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2012 DIGILAW 617 (KAR)

Raju v. State of Karnataka

2012-08-01

K.N.KESHAVANARAYANA

body2012
JUDGMENT K.N. KESHAVANARAYANA, J.—This appeal by the convicted Accused No. 1 is directed against the judgment of conviction and order of sentence dated 19.10.2005 passed by the Presiding Officer, Fast Track Court-V, Bangalore City, in S.C. No. 559/2004 convicting him for the offences punishable under Sections 498A and 304B of IPC and sentencing him to undergo imprisonment for a period of seven years and to pay fine of Rs. 25,000/-. 2. The deceased in this case is one Shashikala, daughter of P.W. 1-Nagaraju and P.W. 2-Shivamma, who are residents of Vrushabhavathi Nagar, Bidadi Hobli, Ramanagara Taluk. The marriage of the deceased Shashikala with appellant/Accused No. 1 was solemnized on 10.3.2002. After the marriage, the deceased joined her husband and started residing with him in the matrimonial home at No. 3/1, 8th Cross, Ganapathinagar, Hosakerehalli Main, Mysore Road, Bangalore. From out of the wed-lock,3 the deceased gave birth to a female child about one year two months after the marriage. The said Shashikala while staying in the matrimonial home, committed suicide by hanging on 17.4.2004. On receipt of information, P.Ws. 1 and 2 and others came to the matrimonial home of the deceased, saw the deceased lying dead and thereafter P.W. 1 lodged the FIR to the police about the death of his daughter inter alia alleging that during the marriage negotiations, the accused persons had demanded dowry and accepted dowry of Rs. 50,000/- in cash and gold ornaments worth about Rs. 80,000/- and not satisfied with the said dowry, after the marriage, the appellant/accused coerced the deceased to bring further sum of Rs. 50,000/- for buying a motor cycle and also to take another house on mortgage/lease and since his unlawful demand was not complied with, she was subjected to cruelty and harassment, and unable to bear the said cruelty and harassment, she committed suicide by hanging. On the basis of the said report of P.W. 1, the case in Crime No. 195/2004 came to be registered by the jurisdictional police for the offences punishable under Sections. 498-A and 304B of IPC against the husband, mother-in-law and brother-in-law of the deceased. 3. During investigation, the Taluk Executive Magistrate held inquest over the dead body and later the dead body was subjected to post-mortem examination. The Doctor, who conducted post-mortem examination, opined that the death was due to asphyxia as a result of hanging. 498-A and 304B of IPC against the husband, mother-in-law and brother-in-law of the deceased. 3. During investigation, the Taluk Executive Magistrate held inquest over the dead body and later the dead body was subjected to post-mortem examination. The Doctor, who conducted post-mortem examination, opined that the death was due to asphyxia as a result of hanging. During investigation, the Investigating Officer recorded statements of witnesses, apprehended the accused persons and after completing investigation, laid the charge sheet. 4. The accused persons appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them. The prosecution in order to bring home the guilt of the accused persons, examined P.Ws. 1 to 18 and relied on documentary evidence marked as Exs.P1 to P18 and MOs. 1 to 12. During their examination under Section 313 of Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. However, they did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication. 5. After hearing the learned counsel appearing on both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal, acquitted Accused Nos. 2 and 3 of all the charges levelled against them, however, convicted the appellant/Accused No. 1 for the offences punishable under Sections 498A and 304B of IPC. The learned Sessions Judge held that the prosecution has proved beyond reasonable doubt that appellant/Accused No. 1 being the husband of the deceased, after the marriage, subjected her to cruelty and harassment in connection with the demand for dowry on the guise of purchasing a motor cycle and to take a house on mortgage/lease and in that background, the deceased has committed suicide by hanging, therefore, her death was a dowry death within the meaning of Section 304B of IPC. Therefore, the learned Sessions Judge held the appellant/Accused No. 1 guilty of the both the charges levelled against him. Aggrieved by the said judgment of conviction and order of sentence, the appellant/Accused No. 1 is in appeal before this Court. 6. I have heard the learned counsel appearing for the appellant as well as the learned High Court Government Pleader appearing for the Respondent-State and perused the records secured from the trial Court. 7. Aggrieved by the said judgment of conviction and order of sentence, the appellant/Accused No. 1 is in appeal before this Court. 6. I have heard the learned counsel appearing for the appellant as well as the learned High Court Government Pleader appearing for the Respondent-State and perused the records secured from the trial Court. 7. Learned counsel for the appellant contended that the judgment under appeal is highly perverse and illegal inasmuch as the inferences drawn by the learned Sessions Judge are without any basis and such inferences have been drawn on surmises and conjectures. He further contended that in the absence of any charge for the offences punishable under Sections 3 and 4 of the D.P. Act, the evidence of the material witnesses with regard to pre-marriage negotiations and the alleged demands for dowry either in cash or in kind and its fulfillment were all inconsequential and had no bearing on the case and in spite of the same, the learned Sessions Judge has proceeded to appreciate those evidences and has recorded a finding that the appellant/accused has demanded and accepted dowry. He further contended that the evidence of P.Ws. 1 to 3 with regard to the alleged further demand said to have been made by the appellant/accused is not consistent and cogent, as such, no reliance could be placed on the same. In this regard, learned counsel contended that, according to P.W. 1-father of the deceased, appellant/Accused No. 1 had coerced the deceased to bring a sum of Rs. 20,000/- or Rs. 50,000/- for buying a motor cycle, whereas according to P.W. 2-mother and P.W. 3-brother of the deceased, the demand was for the purposing of taking another house on mortgage/lease, thus, there was no consistency. He also drew the attention of the Court that P.Ws. 1 to 3 have admitted in their evidence that even prior to the marriage, the appellant/accused was possessing a motor cycle/scooter and the house in which he was residing had been taken on mortgage/lease and they continued to live there in that house till the death of the deceased. Therefore, there was no reason or occasion for the accused to make any such demand. Under these circumstances, learned counsel contended that the learned Sessions Judge has committed serious error in accepting the evidence of P.Ws. 1 to 3 with regard to the alleged further demand made by the accused. Therefore, there was no reason or occasion for the accused to make any such demand. Under these circumstances, learned counsel contended that the learned Sessions Judge has committed serious error in accepting the evidence of P.Ws. 1 to 3 with regard to the alleged further demand made by the accused. He further contended that the learned Sessions Judge has not properly appreciated the evidence of P.W. 18, who is the niece of the appellant and who has explained as to what transpired on the date of the incident. He contended that the learned Sessions Judge has erroneously drawn inference on the basis of evidence of P.W. 18 that the appellant/Accused No. 1 since did not make any effort to prevent the deceased from committing suicide, it has to be presumed that he was subjecting her to cruelty for further money. Under these circumstances, learned counsel contended that the findings recorded by the learned Sessions Judge was not in accordance with the evidence on record, as such, the judgment suffers from serious infirmity warranting interference by this Court. 8. On the other hand, learned High Court Government Pleader sought to justify the judgment under appeal and contended that the learned Sessions Judge on proper appreciation of the oral and documentary evidence has recorded the finding of guilt against the appellant and since the findings recorded by the Court below are sound and reasonable, regard being had to the evidence on record, the judgment does not suffer from any perversity or illegality warranting interference by this Court. 9. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for my consideration are,— (i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? (ii) Whether the learned Sessions Judge is justified in convicting the appellant/Accused No. 1 for the offences punishable under Sections 498A and 304B of IPC? 10. I have bestowed my anxious considerations to the submissions made on both sides. 11. As noticed supra, there is no dispute with regard to the marriage of the deceased with appellant/Accused No. 1 having been solemnized on 10.3.2002 and the deceased committing suicide by hanging on 17.4.2004 in the matrimonial home. 12. Every death of a married woman in an unnatural circumstance cannot be termed as dowry death. 11. As noticed supra, there is no dispute with regard to the marriage of the deceased with appellant/Accused No. 1 having been solemnized on 10.3.2002 and the deceased committing suicide by hanging on 17.4.2004 in the matrimonial home. 12. Every death of a married woman in an unnatural circumstance cannot be termed as dowry death. To prove that the death of a married woman was a dowry death, the prosecution will have to prove three important ingredients, namely,— (i) the death has occurred within seven years from the date of the marriage; (ii) the death was due to burns or otherwise than under natural circumstances; and (iii) soon before the death, the married woman had been subjected to cruelty or harassment by her husband and/or his relatives and the cruelty or harassment must be in relation to or in connection with the demand for dowry. 13. In the case on hand, the first two ingredients are proved, as there is no dispute. The death of Shashikala occurred within seven years from the date of the marriage and it was otherwise than under normal circumstances because she has died by hanging herself. With regard to the third ingredient, the prosecution has placed strong reliance on the evidence of P.Ws. 1 and 2, who are the parents and P.W. 3-brother of the deceased. The prosecution though examined the neighbourers of the accused as P.Ws. 7 to 9, none of them supported the case of the prosecution. On the other hand, P.Ws. 7 to 9, have stated that the deceased and Accused No. 1 were cordial and they were living happily and they have no knowledge about any quarrel between the couple. According to them, at no point of time, the deceased had revealed to them about she being subjected to any kind of cruelty or harassment. Obviously, P.Ws. 7 to 9 being the neighbourers of the accused appears to be highly reluctant to depose against the accused. Nevertheless, there are no circumstances to indicate that these witnesses have deliberately deposed falsehood. Merely on the ground that during the investigation they had made certain statements before the Investigating Officer under Section 161 of Cr.P.C., it cannot be said that, they have deliberately deposed falsehood. The statements under Section 161 of Cr.P.C. is only to discredit the witness. No doubt, the Investigating Officer in his evidence has stated that during investigation, he examined P.Ws. The statements under Section 161 of Cr.P.C. is only to discredit the witness. No doubt, the Investigating Officer in his evidence has stated that during investigation, he examined P.Ws. 7 to 9 and they made statements before him. However, that by itself is not sufficient to come to the conclusion that the witnesses have deposed deliberately falsehood. Nevertheless, the evidence of P.Ws. 7 to 9 is of no help to the prosecution in proving the alleged cruelty or harassment meted-out to the deceased by the appellant. The trial Court referring to the evidence of P.Ws. 1 to 3, has come to the conclusion that the prosecution has proved the demand by the appellant for further money as dowry and subjecting the deceased to cruelty and harassment, since the said demand was not fulfilled. Therefore, I have carefully scrutinized the evidence of P.Ws. 1 to 3. 14. Careful reading of the evidence P.Ws. 1 to 3, in my opinion, does not satisfactorily establish the alleged demand for further money by the appellant/accused and he subjecting the deceased to cruelty or harassment. As rightly argued by the learned counsel for the appellant, the evidence of P.Ws. 1 to 3 in this regard is not consistent. P.W. 1 in his examination-in-chief has stated that for six months after the marriage the couple lived happily and after about one year two months of the marriage, the deceased gave birth to a female child. He has further stated that Accused No. 1 was coercing the deceased to bring a sum of Rs. 20,000/- or Rs. 50,000/- and also to bring a motor cycle and this was being informed to him by his daughter whenever she was to call on him through phone once in 15 days or a month. In the cross-examination, P.W. 1 has admitted that Accused No. 1 was going for work on the motor cycle owned by him. P.W. 2 in her examination-in-chief has stated that after the marriage, the deceased and Accused No. 1 started residing in a house situated in Ganapathinagara, which had been taken on mortgage/lease. According to P.W. 2, for about one year after the marriage, the couple lived happily and thereafter Accused No. 1 started coercing the deceased to bring money for taking another house on mortgage/lease and this was informed to her by her daughter on two occasions over phone. According to P.W. 2, for about one year after the marriage, the couple lived happily and thereafter Accused No. 1 started coercing the deceased to bring money for taking another house on mortgage/lease and this was informed to her by her daughter on two occasions over phone. It is her further say in the examination-in-chief that the mother-in-law and brother-in-law of the deceased were insisting her to bring money for purchase of a motor bike. In the cross-examination, P.W. 2 has admitted that even prior to the marriage, the accused were residing in the same house taken on mortgage/lease and they continued to live therein. She has also admitted in the cross-examination that Accused No. 1 owned a motor cycle. P.W. 3 in examination-in-chief has stated that after six months of the marriage, Accused No. 1 started coercing the deceased to bring money for changing the house and this was being informed to him by his sister. In the cross-examination it was elicited from P.W. 3 that Accused No. 1 had taken the said house on mortgage even earlier to the marriage and they continued to stay in that house. Thus, there is no consistency in the evidence of P.Ws. 1 to 3. According to P.W. 1, the alleged demand was for motor cycle, while according to P.Ws. 2 and 3, the demand of money was for taking another house on mortgage/lease. 15. As noticed supra, P.Ws. 1 to 3 have admitted the fact of Accused No. 1 owning a motor cycle and the house in which he was residing had been taken on mortgage/lease. Therefore, the evidence of P.Ws. 1 to 3 that, Accused No. 1 demanded money for purchase of motor cycle or for taking a house on mortgage/lease does not inspire confidence of the Court. When appellant/Accused No. 1 already owned the motor cycle and was residing in the house taken on mortgage/lease, there was no reason for him to demand for money to buy a motor cycle or to take a house on mortgage/lease. It is in the evidence of P.Ws. 1 to 3 that Accused No. 1 and the deceased used to come to their house frequently once in a fortnight. Even according to them, for nearly one year after the marriage, they were cordial. It is in the evidence of P.Ws. 1 to 3 that Accused No. 1 and the deceased used to come to their house frequently once in a fortnight. Even according to them, for nearly one year after the marriage, they were cordial. It is about one year two months after the marriage, the deceased gave birth to a female child and at that time, it is reasonable to infer that the deceased was in the parental home at least for about six months after the delivery of the child. The deceased died within two years from the date of the marriage. From the evidence of P.Ws. 1 to 3, it is manifestly clear that nearly for about 1½ years after the marriage, the couple lived happily and there was no bickerings between them. The evidence of P.Ws. 1 to 3 does not satisfactorily establish that in the last six months prior to the death of the deceased, she had been in any way subjected to cruelty or harassment in relation to or in connection with the demand for dowry. Perusal of the judgment under appeal indicates that the learned Sessions Judge has in great detail discussed the evidence of P.Ws. 1 to 5 with regard to the pre-marriage negotiations, demands for dowry and its fulfillment at the time of marriage. The learned Sessions Judge has also come to the conclusion that a sum of Rs. 50,000/- paid towards the marriage expenses was also nothing but a dowry. In my considered opinion, in the absence of any charge for the offences punishable under Sections 3 and 4 of the D.P. Act, the question as to whether there was a demand for dowry and was it fulfilled, did not arise for consideration. The accused was not charge-sheeted for the offences punishable under Sections 3 and 4 of the D.P. Act nor the trial Court framed charge for those offences. Therefore, there was no need for the trial Court to have considered the evidence of the witnesses in that regard nor there was any reason for the trial Court to have recorded a finding as to whether there was any demand for dowry by the accused and whether the accused accepted the dowry either in cash or in kind. Therefore, there was no need for the trial Court to have considered the evidence of the witnesses in that regard nor there was any reason for the trial Court to have recorded a finding as to whether there was any demand for dowry by the accused and whether the accused accepted the dowry either in cash or in kind. Having regard to the fact that the accused was charged only for the offences punishable under Sections 498A and 304B of IPC, the trial Court was required to confine its finding as to the ingredients constituting those offences. 16. Having regard to the nature of the evidence of P.Ws. 1 to 3 and the circumstances brought-out on record, I am of the considered opinion that the prosecution has not been able to establish satisfactorily the fact of the deceased having been subjected to cruelty or harassment in relation to or in connection with the demand for dowry and the deceased having committed suicide in that background. No doubt, Section 113(B) of the Indian Evidence Act provides for a presumption with regard to dowry death of a married woman if the prosecution is able to establish that soon before the death of a married woman, she had been subjected to cruelty or harassment in connection with or in relation to demand for dowry. Initial burden of establishing the said fact is on the prosecution. It is only upon discharge of this initial burden, the presumption can be drawn and burden shifts on to the accused to rebut the presumption. In the case on hand, the evidence placed by the prosecution is not sufficient to discharge the initial burden rested on the prosecution. 17. The evidence of P.W. 18 indicates as to what transpired in the matrimonial home of the deceased on the fateful day. In the case on hand, the evidence placed by the prosecution is not sufficient to discharge the initial burden rested on the prosecution. 17. The evidence of P.W. 18 indicates as to what transpired in the matrimonial home of the deceased on the fateful day. No doubt, P.W. 18 is the niece of Accused No. 1.19 According to her, on that day, she had come to the house of his maternal uncle, namely, Accused No. 1 and in the evening Accused No. 1 came home from the work and at that time, he received a phone call on his mobile and while he was talking with the caller, the deceased snatched the mobile hand-set, on account of which, Accused No. 1 was annoyed and he scolded the deceased and at that juncture the deceased went inside the bedroom, bolted the door from inside and in spite of tapping the door, she did not respond and within a short time, she committed suicide by hanging. The learned Sessions Judge accepting the evidence of P.W. 18, proceeded to hold that this evidence of P.W. 18 indicates the presence of Accused No. 1 in the house and the narration made by her indicates that Accused No. 1 did not make any efforts to prevent the deceased from committing suicide, therefore, this conduct of the accused would clearly indicates that he was forcing the deceased to bring dowry amount from the parents of the deceased on the alleged date of incident also. I fail to understand as to how the learned Sessions Judge could draw such an inference from the evidence of P.W. 18. If the evidence of P.W. 18 is accepted, there is nothing to indicate that at that time Accused No. 1 forced the deceased to bring money from her parents on that day. If according to P.W. 18, the deceased suddenly went inside the bedroom and bolted the door from inside, how could Accused No. 1 make any efforts to save the deceased. On the other hand, P.W. 18 has stated that Accused No. 1 tapped the door, but, there was no response from inside. When the deceased was inside the bedroom bolting the door from inside, Accused No. 1 could not have done anything. It is not forthcoming from the evidence of P.W. 18 that Accused No. 1 had knowledge of deceased committing suicide inside the bedroom. When the deceased was inside the bedroom bolting the door from inside, Accused No. 1 could not have done anything. It is not forthcoming from the evidence of P.W. 18 that Accused No. 1 had knowledge of deceased committing suicide inside the bedroom. If Accused No. 1 had knowledge or he had witnessed the attempt made by the deceased to commit suicide, in such event, if he had not made any efforts to save her life, an inference could have been drawn about the conduct of Accused No. 1. However, the evidence of P.W. 18 indicates that the deceased suddenly went inside the bedroom and locked the door from inside. Therefore, it cannot be said that Accused No. 1 had any knowledge as to what the deceased going to do inside the bedroom. Under these circumstances, the learned Sessions Judge is not justified in drawing an inference about the conduct of Accused No. 1 in not saving the deceased. Therefore, the inferences drawn in Paras 67 and 76 of the judgment under appeal is without any basis and they are perverse. 18. Having regard to the nature of the evidence on record, I am of the considered opinion that the prosecution has not proved that the deceased had been subjected to cruelty or harassment in connection with or in relation to demand for dowry. Therefore, the death of the deceased cannot be termed as dowry death within the meaning of Section 304B of IPC nor the circumstances brought-out on record indicate that Accused No. 1 had in any way abetted commission of suicide by the deceased attracting the offence punishable under Section 306 of IPC. Similarly, the evidence on record does not satisfactorily establish that Accused No. 1 had in any way subjected the deceased to cruelty or harassment within the meaning of Section 498A of IPC. 19. Reading of the evidence of P.W. 18 indicates that the deceased was hypersensitive lady and annoyed by the scolding of Accused No. 1 when the deceased snatched the mobile hand-set from him, she appears to have committed suicide. For a trivial reason the deceased appears to have taken a drastic step of ending her life by leaving her young child. However, the evidence placed by the prosecution does not satisfactorily establish the guilt of the accused for the offences punishable under Sections 498A and 304B of IPC. For a trivial reason the deceased appears to have taken a drastic step of ending her life by leaving her young child. However, the evidence placed by the prosecution does not satisfactorily establish the guilt of the accused for the offences punishable under Sections 498A and 304B of IPC. Therefore, the judgment of the learned Sessions Judge suffers from infirmity, perversity and illegality warranting interference by this Court. In this view of the matter, the appeal deserves to be allowed. 20. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 19.10.2005 passed by the Presiding Officer, Fast Track Court-V, Bangalore City in S.C. No. 559/2004 convicting the appellant/Accused No. 1 for the offences punishable under Sections 498A and 304B of IPC is hereby set aside. Accused No. 1 is acquitted of the said charges. The bail and surety bonds executed by the appellant/Accused No. 1 are ordered to be discharged. Fine amount, if any, deposited by the appellant is ordered to be refunded to him.