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2011 DIGILAW 856 (KAR)

State of Karnataka v. Pradeep

2011-08-25

ARALI NAGARAJ, H.BILLAPPA

body2011
JUDGMENT H. BILLAPPA, J.—This appeal by the State is directed against the Judgment and Order dated 13.9.2006 passed by the District & Sessions Judge, Karwar in Sessions Case No. 43/2002. 2. By the impugned Judgment and Order, the learned Sessions Judge has acquitted the accused of the offences punishable under Sections 302, 304B, 498A of I.P.C and Sections 3 and 4 of the Dowry Prohibition Act. 3. Aggrieved by that the appellant-State has filed this appeal. 4. Briefly stated the case of the prosecution is as follows: (i) That, the marriage of the deceased Usha was performed with the accused on 9.11.2000. The accused demanded cash of Rs. 4,50,000/- as dowry. It was agreed to give cash of Rs. 2,50,000/- gold chain weighing 12 grams, finger ring weighing 6 grams, 15 Pawan gold ornaments. The parents of the deceased gave Rs. 2,00,000/- in the form of D.D. and Rs. 50,000/- cash and gold jewelry as dowry. Usha became pregnant. She came to her parent’s house for delivery. After delivery, the accused demanded Rs. 60,000/- to buy the jeep. The complainant gave Rs. 60,000/-, Thereafter, the accused demanded Rs. 1,00,000/- to buy the lorry and Rs. 1,00,000/- to buy the house. The complainant did not. fulfill the demand. Therefore, the accused assaulted the deceased and kicked her abusing in filthy language which caused physical and mental harassment. 5. On 30.8.2002, at about 11.30 p.m. when the deceased Usha and accused were on the terrace, the accused picked up quarrel with the deceased and pressed her neck forcibly. The deceased sustained injury to her neck. She was taken to various hospitals in Dandeli. She died on 31.3.2002, at about 12.30 hours. Thereafter, the complaint has been lodged as per Ex.P35 and a case in Crime No. 29/2002 of Dandeli Town Police-Station has been registered for the offences punishable under Section 302, 304B, 498A of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. 6. After investigation, charge sheet has been filed against the accused for the offences punishable under Sections 302, 304B, 498A of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. 7. The Trial Court on appreciation of the evidence on record has acquitted the accused of the offences punishable under sections 302, 304B, 498A of IPC and sections 3 and 4 of D.P Act. 8. Aggrieved by that the appellant-State has filed this appeal. 9. 7. The Trial Court on appreciation of the evidence on record has acquitted the accused of the offences punishable under sections 302, 304B, 498A of IPC and sections 3 and 4 of D.P Act. 8. Aggrieved by that the appellant-State has filed this appeal. 9. The learned Addl. SPP submitted that there is no evidence on record for the offences punishable under Sections 304-B, 498-A of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. But there is evidence on record for the offence punishable under Section 302 of I.P.C. Therefore, the Trial Court was not justified in acquitting the accused for the offence punishable under Section 302 of IPC. He also submitted that the evidence of P.Ws. 13, 14, 18, 19 and 20 and exhibits P6, 12 and 14 clearly establish the guilt of the accused and, therefore, the Trial Court was not justified in acquitting the accused for the offence punishable under section 302 IPC. He, therefore, submitted that the impugned Judgment and Order cannot be sustained in law, insofar as the offence punishable under Section 302 of I.P.C, is concerned. 10. As against this, the learned counsel for the respondent-accused submitted that the Trial Court on proper consideration of the material on record has rightly acquitted the accused and, therefore, the impugned Judgment and Order does not call for interference. He also submitted that the evidence of P.Ws. 13, 14, 15, 18 to 20 and exhibits P6, 12 and 14 do not establish the guilt of the accused and, therefore, the Trial Court was justified in acquitting the accused. He also submitted that the evidence of P.Ws. 30 and 31 dearly show that the deceased has died on account of suicide and, therefore, the Trial Court was justified in acquitting the accused. He, therefore, submitted that the impugned Judgment and Order does not call for any interference. 11. We have carefully considered the submissions made by the learned Addl SPP and also the learned counsel for the respondent-accused. 12. The point that arises for our consideration is: Whether the Trial Court was justified in acquitting the accused of the offence punishable under section 302 of IPC? 13. The prosecution has examined in all 42 witnesses and Exs.P-1 to 40 and M.Os. 1 to 39 have been marked. 14. The death is homicidal is clear from Exs. P6, 12, 14 and the evidence of Doctors P.Ws. 13. The prosecution has examined in all 42 witnesses and Exs.P-1 to 40 and M.Os. 1 to 39 have been marked. 14. The death is homicidal is clear from Exs. P6, 12, 14 and the evidence of Doctors P.Ws. 13 and 14. Ex.P12 is the post mortem report. It reveals the following injuries on the deceased: 1 Antemortem abrasion 1/8 x 1/8, two in number. 1? apart on dorsum of left hand 1 below wrist joint reddish colour. 2. Two abrasion on left cubical foresee 1/8 x 1/8 each 1 apart reddish colour. 3. Antemortem bruise 1 x 1/4 at right sub-mandibular region horizontally placed reddish colour, 2½ away from midline of neck on right 4. Antemortem bruise 1/2 x 1/8 horizontally placed over thyroid cartilage region left side reddish colour. 5. Antemortem bruise 1/2 x 1/8, 1/2 below the injury No. 4 reddish colour. 6. Antemortem bruise 1/2 x 1/8, 1/2 below and medial to injury No. 5 reddish colour. 7. Antemortem bruise 1/8 x 1/8 in the midline of neck just below thyroid cartilage reddish colour. The cause of death is due to Asphyxia as a result of throttling. 15. Ex. P14 is the opinion of the Doctor. It shows that the cause of death was due to asphyxia as a result of throttling. P.Ws. 13 and 14 are the Doctors who have conducted the post mortem. P.W. 13 has deposed that the deceased had sustained the injuries mentioned in the post mortem report and has opined that the cause of death was due to asphyxia as a result of throttling. 16. P.W. 14 has deposed that on 31.3.2002 the dead body of Smt. Usha was sent by Tahsildar, Haliyal and he conducted the post mortem along with P.W. 13 and he has signed Ex.P12. Subsequently, he received letter dated 24.6.2002 to furnish his opinion. Accordingly, through letter dated 25.8.2002, i.e., Ex.P14 he furnished his opinion stating that it is possible for the deceased to have survived after throttling and died later due to asphyxia consequent upon external and internal injuries sustained to the neck as a result of throttling. 17. Ex.P6 is the inquest report. The inquest is conducted by P.W. 39. The inquest report shows that the deceased had sustained injuries on the right side of her neck and also in the middle and there were pressing marks. From the evidence of P.Ws. 17. Ex.P6 is the inquest report. The inquest is conducted by P.W. 39. The inquest report shows that the deceased had sustained injuries on the right side of her neck and also in the middle and there were pressing marks. From the evidence of P.Ws. 13, 14, 39 and Exs.P.6, 12 and 14, it is clear that the death was due to throttling and homicidal. 18. The prosecution has examined P.Ws. 7, 8, 9, 29 to 32 and 34 to 38 to prove the ill treatment, demand and taking of dowry. They have turned hostile. Their evidence is not useful in any way. Therefore, the learned Addl. SPP submitted that there is no evidence on record for the offences punishable under Sections 304-B, 498-A of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. 19. Insofar as the offence punishable under Section 302 of I.P.C. is concerned, we have the evidence of P.Ws. 13, 14, 18, 19, 20 and exhibits P.6., 12 and 14. 20. P.W. 18 is the Medical Officer. He has deposed that on 30.8.2002 at about 11.30 p.m., the accused telephoned him requesting him to come immediately since his wife was unconscious. When he asked the reason the accused repeated his request. Immediately, P.W. 18 went to the house of the accused on his motor cycle. The accused was standing in front of his house. When P.W. 18 asked him about the patient, the accused told him that she is in malige mane. P.W. 18 and the accused went there. P.W. 18 examined the patient. The patient was finding it difficult in breathing. She did not speak. P.W. 18 informed the accused that he cannot give treatment and asked the accused to admit her in any hospital. P.W. 18 asked the accused regarding the cause. The accused told him that he had quarreled with his wife. P.W. 18 noticed some injuries on the neck and chin. Immediately P.W. 18 telephoned to P.W. 19 and informed him that he is admitting a patient who is finding it difficult in breathing. P.W. 19 informed P.W. 18to take the patient to his house. Accordingly, P.W. 18 took the patient in a jeep to the house of P.W. 19 along with the accused and CW.30. P.W. 19 examined the patient in the jeep itself. P.W. 19 informed P.W. 18to take the patient to his house. Accordingly, P.W. 18 took the patient in a jeep to the house of P.W. 19 along with the accused and CW.30. P.W. 19 examined the patient in the jeep itself. P.W. 19 directed P.W. 18 to admit the patient in the Government Hospital as the deceased was gasping and there were marks on the neck and chin. Thereafter, P.W. 18 went to his house. He was of the impression that the patient was attempted on her life by throttling. 21. P.W. 19 is a Doctor practising at Dandeli. He has deposed that on 30.3.2002, at about 11.30 p.m. P.W. 18 telephoned to him that he is bringing a patient who is gasping. P.W. 19 informed P.W. 18 to bring the patient to his house. Accordingly, the patient, i.e., deceased Usha was taken in a jeep by P.W. 18, the accused and two others P.W. 19 examined the patient in the jeep. Since the condition of the patient was serious and it was a medico legal case and P.W. 1.8 informed that there was quarrel between the patient and the accused P.W. 19 advised them, to take to Government Hospital and they went away. 22. P.W. 20 is the Medical Superintendent. He has deposed that on 31.3.2002 at about 12.10 a.m., CW.30 the accused and two others brought a lady to his house. CW.30 informed P.W. 20 that the lady is Usha and she is the wife of his brother Pradeep, i.e., the accused. He also informed that she is suffering from asphyxia. P.W. 20 examined the patient. The patient was extremely serious and she was gasping. She was restless, her eyes were closed, she was clinching her fists and her nighty was wet. P.W. 20 observed wound on her neck on right side and middle. She had injuries on her left hand. P.W. 20 also observed pressure marks of light bluish colour on her neck. On enquiry, CW.30 told that there was quarrel between the husband and wife. Immediately, P.W. 20 administered verify in injection for breathing difficulty and asked them to shift the patient to Government Hospital as it was a medicolegal case. CW.30 the accused and the other informed P.W. 20 that they will not go to Government Hospital but they will shift to Patil’s Nursing Home. Immediately, P.W. 20 administered verify in injection for breathing difficulty and asked them to shift the patient to Government Hospital as it was a medicolegal case. CW.30 the accused and the other informed P.W. 20 that they will not go to Government Hospital but they will shift to Patil’s Nursing Home. The patient was shifted to Patil Nursing Home in a jeep. After 10 minutes, P.W. 20 received a phone call from P.W. 6 regarding admission of the patient who was very serious. P.W. 20 informed P.W. 6 that he is reaching the hospital in a short time and to give betnesol injection which is a life saving drug. When P.W. 20 was about to visit the hospital, CW.30 and the other took the patient to the house of P.W. 20 at about 12.30 a.m. P.W. 20 saw the patient and declared that she was dead. P.W. 20 has opined that the death may be due to throttling. 23. The evidence of P.Ws. 18, 19 and 20 clearly show that the deceased had sustained injuries on her neck and chin and they were serious in nature. The deceased has died due to throttling. There was quarrel between the accused and the deceased. In the course of quarrel the incident has occurred. The conduct of the accused shows that immediately after the incident he has telephoned to P.W. 18 and along with him he has taken the deceased to P.W. 19. The evidence of P.W. 20 shows when the deceased was taken to hospital she was gasping and still alive. Therefore, in our considered view, the incident has occurred in the heat of passion in a sudden quarrel and it falls under Exception-4 to Section 300 of IPC and punishable under Section 304 Part II of IPC. Therefore, we hold the accused guilty of the offence punishable under Section 304 Part II of IPC. 24. There is no evidence on record for the offences punishable under Section 498-A, 304-B and Sections 3 and 4 of the Dowry Prohibition Act. 25. The Trial Court was justified in acquitting the accused for the offences punishable under Sections 498-A, 304-B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act but, it was not justified in acquitting the accused for the offence punishable under Section 302 of IPC. The Trial Court has failed to consider the evidence on record in proper perspective. The Trial Court has failed to consider the evidence on record in proper perspective. The evidence on record clearly establishes the guilt of the accused for the offence punishable under section 304 part II of IPC. Therefore, we hold the accused guilty of the offence punishable Section 304 part II of IPC. 26. Accordingly, we allow the appeal in part and the impugned Judgment and Order passed by the Sessions Judge, Karwar, in S.C. No. 43/2002 is hereby set aside insofar as the offence punishable under Section 302 of I.P.C is concerned. We hold the accused guilty of the offence punishable under Section 304 part II of I.P.C. and convict him for the said offence. 27. The acquittal of the accused for the offences punishable under Sections 498A and 304B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act stands confirmed. 28. Heard the learned Addl. SPP and the learned counsel for the accused regarding sentence. 29. The learned Addl. SPP submitted that the maximum sentence permissible under law for the offence punishable under Section 304 part. II of I.P.C. may be imposed. 30. As against this, the learned counsel for the respondent-accused submitted that the accused is a businessman and has a small child of 8 year old and the accused was acquitted in the year 2006 and, therefore, lenient view may be taken. 31. Having regard to the circumstances of the case and keeping in view that the accused has a small child of 8 year old and the accused was acquitted in the year 2006, we consider it proper to impose sentence of 9 months R.I. and fine of Rs. 2,00,000/- for the offence punishable under Section 304 part II of I.P.C. with default sentence. 32. Accordingly, the respondent-accused is sentenced to undergo R.I. for a period of 9 months and to pay a fine of Rs. 2,00,000/- and in default of payment of fine, to undergo R.I. for a period of six months for the offence punishable under section. 304 part II IPC. 33. The respondent-accused shall deposit the fine amount within six weeks from today with the Trial Court. After the fine amount is deposited, the Trial Court shall cause a sum of Rs. 2,00,000/- and in default of payment of fine, to undergo R.I. for a period of six months for the offence punishable under section. 304 part II IPC. 33. The respondent-accused shall deposit the fine amount within six weeks from today with the Trial Court. After the fine amount is deposited, the Trial Court shall cause a sum of Rs. 1,90,000/- to be deposited in any Nationalised Bank, in the name of the minor son of the accused, i.e., Athmik Pradeep Shetti, for the entire period of his minority which shall be ascertained by the Trial Court on the basis of the date of Birth Certificate or Birth Extract and the original deposit receipt shall be kept in the safe custody of the Trial Court and photo attested copy thereof shall be furnished to the accused. The Trial Court shall return the original deposit receipt to the son of the accused after he attains majority. The Bank shall be directed that the amount of deposit or interest accrued thereon shall not be permitted to be withdrawn by the accused and no loan shall be permitted to be raised by the accused and the said amount shall be paid to the minor son of the accused after he attains majority. 34. The respondent-accused shall be entitled for the benefit of set-off under section 428 of Cr.P.C. 35. The respondent-accused shall surrender before the Trial Court within three weeks from today to serve the sentence. If the respondent-accused fails to surrender, the Trial Court shall take him to custody to serve the sentence. 36. Send back the LCR forthwith.