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2006 DAILYLAW 566 (KAR)

K. M. JAFFER ALI v. STATE BY K. G. HALLI P. S.

2006-07-11

B.S.PATIL

body2006
( 1 ) ORDER dated 9-9-2005 passed by the XII Addl. City Civil and Sessions judge, Bangalore, in S. C. No. 638/2004 rejecting the application filed by the revision petitioners-accused Nos. 2, 3, 4 and 6 under section 227, Cr. P. C. seeking their discharge is challenged before this Court in this revision petition. ( 2 ) BRIEF facts which are necessary for the disposal of this petition are that one Tabassum kausar and accused No. 1 Noushad AH had fallen in love with each other. Deceased tabassum and her parents along with other family members were staying together at ulsoor. In front of their house, accused No. 1-Noushad AH and his family members were staying. Twice, both deceased-Tabassum and noushad AH went away from their respective houses and stayed elsewhere for four to five days. After they returned, on each occasion, the parents and relatives of Tabassum insisted the parents and relatives of Noushad AH to arrange their marriage. Eventually, the marriage was celebrated on 5-7-2002. ( 3 ) ON 23-9-2002, the brother of deceased tabassum lodged a complaint before the K. G. Halli Police stating that his sister was killed by her husband-accused No. 1 and the other accused-the revision petitioners herein have ill treated the deceased demanding dowry in the form of cash and jewellery. He has narrated, in the complaint lodged, the love affair of Noushad AH and deceased Tabassum, the dispute pertaining to insistence of accused No. 1 and his family members the revision petitioners herein to bring dowry and the harassment meted out by them. He has further stated that there was a panchayat held on 21-9-2002 in a Mosque wherein it was decided that tabassum should stay with accused No. 1 and his family members (the revision petitioners herein) during night time and during day time she should be permitted to stay along with her parents. It was during this period, when she was staying during the daytime along with her parents, the deceased is stated to have narrated the ill treatment meted out to her by her parents-in-law including her husband. The further case, as could be seen from the complaint is that soon after the panchayat was held on 21-9-2002 deceased was taken to Mehboob nagar, Govindapura by her husband accused no. 1 and they were staying there until 23-9-2002 when she was killed. The further case, as could be seen from the complaint is that soon after the panchayat was held on 21-9-2002 deceased was taken to Mehboob nagar, Govindapura by her husband accused no. 1 and they were staying there until 23-9-2002 when she was killed. It is thus clear that at the time when the incident leading to the death of Tabassum took place she was not staying with her parents-in-law and other family members. The complaint does not attribute any homicidal act to the revision petitioners. It is not stated in the complaint that the petitioners along with accused No. 1 had hatched any conspiracy or plan to kill the deceased. On the other hand, the plain reading of the complaint discloses that the role played by the revision petitioners is restricted to ill treatment and harassment meted out to the deceased. In addition, it is against accused No. 1 the accusation of committing murder of deceased is made. ( 4 ) THIS being the position, learned counsel for the petitioners contends that there is absolutely no foundation for the charge under sections 109, 302 read with Section 34, i. P. C. against the revision petitioners herein nor is their any indication in the complaint filed that all the accused had any common intention to commit the murder of deceased-Tabassum. He further submits that there is no material produced to show that these petitioners in any manner abetted accused No. 1 to commit the murder of the deceased. Therefore, he submits that the Court below ought to have discharged the revision petitioners herein of the offences punishable under Sections 109, 302 read with Section 34,i. P. C. Counsel for the petitioner has placed reliance on the judgments of the Apex Court in the case of Kans Raj v. State of Punjab and others, reported in 2000 SAR (Criminal) 673 : ( AIR 2000 SC 2324 ) and in the case of State of Karnataka v. L. Muniswamy and others reported in AIR 1977 SC 1489 . ( 5 ) LEARNED High Court Government pleader submits that a cumulative reading of the complaint, statements recorded and other circumstances involved in the case would justify the charge framed against the revision petitioners even for the offences punishable under Sections 109,302 read with Section 34, i. P. C. apart from Section 498-A, I. P. C. ( 6 ) HAVING heard the learned counsel for the parties and on perusal of the impugned order, the only point that arises for consideration is : "whether the Court below committed any manifest illegality in rejecting the prayer made by the petitioners for their discharge?" ( 7 ) AS already adverted to above, a perusal of the complaint no doubt discloses the allegations and assertions regarding harassment and cruelty meted out to the deceased by the petitioners herein apart from accused No. 1 who is absconding. But as regards the accusation pertaining to murder of the deceased the complainant in his complaint is very specific in stating that the husband of the deceased noushad Ali took his wife to Mehbood Nagar, govindapura where he killed her. Therefore, while the allegations of cruelty and harassment are directed against the revision petitioners in connection with dowry, the accusation pertaining to killing the deceased is only directed against the Noushad Ali-accused No. 1-husband of the deceased. Even in the statement recorded by the Police under Section 161, Cr. P. C. there is nothing to show that the petitioners are attributed with any acts of either abetting the murder of deceased or of sharing any common object with accused no. l. This being the material on record, on the basis of the complaint and the very case put forward by the prosecution it cannot be said that the revision petitioners can be proceeded against for the offence punishable under Sections 109,302 read with Section 34,i. P. C. There is absolutely no chance of convicting these petitioners for the offence punishable under Sections 109, 302 read with section 34,i. P. C. The materials do not enable the Court to reasonably presume that there are strong grounds to proceed against these accused for the offences punishable under sections 109,302 read with Section 34,i. P. C. The Court below has totally lost sight of this aspect of the matter and hence there is manifest illegality which is apparent in the impugned order. ( 8 ) COUNSEL for the petitioner has rightly placed reliance on the two decisions of the apex Court. The Apex Court in the case of kans Raj v. State of Punjab and others, reported in 2000 SAR (Criminal) 673 : ( AIR 2000 SC 2324 ) has ruled that 'in case of dowry death the relatives of the husband cannot in all cases be held to be involved in the demand of dowry and that a tendency has developed for roping in all relations of the in-laws of deceased wife in the matter of dowry death he has also emphasized on the fact that once it is shown that the dispute stood resolved on account of panchayat or a settlement and that the death of the girl occurs subsequently no presumption under Section 113-B of the Indian evidence Act, 1872 could be drawn against the accused. It is needless to say, at this juncture, so far as the allegations of cruelty and harassment demanding dowry is concerned sufficient materials are available in the form of allegations made in the complaint and in the statements recorded by the Police during the course of investigation. Therefore, merely because there was a settlement in a panchayat that book place prior to the date of death of the accused it cannot at this stage be stated that the harassment and cruelty allegedly meted out by the revision petitioners herein should be ignored and it should end up in their discharge. Hence, there is no case made out by the revision petitioners for discharging them for the offence alleged against them under Section 498-A, I. P. C. ( 9 ) AS regards the offence alleged against the revision petitioners under Section 302 read with Section 34,i. P. C. or for that matter for the offence punishable under Section 109, i. P. C. is concerned as held by the Apex Court in the case of State of Karnataka v. L. Muniswamy and others reported in AIR 1977 sc 1489 if in case there is no material on record on the basis of which any Court could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution, the court would be justified in holding that the ends of justice will be met if the proceedings against the rest of the accused be quashed. In the instant case, it will be a futile exercise for the prosecution to proceed against the revision petitioners under Sections 109, 302 read with Section 34,i. P. C. in the absence of any material against them suggesting their involvement in the said offences. In the result, this revision petition is partly allowed discharging the cause of the offence alleged against them under Sections 109,302 read with Section 34, I. P. C. Insofar as the offence alleged against the revision petitioners under Section 498-A, I. P. C. is concerned the order passed by the Court below is left undisturbed. Having regard to the fact that the accused are discharged of the offences punishable under Sections 109, 302 read with section 34, I. P. C. and are charged for the offence punishable under Section 498-A, i. P. C. which is triable by the Magistrate, the matter shall stand remitted to the jurisdictional magistrate. The observations made by this court in this order is confined only for the disposal of the application for discharge and cannot affect the merits of the matter. Revision Petition is disposed off in terms stated above. Petition partly allowed.