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2009 DIGILAW 642 (KAR)

K. Basavapurna Rao v. State Of Karnataka

2009-08-14

JAWAD RAHIM

body2009
Judgment : 1. The petitioner is unfortunate father who lodged complainant at the respondent –police station informing of the sad demise of his daughter while living in matrimony with her husband. The report was registered as FIR initially for offence punishable under Section 498-A of the Indian penal code, 1860 and Section 304-B regarding unnatural death of his daughter Lakshmi. The police officers after investigating filed charge-sheet against husband and others for offence punishable under Section 498-A of IPC but did not file any report regarding the alleged overt acts of the accused in committing for the murder. The case was further inquired into and despite his repeated and fervent request no action taken. He was, therefore, upset and applied to this Court in W.P. no. 5893 of 1991 complaining of inaction on the part of the Investigation Officer in conducting investigation and on the part of the State in being silent spectator to the inaction on the part of the police. 2. This Court considered the grievance of the petitioner in W.P.No. 5893 of 1991 and did appreciate the grievance and it allowed the petition and directed the Trial Court before whom charge-sheet was filed, to consider the application of petitioner filed under Section 173(8) of Cr. P.C. for reference to any other investigation agency like CBI. The direction of this Court was to require the Trial Court to bestow its serious concern to the nature of allegations made by the complainant, examine the nature of investigation done and after it is noticed that the investigation was not in the right direction or that the serious allegations made by the complainant regarding death of his daughter and the suspicions sounded by him against the sister-in-law and others was not properly investigated, then to direct the investigation by independent agency like CBI. The said direction of this Court was received by the learned Sessions Court dealing in SC.No. 52 of 1991. Even at such direction of this Court , the Sessions Court in a casual manner has disposed of the application not referring the matter to police/investigation agency. 3. Be that as it may, what is noticed is the serious allegation are made by the complainant, viz. That the marriage of his daughter Lakshmi was performed with the accused 1 on 30-5-1990. During marriage he was compelled to give cash of Rs. 15,000/-and several gold ornaments. 3. Be that as it may, what is noticed is the serious allegation are made by the complainant, viz. That the marriage of his daughter Lakshmi was performed with the accused 1 on 30-5-1990. During marriage he was compelled to give cash of Rs. 15,000/-and several gold ornaments. Despite receipt of said dowry, the accused are alleged to have indulged in deliberate cruelty and then they compelled him to give 5 acres of land. Accordingly, the complainant gave land to Lakshmi, but even then the greed of the accused was not satisfied. The accused 1 again drove back the deceased Lakshmi to her parental house demanding Rs.2,00,000/-as additional dowry to purchase dairy farm. The complainant could not oblige such a request. That gave rise to serious retaliation from the accused and on 12-12-1990, within six months of marriage, Lakshmi was done to death. 4. The circumstances of her death clearly indicate several mysterious circumstances; The close relatives of the complainant accompanied him and found to their dismay the body of Lakshmi was mutilated with ante-mortem injuries. This revelation in the postmortem report and investigation revealed that death was neither suicidal nor accidental but was homicidal. Much against such serious allegations, the Investigation officer filed charge-sheet only for offences punishable under Sections 143, 147, 149, 120-B, 304-B read with Section 498-A of IPC. The complainant’s grievance is that if the medical evidence and the statement of witnesses are considered, it speaks for itself that Lakshmi died a homicidal death and the accused were expected to answer charge for offence under Section 302 of IPC. To help accused the Investigation Officer invoked charge under Section 304-B. 5. The learned Trial Judge to whom this Court had directed reconsideration of the application filed by the petitioner, despite noticing the said allegation, opined that the Investigation Officer has taken into consideration all the statement of witnesses and has reached a logical conclusion and the maximum charge that could be leveled was only Section 304-B of IPC. It is quite obvious, learned Trial Judge did not realise the fact that main grievance of the complainant was that material evidence which was also available apart from what was collected by the prosecution, there was additional incriminating material available which establishes the charge against the accused for offence under Section 302 of IPC. In other words, the partisan attitude of the Investigation Officer was the main grievance. In other words, the partisan attitude of the Investigation Officer was the main grievance. Ignoring incriminating evidence during investigation was the serious allegation made. It is for this reason, this Court also opined that on consideration of nature of allegations, it was necessary to direct the Trial Court to consider fresh investigation by CBI, which has not been done. 6. I am satisfied that the learned Sessions Judge has proceeded on the premise that he was required to consider the material available to decide whether charge under Section 302 of IPC could be retained. That was not the intent and purport of mandate issued by this Court in the writ petition referred to above. It is clear case of violation of mandate issued by this Court, consequent to which the petitioner has been rendered remediless. 7. I am satisfied that the petitioner has made out a case to the exercise of jurisdiction under Section 482 of Cr.P.C. and I set aside the order of the learned Sessions Judge, Bellary, in SC No.52 of 1991, dated 24-3-2005. I direct that the 1st respondent-State to refer the complaint submitted by the petitioner for further detailed inquiry by the COD and to submit a report about allegation of homicidal death of deceased Lakshmi. It is further noticed that the sessions case pending before the Sessions Court is stayed in these proceedings consequent to which the trial is pending from the year 1991. It is regrettable that unnecessarily this petition has been pending and the accused have enjoyed the benefit of stay. Therefore, appropriate order that could be passed is to direct the Sessions Court to commence the trial and in the meanwhile, to direct the COD to conduct further investigation and file its report as a report under Section 173(8) of Cr.P.C. If such a report indicts the petitioner-accused for any other offence apart for which they have been charged, the Sessions Judge is directed to reframe the charge for the offence and continue trial. For this purpose the COD is granted at first instance four months time to complete investigation and submit report from the date of receipt of this order. 8. In the circumstances, the petition is allowed. For this purpose the COD is granted at first instance four months time to complete investigation and submit report from the date of receipt of this order. 8. In the circumstances, the petition is allowed. The 1st respondent-State is directed to handover investigation/FIR to COD to inquire into the allegation of homicidal death of Lakshmi and submit its report within a period of four months from the date of receipt of copy of this order. In the meantime, the Trial Court is directed to secure presence of the accused and fix a date for framing charge, if already not framed, giving the date of four months herein after. 9. I place the relentless effort and professional service rendered by the amicus curiae Sri Bahubali A. Danwadi, and fix his honorarium of Rs.5,000/-. The registry is directed to ensure that the honorarium is paid from the funds of the State.