Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 1176 (KAR)

State v. Kachatti Mahantesh

2010-11-11

K.N.KESHAVANARAYANA, K.SREEDHAR RAO

body2010
JUDGMENT K.N. KESHAVANARAYAN, J.—This appeal by the State is directed against the judgment and order dated 6.8.2005 passed by the Additional Sessions Judge, Bangalore city, in S.C. No. 355/2004, acquitting the respondents-accused of the charges levelled against them for the offences punishable under Sections 498A and 304B of IPC and under Sections 3 and 4 of the Dowry Prohibition Act (for short ‘D.P. Act’). Accused Nos. 2 and 3/respondent Nos. 2 and 3 died during the pendency of this appeal. Therefore, the appeal against respondent Nos. 2 and 3 stood abated. 2. The case of the prosecution in brief is as under: P.W. 2-Kasturi wife of Shivanand is the mother of deceased Vijayalakshmi @ Bhagya. She was the resident of Hubli. Husband of P.W. 2 died about two years prior to 19.5.2003. The deceased Vijayalakshmi @ Bhagya was given in marriage to accused No. 1-Kachatti Mahanthesh, resident of Badami Town in Bagalkot District. Their marriage was solemnized about four years prior to 19.5.2003. During the talks held few days prior to the marriage, accused No. 1 and his parents namely accused Nos. 2 and 3, demanded dowry, both in cash and kind and ultimately it was agreed that the parents of the bride should give dowry of Rs. 15,000/- in cash and also a gold finger ring, neck chain etc. Accordingly about 10 days prior to the marriage, P.W. 2 being the mother of the deceased gave dowry of Rs. 15,000/- in cash and a wrist watch, gold finger ring, neck chain etc. to accused No. 1 as dowry. Gold ear studs, silver leg chain and gold chain were also given to the bride during the marriage. After the marriage, the deceased started living with her husband in the matrimonial home alongwith the parents and brother of accused No. 1. From out of the said wed lock, the deceased gave birth to a female child. After the deceased started living with the accused in the matrimonial home, the accused started insisting her to bring some more dowry as the dowry given at the time of the marriage was not sufficient and since she failed to comply with the said demand, the accused started subjecting her to physical and mental cruelty. This was being informed by the deceased to her parents and other relatives whenever she visited them or whenever the parents visited her. This was being informed by the deceased to her parents and other relatives whenever she visited them or whenever the parents visited her. After some time accused No. 1 shifted his residence to Bangalore and started living with the deceased and their child in Bangalore while the parents of accused No. 1 continued to stay in Badami Town. About few days prior to 19.5.2003, the deceased had gone to her parental home and about 5 days prior to 19.5.2003 accused No. 1 brought deceased back to the matrimonial home at Bangalore and continued to subject her to cruel treatment. At about 11.30 a.m. on 18.5.2003, as the deceased failed to comply with the further demand made by him, accused No. 1 poured kerosene on the deceased and set her on fire as a result of which she sustained severe burn injuries. Further on being informed by some one, Police Hoysala van came near the house and shifted the injured to Victoria Hospital, Bangalore. At that time, accused No. 1 also accompanied the injured to the hospital. However, the injured succumbed to the injuries at about 5.30 a.m. on 19.5.2003 while taking treatment in the hospital. On being informed, P.W. 2-the mother and other relatives of the deceased came to Bangalore and saw the deceased. As the death of the deceased had occurred within 7 years from the date of the marriage, the Police requested the Taluk Executive Magistrate to hold inquest. Accordingly, the Taluk Executive Magistrate conducted inquest over the dead body. At that time P.W. 2, the mother of the deceased who was also present there, suspecting foul play with regard to the death of her daughter, made statement suspecting the hands of the husband and parents-in-law of the deceased in the death of her daughter. The Taluk Executive Magistrate submitted a report to the jurisdictional Magistrate based on which case was registered and investigation was taken up. During the investigation, the dead body of Vijayalakshmi was subjected to post-mortem examination and after completing the investigation, charge sheet came to be laid for the aforesaid offences. The accused persons pleaded not guilty for the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused examined P.Ws. 1 to 18 and marked Exs. The accused persons pleaded not guilty for the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused examined P.Ws. 1 to 18 and marked Exs. P1 to P.23 and M.O. I. The defence of the accused was one of total denial and that of false implication. It was also the defence of accused No. 1 that the deceased accidentally caught fire on account of stove burst while she was cooking food inside the kitchen, therefore, it was an accidental death. 3. After hearing both sides and on assessment of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has failed to establish the guilt of the accused persons for the charges levelled against them beyond reasonable doubt. The learned Sessions Judge was of the opinion that the evidence of material witnesses who are closely related to the deceased is not corroborated by independent witnesses with regard to demand and acceptance of dowry prior to and at the time of the marriage and also demand for further dowry after the marriage and subjecting the deceased to cruelty in connection with the dowry and, therefore, the ingredients of Sections 3 and 4 of the D.P. Act as well as Section 304B of IPC have not been proved as such the accused persons are not guilty of the said offences. The learned Sessions Judge was of the further view that since the evidence with regard to demand of dowry prior to or subsequent to the marriage is not convincing, the charge under Section 498A is also not proved and in that view of the matter, acquitted the accused of all the charges. Being aggrieved by the said judgment of acquittal, the State is in appeal. 4. We have heard Sri G. Bhavani Singh, Additional State Public Prosecutor for the State and Sri Vishwanath Hiremath, learned counsel appearing for respondent No. 1. We have perused the records and closely scrutinized the evidence, both oral as well as documentary and also read the judgment under appeal. 5. In the circumstances, the points that arise for our consideration are: (1) Whether the learned Sessions Judge is justified in acquitting the accused of all the charges levelled against them? We have perused the records and closely scrutinized the evidence, both oral as well as documentary and also read the judgment under appeal. 5. In the circumstances, the points that arise for our consideration are: (1) Whether the learned Sessions Judge is justified in acquitting the accused of all the charges levelled against them? and (2) Whether the judgment under appeal suffers from any perversity or illegality calling for interference by this Court? 6. It is not in dispute that the deceased Vijayalakshmi @ Bhagya daughter of P.W. 2 was given in marriage to accused No. 1 and their marriage was performed about 4 years prior to her death. It is also not in dispute that on 19.5.2003, the deceased Vijayalakshmi while staying with accused No. 1 in Bangalore sustained burn injuries at about 11.30 a.m. on 18.5.2003 to which she later succumbed at about 5.30 a.m. on 19.5.2003 in Victoria Hospital. It is also not in dispute that prior to the date of the incident, the deceased was living with accused No. 1 in Bangalore while the parents of accused No. 1 were residing in Badami Town. Thus from the above, it is clear that the death of the deceased Vijayalakshmi occurred within 7 years from the date of the marriage and her death was due to burns. To attract the ingredients of Section 304B of IPC, yet another important ingredient required to be proved is that soon before the death of married woman she had been subjected to cruelty or harassment in connection with dowry. In order to establish the charges levelled against the accused the prosecution relied upon the evidence of P.W. 2-mother of the deceased, P.W. 3 co-sister of P.W. 2, in other words aunt of the deceased and P.W. 4-maternal uncle of the deceased. During their evidence, P.Ws. 2 to 4 have supported the case of the prosecution with regard to demand and acceptance of dowry by the accused prior to and at the time of the marriage and also about the demand made by accused No. 1 for further dowry after the marriage while the deceased was staying with him in Bangalore and also about the accused subjecting the deceased to cruelty and harassment on account of failure on her part to comply with the illegal demands made by him. However, independent witness examined by the prosecution who are the neighbours of the accused in Bangalore and also at Badami Town to prove the further demand made for dowry and also the fact of deceased being subjected to cruelty and harassment, have not supported the case of the prosecution. The learned Sessions Judge after assessing the evidence of P.Ws. 2 to 4 has doubted their testimony on the ground that they are interested witnesses being closely related to the deceased and since their evidence is not corroborated by independent witness it is highly unsafe to place reliance on their testimony. Therefore, the learned Sessions Judge has opined that the prosecution has failed to prove the guilt of the accused for any of the charges. In our opinion, the approach adopted by the learned Sessions Judge in disbelieving the testimony of P.Ws. 2 to 4 is not proper and not in accordance with the well settled principles of law. It is well settled law by catena of decisions that the testimony of a witness cannot be discarded only on the ground that he or she is closely related to the victim or deceased. Nevertheless, the testimony of such witnesses will have to be closely scrutinized before accepting the same to rule out the possibility of false implication. No doubt, P.Ws. 2 to 4 are closely related to the deceased being the mother, aunt and maternal uncle. In a case of this nature, it is only the close relatives of the victim or the deceased who would be natural witnesses. The neighbours of the accused would not generally support the case of the prosecution since such neighbours would not likely to incur wrath of their neighbours and they want to live in harmony. Therefore, merely because the neighbours of the accused did not support he case of the prosecution that cannot be a ground to reject the testimony of P.Ws. 2 to 4. The learned Sessions Judge ought to have scrutinized the testimony of P.Ws. 2 to 4 independently and then find out as to whether their testimony suffers from any improbability or discrepancy going to the root of the case of the prosecution. 7. 2 to 4. The learned Sessions Judge ought to have scrutinized the testimony of P.Ws. 2 to 4 independently and then find out as to whether their testimony suffers from any improbability or discrepancy going to the root of the case of the prosecution. 7. P.W. 2-Kasturi the mother of the deceased has stated in her evidence that the marriage of her daughter Bhagya was performed with accused No. 1 about four years prior to the death of Bhagya and prior to the marriage, the accused demanded dowry and gold ornaments. According to her, the accused demanded dowry of Rs. 15,000/- in cash and also wrist watch, gold finger ring, neck chain. According to her, they demanded the amount and gold ornaments in the form of dowry and the amount was given to the accused about 15 days prior to the marriage while gold ornaments were given to accused No. 1 and the bride on the date of the marriage. This evidence on the part of P.W. 2 has been fully corroborated by P.Ws. 3 and 4, who have reiterated the evidence of P.W. 2. Thus there is consistency in the evidence of P.Ws. 2 to 4 with regard to marriage talks held few days prior to the marriage and the demand made by accused for dowry of Rs. 15,000/- in cash and also for gold finger ring, neck chain during the said marriage talks and also P.W. 2 agreeing for the said demand and complying the said demand by paying Rs. 15,000/- prior to the marriage and giving gold ornaments as agreed at the time of the marriage. All these witnesses have been cross-examined at length by the accused. What has been elicited in the cross-examination is that P.W. 2 does not have receipt for having got the gold ornaments prepared, she does not have bank account to show that amount was withdrawn from the Bank etc. No where it is suggested to P.W. 2 that she had no financial capacity to pay dowry of Rs. 15,000/- in cash and also gold ornaments. According to P.W. 2, she paid the amount of Rs. 15,000/- from out of the savings made by her husband. Unfortunately her husband had died about 2 years prior to the death of the deceased. Of course, it is elicited from P.W. 3 in the cross-examination that the family of P.W. 2 is not rich. According to P.W. 2, she paid the amount of Rs. 15,000/- from out of the savings made by her husband. Unfortunately her husband had died about 2 years prior to the death of the deceased. Of course, it is elicited from P.W. 3 in the cross-examination that the family of P.W. 2 is not rich. Merely because P.W. 2 is not a rich lady, it does not mean that she was not in a position to pay the modest dowry of Rs. 15,000/- in cash and equal amount for purchase of gold ornaments. However, the learned Sessions Judge reading the said sentence in the cross-examination of P.W. 3 in isolation has come to the conclusion that P.W. 2 was not in a position to pay dowry of Rs. 15,000/- in cash and also to purchase gold ornaments as stated by her. In the absence of any suggestion to P.W. 2 that she had no financial capacity to pay dowry in cash and kind, in our opinion, the learned Sessions Judge is not justified in branding P.W. 2 as financially poor to meet that demand only on the basis of a stray sentence elicited in the cross-examination of P.W. 2. It is not suggested to P.Ws. 3 and 4 in the cross-examination that the family of P.W. 2 was very poor and incapable of meeting the demands made by the accused. Therefore, the approach adopted by the learned Sessions Judge in discarding the testimony of P.Ws. 2 to 4 with regard to demand made by the accused for dowry both in cash and kind and its acceptance is improper and contrary to the well settled principles of law. The accused has not seriously challenged in the cross-examination of P.Ws. 2 to 4 that the marriage talks were held prior to the marriage. Therefore, there are no reasons for P.Ws. 2 to 4 to depose falsehood with regard to marriage talks and the demands made by accused in cash and kind during such marriage talks. Merely because P.W. 2 is not in a position to produce bank account particulars and also the receipt for having purchased the gold ornaments, her testimony could not have been rejected nor doubted. The incident occurred 4 or 5 years after the marriage. Merely because P.W. 2 is not in a position to produce bank account particulars and also the receipt for having purchased the gold ornaments, her testimony could not have been rejected nor doubted. The incident occurred 4 or 5 years after the marriage. One cannot expect P.W. 2 to preserve the receipts and other documents thinking that on some day in future her daughter would meet an unnatural death and for such an event she should have the evidence to produce. Therefore, mere non-production of receipt for purchase of gold ornaments or the Bank pass book of her deceased husband cannot be a ground to doubt her testimony. Careful examination of evidence of P.Ws. 2 to 4, in our opinion, indicates that it is consistent, cogent and natural. There are no reasons to discard their testimony with regard to demand and acceptance of dowry by accused. Therefore, the learned Sessions Judge is not justified in holding that the charges under Sections 3 and 4 of the D.P. Act is not proved against the accused No. 1. The evidence of P.Ws. 2 to 4 is sufficient to establish the charge under Sections 3 and 4 of the D.P. Act against accused No. 1 beyond reasonable doubt. Therefore, the finding of the learned Sessions Judge that the accused No. 1 was not guilty of the offence under Sections 3 and 4 of the D.P. Act is perverse and illegal and, therefore, it is liable to be set aside. Respondent No. 1 accused No. 1 is liable to be convicted for the aforesaid offences. 8. P.Ws. 2 to 4 have, in their evidence, supported the case of the prosecution for the charge under Section 498A IPC. P.W. 2 in her evidence has stated that after the marriage, deceased lived in Badami Town with her husband, his parents and brother for about 5 to 6 months and thereafter the accused persons started harassing her daughter to bring money from her parental home for doing business. She has further stated that her daughter was informing her about the abuse and assault meted out to her by the accused persons by demanding money. She has further stated that her daughter was informing her about the abuse and assault meted out to her by the accused persons by demanding money. It was also her say that thereafter she alongwith family members went to the house of the accused and advised them not to subject the deceased to cruelty and harassment and in spite of her advice, the accused persons continued to subject the deceased to cruelty and harassment. She has further stated that her daughter informed this fact to her on three or four occasions whenever the deceased came to her parental home or whenever she (P.W. 2) visited the house of the accused. It is her further say that thereafter accused No. 1 brought the deceased to Bangalore where they lived for about six months and she (P.W. 2) came to know from her daughter that in Bangalore also accused No. 1 continued to subject her to cruelty and harassment. This part of the evidence is corroborated by the evidence of P.Ws. 3 and 4 on material particulars. In the cross-examination the suggestions put to them were that there was no such cruelty or harassment meted out to the deceased and that the deceased had not informed them anything with regard to the same. All those suggestions have been denied by P.W. 2. Mere suggestion would not par take the characteristic of substantial evidence. There is no reason for these witnesses to depose falsehood. Of course the independent witnesses have not corroborated the evidence of P.Ws. 2 to 4. However, on that ground, the testimony of P.Ws. 2 to 4 cannot be rejected or denied. P.W. 2 being the mother is a natural witness. It is the normal human conduct of a married daughter that she would inform her mother and other family members who are her blood relatives as to what transpires in the matrimonial home. Therefore, in a case of this nature, it is the close family members alone who could be the natural witnesses. Unless it is shown that the testimony of such close relatives of the deceased is highly improbable and on the face of it, it cannot be accepted, there are no reasons to discard the testimony of such close relatives only on the ground that the they are interested witnesses. Some amount of interestedness would be inherent in such witnesses. Unless it is shown that the testimony of such close relatives of the deceased is highly improbable and on the face of it, it cannot be accepted, there are no reasons to discard the testimony of such close relatives only on the ground that the they are interested witnesses. Some amount of interestedness would be inherent in such witnesses. However, the same cannot be blown out of portion to disbelieve their testimony. The consistent evidence of P.Ws. 2 to 4 would clearly establish that the deceased was subjected to cruelty and harassment by accused No. 1 since the deceased failed to comply with the demand made by accused No, 1 to bring further amount. However, the evidence of P.Ws. 2 to 4 does not clearly indicate that such further demand was made as dowry. On the other hand, the intrinsic evidence on record would indicate that further demand for money was made only by accused No. 1 for the purpose of carrying on business. Under these circumstances, the learned Sessions Judge is justified in holding that there is no satisfactory evidence to establish that the further demand made by accused No. 1 was towards dowry. Therefore, the 3rd important ingredient to constitute offence under Section 304B of IPC is not made out. However reading of the entire judgment under appeal, indicates that the learned Sessions Judge has not considered the question whether the evidence on record would establish the ingredients of offence punishable under Section 498A IPC. To attract the charge under Section 498A IPC cruelty meted out need not be in connection with the dowry. As observed by the Apex Court in Bhaskar Lal Sharma and another vs. Monica, (2009) 10 SCC 604 , the essential ingredients of Section 498A IPC are: “1. A woman must be married. 2. She must be subjected to cruelty. 3. Cruelty must be of the nature of— (i) any wilful conduct as was likely to drive such woman: (a) to commit suicide; (b) cause grave injury or danger to her life, limb, either mental or physical; (ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security. 3. Cruelty must be of the nature of— (i) any wilful conduct as was likely to drive such woman: (a) to commit suicide; (b) cause grave injury or danger to her life, limb, either mental or physical; (ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security. (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand; (iii) woman was subjected to such cruelty by: (1) husband of that woman, or (2) any relative of the husband. For constitution of an offence under Section 498A IPC, therefore, the ingredients thereof must be held to be existing.” 9. The evidence on record would satisfactorily establish that accused No. 1 being the husband, coerced the deceased to bring further money for carrying on business. The deceased could not comply with the said demand and on account of that accused No. 1 subjected her to cruelty and harassment. Therefore, the evidence on record would satisfactorily establish the ingredients of Section 498A IPC. The learned Sessions Judge has completely omitted to consider this aspect of the matter and, therefore, the judgment to that extent is perverse and illegal as such it is liable to be set aside. However, as noticed above, there is no satisfactory evidence to establish the charge under Section 304B IPC as such the judgment of acquittal for the charge under Section 304B IPC deserves to be confirmed. 10. We have heard the learned counsel appearing for respondent No. 1/accused No. 1 regarding sentence. It is noticed that during the trial of the case, accused No. 1 was in judicial custody for about 8 months. The learned counsel pleads for leniency with regard to sentence. 11. The offence under Section 3 of the D.P. Act is punishable with a minimum imprisonment for a period of 5 years and also a minimum fine of Rs. 15,000/- or the amount of the value of such dowry whichever is more. However, proviso vests discretion to the Court to award lesser sentence for adequate and special reasons to be recorded. Similarly for the offence under Section 4 of the D.P. Act, the minimum sentence directed under the statute is six months and fine which may extend to Rs. 10,000/-. However, proviso vests discretion to the Court to award lesser sentence for adequate and special reasons to be recorded. Similarly for the offence under Section 4 of the D.P. Act, the minimum sentence directed under the statute is six months and fine which may extend to Rs. 10,000/-. Discretion is vested in the Court to award a lesser sentence for adequate and special reasons to be recorded in the judgment. The offence under Section 498A IPC is punishable with imprisonment for a term, which may extent to 3 years and also fine. It is noticed that the deceased had left behind a young girl who is now aged about 13 years. It is stated that the girl is now in the care and custody of accused No. 1. He has to look after her and provide her good education and also perform her marriage at appropriate time. The incident occurred about 7 years ago. Keeping in mind, the nature and gravity of the offence for which the accused No. 1 is found guilty, the sentence prescribed under law and in the circumstance of the case, we are of the opinion that there is sufficient reason for awarding a lesser sentence than the minimum provided under Sections 3 and 4 of the D.P. Act. In our opinion, interest of justice would be met if accused No. 1 is sentenced to undergo imprisonment to an over all period of 2 years. 12. In view of the above, the appeal is allowed in parts. The judgment and order dated 6.8.2005 passed by the Additional Sessions Judge, Bangalore in S.C. No. 355/2004, acquitting accused No. 1/respondent No. 1 for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act and under Section 498A IPC is hereby set-aside. Accused No. 1 is convicted for these offences. The judgment acquitting accused for the charge under Section 304B IPC is confirmed. Accused No. 1 is sentenced to undergo Rigorous imprisonment for a period of two years and also to pay fine of Rs 15,000/-, in default to pay fine to undergo rigorous imprisonment for six months for the offence punishable under Section 3 of Dowry Prohibition Act. 13. He is further sentenced to undergo Rigorous Imprisonment for 6 months and to pay fine of Rs. 13. He is further sentenced to undergo Rigorous Imprisonment for 6 months and to pay fine of Rs. 5,000/-, in default to pay fine, to undergo Rigorous Imprisonment for 3 months for the offence punishable under Section 4 of Dowry Prohibition Act. 14. He is further sentenced to undergo imprisonment for a period of 2 years and to pay fine of Rs. 2,000/- for offence punishable under Section 498A IPC, and in default to pay fine to undergo simple imprisonment for 3 months. 15. The substantial sentences are ordered to run concurrently. Accused No. 1 is entitled for set of for the period of custody already undergone, under Section 428 Cr.P.C. 16. Accused No. 1 to surrender himself before the learned Sessions Judge immediately and upon such surrender the learned Sessions Judge shall commit him to prison to serve the balance period of sentence ordered, if the accused failed to surrender, the learned Sessions Judge shall take necessary steps to secure his presence and commit him to prison.