IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

DATED THIS THE 24TH DAY OF JANUARY, 2022

BEFORE

THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

CRIMINAL PETITION No.201761/2021

BETWEEN:

JAVID @ JAVEED ALI S/O ABDULGANI NADAF, AGED: 34 YEARS, OCC:COOLIE, R/O SOTE GALLI, MUDDEBIHAL, TQ:MUDDEBIHAL, DIST:VIJAYAPUR-586 101. …PETITIONER

(BY SHRI SHIVANAND V.PATTANASHETTI , ADVOCATE)

AND:

THE STATE OF KARNATAKA REPRESENTED BY ADDL. SPP HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585106, (THROUGH VIJAYAPUR WOMEN P.S. DIST:VIJAYAPUR-586 101. …RESPONDENT

(BY SHRI SHARANABASAPPA M.PATIL, HCGP)

THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. SEEKING TO RELEASE THE PETITIONER ON BAIL IN Cr.No.113/2020 OF VIJAYAPUR WOMEN POLICE STATION FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498(A), 323, 504, 306 READ WITH SECTION 34 OF IPC AND UNDER SECTION 4 OF DOWRY PROHIBITION ACT, 1961, PENDING BEFORE IV ADDL. CJ AND JMFC (JR DIVISION) COURT, VIJAYAPUR.

THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed under Section 439 o f Cr.P.C . by accused No .1 to enlarge him on bail in C.C .No .6844/2021 pending on the file o f IV Addl. Civil Judge and JMFC (JR. Division), Vijayapura, arising out of Cr.No .113/2020 o f Vi jayapur Women police station, registered for o ffences punishable under Sections 498(A) , 323, 504 and 506 read with Section 34 o f IPC and Section 4 of the Dowry Prohibition Ac t.

2. Heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent/State and perused the material on record.

3. Petitioner had approached this Court under Section 438 of Cr.P.C . along with accused No.2 in Criminal Petition No .201190/2021 and the said petition was dismissed on 06 .09.2021 .

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4. It is submitted by the learned counsel for petitioner that petitioner was arrested on 23.07 .2021 and now the investigation is completed and charge-sheet has been filed. He contends that the death has taken place a fter 12 years of the date of marriage and that too the victim has committed suicide in her parental home. He contends that, while registering the case , bro ther of the deceased was arraigned as accused No.3 , as he was harassing the deceased physically and mentally. However, he has been dropped from the charge-sheet. He submits that Section 113-A of the Indian Evidence Act is not applicable, since the death is not within 7 years from the date of marriage . He further contends that the petitioner is innocent and he has not committed any o ffence as alleged by the prosecution and he is ready and willing to abide by any conditions. Accordingly, seeks to allow the petition.

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5. Learned High Court Government Pleader contends that the inve stigation has revealed that on account of the harassment and torture meted to the deceased by the petitioner as well as accused No.2 i.e ., mother-in-law of the deceased, she has committed suicide. He contends that pe titioner was constantly harassing the deceased making unlaw ful demands and therefore , unable to bear the torture, deceased has committed suicide by pouring kerosene and setting fire to herself.

6. It is the case of prosecution tha t marriage of deceased-Khajabi was per formed with the petitioner/accused No.1 about 12 years prior to the date of incident. After the marriage, she was residing along with her husband and mother-in-law in her matrimonial home and she was looked a fter properly only for a few days. Thereafter , both the accused subje cted her to physical and mental torture stating that she has not brought dowry and demanded her to get money from her parental home

i.e ., to get her share from the amount received by her father on his retirement. Hence, deceased went to her parental home about 10 days prior to the date of incident and as she was unable to cope up with the torture meted to her by the accused, on 03.10 .2020 at about 3.30 p.m., she poured kerosene on herself and set fire. She was shifted to Al-Ameen Hospital for treatment, wherein she succumbed to the burn injuries on 09 .10.2020 at 1 p.m .

7. The marriage of the victim with the petitioner took place about 12 years prior to the date of incident. Even according to the prosecution, victim committed suicide in her parental home . It is alleged that unable to bear the physical and mental torture at the hands o f accused, she committed suicide. Same has to be established by the prosecution in a full fledged trial. It is contended by the learned counsel for petitioner that since the death has not taken place within 7 years of the marriage, pre sumption under Section 113-A o f the

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Indian Evidence Act cannot be drawn. Whether the petitioner has intentionally aided or abetted the deceased to commit suicide or whether the ingredients o f the offence alleged are attracted or not, is a matter which has to be established during trial. Considering that the inves tigation is completed and charge-sheet has been filed, relief sought by the petitioner can be granted by imposing suitable conditions so as to ensure his presence at the trial.

8. Hence , the following:

ORDER

• i) Petition is allowed,

• ii) Petitioner/accused No .1 shall be enlarged on bail in Cr .No.113/2020 of Vi jayapura Women Police Station , now pending in C.C .No .6844/2021 on the file o f the IV Addl. CJ and JMFC Court, Vi jayapura, subje ct to following conditions:

• a. Petitioner/accused No.1 shall execute a personal bond in a sum of Rs.1 ,00,000/- (Rupees one lakh only) with two sure ties for likesum to the satis faction o f the jurisdic tional Cour t,

• b. He shall furnish proo f o f his residential address and he shall inform the Court if there is any change in the address,

• c. He shall not tamper with the prosecution witnesses either directly or indirectly,

• d. He shall appear before the trial Court on all dates o f hearing ,

• e. He shall not leave the jurisdiction of the trial Court without prior permission of the learned trial Judge.

• f. In the event o f violation of any o f the above conditions, petitioner shall not be entitled to the relief of bail and the prosecution is at liberty to seek cancellation o f the bail .

Sd/- JUDGE

Jm/-