STATE OF KARNATAKA Vs. KABIR IMAMSAB SOUDAGAR

JUDGEMENT

(1.) IN this appeal filed under Sections 378 of Criminal Procedure Code, the State has questioned the legality and correctness of the judgment and order dated 31 -8-2004 passed by the Presiding Officer, Fast Track Court, Bijapur in S.C. No. 126/2001 acquitting the respondents/ accused of the charges levelled against them for the offences punishable under Sections 498A, 302, 201 r/w Section 149 of INdian Penal Code, (for short I.P.C.) and Sections 3,4, and 6 of Dowry Prohibition Act (for short D.P. Act).

(2.) THE case of the prosecution in brief is as under :- THE deceased Rasoolbi, daughter of PW1 Imamsab Hussainsab Yaligar and P.W.2 Smt Hussainma, residents of Shahapur, Gulbarga District, was married to Accused No. 1 Kabir Imamsab Soudagar, resident of Margur village in Indi Taluk about two and half years prior to 27-2-2001. Accused Nos.2 and 3 are the parents, Accused Nos.4 to 7 are the brothers and Accused Nos. 8 and 9 are the sisters of Accused No. 1. Prior to the marriage, on the demands made by all the accused persons, P.W.1 agreed to pay Rs. 25,000/- in cash, two tolas of gold, one wrist watch, new clothes worth Rs. 5000/-, and household utensils worth Rs. 10,000/- as dowry. At the time of the marriage, the cash and other articles as agreed were given to the bridegroom. After the marriage the deceased started residing with her husband at Margur village along with accused Nos.2 to 9, For,about one year the deceased and her husband were living cordially. During this period the deceased gave birth to a girl child. THEreafter all the accused persons started subjecting the, deceased to cruelty and harassment and they were coercing her to get money and gold from her parents. THE deceased had informed her parents about the further demands made by her husband and other accused persons and also about the harassment and cruelty meted out to her. However the parents of the deceased were not in a position to comply with the further demands of the accused persons. PW3 Smt. Imambi and P.W.4 Smt. Raziabegum, who are close relatives of P.W.1, and married to A4 and A6 respectively on the same day of the marriage of deceased with A1, were also subjected to similar kind of cruelty and harassment by all the accused persons and unable to bear the harassment both of them started residing with their respective parents. About two or three days prior to 27/2/2001 Al demanded P.W.I over phone to send back P.Ws. 3 & 4 to their matrimonial home immediately if not they would finish off the deceased. At about 2:30 a.m. on 27/2/2001, A4 Babu informed P.W. 1 over phone that his daughter (deceased) has died because of shake bite. THEreafter P.W.I and others came to Margur village at about 12.30 p.m. and saAv the dead body of the deceased lying inside the house of Al with bleeding from the ears, mouth, back of the head and the armpit. THey also noticed black injury' over the neck. THEy further noticed that the deceased had worn only jacket and lunga and was not wearing saree. THEre was no indication of deceased having died because of snake bite. Suspecting fowl play in the death of his daughter, P.W. 1 lodged a complaint with Zalki police as per Ex. P1 inter - alia alleging that his daughter has been murdered by her husband and the relative of her huaband. On the basis of the oomplaint the SHO registered the case in crime number 15/2001 against the accused persons and submitted the FIR to the Jurisdictional Magistrate and also to the superior police officers and went to the scene of occurrence. P.W.19 Babasab DSP, Indi, on receipt of the copy of FIR, visited the scene of occurrence and took up the investigation of the case from the PSI who was present there. THEreafter he conducted spot panchanama of the scene of occurrence as per Ex.P5 in the presence of witnesses and seized a plastic bottle said to contain pesticide which was lying there. As the death of the deceased had occurred within seven years from the date of marriage, on the request of the I.O., the Thasildar, P.W. 12 Jabbar Abbasali Biradar alias Patel, conducted the inquest over the dead body in the presence of the witnesses and drew a report as per Ex.P4. During inquest statements of blood relatives of the deceased were recorded. Photographs of the dead body were taken by P.W.16. THEreafter the dead body was subjected to post-mortem examination by P.W.15 Dr. Revappa. During the PM examination viscera was collected and sent to forensic examination. Awaiting report from FSL, P.W. 15 submitted the PM report as per exhibit P8 deferring his opinion as to the cause of death. After the receipt of the report from FSL as per Ex.P7 to the effect that organophosphorus materials are not detected in the viscera, having regard to the observations made during the PM examination, P.W. 15 issued opinion certificate as per Exhibit P9 stating that the cause of death of deceased was asphyxia as a result of throttling. During investigation P.W.19 recorded the statements of witnesses, arrested accused persons and subjected them to judicial custody. As the investigation was handed over to' COD, P.W. 18 N. Ramachandra, Inspector, GOD, took up investigation, recorded the statements of witnesses, collected the reports and filed charge-sheet against all the accused persons for the offences noted above.

(3.) PERUSAL of the judgment under appeal indicates that the learned Sessions Judge after referring to the oral evidence of all the prosecution witnesses, though came to the conclusion that from the evidence of P.Ws. 1, 2, 5, 6 and 7, it is clear that at the time of marriage a sum of Rs. 25,000/-, two tolas of gold, one wrist watch valued at Rs.5000/- and utensils for the household valued at Rs. 10,000/- were given to accused No.1, in the light of the answers elicited in the cross-examination of P.Ws. 1, 2, 5, and 19, held that as there is a custom in Islam community people that during the marriage 'Dahez' articles are given and at the time of 'Jummagi' function gold and cash are also provided to the son-in-law and since that is the custom prevailing in that community, giving and taking of such customary gifts would not constitute as dowry. In this regard reliance was placed on the decision of the Supreme Court in the case of Satvir Singh and others v. State of Punjab reported in 2001 Cri LJ 4625 : (AIR 2001 SC 2828). In that view of the matter the charges for offences punishable u/Ss. 3, and 4 of D.P. Act were held as not proved. In the light of admission by P.W.2 that after the death of the deceased all household utensils were brought back by her, the charge for offence punishable u/S. 6 of D.P. Act was held as not proved. In respect of charge for the offence punishable u/S. 498 A of IPC the learned Sessions Judge observed that evidence in this regard is not consistent, cogent and acceptable and therefore the prosecution has utterly failed to prove that the accused persons subjected the deceased to cruelty or harassment and as such the said charge is also not proved.