, RAJIVA GANDHI NAGAR, TUMKUR-572 201. ..APPELLANT (BY SRI SURESH H S., ADVOCATE) AND:
THE STATE OF KARNATAKA REPRESENTED BY P.I.
TUMKUR RURAL POLICE STATION, REP. BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT BENGALURU.
PIN NO.560001. ..RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 25/26.03.2014 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN S.C.NO.19/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A),201,302 R/W 34 OF IPC AND SECTIONS 3,4 AND 6 OF D.P. ACT.
THE APPELLANT/ACCUSED IS SENTENCED NO.1 TO UNDERGO S.I. FOR 6 MONTHS AND TO PAY FINE OF RS.2,000/-. IN DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO S.I. FOR 2 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 4 OF D.P. ACT.
FURTHER THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO S.I. FOR 5 YEARS AND TO PAY FINE OF RS.50,000/-. IN DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO S.I. FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 3 OF D.P. ACT.
FURTHER THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO S.I. FOR 1 ½ YEAR AND TO PAY FINE OF RS.5,000/- IN DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) OF IPC.
FURTHER THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO S.I. FOR 3 YEARS AND TO PAY FINE AMOUNT OF RS.5,000/-. IN DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC.
FURTHER THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO S.I. FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 6 OF D.P. ACT.
FURTHER THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND TO PAY FINE OF RS.5,000/- IN DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
ABOVE SENTENCE SHALL RUN CONCURRENTLY.
THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, N.K.SUDHINDRARAO J., DELIVERED THE FOLLOWING:
JUDGMENT Appeals are directed against the Judgment and order dated 25/26.03.2014 convicting the accused Nos.1 and 2 in S.C.No.19/2012 passed by the learned Principal District and Sessions Judge, Tumakuru.
2. Since both the appeals arise out of common Judgment they are taken up together for final disposal.
3. The case of the prosecution is that Sikander - accused No.1 is the husband of Rehnuma Khanum. She was given in marriage to accused No.1 on 14.01.2007 and it was performed at Urdu School, D.H.Colony, Tumakuru. It is also stated that at the time of marriage on the demand of the people from the side of accused, an amount of Rs.50,000/-, a wrist watch and two rings were given as dowry and bride was also given neck chain and other jewels. For the first two years of marriage, spouses were cordial to each other. Thereafter accused No.1 at the instigation of his sister Sadiqa- accused No.2 started torturing his wife and demanded Rs.25,000/- from his wife. Out of which Rs.20,000/- given but he was harassing his wife to bring balance amount of Rs.5,000/-. In this connection, she was tortured both physically and mentally.
4. As per charge sheet on 01.02.2011 in the evening at about 5 P.M. in his house at Maraluru Dinne he strangulated Rehnuma Khanum to death and in order to cause disappearance of evidence carried her in an Autorickshaw and informed PW-2-mother of deceased that Rehnuma Khanum feeling and suffering tiredness and he wanted to take her to hospital and pretended as he was taking her to hospital for treatment. But Rehnuma Khanum the victim was declared dead by the doctor when was taken there.
5. Final report came to be filed against accused persons for the offence punishable under Sections 498A, 302 and 201 read with Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.
6. The complaint in this connection was lodged by one Mehtab Khan, son of Shafiulla Khan, resident of 17th Cross, PH Colony, Tumakuru. He has narrated in his complaint about the marriage between his sister - Rehnuma Khanum with accused No.1. Further setting up the marital house at Maraluru Dinne and changing of his house to two to three places, birth of a female child through the wedlock and further accused No.1 shifting residence to 7th Cross, Maraluru Dinne to a rented house. He demanded additional amount of Rs.25,000/- and when the complainant and his mother told that they are not in a position to pay the amount, as they have already paid dowry at the time of marriage despite it was told that the dowry already given was insufficient and insisted for additional dowry. Having no alternative by incurring debt the complainant borrowed amount of Rs.20,000/- and it was given, despite, about eight days prior to the complaint Rehnuma Khanum again came to the complainant’s house weeping and explained that she was beaten by her husband and even slapped, her cheek was swollen. At that time the accused was advised by complainant, his mother, brother against the ill-treatment meted out to Rehnuma Khanum and told him to mend his behaviour. But the demand for amount by the accused No.1 resumed. Due to instigation by accused No.2-Sadiqa who is none other than sister of the accused No.1, when again the victim was asked to get the money as it was important for accused No.1 to pay the installment towards repayment of loan borrowed for buying Autorickshaw and when the complainant and his mother expressed inability to arrange and pay amount of Rs.5,000/- Rehnuma Khanum felt sorry and told that dowry harassment from her husband has increased and she does not know what was going to happen to her.
7. In this background on 01.02.2011 at 5.30 P.M. Sikander came to the house of her mother-in-law and told that Rehnuma Khanum abruptly fell as she was tired and he has brought her in order to take her to hospital and by the time Rehnuma Khanum was taken to hospital and her mother telephoned from hospital that Rehnuma Khanum was dead. The complainant says that his sister was tortured and harassed for dowry by her husband-accused No.1 himself and at the instigation of accused No.2 demanded dowry and committed offence as stated above.
8. The learned District Judge was accommodated with the oral evidence of PW-1 to PW-19 and documentary evidence Exs.P-1 to 18, MOs 1 to 7 and the submissions by the respective sides.
9. After adjudication, learned trial Judge found the accused Nos.1 and 2 guilty for the offence punishable under Sections 498A, 302 and 201 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act and sentenced them to undergo imprisonment. Being aggrieved by the Judgment and order of conviction, Criminal Appeal No.436/2014 is preferred by accused No.2 and Criminal Appeal No.774/2015 is preferred by accused No.1.
10. As the offence included the one punishable under Section 302 of IPC, it is incumbent on the part of prosecution to establish that death of Rehnuma Khanum on 01.02.2011 at Maraluru Dinne, Tumakuru was a homicide and not natural. In this connection, the inquest mahazar Ex.P-8 conducted on 02.02.2011 by Taluka Executive Magistrate, Tumakuru explaining the posture of dead body of Rehnuma Khanum. Further the post mortem of the dead body conducted on 02.02.2011 states that the injuries were observed on lower lip, abrasion and mark of ligature around the neck.
11. The cause of death stated in Ex.P-13 Post Mortem is death due to “asphyxia” as a result of ligature strangulation. The doctor who conducted the post mortem is also examined as PW-14 and he affirms the report issued by him.
12. On considering the above evidence and the circumstances it goes to show that death of Rehnuma Khanum as stated above was not a natural one, on the other hand it is homicide.
13. Thus, next burden on the prosecution to prove is that homicide of Rehnuma Khanum was committed by the accused No.1 with a definite intention and desire to take away the life of Rehnuma Khanum with the help of rope –M.O.4 strangulated her to death knowing fully well that his act shall take away her life.
14. In this connection total witnesses examined on behalf of the prosecution are 19 including complainant, his mother Dilshad Begum, Sister Reshma Khanum, brother-in-law Mohammed Rasheed and circumstantial witness PW-5–Parveen Taj.
15. Insofar as Mehtab Khan -PW-1 is concerned, he is the brother of Rehnuma Khanum. In his evidence he reiterates the version stated by him in the complaint in respect of marriage of his sister Rehnuma Khanum with accused No.1. He states about the relationship and demand of dowry of Rs.60,000/- and gold ornaments from accused side. However it was agreed in the negotiations to pay Rs.50,000/- and gold ornaments by way of dowry. His oral evidence further reveal that the accused was not happy with the amount of dowry that was given earlier and in this connection started harassing and pestering Rehnuma Khanum for bringing additional dowry of Rs.25,000/-. With great difficulty the complainant and his family members struggled and borrowed loan to arrange the amount to an extent of Rs.20,000/- and it was given to the accused No.1. Further after three months he started his demand for remaining amount of Rs.5,000/- from his wife to be collected from her parents house. Accused No.1 had sent his wife after assaulting her and because of his slap he also caused injury to Rehnuma Khanum on her cheek. The evidence of Mehtab Khan-PW-1 and PW-2 - Dilshad Begum reveal that Rehnuma Khanum when she carried the demand of accused No.1 for the remaining amount of Rs.5,000/- was weeping and after hearing inability of complainant and his mother to pay the amount of Rs.5,000/- she was disappointed and murmured that having not taken money of Rs.5,000/- something may happen to her. It is in this background the life of Rehnuma Khanum is stated to be disturbed in the marital house.
16. Insofar as evidence of PW-2 is concerned Dilshad Begum is the natural mother of complainant and deceased Rehnuma Khanum. Her evidence corroborates to that of PW-1 her son. She narrates the relationship and matrimonial negotiations conducted prior to marriage and dowry demanded and given by them to the accused. However to a question she answers that dowry was demanded by father of Sikander. She also tells that the payment of additional dowry to an extent of Rs.20,000/- and further demand for Rs.5,000/- by accused and said amount being not paid, the life of Rehnuma Khanum became more miserable and she was subjected to torture both physically and mentally. It was also stated by them that three months prior to the incident she came up carrying the demand of accused persons for Rs.25,000/- though it was very much difficult for them to arrange and with great difficulty borrowed the amount by incurring debt and paid an amount of Rs.20,000/-. In the last visit about three months prior to the incident Rehnuma Khanum came home and told PW-1 and PW-2 that her husband is pressing her very much to get the amount of Rs.5,000/- and it was essential for him to pay monthly installment of Autorickshaw purchased by him. When this could not be met Rehnuma Khanum who came weeping went back disappointed and while going she told that she does not know what is going to happen to her.
17. Further evidence of PW-3 –Reshma Khanum and PW-4-Mohammed Rasheed endorse and confirm the evidence of PW-1 and PW-2 to the effect that they also assert regarding trouble in the marital house and payment of dowry and items as stated above. Further demand for additional dowry of Rs.25,000/- and Rs.20,000/- being given by struggling but the incident happened for Rs.5,000/- being balance amount.
18. The evidence of PW-5 Parveen Taj speaks about the circumstances asserted by PWs1, 2, 3 and 4. Further she also states that on the date of incident she also followed Rehnuma Khanum being carried in the Autorickshaw to the hospital. PW-6-Kowsar Pasha is the friend of Rehnuma Khanum’s brother. He also speaks about matrimonial negotiations that was conducted earlier to marriage, demand of dowry, amount of Rs.50,000/- gold, in the form of chain, rings and also watch that were given to accused No.1, additional demand of Rs.25,000/- and paying of the amount of Rs.20,000/- and shooting of the trouble because of the non payment of Rs.5,000/-.
19. PW-7 –Mumtaz has stated Anwaruddin was her neighbour and accused No.2 used to visit the house of accused No.1. Further that the accused Nos.1 and 2 took Rehnuma Khanum in Autorickshaw on the date of incident and she saw it. PW-8 -Ansar Bi she states that she knew accused and that they were tenants in the house of this witness. She states that accused No.1 was Autorickshaw driver and Sadiqa-accused No.2 sister of accused No.1 was visiting house of the accused No.1. But she turns hostile to the rest of the prosecution case.
20. Insofar as other witnesses are concerned PW-9 Asghar witness for inquest mahazar, PW-10-Mohamed Ansar Pasha witness to the seizure mahazar. PW-11- Hafeez is witness to mahazar Ex.P2 –seizure of two CDs and three photos. PW-12 –C.Siddappa –Junior Engineer, PWD who at the request of the police prepared sketch of the place of offence shown by the police and it is marked as Ex.P10. PW.13 Gopalaiah, produced property extract as per Ex.P.11. PW-14 – Dr.S.Rudramurthy – who conducted post mortem.
This witness in his evidence has opined that death of Rehnuma Khanum was homicidal and denied suggestion to the effect that injuries found on her body might have been caused by herself or self inflicted. He specifically asserts looking at the nature of injury and the circumstances and examination of the dead body it was found that the death was homicide. In the total context and facts and circumstances of the case he denies the suggestion regarding the injuries being self inflicted. PW-15 – Dr.Dinesh Kumar – who examined Rehnuma Khanum in the hospital. PW-16 – Tahsildar – who prepared inquest report/mahazar. PW-17 – Tolachanaika – ASI, Tumakuru Rural, deputed to search and produce accused. PW-18 – Siddaraju -PSI –Hebburu, who received the complaint given by Mehtab Khan. PW-19 – Shivanna – Dy S.P.(Retd.), Tumakuru Rural, who conducted further investigation.
21. Insofar as PW-16, 17, 18 and 19 they speak regarding the official acts and formalities done by them.
22. Learned counsel for appellant in Criminal Appeal No.774/2015 Sri Suresh would submit that absolutely no substantial evidence against accused person is forthcoming either in the oral testimony and or material object. Learned counsel would further submit that there are circumstances worth reliable to suggest that all was not well in the family. Learned counsel would strenuously contend that the accused never demanded dowry either from his wife or her family. It was further stated that the complainant’s oral evidence does not sink with that of complaint- Ex.P1, spot mahazar-Ex.P9 and inquest report-Ex.P8 and all were artificial and exaggeration. He would further submit that complainant was determined to ensure that accused No.1 was punished as they had vengeance against accused No.1 and also frustrated over the demise of Rehnuma Khanum.
23. Learned counsel Sri Ahamed S.N., would submit that either the complaint nor the oral evidence jointly spell out the ingredients of the offence punishable under Sections 3, 4 and 6 of Dowry Prohibition Act and Sections 498A and 201 of IPC by Sadiqa the appellant in Criminal Appeal No.436/2014 nor the offence punishable under the said provision of law and section 302 on appellant in Criminal Appeal No.774/2015. Learned counsel would further submit that the accused persons are no way concerned with the death of Rehnuma Khanum nor was there any inconvenient platform in the family. It was submitted by both the counsel that there was no worry of any kind to nail the accused persons guilty of the offences as found by the learned trial Judge. Learned counsel also submits that complaint is a exaggerated document, discrepancies are obvious regarding place of death and person who carried Rehnuma Khanum to hospital.
24. Learned counsel for both the sides submitted that accused No.1 was not present on the date of incident at home infact it was mother of PW-1, Dilshad Begum who took her daughter-Rehnuma Khanum to the hospital and the same is evidenced by the testimony of Dr.DineshKumar -PW-15 who examined Rehnuma Khanum when she was taken to hospital. On examination he declared that Rehnuma Khanum was dead.
25. Significance is that said witness PW-15 states that when a lady Rehnuma Khanum was brought to the hospital by another lady who has identified herself as Dilshad Begum. Learned counsel would further submit that accused was claimed to be not in an answerable position and that it was on being informed by PW-2 about the death of Rehnuma Khanum, he went to see her.
26. In this connection the evidence of PW-1 and PW-2 to the effect accused went in Autorickshaw to the house of the complainant and accused No.1 told that Rehnuma Khanum is very tired and she has to be taken to hospital and was taken. At this juncture the version is some what vague where PW-2 Dilshad Begum also went in the same Autorickshaw along with accused Nos.1 and 2. It is here the learned counsel for accused would submit that there is clear version by the Doctor that it was PW-2-Dilshad Begum who took Rehnuma Khanum to the hospital. However execution in the form of suggestion and further corroboration is not available under the circumstances. It is necessary here to mention that accused No.1 is the husband of Rehnuma Khanum and they were residing in a rented house at Maralur Dinne and there was strained relationship between them because of the dowry demand and harassment as claimed by prosecution. In the context it is also to be noted that the accused No.1 and deceased Rehnuma Khanum were residing under the same roof in a rented house at the said place. There is no doubt that one who supposed to possess personal knowledge about the act or event shall reveal the same, more specifically when the incident is exclusively known to him. Further under Section 106 of Indian Evidence Act those things, information and the related which are in the personal knowledge of a particular person shall be revealed.
27. In this connection it is necessary to mention Section 106 of Indian Evidence Act which reads as under:
“Section 106 – Burden of proving fact especially within knowledge – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
28. Thus, accused No.1 has not revealed what does he know about death or position of his wife on the date of incident and preceded by allegations of dowry harassment and torture in addition to having obtained the demand. In this connection it is only in the form of suggestion to the Doctor. The answers elicited from Doctor PW-15 the lady who identified herself as Dilshad had brought Rehnuma Khanum. Thus suggestion or submissions made in this connection is that in the evidence of PW-15 it is revealed that Rehnuma Khanum was taken by Dilshad Begum who is her mother and PW-2. It is necessary to make a mention that the prosecution totally does not dispute regarding presence of PW-2 –Dilshad Begum in the hospital. On the other hand it is also the assertion of the prosecution that she was in the hospital and telephoned her son the complainant and informed about the death of Rehnuma Khanum. Thus, the stray sentence of PW-15 does not establish that the accused was absent at the hospital or PW-2 alone took Rehnuma Khanum to the hospital. The main claim of the prosecution is that accused No.1 being husband of Rehnuma Khanum posed physical and mental torture, dowry harassment to his wife Rehnuma Khanum rendered her life miserable and earlier at the time of marriage he demanded dowry and received an amount of Rs.50,000/- and other gold ornaments and watch and further demanded Rs.25,000/-.
29. Learned counsel for appellant would also submit that there is no evidence to hold that Rehnuma Khanum was dead when she was taken to hospital and that valiant efforts were made by accused No.1 to save her.
30. In this connection the circumstances, oral evidence proved and established that accused No.1 had a definite intention of misleading and causing disappearance of the evidence and there was no intention or object of saving Rehnuma Khanum.
31. In the over all context and circumstances of the case the oral and documentary evidence would establish the torture or harassment by accused No.1 against his wife and on that day he caused the attack and he acted against his wife and caused strangulation through M.O.4-rope and strangulated her to death and tried to lurk the offence by suppressing the fact of death and also wanted to mislead the prosecution by giving a different story and background and stated that she was tired very much and taken to hospital and told the same to Dilshad Begum, mother of Rehnuma Khanum. It is thus established the he deliberately suppressed the fact or offence committed by him and also wanted to cause disappearance of the evidence by misleading the complainant and his mother. Accused No.1 is the only person who knows that Rehnuma Khanum was done to death by strangulation and it happened at home and there was no occasion for others to know it. But accused No.1 who knew about the incident as it was done by him knowing fully well that strangulation on her with the rope –M.O.4 was so forcible that he was definite that such act with said injury of ligature would cause arrest of respiration and will be definitely taking away the life of Rehnuma Khanum. With such knowledge in mind accused No.1 desired for it and done it so. However in the existing circumstance, the same is proved by prosecution beyond reasonable doubt. The harassment by accused No.1 was definitely there on Rehnuma Khanum and this was substantial and invariably present in the evidence of PW-1 –brother, PW-2 –mother, PW-3 –sister and PW-
4 – brother-in-law of Rehnuma Khanum and there is no occasion to disbelieve the said witnesses. There is no exaggeration or falsity.
32. In the overall circumstances the treatment or cruelty need not be in the form of dowry alone as contemplated under Section 498A. However, the overall documentary evidence would suggest by them self the offence punishable under Sections 3, 4 and 6 of Dowry Prohibition Act.
33. Insofar as complaint lodged by PW-1 was marked as Ex.P.1 and the case was registered in Crime No.28/2011 on 01.02.2011 against the accused persons Sadiqa and Sikander for the offence punishable under Sections 302, 304B and 34 of IPC is marked as Ex.P16. However on investigation, final report under Section 173 of Cr.P.C is for the offence punishable under Sections 304B, 302 and 201 read with Section 34 of IPC.
34. However, accused No.1 definitely committed the offence to cause disappearance of evidence punishable under Section 201 of IPC. Documentary evidence are not there to hold that accused committed offence punishable under Sections 3, 4 and 6 of Dowry Prohibition Act and at the same time it is also prosecution case that the said offences are committed by accused No.1 in furtherance of common intention with accused No.2 who is none other than his sister.
35. Learned trial Judge though was right in holding accused No.1 guilty for the offence punishable under Sections 302 and 201 of IPC but seriously erred in holding accused Nos.1 and 2 guilty for the offence punishable under Sections 3, 4 and 6 of Dowry Prohibition Act and accused No.2 guilty for the offence punishable under Section 498A and 201 of IPC. Thus, the appeal deserves to be partly allowed.
Hence, the following:
ORDER Criminal Appeal No.436/2014 is allowed and Judgment and order dated 25/26.03.2014 passed in S.C.No.19/2012 convicting the accused No.2 is set aside and she is acquitted. She is set at liberty forthwith.
Insofar as Criminal Appeal No.774/2015 is concerned it is partly allowed. Conviction of accused No.1 for the offence punishable under Sections 3, 4 and 6 of Dowry Prohibition Act is set aside but he is found guilty of the offence punishable under Section 498A, 302 and 201 of IPC. Accordingly the Judgment and order dated 25/26.03.2014 passed in S.C.No.19/2012 convicting him for the offence punishable under Sections 498A, 302 and 201 of IPC is upheld.
The accused No.1-appellant in Criminal Appeal No.774/2015 is entitled for set off for his stay in judicial custody in connection with this case.
Sd/- JUDGE Sd/- JUDGE SBN