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2013 DIGILAW 127 (KAR)

ANAND @ ANANDAYYA v. STATE OF KARNATAKA

2013-02-01

ANAND BYRAREDDY

body2013
JUDGMENT ANAND BYRAREDDY, J.-Heard the learned counsel for the appellants and the learned Government Pleader for the respondent. 2. This appeal is by the accused who have been convicted for the offences punishable under Sections 143, 147, 498A, 306 read with Section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the TPC for brevity). The brief facts of the case are as follows: One Sharanayya s/o Gollalayya Hiremath aged about 60 years was the complainant. He was a resident of Yalagod village, Jewargi Taluk, Gulbarga District. He had two sons and five daughters. His younger daughter Jayashree, aged about 24 years, was married to accused No. 1, the appellant No. 1 herein about four years prior to the complaint. Appellant No. 1 lived along with his parents and his brothers apart from his sisters-in-law. It was alleged by the complainant that prior to the marriage he had handed over Rs. 15,000 in cash and two tolas of gold, apart from clothes and household articles, as there was a demand for dowry by the appellant No. 1 and his family. Initially Jayashree and appellant No. 1 had lead a peaceful married life. Very soon the appellants are said to have started ill-treating the daughter of the complainant, both physically and mentally calling upon Jayashree to bring more cash and other valuables from the complainant's house, which fact was intimated to the complainant by his daughter. However, the complainant in the fond hope that there would be a change of heart in the appellants' family, persuaded his daughter to tolerate the hardship. However, two years prior to the complaint, the accused-appellants had come to the house of the complainant, on an occasion, and the complainant had advised the mother-in-law and brother-in-law of his daughter not to ill-treat her. However, to his dismay the appellants continued to physically ill-treat Jayashree and she had even suffered serious injuries, which required her to be hospitalized. On that occasion she had to be brought home by the complainant's wife and they had to take care of her till she was well. It is the complainant's case that his daughter had recounted the torture and harassment that was meted out to her and the continuous demand for dowry. On that occasion she had to be brought home by the complainant's wife and they had to take care of her till she was well. It is the complainant's case that his daughter had recounted the torture and harassment that was meted out to her and the continuous demand for dowry. Thereafter, it is the complainant's case that elders of the village, namely, Neelakanth Padashetti and Mallikarjunayya Hiremath, had even advised the accused to come and take Jayashree home and not to ill-treat her as there was no possibility of the complainant being in a position to provide more dowry. However, on 30.09.2004, the complainant was informed that his daughter had died and that she had committed suicide. On which, the complainant and his family members rushed to the house of the accused along with the others and found that the main door was closed and that his daughter had hung herself in the first floor portion. Therefore, the complainant informed the police, who in turn removed the sheets on the roof and accessed the room, in which Jayashree had hung herself. It was alleged that she had sustained certain injuries and there was blood on the floor, which made them suspect foul play by the accused. It is in this background that the complaint was registered and further investigation was taken up by the police. After completion of the investigation and the filing of the charge sheet, the matter was committed to the Court of Session. The Sessions Court framed the charges and the accused having pleaded not guilty and having claimed to be tried, the matter went to trial. The prosecution examined PW-1 to PW-9 and got marked Exs.P-1 to P7(a) and M.O.-1 to M.O.-9. On the basis of the evidence and the rival contentions, the Court below had framed the following points for consideration: (1) Whether the prosecution proves that accused Nos. The prosecution examined PW-1 to PW-9 and got marked Exs.P-1 to P7(a) and M.O.-1 to M.O.-9. On the basis of the evidence and the rival contentions, the Court below had framed the following points for consideration: (1) Whether the prosecution proves that accused Nos. 1 to 5 after the marriage of deceased Jayashree with accused No. 1, in the house of accused No. 1 situated in Shahapeth Street, Bijapur, accused No. 1 being husband, accused No. 2 being mother-in-law, accused No. 3 being elder brother, accused No. 4 being elder sister and accused No. 5 being husband of accused No. 4 in furtherance of common object demanded further more dowry from the parents of said Jayashree and in prosecution of common object, subjected Jayashree to cruelty by asking her to bring further amount as a dowry and, thereby committed an offence punishable under Section 498A read with Section 149 of Indian Penal Code beyond all reasonable doubt? (2) Whether the prosecution proves that on 13.9.2004 at 2.00 p.m., in the room of house facing South of Ward No. 5 belonging to accused No. 1 situated in Shahapeth Street, Bijapur, the wife of accused No. 1 by name; Jayashree committed suicide and accused Nos. 1 to 5 in furtherance of common object abetted the commission of said suicide and she has been driven to commit suicide by aces of ill treatment and harassment on account of further more dowry and, thereby, committed an offence punishable Under Section 306 read with Section 149 of Indian Penal Code beyond all reasonable doubt? (3) What order?" The Trial Court answered point Nos. 1 and 2 in the affirmative and passed the final order convicting accused Nos. 1 to 5 for offence punishable under Section 498(A) of the IPC and sentencing them to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- as well as to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- for the offence punishable under Section 306 of the IPC. The sentences were to run concurrently. Out of the fine amount Rs. 35,000/- was to be paid to the complainant as compensation. It is that which is under challenge in the present appeal. 3. 5,000/- for the offence punishable under Section 306 of the IPC. The sentences were to run concurrently. Out of the fine amount Rs. 35,000/- was to be paid to the complainant as compensation. It is that which is under challenge in the present appeal. 3. The learned counsel for the appellants would submit that the entire evidence on record has not been addressed by the Court below, particularly the admissions elicited in the course of cross-examination, form the key witnesses on the basis of which the Court below has held that the charges have been proved beyond all reasonable doubt. If the same are addressed, it cannot be said that the charges have been proved beyond all reasonable doubt. In this regard, the learned counsel would point out that the Court below has placed reliance on the evidence mainly of PW-4, PW-5 and PW-7 and the evidence of those witnesses, as could be seen, was full of material omissions and contradictions, which could not have been accepted partially in overlooking the infirmities of finding that the charges against the accused have been proved beyond all reasonable doubt. The learned counsel would submit that PW-4, the complainant and the father of the deceased while reiterating the statement in his complaint, in his cross-examination has admitted that accused Nos. 3 to 5 who are the brothers of accused No. 1, the appellant No. 1 herein, were residing separately. This is a crucial admission, which would straight way indicate that the said brothers of appellant No. 1 would not be privy to any such harassment or ill-treatment physically or mentally, which was allegedly complained of by the deceased to the complainant. This aspect of the matter was glossed over by the Trial Court. Further, it is also admitted that two days after the marriage between Jayashree and accused No. 1, she had returned to her parents' home, without informing her husband or his family members. This is again an instance of the attitude and conduct of the deceased and not that of a newly married bride, who could without informing her husband and his family members, leave her matrimonial home. The complainant has admitted that he did not know any of the neighbourers of his son-in-law. This is again an instance of the attitude and conduct of the deceased and not that of a newly married bride, who could without informing her husband and his family members, leave her matrimonial home. The complainant has admitted that he did not know any of the neighbourers of his son-in-law. But the Court below has expressed that there were no suggestions made to the said witness, denying the ill-treatment and cruelty inflicted on the deceased by the accused, calling upon her to bring cash and dowry from her parental home and the Court has taken exception to the prolonged cross-examination alleging that the complainant's daughter had an illicit relationship with a tailor and that she was caught red handed by one Moulasab Chowdhari and it is that, which instigated Jayashree to commit suicide out of shame and embarrassment. Therefore, the Court has concluded, in the absence of any suggestion denying the ill-treatment and harassment, it could not be said that the testimony of PW-4 has in any way dented, in order to negate the same. Though the complainant also stated that he did not know the names of accused Nos. 2 to 5 namely, mother-in-law and brothers of appellant No. 1, the Court has opined that there was no significance to be attached to the fact that he was not aware of their names. In so far as the evidence of PW-5 is concerned, who is the mother of the deceased Jayashree, it is pointed out that she had stated in her examination-in-chief, as to the very same sequence of events which were narrated by her husband in so far as the arrangement for marriage and the payment of dowry and subsequent ill-treatment of their daughter and resulting ultimately in her death. In the cross-examination, it was found by the Court below that there was a suggestion that the deceased was having an illicit relationship with one Raju, which suggestion she has denied and the Court has certified that on cross-examination of the said witness, nothing has been elicited to discredit her testimony about the ill-treatment and cruelty by the accused to the deceased. But the Court below has acknowledged that there were some discrepancies in the evidence of both PW-4 and PW-5. But the Court below has acknowledged that there were some discrepancies in the evidence of both PW-4 and PW-5. Those inconsistencies or infirmities were not material, if the entire evidence of PW-4 and PW-5 is pragmatically viewed, there was no denial of the fact that they had testified to the satisfaction of the Court in discharge of the burden of proof that there was ill-treatment and harassment of the deceased for several years, ultimately driving her to commit suicide. In so far as PW-7 is concerned, he was an elderly person from the village of the complainant, who had all along been present from inception, even prior to the marriage of Jayashree with accused No. 1 and had been present at the negotiations to the marriage as well as subsequent instances when Jayashree had come to the complainant's home complaining of ill-treatment and he had also been present when the accused and his family members had come to the complainant's house to take back Jayashree and therefore had occasion to know about the continued ill-treatment meted out to Jayashree and he had also advised appellant No. 1 and his family members not to ill-treat the woman as her father was no longer capable of providing any more dowry and that they should reconcile to that circumstance. Therefore, the said witness being an independent witness, the Court below has placed much reliance on the testimony of the said witness, while acknowledging that in the course of cross-examination, it was admitted by him that he was involved in other domestic disputes as a mediator and it is in that context that he had deposed in other similar cases as a witness. The suggestions made by the defence counsel that it was he, who had engineered the false case being filed against the appellant No. 1 and his family members, being a "Court bird", was denied by him. The Court below has held that the testimony of the said witness and his credibility has not been shaken in the course of cross-examination. The learned counsel would therefore submit that, in so far as the harassment and ill-treatment that is highlighted by the testimony of PW-4, PW-5 and PW-7, cannot be construed as direct evidence of any such harassment and ill-treatment. The learned counsel would therefore submit that, in so far as the harassment and ill-treatment that is highlighted by the testimony of PW-4, PW-5 and PW-7, cannot be construed as direct evidence of any such harassment and ill-treatment. It is on the basis of hear say, in so far as PW-4 and PW-5 are concerned, as it is their contention that Jayashree had informed them of such ill-treatment from time to time. There are hardly any details as to time and place and it is a general allegation of such ill-treatment and harassment. The further claim that such physical and mental harassment was being continued for several years, is again bereft of particulars and thus are general allegations. In so far as PW-7 is concerned, it is not the case of the prosecution that he had any direct knowledge of the ill-treatment by appellant No. 1 and his family members that was meted out to Jayashree. Such information was not even directly received from Jayashree, but allegedly through PW-4 and PW-5, in which event the testimony of the said witness in so far as the allegations of harassment and torture is remote and reliance being placed on the testimony of such a witness to hold that that prosecution had proved its case beyond all reasonable doubt, is not tenable. Neither is there any evidence of foul play. In that, though the complainant suspected foul play, the medical report as well as the finding of the Court below has clearly indicated that there were no other injuries on the person of the deceased, and hence the deceased having committed suicide being attributed to the instigation by the accused cannot be sustained. As already pointed out admittedly, accused Nos. 3 to 5 were living separately and were not residing along with Jayashree and her husband. Therefore, the question of continued harassment, both physically and mentally, by those accused, could be safely ruled out. The Court below having convicted the said accused is whole inexplicable and without any basis. In so far as accused Nos. 3 to 5 were living separately and were not residing along with Jayashree and her husband. Therefore, the question of continued harassment, both physically and mentally, by those accused, could be safely ruled out. The Court below having convicted the said accused is whole inexplicable and without any basis. In so far as accused Nos. 1 and 2 are concerned, the mere fact that accused No. 1 is the husband and accused No. 2 is the mother-in-law or that the deceased had committed suicide within two years of her marriage coupled with the evidence of PW-4, PW-5 and PW-7, it could not be said that the prosecution had established its case beyond all reasonable doubt of the death being a dowry death or the appellants being responsible in causing the death of the deceased. The learned counsel for the appellant has also canvassed that the real reason for the death of Jayashree was that she had an illicit affair with another person and this having been discovered, she could not stand the shame and disgrace that would follow and therefore had committed suicide, is not seriously pressed. The learned counsel further would insist that it is for this Court to address whether on the basis of evidence on record and the reasoning of the Court below, it can be said that the prosecution had established its case beyond all reasonable doubt and he would plead that it would result in a serious miscarriage of justice, if on the basis of the said evidence and the reasoning the appellants being convicted and stringent punishment being imposed on them, could be sustained and hence he pleads that the appeal be allowed and the judgment be set aside and the accused be acquitted. 4. While the learned Government Pleader, while supporting and justifying the judgment of the Court below, would emphasize that in so far as the offences alleged against the accused are concerned, the law presumes the existence of certain circumstances, when the death of the wife is unnatural and has occurred within 7 years from the date of marriage, the present case would qualify in so far as these presumptions are concerned. Therefore, he would submit that the minimal evidence that would be necessary to establish the fact that there was constant harassment and demand for dowry, which coupled with the cruelty that was inflicted on the deceased, it was sufficient to instigate her to commit suicide. He would further submit that in so far as the manner in which such harassment and cruelty is inflicted, it is always within the four corners of the house of the accused or the deceased and that the direct evidence of such ill-treatment is not often available and it can only be through the medium of others, who were in the best position to have received such information from the victim. In the instant case, apart from the parents of the deceased, an elder who was interested in ensuring matrimonial harmony, amongst couples, having intervened on more than one occasion and being personally aware of the circumstances, having tendered evidence being characterized as that of a known Court bird is unfair and unjust. On the other hand, he would submit that the case of the prosecution is clinched by this independent and unbiased evidence of a village elder who has corroborated the evidence of PW-4 and PW-5. Hence, he would submit that the inconsistencies and the prolonged cross-examination having elicited certain seeming admissions, which would indicate that the express statements made in examination-in-chief have been reconciled by the Court below and the same have been held to be insignificant, having regard to the facts and circumstances and accordingly the Court having held that the ingredients of the offence, punishment for the same provisions, having been made out and the prosecution having established its case beyond all reasonable doubt, cannot be faulted. He would also emphasize that the contention that the evidence of PW-4 and PW-5 was hear say evidence of PW-7 who do not even have any direct intimation from Jayashre of the continued harassment and ill-treatment, is incorrect, as PW-7 in his testimony has declared that on more than one occasion Jayashre had directly informed him of such ill-treatment and therefore it is not a hard and fast rule that the witness ought to have actually seen the physical and mental harassment meted out to the deceased by the accused and it is the veracity of the witness which is more relevant and in the case on hand it cannot be said that there was any reason to disbelieve the evidence of PW-4 and PW-5 and certainly not of PW-7, who was an unbiased and independent witness in support of the case of the prosecution. 5. In the light of the above rival contentions, in the entire evidence on record, there is no indication as to the manner in which accused No. 3 to 5 the brothers of appellant No. 1 were instrumental in harassing Jayashree or demanding dowry from the complainant and instigating the deceased to commit suicide. Therefore, the Court below having mechanically convicted the said accused would straight way have to be set at naught. In so far as the evidence ranged against accused Nos. 1 and 2, the case of the prosecution is not that, in all the three witnesses, on the basis of whose evidence, the charges have been held proved, had directly witnessed the actual physical and mental ill-treatment of Jayashree, though she had been married 4 years prior to the incident to appellant No. 1, even though accused No. 1 visited the complainant's and his wife at their home when Jayashree was there, on more than one occasion to take her back. Therefore, these witnesses have deposed on the basis of Jaishree having informed them, from time to time, of such ill-treatment and harassment. The contention of the learned Government Pleader that, in a domestic relationship, when there is harassment and ill-treatment, the same would not be done in public view or even in the view of other kith and kin of the victim, cannot be denied as in most cases this is indeed so. The contention of the learned Government Pleader that, in a domestic relationship, when there is harassment and ill-treatment, the same would not be done in public view or even in the view of other kith and kin of the victim, cannot be denied as in most cases this is indeed so. However, when the appellants face the prospect of stringent punishment, the criminal law requires that the evidence tendered in support of the allegation of such serious offences is capable of establishing the case of the prosecution beyond all reasonable doubt. Therefore, even though four years of married life had ensued, not once have the parents of Jayashree actually seen any such violent ill-treatment nor was there a demand for dowry made directly to the complainant and his wife. Therefore, the entire testimony of these witnesses seems to be hearsay, even though the endeavor of the learned Government Pleader is to emphasize that there may not be better evidence, in circumstances such as this, to allege and establish harassment and cruelty. In so far as the testimony of PW-7 is concerned, he is certainly an independent witness. But his testimony would suffer from some lacuna that there was no instance that he had directly witnessed the ill-treatment of Jayashree by the accused. Therefore, in the opinion of this Court, if Jayashree had lived with her husband and his family for over four years, there were neighbourers who could have spoken of the conduct of the accused and would have also been aware, even from a far of the mood of Jayashree. In other words, if there was constant ill-treatment to Jayashree by the accused, it would have been evident to others from her very demeanor and therefore, it would have been incumbent on the prosecution to have examined such witnesses, who lived in close proximity to the accused and Jayashree and who would have seen their day today living, and who could have spoken or even hinted at the fact that Jayashree was totally unhappy during the entire period of her life that she lead with the accused. Such evidence is not forthcoming. Such evidence is not forthcoming. Hence the parents of Jayashree who would naturally be distraught and shattered on account of the untimely death of their daughter, could be expected to speak uncharitably in so far as the conduct of the accused is concerned, seeking vengeance, as it were, for the death of their daughter. In so far as PW-7 is concerned, even if he did not have any motive or interest in order to speak against the accused, his testimony by itself would not establish that there was continuous harassment and cruelty inflicted on Jayashree, in the absence of other supporting evidence of such treatment. Therefore, the further allegation of the continued cruelty and harassment having instigated Jayashree to commit suicide, would also not be established. In that view of the matter, the further aspect of the defence set up by the accused to the effect that Jayashree had committed suicide for other reason would not be necessary to be gone into. In any event, the counsel for the accused himself did not seek to press the same. 6. Having regard to the above assessment of the evidence on record, this Court would find that the prosecution had not established its case beyond all reasonable doubt and that there was no case made out against accused Nos. 1 and 2, let alone against accused Nos. 3 to 5. Accordingly, the appeal is allowed. The judgment of the Court below is set aside. The accused are acquitted. The fine amount, if any, paid by the accused shall be refunded.