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2013 DIGILAW 121 (KAR)

SANTHOSH S/O MARUTHI v. STATE OF KARNATAKA

2013-01-31

ANAND BYRAREDDY

body2013
JUDGMENT ANAND BYRAREDDY, J.-Heard th learned Counsel for the appellant and the learned Government Pleader for the respondent. 2. The appellant is in appeal challenging the judgment of the Court below, whereby the appellant has been convicted for the offences punishable under Sections 304B, 498A and 306 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (Hereinafter referred to as the 'DP Act', for brevity). 3. The trial Court has convicted the accused-appellant to undergo rigorous imprisonment for a period of 7 years for the offence punishable under Section 304B of the IPC; rigorous imprisonment for a period of 2 years for the offence punishable under Section 306 of the IPC and to pay a fine of Rs. 1,000/-; rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 498A of the IPC and to pay a fine of Rs. 1,000/-; rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 15,000/- for the offence punishable under Section 3 of the DP Act and rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 10,000/- for the offence punishable under Section 4 of the DP Act. All the sentences were to run concurrently. 4. The facts leading up this case are as follows: The appellant was the husband of one Lakshmi. They were married on 20.6.2005 at Sugnathana village, Basavakalyan Taluk, Bidar District. It is stated that on 29.11.2005, Lakshmi had allegedly consumed insecticide and it is claimed that the appellant had sought to rush her to a hospital in a hired vehicle along with other villagers, but she had succumbed on the way to the hospital and therefore her dead body was brought back to the village. The Police are said to have been informed of the incident and the Police had reached the spot and were investigating the cause of death. It is thereafter that the father of the deceased along with other witnesses, had come to the village of the appellant and thereafter had lodged a written complaint to the Police Sub-Inspector, who was at the spot. It is thereafter that the father of the deceased along with other witnesses, had come to the village of the appellant and thereafter had lodged a written complaint to the Police Sub-Inspector, who was at the spot. The Police Sub-Inspector is said to have returned to the Police Station and thereafter registered a case in Crime No. 106/2005 for the offence punishable under Section 304B read with Section 34 of the IPC. 5. The appellant was earlier married to one Mandodari and he had divorced her and thereafter married the deceased. It was alleged that the appellant had demanded a dowry and it was, after negotiation, settled at Rs. 71,000/- and the father-in-law of the appellant was also to provide 5 grams of gold. In terms of that arrangement, a sum of Rs. 51,000/- and 5 grams of gold was said to have been paid to the appellant about five days prior to the marriage and another sum of Rs. 20,000/- was paid immediately after the marriage. It is further alleged that the appellant not being satisfied with the amount paid, started demanding more dowry and since the deceased was not in a position to provide any more money, there was constant harassment and ill-treatment by the appellant and other family members and it is on account of such unbearable cruelty and harassment that it is claimed that the deceased had consumed insecticide and died. It transpires that the appellant's parents were arrested on 30.11.2005 and the appellant himself was arrested on 2.12.2005. After further investigation, the matter was referred to the Corps of detectives (Hereinafter referred to as the 'COD', for brevity). The COD had also conducted further investigation and thereafter filed a charge-sheet against the appellant and his parents. The substantive offence being triable by a Court of Sessions, the case was committed to the Sessions Court and made over to the jurisdictional Fast-track Court. On the charges being framed, the appellant and his parents pleaded not guilty and claimed to be tried. During the trial, the appellant's mother died and therefore, the charge against her stood abated. 6. The prosecution had examined 32 witnesses and marked Exhibits P.1 to P. 19 as well as Material Objects Mos.1 to 21 and on behalf of the accused, Exhibits D.1 to D.4 were marked. During the trial, the appellant's mother died and therefore, the charge against her stood abated. 6. The prosecution had examined 32 witnesses and marked Exhibits P.1 to P. 19 as well as Material Objects Mos.1 to 21 and on behalf of the accused, Exhibits D.1 to D.4 were marked. On the basis of the said evidence and the rival contentions, the Court below has framed the following point for consideration: (1) Whether prosecution proves beyond reasonable doubt that the accused have committed an alleged offence punishable under Sections 498A, 304B, 306 read with 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act? (2) What Order? The Court below answered the above point in the affirmative against accused No. 1 and having convicted the accused as aforesaid, the present appeal is filed. 7. The learned Counsel for the appellant would take this Court through the record and though not raised as a ground in the Memorandum of Appeal, would contend that there is a serious infirmity in the manner in which the complaint has been registered and the unexplained circumstance that even before the complaint was lodged, which was lodged at 4.30 p.m., after PW.1 came to the spot, the police were already at the scene along with the Tahsildar and PWs. 2, 4 and other witnesses, leads to a presumption that the Police had received the information much prior to the complaint being handed over to the Sub-Inspector of Police and the absence of the particulars of the information and the informant, on the basis of which, the Police had initiated the inquiry, results in a serious prejudice to the accused in not being furnished such information. It could very well have tilted the circumstance in favour of the accused insofar as the prosecution being in a position to establish its case at all. The fact that there was an earlier information to the Police as well as the Tahsildar is evident from the evidence of the several witnesses, including PW.29, who was the Sub-Inspector of Police and the Tahsildar, PW.30 and there is no explanation forthcoming as to how this information was conveyed to the Police and by whom and what was the information gathered by the Police till such time that the complaint was handed over by PW.1 to PW.29. This is a serious lacuna and the appellant did not have the opportunity of testing the veracity of the information furnished in the first instance. The suppression of the same causes serious prejudice and would vitiate the entire proceedings. It is nextly pointed out that there were two set of witnesses, in that, PWs.1 to 6 on the one hand and PWs.7 to 15 on the other. PWs. 7 to 14 were all neighbourers of the appellant, who had all turned hostile and did not support the case of the prosecution. Insofar as PWs. 1 to 6 are concerned, those witnesses apart from PWs.1, 2 and 4, who have improved, especially, PW.1, who has improved on his complaint, in that, though in his complaint, there is no mention of any demand for dowry prior to the marriage or that there was a balance amount remaining at the time of the marriage and which was paid later or the fact that there was a constant demand for dowry after the marriage, has not been stated in the complaint, whereas in his evidence before the Court, these allegations are added as an after-thought. Insofar as PWs.2 and 4 are concerned, in their initial statements, they had not mentioned about the demand or harassment for dowry and it is only during the course of their evidence that such additional allegations have been made. Insofar as other witnesses, namely, PWs. 3, 5 and 6 are concerned, they have not made any statement as regards the demand for dowry. Therefore, except the interested testimony and the inconsistent testimony of PWs.1, 2 and 4, there is no direct evidence of any such demand for dowry or of harassment. Insofar as the further allegation that the appellant was given to constantly torturing and harassing the deceased for more dowry, it is to be noticed that the marriage of the appellant with the deceased took place on 20.6.2004 and she has died on 29.11.2005. According to the complaint itself, the appellant and the deceased lived happily together for over three months and it is thereafter, it is the case of the prosecution as narrated by the complainant, that there was constant harassment for dowry. The claim of PWs. 1, 2 and 4 is to the effect that the deceased had on occasion, reported to them of such harassment. The claim of PWs. 1, 2 and 4 is to the effect that the deceased had on occasion, reported to them of such harassment. Neither of these witnesses had directly seen or heard the appellant make such demands. It is not their case that any such demand was made directly to the said witnesses after they lived happily together for almost three months after their marriage and the prosecution having sought to prove such harassment during the examination of neighbourers of the appellant, namely, PWs.7 to 14, has not been successful in eliciting any such evidence in support of the allegation as all the said witnesses, namely, PWs.7 to 14 had turned hostile. Therefore, in order to establish the case of constant harassment leading to a situation where the deceased, being unable to bear such torture, had been driven to suicide, therefore, leading to a presumption that there was instigation by the appellant and others, which had provoked the deceased to commit suicide. It is well settled law that unless such allegation of instigation leading to suicide is supported by direct evidence, it would be a miscarriage of justice to hold a person guilty of such instigation on the basis of a hearsay evidence, which is the only nature of evidence that is available given the fact that it is solely on the evidence of PWs.1, 2 and 4, which the Court below has relied upon, in concluding that there was constant harassment and instigation of a nature contemplated to invoke the offence punishable under Section 306 of the IPC. 8. It is also pointed out that the judgment of the trial Court, which is an elaborated judgment running into 86 pages, consists mostly of narration of the evidence as stated by the witnesses. The reasoning of the trial Court is to be found from Page 95 onwards, which runs into about 5 paragraphs. 8. It is also pointed out that the judgment of the trial Court, which is an elaborated judgment running into 86 pages, consists mostly of narration of the evidence as stated by the witnesses. The reasoning of the trial Court is to be found from Page 95 onwards, which runs into about 5 paragraphs. The learned Counsel would take this Court through the reasoning to demonstrate that the trial Court has commiserated with the deceased without any basis and has drawn surmises, to the effect that she had suffered a lot and she had ended her life because of the misery, in that, she was without her mother and her father was residing at Hyderabad and he had married for the second time and that she was not receiving any affection from her husband and therefore, she was miserable with the harassment and torture and she also being a second wife to the appellant, had no alternative, but was forced to consume insecticide and therefore, committed suicide and that the prosecution had proved the alleged offence beyond all reasonable doubt against the accused. Accused No. 3, who was the head of the family, had died during the trial. Accused No. 2,who was an old man, was the father-in-law of the deceased and his role was not important. Though the father-in-law of the deceased was present on all occasions when there were talks of dowry and settlement, since he was an old man, the Court below has thought it fit to excuse him. The Court below has further held that insofar as Section 304B of the IPC is concerned, where there is an unnatural death caused to a woman within seven years of her marriage and it is shown that she was subjected to cruelty or harassment by her husband or any relative of her husband, it shall be deemed to have caused her death. It is in this manner that the Court below has summarily reasoned that the prosecution had established its case beyond all reasonable doubt. Therefore, the learned Counsel would emphasize that from a perusal of the evidence of PWs. 1, 2, 4 and 5, on which the entire case of the prosecution rests, it cannot be said that the prosecution had established its case beyond all reasonable doubt. Therefore, the learned Counsel would emphasize that from a perusal of the evidence of PWs. 1, 2, 4 and 5, on which the entire case of the prosecution rests, it cannot be said that the prosecution had established its case beyond all reasonable doubt. It was at best a hearsay evidence and to hold that all the offences alleged had been established beyond all reasonable doubt, is a perverse finding to the detriment of the appellant and hence pleads that the accused be acquitted. 9. The learned Government Pleader, on the other hand, would seek to justify the judgment. Insofar as the contention raised by the counsel for the appellant to the effect that the police had prior information of the incident and had arrived on the scene well before the complainant came there and before he could hand over his complaint and the information gathered by the Police prior to such complaint is wilfully suppressed for reasons best known to the prosecution and that it has caused prejudice to the appellant, is a mere self-serving claim. The learned Government Pleader would submit that the Police having acted with expedition could not be characterised as unlawful and it could not be imagined or presumed that there was information gathered well prior to the complaint, which had been suppressed by the prosecution. He would submit that not much significance can be attached to the complaint being received much after the Police had come to the spot. The presence of the Tahsildar and others could also be explained by the fact that as soon as the Sub-Inspector of Police received the information of the incident, he had in turn, informed the Tahsildar, who was closer to the spot than the Sub-Inspector of Police and therefore, he had arrived well before the Sub-Inspector and the fact that they were all present even before the complainant came to the spot from another village and made a written complaint to the Sub-Inspector of Police at the spot, does not lead to a situation where the appellant could be said to be seriously prejudiced. The fact that the deceased had consumed insecticide and has died as a result of the same, is evidenced by the Post-Mortem report as well as the Forensic Science Laboratory Report. The fact that the deceased had consumed insecticide and has died as a result of the same, is evidenced by the Post-Mortem report as well as the Forensic Science Laboratory Report. Therefore, there is little significance that could be attached to that circumstance that the Police had come on the scene even before a formal complaint could be handed over. There is no law which prevents the Police from going to the scene, on the other hand, it would be their duty to act with expedition, which the Police have and therefore, no exception could be taken to the said circumstance. Insofar as the contention that there was no demand for dowry or that there was no allegation of demand for dowry, the complaint is categorical as to the exact amount that was claimed and the amount that was settled and in the presence of PW.2, who has also reiterated the conduct of the appellant in making such a demand and receiving the amount as stated in the complaint. The further conduct of constant harassment for more dowry by the appellant is consistently narrated by the witnesses namely, PWs. 1, 2, 4 and 5 and it cannot be said that those witnesses have improved their original statements by seeking to bolster the initial statements at a later stage. There is no illegality in the witnesses having stated before the Court as to the specific demands made in addition to what has been generally narrated in their statements. The very object of tendering oral evidence is to place before the Court the complete facts and hence to characterise any additional allegations made as being a demand to improve upon the case is unfair to the witnesses. The testimony of the said witnesses having been tested in cross-examination, it is not open for the appellant to question the veracity of those witnesses, who had little to gain by stating the true facts and circumstances, except to bring the appellant to book. 10. Further, it is also settled law that insofar as the harassment meted out to the wife by the husband is concerned, is mostly indoors and within the four corners of their bed room or house and to expect that the independent witnesses would be in a position to narrate each and every such incident of harassment or torture is unnatural. Further, it is also settled law that insofar as the harassment meted out to the wife by the husband is concerned, is mostly indoors and within the four corners of their bed room or house and to expect that the independent witnesses would be in a position to narrate each and every such incident of harassment or torture is unnatural. It is only because the deceased had confided to her father, her mother and the village elder, who had intervened. It is they alone who have tendered evidence before the Court, which cannot be lightly negated and cannot be characterised as hearsay evidence. Insofar as the neighbourers of the appellant having turned hostile, it is quite possible to attribute it to the sympathies that they carried insofar as the appellant was concerned and that by itself will not dilute the case of the prosecution when it is amply supported by the evidence PWs. 1, 2, 4 and 5. The law is clear that when there is an unnatural death within seven years of marriage of the wife, the presumption would be loaded against the accused as to their involvement in causing harassment and treating the deceased with cruelty. In the instant case, it is not in dispute that the death has occurred within five months of the marriage and that by itself is a serious circumstance that is ranged against the accused and cannot be overruled. The demand and payment of dowry, the constant harassment, as narrated by the deceased to the witnesses aforesaid, and the death having occurred within few months of the marriage, are a sequence, which unerringly point to the manner in which the death has been caused and it is certainly on account of instigation brought about by the constant harassment, which has driven the deceased to commit suicide and therefore, the prosecution having established its case beyond all reasonable doubt, as found by the trial Court, cannot be dubbed as being without any basis. The contention that the judgment of the trial Court is verbiose and is clearly a mere narration of the evidence and there is no analysis or discussion of the same, is also incorrect. The learned Government Pleader would submit that the Court has carefully screened the evidence in great detail and thereafter has arrived at its conclusions, which cannot be faulted and therefore, submits that the appeal be dismissed. 11. The learned Government Pleader would submit that the Court has carefully screened the evidence in great detail and thereafter has arrived at its conclusions, which cannot be faulted and therefore, submits that the appeal be dismissed. 11. Given the above rival contentions, the very complaint states that the appellant and the deceased lived happily for the first three months of their married life. It is hence to be presumed that during two months prior to the incident, there was constant harassment. Not a single witness has spoken about the date or dates on which there was harassment caused to the deceased by the appellant. As pointed out by the learned Counsel for the appellant, the neighbourers, who were examined in support of the case of the prosecution that there was constant harassment, have all turned hostile without exception, which leaves the evidence of Pws. 1, 2, 4 and 5 in support of the case of the prosecution as regards the constant and continued harassment. Also, as rightly pointed out by the Counsel for the appellant, the complaint is bereft of any details as regards the demand for dowry and acceptance of any such dowry. Though there is a passing reference of demand and payment of a dowry of Rs. 71,000/-, the further embellishment of there having been settlement and the amount having been settled at Rs. 71,000/- as against Rs. 95,000/- and Rs. 51,000/- alongwith gold having been paid to the appellant before the marriage and another Rs. 20,000/- being paid after the marriage and thereafter, the demands having been made continuously, is all supplied during the course of the trial and hence, the same being an improvement to bring home the charge, cannot be negated insofar as PW.1 is concerned. Insofar as other witnesses are concerned, no such details have been narrated except PW.5, who was a village elder or cousin of PW.1, who had participated at the alleged settlement talks in settling the dowry that was to be paid. That by itself will not establish the demand of dowry in the absence of any other material evidence. Except the oral say of these witnesses, there is no material produced to demonstrate that the accused had received any such dowry in cash or kind. Hence, the allegation of constant and continued harassment for dowry, has not been established beyond all reasonable doubt. Except the oral say of these witnesses, there is no material produced to demonstrate that the accused had received any such dowry in cash or kind. Hence, the allegation of constant and continued harassment for dowry, has not been established beyond all reasonable doubt. The contention insofar as the Police having received information much earlier to the complaint and the same not having been explained or elaborated by the prosecution, is also an aspect that would have to be noticed, though it cannot be said that it would vitiate the entire proceedings if the Police have acted with expedition and were at the spot before the complainant arrived therein. As rightly contended by the Government Pleader, that by itself would not vitiate the entire proceedings having regard to the circumstances of the case, as the death of the wife of the appellant by consuming insecticide is not in serious dispute and therefore, any such discrepancy, if it could be called a discrepancy, does not cause prejudice to the appellant, in that, there is no possibility of suppression of material or any fabrication that was possible or could even be countenanced. However, it was incumbent on the prosecution to have offered explanation as to the said circumstance, which was not forthcoming. Insofar as the allegation of cruelty by the appellant and other family members of the appellant on the deceased is concerned, as already pointed out, the only evidence on which the prosecution case rests is that of PWs-1, 2 4 and 5 and not others. This would hardly be sufficient to hold that any such cruelty that the appellant had inflicted on the deceased has been established beyond all reasonable doubt. So also, the question whether there was such degree of cruelty, which was sufficient and could be characterised as an instigation driving the deceased to commit suicide, also becomes doubtful. Hence, though the presumption in case of an unnatural death of the wife within seven years of marriage is loaded against the accused. That does not absolve the prosecution of establishing the case against the accused beyond all reasonable doubt. Hence, though the presumption in case of an unnatural death of the wife within seven years of marriage is loaded against the accused. That does not absolve the prosecution of establishing the case against the accused beyond all reasonable doubt. If there was a scintilla of direct evidence as regards the constant demand for dowry and consequent harassment and cruelty on the deceased, it was certainly possible to hold that given the nature of the offence and the period within which the incident has occurred after the marriage of the appellant with the deceased, it was possible to hold that the prosecution had established its case beyond all reasonable doubt. Hence, to proceed merely on the evidence that is available, would lead to a miscarriage of justice and hence this Court is of the opinion that the reasoning of the Court below prompted by sympathy towards the deceased without there being any direct evidence against the appellant is bad in law. The lower Court also not being wholly satisfied with the manner in which the burden of proof was sought to be discharged, is evident from the fact that it has liberally excused or liberally condoned the role of accused No. 2, on the footing that he was an old man and even though his active participation in the demand and acceptance of dowry was established, he can be condoned and absolved of the guilt. This would not have been possible if the Court was of the opinion that the prosecution had established its case beyond all reasonable doubt. 12. Therefore, the appeal is allowed. The judgment of the Court below is set aside. The appellant is acquitted. The fine amount, if any paid, to be refunded to the appellant.