Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 423 (KAR)

STATE OF KARNATAKA v. BABAJAN

2013-04-01

MOHAN M.SHANTANAGOUDAR, V.SURI APPA RAO

body2013
JUDGMENT MOHAN M. SHANTANAGOUDAR, J.-The respondents herein were Accused Nos. 1 to 5 before the trial Court. Accused Nos. 2, 4 and 5 were given up before the trial Court itself. The accused No. 1 and 3 were tried and acquitted for the offences punishable under Sections 498-A, 304-B and 302 read with Section-34 of IPC and Sections 3,4 and 6 of the Dowry Prohibition Act ('D.P. Act' for short). 2. The case of the prosecution in brief is that the complainant-Siraj Ahamed (PW-1) is the father of the deceased Asma Begum ; Accused No. 1 is the husband of the deceased and their marriage was performed on 11.1.2002; Accused No. 3 is the mother-in-law of the deceased (mother of Accused No. 1); at the time of marriage talks, the accused pressurized PW-1 for dowry in the form of gold and silver ornaments apart from cash and other articles; PW-1 with reluctance agreed to satisfy the demand of the accused to certain extent and consequently he gave gold ornaments and other items worth Rs. 1,00,000/- and cash of Rs. 1,70,000/- to Accused No. 1 and his family members as dowry; even after the marriage, the harassment by the accused continued demanding further dowry ; inspite of PW-1 and others pacifying the accused, the demand of the accused did not stop; the accused used to harass the victim both physically and mentally pressurizing her to bring additional amount of dowry and gold ornaments, and she was done to death at about 1 p.m. on 9.11.2004. During the interregnum, the child was born and the child was 5 months old at the time of the incident. Immediately after coming to know about the incident, the accused got the victim examined by Dr. A.B. Bhakthavatsalam (PW-14), but doctor declared the death of Asma Begum. However, the accused with a view to have second opinion took the victim to Dr. Nagappa, who also concurred with the opinion of Dr. A.B. Bhakthavatsalam (PW-14). During the interregnum, the accused informed PW-1 and other family members of the deceased about the death of the deceased. They came to the spot at about 5 p.m. and on seeing the dead body, complaint came to be lodged at 7 p.m. before the Bethmangala Police Station by PW-1, the father of the deceased. A.B. Bhakthavatsalam (PW-14). During the interregnum, the accused informed PW-1 and other family members of the deceased about the death of the deceased. They came to the spot at about 5 p.m. and on seeing the dead body, complaint came to be lodged at 7 p.m. before the Bethmangala Police Station by PW-1, the father of the deceased. Complaint came to be registered by the Sub-Inspector attached to Bethamangala Police Station and the same was registered in Crime No. 145/2004. During the course of investigation, the inquest panchanama was conducted by the Taluka Executive Magistrate (PW-15) as per Ex.P13 and the post-mortem examination was conducted by the doctor (PW-5) and the doctor issued the post-mortem report as per Ex.P12. After completion of investigation, the charge sheet came to be filed against the accused for the offences punishable under Sections 498-A, 304-B and 302 read with Section-34 of IPC and Sections-3,4 and 6 of the D.P. Act. Since the accused did not plead guilty, the charges came to be framed against the accused for the aforementioned offences. 3. In order to prove its case, the prosecution in all examined 18 witnesses and got marked 19 Exhibits and 28 material objects. The trial Court on evaluation of the material on record and after hearing, acquitted the accused. 4. PW-1 is the father of the deceased. He lodged the complaint as per Ex.P1. He has deposed about the harassment by the accused and demand of dowry by them. He has also deposed about the payment of dowry. He is also witness for the scene of offence panchanama Ex.P2 under which Mos.1 to 4 were seized from the spot; PW-2 is the mother of the deceased. She has also deposed about demand and payment of dowry and harassment by the accused to the deceased; PW-3 is the Mediator in the marriage and he has turned hostile; PW-4 is the Police Constable who watched the dead body and participated in the investigation; PW-5 is the doctor who conducted the post-mortem examination and post-mortem report is at Ex.P12; PW-6 is the witness for the scene of offence panchanama Ex.P2; PW-7 is witness for inquest panchanama Ex.P13. The inquest was conducted on 10.11.2004; PW-8 is another witness for inquest panchanama Ex.P13; PW-9 is the brother of the deceased. The inquest was conducted on 10.11.2004; PW-8 is another witness for inquest panchanama Ex.P13; PW-9 is the brother of the deceased. He has deposed about the demand and payment of dowry; PW-10 is the uncle of the deceased, i.e., brother of PW-1. His evidence is on par with the evidence of PW-9 ; PW-11 is the neighbour of the accused. Her evidence supports the defence theory than the prosecution theory; PWs-12 and 13 are neighbours of the accused and they have turned hostile; PW-14 is Dr. Bhakthavatsala. The accused took the doctor to their house to examine the victim and the doctor declared the victim dead; PW-15 is the Taluka Executive Magistrate who conducted inquest proceedings over the dead body and the inquest report is at Ex.P13; PW-16 is the Scientific Officer attached to the Forensic Science Laboratory and his report is at Ex.P17; PW-17 is the Investigating Officer who completed the investigation and laid the charge sheet on 25.4.2005; PW-18 is the Deputy Superintendent of Police who also conducted investigation in part. 5. In our considered opinion, the case of the prosecution relating to the offences punishable under Sections 304-B and 302 of IPC is mainly dependent on medical evidence. 6. It is the case of the prosecution that the accused apart from torturing the victim previously, had tortured the victim on the date of the incident also and the deceased was done to death by the accused by pressing her neck with the help of cloth. In other words, the prosecution alleges the offence of murder against the accused at the first instance or in the alternative, it alleges the offence under section-304 B of IPC. The prosecution mainly relies on the evidence of PW-5, the doctor who conducted the post-mortem examination and the post-mortem report, which is at Ex.P12. According to the prosecution, it is the case of murder or in the alternative, it is the case of dowry death coming within the purview of Section-304 B of IPC. 7. Ex.P12-the Post-mortem report in our considered opinion does not support the case of the prosecution. The said report reveals that there was a contusion of about 11/2? × 1/2? According to the prosecution, it is the case of murder or in the alternative, it is the case of dowry death coming within the purview of Section-304 B of IPC. 7. Ex.P12-the Post-mortem report in our considered opinion does not support the case of the prosecution. The said report reveals that there was a contusion of about 11/2? × 1/2? gradually tapering towards midline on the right sub-mandibular region on the neck; it also specifies that apart from the said contusion, there is no other mark of injury; on dissection, it was found that there is extravasation of blood in the tissues and muscles of the neck including underneath part of the contusion; the skull and vertebrae were intact and healthy; brain and spinal cord were intact and healthy; all the membranes were intact and congested; Larynx & Trachea were intact and congested; right lung and left lung were intact and healthy; large vessels were intact and healthy; heart was intact and healthy; mouth, pharynx and oesophagus were intact and congested; all other organs were also intact and healthy; there was no fracture noticed; there was no dislocation noticed; neither the fracture of trachea nor the fracture of hyoid bone noticed. Except a small contusion of 11/2? × 11/2? gradually tapering towards midline on the right sub-mandibular region on the neck, no other injury is found over the entire body of the deceased. The viscera collected were sent by the doctor PW-5, who conducted post-mortem examination to Forensic Science Laboratory for chemical analysis. The Scientific Officer of the FSL opined that residues of volatile poisons, pesticides, drugs, toxic metal ions and anions were not detected in the items sent for examination. However, the doctor has opined that the cause of death is due to asphyxia due to pressure on the neck. Of course prima facie looking to the opinion of the doctor, it appears that the death must have been due to strangulation. But, on evaluation of the entire material on record, we do not prefer to accept such opinion of the doctor. 8. PW-5, the doctor who conducted post-mortem examination has reiterated in the evidence that there was contusion of about 11/2? × 1/2? gradually tapering towards midline on the right sub-mandibular region on the neck and apart from that contusion, there was no other mark of injury. 8. PW-5, the doctor who conducted post-mortem examination has reiterated in the evidence that there was contusion of about 11/2? × 1/2? gradually tapering towards midline on the right sub-mandibular region on the neck and apart from that contusion, there was no other mark of injury. He was specific that the trachea and oesophagus were intact and congested and all other organs were intact and healthy. On the basis of the FSL report, he has opined that no poisonous materials were found in the viscera. Because of contusion on the right side of the neck, the doctor has given the opinion that the cause of death is due to asphyxia as a result of pressure on the neck. In the cross-examination, doctor-PW-5 has admitted that he has not mentioned in the post-mortem report as to whether the injury is simple or grievous. However, he has stated that contusion is a simple injury on any other part of the body other than the neck. He has admitted that he has not taken the enlarged photograph of the injury as there was no facility for taking photograph in the hospital. He is clear on the point that had photograph been taken, it would have been easy to give opinion. It is specifically admitted by the doctor that when a throat of a person is pressed with fingers, finger marks appear both externally and internally. However, he has explained that if the person's throat is pressed with the help of cloth, finger marks do not appear both externally and internally. He has also not seen any nail marks on the neck. He has denied the suggestion that if the pressure is put with fingers on the neck with great force, the trachea fractures. However, he has admitted that in case of aged persons, if pressure is put on the neck through fingers, hyoid bone fractures. In the matter on hand neither trachea nor hyoid bone was fractured and except small contusion of 11/2? × 1/2?, that too on the right side of the neck, no other injury was found. 9. The evidence of PW-5 is supported by the evidence of the Taluka Executive Magistrate PW-15 who conducted inquest proceedings as per Ex.P13. The Taluka Executive Magistrate has also noticed injury measuring about 11/2? × 1/2? on the right side of the neck of the deceased. But the evidence of Dr. 9. The evidence of PW-5 is supported by the evidence of the Taluka Executive Magistrate PW-15 who conducted inquest proceedings as per Ex.P13. The Taluka Executive Magistrate has also noticed injury measuring about 11/2? × 1/2? on the right side of the neck of the deceased. But the evidence of Dr. A.B. Bhakthavatsalam (PW-14) who examined the victim at the earliest point of time is contrary to the evidence of PW-15-the Taluka Executive Magistrate. As aforementioned, immediately after the incident, doctor-PW 14 was requested by the accused to come to their house for examining the victim and after examination, PW-14 declared the victim dead. PW-14 has admitted in the cross-examination that when he examined the victim, there were no injuries at all over the body of the deceased and at the time of examination, the parents of the deceased, accused and others were present. The said doctor has opined that the deceased had died because of dehydration inasmuch as the victim was fasting since 25 days in view of Ramzan festival. From the aforementioned evidence of PW-14, it is clear that the said doctor has examined the victim in presence of not only PW-1 but also all his relatives and accused. He has specifically deposed before the Court that there was no injury at all on the body of the victim and that the cause of death was due to dehydration since the victim was fasting in view of Ramzan festival. 10. The evidence of PW-14 is supported by the evidence of PW-11. PW-11 is the close relative and friend of the deceased so also she is the neighbour of the accused. She has deposed that on hearing hue and cry, she also entered the house of the deceased and after seeing the victim, she was of the opinion that the victim must have become unconscious because of fits and at that time, the accused were giving the victim the primary aid by applying Amrutanjan, eucalyptus oil, ash etc., over the legs, hands etc., of the victim. The accused thinking that the victim was still alive, took the victim to Dr. Nagappa in a Tatasumo vehicle brought by Accused No. 1. After Police arrived at the spot, according to her, the people started murmuring that the accused had killed the victim. In the cross-examination, PW-11 has admitted that one Mr. The accused thinking that the victim was still alive, took the victim to Dr. Nagappa in a Tatasumo vehicle brought by Accused No. 1. After Police arrived at the spot, according to her, the people started murmuring that the accused had killed the victim. In the cross-examination, PW-11 has admitted that one Mr. Sanveer Ahmed is the relative of PW-1 and said Sanveer Ahmed is Sub-Inspector of Bangarpet Police Station. It is also admitted by PW-11 that one Mr. Rasool (PW-18) was Deputy Superintendent of Police working at KGF and he is the father-in-law of Sanveer Ahmed. It is further deposed by PW-11 that PW-1 went to the Police Station alongwith Sanveer Ahmed and PW-18 for lodging the complaint. PW-11 was specific in her evidence that the relationship between the family members of the complainant and family members of the accused was cordial and they used to go and come to each other's houses on occasions; that the accused were well off inasmuch as they have got their own house and they have also rented number of houses to the tenants; apart from the same, the accused were having business; PW-11 has further deposed that PW-1 and none from the family of PW-1 had complained about the accused demanding any money from PW-1 and that both the family members are in cordial terms. PW-11 has further specifically admitted that the deceased died on 25th day of Ramzan festival and that the deceased was fasting alongwith her. It is also further deposed by PW-11 that she did not notice any injuries on the body of the deceased including on the neck of the deceased. 11. Admittedly, the houses of PW-1 and accused are just about 150 feet away from each other. Both the houses are in the same village. PW-11 is related to the deceased though she was a tenant and neighbour of the accused. Thus no motive can be attached against PW-11. We find the evidence of PW-11 is most truthful and reliable. PWs.1 and 2 have admitted that the deceased was hale and healthy. As aforementioned, there is only one contusion that too on the right side of the neck. No other injuries, both external and internal are present. If really the deceased was throttled, there would have been finger marks on both sides of the neck or on the middle of the neck. As aforementioned, there is only one contusion that too on the right side of the neck. No other injuries, both external and internal are present. If really the deceased was throttled, there would have been finger marks on both sides of the neck or on the middle of the neck. In the case on hand, only one contusion was found that too on the right side of the neck and not on any other side. Since the incident had taken place within four walls of the matrimonial house, it is for the accused to explain about the death. In our considered opinion, the accused has explained the cause of death successfully. As aforementioned, PW-14-Dr. Bhakthavatsalam has deposed that the death was due to dehydration inasmuch as the victim was fasting from 25 days. Same is the evidence of the independent witness PW-11. 12. Since the medical evidence on record is contrary to each other, the trial Court has given the benefit of doubt in favour of the accused. It is relevant to note that PW-14 is the doctor who examined the victim first. At the time of his examination, there were no injuries at all on the neck. So also PW-11 rushed to the house of the deceased and saw the dead body and she also did not notice any injuries on the neck. If it is so, it is unthinkable as to how a contusion may occur later and as to how it came to be noticed by PW-5, the doctor who conducted the postmortem examination. It has come on record that the Doctor PW-5 who conducted post mortem examination is also relative of PW-1 and deceased. 13. If really the accused were interested to do away the life of the victim, they would not have tried to save the life of the victim. Immediately after the incident, accused requested PW-14 to come to their house to examine the victim. Thereafter they took the victim to Dr. Nagappa for examination and they even tried to give first aid by applying Amrutanjan, Eucalyptus oil etc., on the hands and legs of the deceased for reviving conscience. Therefore we are of the opinion that the trial Court is justified in observing that the accused may be innocent. 14. It is brought on record that PW-1 was the PSI. One Mr. Therefore we are of the opinion that the trial Court is justified in observing that the accused may be innocent. 14. It is brought on record that PW-1 was the PSI. One Mr. Sanveer Ahmed, who is the near relative of PW-1 was also PSI working in Bangarpet Police Station. Father-in-law of Sanveer Ahmed is Deputy Superintendent of Police working in KGF. The said Deputy Superintendent of Police is examined as PW-18. It has come on record in the evidence of PW-11 that PW-18 also went alongwith PW-1-Siraj Ahmed for lodging complaint, which means that PW-18 also assisted PW-1 at the time of lodging the complaint. In the matter on hand, PW-18 being the jurisdictional Deputy Superintendent of Police, conducted part of the investigation. The complainant or the person who assisted the complainant should not have conducted investigation during the trial. In the case on hand, the person who assisted the complainant himself has investigated into the crime. In such matters, the proceedings may vitiate. In this connection, a reference may be made to the decision of this Court in the case of State By Upparpet Police Station vs. Sampangi and others, 2004(2) KCCR 920 (DB) wherein it is observed as under: "4. The next objection that was raised was that in a number of decisions, notably, in 1975 SCC 737 where the complainant has acted as the Investigating Officer that the Court has disapproved of such a dual role and has held that the trial is vitiated the reason being that the complainant is required to appear as a witness for purposes of narrating the sequence of the investigation and satisfying the Court that it is in order. The Courts have generally disapproved of the same individual functioning in both capacities and in our considered view, both these objections would have to be upheld." 15. It is also relevant to note the observations in the judgment of the Apex Court in the case of Bhaskar Ramappa Madar vs. State of Karnataka, reported in 2009 Crl.L.J. 2422, which read thus: "5. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh vs. The State of Rajasthan, (1976) 1 SCC 15 ; and Megha Singh vs. State of Haryana, (1996) 11 SCC 709 have to be confined to the facts of the said cases. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh vs. The State of Rajasthan, (1976) 1 SCC 15 ; and Megha Singh vs. State of Haryana, (1996) 11 SCC 709 have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on case to case basis without any universal generalization." We have assessed the material keeping in mind the aforementioned judgment while suspecting the investigation done by the Investigating Officer-PW-18. The said Investigating Officer, who had assisted the complainant while lodging the complaint and who had investigated into the crime is a near relative of the deceased and PW-1 (complainant). The circumstances in the matter on hand clearly reveal that PW-18, who was the Investigating Officer and Mr. Sanveer Ahmed (son-in-law of PW-18), who was Sub-Inspector of Bangarpet Police Station were working in the same division and they have assisted to develop the case of the prosecution. It is relevant to note that even the doctor who conducted post-mortem examination and who has observed contusion on the right side of the neck measuring 11/2? × 1/2? is also the relative of the deceased and PW-1. It is no doubt true that the Court cannot suspect the independent functionaries like Police and Doctor. But in the matter on hand, the circumstances are such which lead to inference that prosecution has not come out with true picture. 16. It is also relevant to note that PW-1 has admitted that his pay was Rs. 11,000/- per month during the relevant period. He had got two wives and he had children from both the wives. Though he has deposed that he could save about Rs. 7,000/- to Rs. 8,000/- per month, the Court can take judicial notice of the fact that a person earning Rs. 11,000/- cannot save Rs. 7,000/- to Rs. 8,000/- per month. Rs. 11,000/- would be hardly sufficient to maintain his family having two wives and children from both the wives. Thus there could be hardly any savings. 17. 7,000/- to Rs. 8,000/- per month, the Court can take judicial notice of the fact that a person earning Rs. 11,000/- cannot save Rs. 7,000/- to Rs. 8,000/- per month. Rs. 11,000/- would be hardly sufficient to maintain his family having two wives and children from both the wives. Thus there could be hardly any savings. 17. On the other hand as admitted by PW-1, the accused were having their own business and they are residing in their own house. They had given number of houses on rent. Thus it is clear that the accused were self sufficient. 18. The trial Court while acquitting the accused, has in detail narrated the contradictions and variations in the evidence of PWs.1 and 2 relating to demand and payment of dowry in the impugned judgment. We do not want to burden this judgment by narrating all the contractions and variations once again in this Judgment. Suffice it to observe here that the material on record, more particularly the evidence of parents of the deceased contain variations and contradictions. 19. The trial Court on evaluation of the material on record, in our considered opinion has taken a possible view under the facts and circumstances of the case. Since the view taken by the trial Court is one of the possible views under the facts and circumstances, no interference is called for. Accordingly, the appeal fails and the same stands dismissed.