Dowry Death | Karnataka High Court Sets Aside Conviction U/S 304B IPC Citing Discrepancies In Multiple Dying Declarations

A single judge bench of Justice Mohammad Nawaz while partly allowing the appeal filed by Nazrulla Khan, upheld the conviction handed down to him under section 498-A of IPC.

The sessions court had by its judgment delivered in September 2018, convicted and sentenced him for offences punishable under Sections 498-A and 304-B of IPC. The court had found him not guilty for charges under section 302 (Murder).

For the offence punishable under Section 498-A, the accused was sentenced to undergo simple imprisonment for a term of 2 years and to pay a fine of `5,000. Under Section 304-B of IPC, the accused was sentenced to undergo rigorous imprisonment for a term of 7 years.

It was alleged by the prosecution the marriage of the victim/ Afsana Banu was performed with the accused about 6 years prior to the date of incident. The accused was addicted to alcohol and he was subjecting the victim to cruelty, both physical and mental. He used to demand money from her to be brought from her parental home.

It was alleged that on 26 November 2015, the accused returned home in a drunken state and assaulted the victim, demanding to bring Rs. 25,000/- from her parental home. He then told her that she should die and only then he can live happily. It is the further case of prosecution that the accused poured kerosene on the victim and lit fire, due to which, she sustained severe burn injuries and while undergoing treatment at a Hospital, she died on December 11, 2015.

Findings:

The bench went through the evidence of witnesses and the dying declaration and said,

"There is discrepancy in the multiple dying declarations insofar as the accused pouring kerosene and setting fire to the victim. The case of the prosecution in that regard has been disbelieved by the trial Court. Further, even insofar as the accused is demanding money from the victim, there is discrepancy."

The Court noted that in the first dying declaration, on the basis of which law was set into motion, there is no allegation of dowry demand by the accused. Though it was alleged that a panchayath was held, however, no material was placed to show when the said panchayath was held; none of the panchayathdars were examined to show that the accused was demanding money from the deceased.

It also noted that there is discrepancy with regard to the amount allegedly demanded by the accused soon before the incident. Hence, the dying declaration with regard to the amount demanded by the accused does not inspire confidence of the Court.

Referring to the judgment of the Supreme Court in the case of Chitresh Kumar Chopra vs. State [Government of NCT of Delhi] reported in (2009)16 SCC 605, the bench held,

"In the case on hand, the evidence on record falls short to attract the ingredients of abetment. Further the prosecution has failed to establish that soon before her death, the deceased was subjected to cruelty for the purpose of dowry. Hence, the findings recorded by the trial Court for convicting the accused for the offence punishable under Section 304B of IPC is not sustainable in law."

It added, "However, the evidence and material on record is sufficient to hold that the accused has committed an offence punishable under Section 498A of IPC."

Accordingly it allowed the appeal in part.

Case Title: NAZRULLA KHAN @ NAZRULLA And THE STATE OF KARNATAKA

Case No: CRIMINAL APPEAL No.2045 OF 2018

Citation: 2022 LiveLaw (Kar) 276

Date of Order: 29TH DAY OF JUNE, 2022

Appearance: Advocate SHIVARAJ N. ARALI for petitioner; HCGP R.D. RENUKARADHYA for respondent

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