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2017 DIGILAW 11 (KAR)

Shekappa v. State of Karnataka

2017-01-02

A.S.BOPANNA, B.A.PATIL

body2017
JUDGMENT : B.A. Patil, J. 1. This appeal is preferred by accused Nos. 1 to 3 being aggrieved by the judgment of conviction dated 22.06.2012 passed by Fast Track Court-I/II, Vijayapur in S.C. No. 90/2011, by which, accused Nos. 1 to 3 were convicted for the offences punishable under Sections 302 and 304(B) read with Section 34 of IPC and Section 4 of Dowry Prohibition Act. 2. The case of the prosecution in brief is that, on 09.01.2011 a complaint was lodged by the father of the deceased-Prema, stating that his second daughter Prema has been given in marriage to accused No. 1 about seven years back, out of the said wedlock they got a son by name Prajwal, his daughter used to visit her parents' house. It is alleged that about 15 days back from the date of incident when she visited to her parents' house, she expressed that her husband, mother-in-law and relatives of her in-laws i.e. Mallappa Chalawadi, Ashok Chalawadi, Neelavva Chalawadi, Nagappa Chalawadi and Sangappa Chalawadi are harassing her and demanding dowry of Rs. 50,000/- and two and half tolas of gold and subjected her to physical and mental torture. It is further alleged that the complainant, his brothers and relatives went to the house of accused No. 1 and advised him not to harass Prema and gave an assurance that they will fulfill their demand. It is further alleged that on 09.01.2011 at about 3.00 a.m., complainant received a phone call thereby informing that Prema has been murdered by her husband, mother-in-law and relatives on 08.01.2011 at about 11.30 p.m. Immediately, complainant and his family members went to the house of accused No. 1, there Sumitra Chalawadi narrated the incident to the complainant and told that seven persons have murdered his daughter with the butt of pickaxe. Then father of the deceased filed the complaint. 3. After investigation, since there was no material against accused Nos. 4 to 7, they have been dropped and in respect of accused Nos. 1 to 3 the charge sheet came to be filed. After filing of the charge sheet, the committal Court committed the case to the Court of Sessions. The Sessions Court after taking the cognizance secured the presence of accused No. 1, who was in judicial custody and accused Nos. 2 and 3, who were on bail and framed the charge after hearing about the charge. After filing of the charge sheet, the committal Court committed the case to the Court of Sessions. The Sessions Court after taking the cognizance secured the presence of accused No. 1, who was in judicial custody and accused Nos. 2 and 3, who were on bail and framed the charge after hearing about the charge. Since the accused denied the charge and claimed to be tried, the trial was fixed. 4. In order to prove its case, the prosecution has examined P.Ws. 1 to 16, got marked Exs. P1 to P20 and also got marked material objects at MOs. 1 to 9. After closure of the case of the prosecution, the statement of the accused was recorded under Section 313 of Cr.P.C., by putting the incriminating materials against them, which they denied and they have not lead any evidence on their behalf. 5. Thereafter, on hearing the arguments of both the parties the impugned judgment came to be passed. Assailing the said judgment and order of conviction, accused Nos. 1 to 3 are before this Court. 6. Heard the learned counsel for the appellants and Addl. S.P.P. on behalf of the State. 7. It is contended by the learned counsel for the appellants that the learned Sessions Judge has not properly appreciated the evidence and the material placed on record. The impugned judgment and order is perverse and not based on the legal evidence. He has further contended that, even though the material witnesses have turned hostile to the prosecution, only on the circumstantial evidence an inference has been drawn to convict the accused. It is further urged that even though, prosecution utterly failed to prove its case beyond all reasonable doubt, the Court below without properly evaluating the evidence has wrongly convicted the accused/appellants. He has also contended that the prosecution has failed to prove the harassment, ill-treatment and demand of dowry even then the Court below only on assumptions and presumptions has held the accused guilty. Therefore, the impugned judgment of the trial Court is liable to be set aside. On these grounds he prays for allowing the appeal. 8. Per contra, learned Addl. S.P.P. contended that there is material to show that the accused persons used to harass and ill-treat the deceased demanding dowry and murdered her by assaulting with butt end of the pickaxe. Therefore, the impugned judgment of the trial Court is liable to be set aside. On these grounds he prays for allowing the appeal. 8. Per contra, learned Addl. S.P.P. contended that there is material to show that the accused persons used to harass and ill-treat the deceased demanding dowry and murdered her by assaulting with butt end of the pickaxe. He further contended that the trial Court by considering the material has rightly convicted the accused/appellants and the accused/appellants have not made out any grounds so as to interfere with the impugned judgment and order and the same is liable to be confirmed. 9. On perusal of the records it indicates that, PW. 1 is the complainant-father of the deceased to whom the deceased informed about the ill-treatment for demand of Rs. 50,000/- and two and half tolas of gold, but has not supported the case of the prosecution and he has been treated as hostile. PW. 2 is a neighbor of accused No. 1 and deceased, to whom the deceased told about the demand made by the accused to bring Rs. 50,000/- and two and half tolas gold. Further, on hearing the commotion she went to the house of the accused and saw accused No. 1 assaulting the deceased on her head with pickaxe and accused Nos. 2 and 3 were abetting accused No. 1. She has also not supported the case of the prosecution and has been treated as hostile. PW. 3 is another witness before whom 15 days prior to the death, deceased told about the demand made by the accused persons and he also went to the house of the accused on hearing the commotion on the date of incident and saw accused No. 1 assaulting the deceased with pickaxe and accused Nos. 2 and 3 abetting accused No. 1. He has also not supported the case of he prosecution and he has been treated as hostile. PW. 4 is a Pancha to Inquest Mahazar Ex. P4, Scene of Offence Mahazar Ex. P5, Seizure Mahazars Exs. P6 and P7. He did not support the case of the prosecution and has been treated as hostile. PW. 5 is also a Pancha to Scene of Offence and Seizure Mahazars-Exs. P5 to P7. He has not supported the case of the prosecution and has been treated as hostile. PW. P4, Scene of Offence Mahazar Ex. P5, Seizure Mahazars Exs. P6 and P7. He did not support the case of the prosecution and has been treated as hostile. PW. 5 is also a Pancha to Scene of Offence and Seizure Mahazars-Exs. P5 to P7. He has not supported the case of the prosecution and has been treated as hostile. PW. 6 is the mother of the deceased, before whom about 15 days prior to the death when deceased had been to her house told about the demand of Rs. 50,000/- and two and half tolas of gold and ill-treatment and harassment caused by the accused. She has stated that she advised the accused and told that they will pay the amount and gold after sometime. She has not supported the case of the prosecution and has been treated as hostile. PW. 7 is the uncle of the deceased before whom the deceased told about the demand of dowry and ill-treatment and he has also advised the accused persons along with other witnesses. He has also not supported the case of the prosecution and has been treated as hostile. PW. 8 is the police constable who carried the dead body for autopsy and after the Post Mortem, he collected the clothes of the deceased and produced before the Investigating Officer. PW. 9 is another constable who carried the F.I.R. to the Court and also carried the seized articles to the office of the Forensic Laboratory at Belagavi. PW. 10 is the Doctor who conducted the autopsy over the body of the deceased and issued the Post Mortem report as per Ex. P13. PW. 11 is the Junior Engineer who visited the place of incident and has drawn the sketch as per Ex. P14. PW. 12 is also Pancha to the Inquest Mahazar-Ex. P4. He has not supported the case of the prosecution and has been treated as hostile. PW. 13 is the Tahasildar who conducted the inquest over the body of the deceased as per Ex. P4. PW. 14 is the P.S.I., who registered the complaint, issued the F.I.R. and apprehended accused Nos. 2 and 3 thereafter produced before the Investigating Officer by giving a report as per Ex. P16. PW. 15 is the Dy.S.P., who took up the further investigation and after investigation filed the charge sheet. PW. P4. PW. 14 is the P.S.I., who registered the complaint, issued the F.I.R. and apprehended accused Nos. 2 and 3 thereafter produced before the Investigating Officer by giving a report as per Ex. P16. PW. 15 is the Dy.S.P., who took up the further investigation and after investigation filed the charge sheet. PW. 16 is the Scientific Officer of R.F.S.L., who examined the seized articles 1 to 7 and issued the report as per Ex. P20. 10. Keeping in view the submissions made by both the learned counsel, we have examined the material produced by the prosecution. 11. The main allegation of the prosecution is that accused No. 1 being the husband of the deceased committed the murder by assaulting with pickaxe and the butt end of the pickaxe and accused Nos. 2 and 3 have abetted accused No. 1, for demand of Rs. 50,000/- and two and half tolas gold as a dowry. On perusal of the evidence even though PW. 1 during the course of cross-examination by the learned Addl. P.P. has deposed that himself and CWs. 9 to 12 advised accused No. 1 not to harass the deceased and they will pay the amount as per their convenience, only on the said stray admission without there being any corroboration, the presumption under Section 113B of the Evidence Act cannot be drawn. Even the other evidence, which has been produced, does not inspire the confidence to show that there was harassment by accused Nos. 2 and 3 for demand of dowry soon before death. For the application of Section 113B, the prosecution is required to prove that soon before the death of the deceased she was subjected to cruelty or harassment by the accused persons. It must also prove the cruelty by such persons was in connection with any demand of dowry. Where the death of a married woman occurred otherwise than under normal circumstances, the prosecution must initially prove that such death was due to cruelty soon before her death for demand of dowry. The presumption under Section 113B is rebuttable, hence initial burden is on the prosecution to establish the said fact. If the initial burden is not discharged by the prosecution, no presumption can be drawn under Section 113B of the Evidence Act. The presumption under Section 113B is rebuttable, hence initial burden is on the prosecution to establish the said fact. If the initial burden is not discharged by the prosecution, no presumption can be drawn under Section 113B of the Evidence Act. Even though the prosecution has produced the material to show that within seven years of marriage the deceased died a homicidal death, but the prosecution has not in the first instance produced any incriminating material to show that the deceased was subjected to cruelty and harassment with a demand of dowry so as to draw the presumption under Section 113B of Evidence Act. When the initial burden has not been discharged by the prosecution, the question of presumption does not arise and there is no need for the accused persons to rebut the presumption when it cannot be raised. The evidence produced in this behalf to connect accused Nos. 2 and 3 to the alleged incident is not sufficient. In order to bring home the guilt of the accused with regard to instigation or abetment by accused Nos. 2 and 3, there must be specific allegation that the accused persons did some overt-tact and were present at the time of commission of the offence by the principal offender. If it is not proved, the accused cannot be convicted for the major offence by taking the aid of abetment or instigation. Examined from this angle it is seen that all the material witnesses including eyewitnesses have not deposed anything against the accused Nos. 2 and 3. In that light the evidence is not sufficient to connect accused Nos. 2 and 3 to the alleged crime. The trial Court only on presumption that accused Nos. 1 to 3 were present in the house has held that they have hatched a plan to eliminate the deceased when she failed to fulfill the demands of the accused. In this regard the Court below has come to a wrong conclusion that accused Nos. 2 and 3 have instigated accused No. 1 to commit the offence. That is not the proper appreciation of the evidence by the trial Court. In order to prove instigation or abetment, either conspiracy or intentional aid or certain degree of activity must be established. In this regard the Court below has come to a wrong conclusion that accused Nos. 2 and 3 have instigated accused No. 1 to commit the offence. That is not the proper appreciation of the evidence by the trial Court. In order to prove instigation or abetment, either conspiracy or intentional aid or certain degree of activity must be established. In that event if the evidence lead by the prosecution is perused, nowhere there is any whisper in that context, including about the presence of the accused Nos. 2 and 3 at the place of alleged incident. In that view the order of the trial Court holding the accused Nos. 2 and 3 is liable to be set aside. 12. As could be seen from the order of the trial Court, though the material witnesses have not deposed about ill-treatment, harassment or cruelty by the accused persons in relation to the demand for dowry soon before death, a presumption has been raised and wrongly convicted the accused persons under Sections 3 and 4 of the Dowry Prohibition Act. In order to convict the accused under Section 304B of IPC and Section 4 of the D.P. Act, there must be some materials and the initial burden has to be discharged by the prosecution. Without discharge of that burden, the Court below only on presumption has come to wrong conclusion. In this behalf the finding of the trial Court is not sustainable and liable to be set aside. 13. Though that be the position, the material on record establishes the fact that the homicidal death of Prema, the wife of accused No. 1 has occurred in the dwelling house of accused No. 1 and such death was due to the assault on the head with the butt of the pickaxe. The fact that accused No. 1 was present in the house is established. The fact that accused No. 1 was present in the house is established. From the evidence of P.W. 1, despite there being no support to the case of the prosecution relating to the dowry death in the background of requirement under Section 304-B, the same would however establish that all was not well between the accused No. 1 and his wife-Prema since it has been brought out that one Hajarat Sab and the elders of the Village had called a Panchayat and had advised the accused No. 1 about his attitude towards the daughter of P.W. 1 viz., the wife of accused No. 1 and to take care of her. Mahaningappa and Parashuram are all stated to have advised the accused No. 1. If these aspects of the matter are kept in view and in that light, the fact that the deceased and accused No. 1 were at the place of occurrence viz., the dwelling house of the parties is kept in view and the presence of any other person is not brought on record, it was incumbent on accused No. 1 to explain the circumstance under which his wife had sustained the grievous injuries on her body so as to cause the un-natural death. In that background, if the circumstances are taken into consideration, the chain would be complete to establish that the death was caused by accused No. 1. Even when accused No. 1 has been examined before the trial Court after closure of the evidence under Section 313 Cr.P.C., he has not come up with any explanation as to how his wife Prema succumbed to the injuries. Keeping in view the above facts and circumstances, the prosecution has clearly established the fact that it is the accused No. 1 who has committed the murder of the deceased Prema. Even though the trial Court has not discussed in detail about this aspect, relying on the circumstances that both husband (accused) and wife were staying in the dwelling house, by drawing the inference has come to the right conclusion and has rightly convicted accused No. 1 for the alleged offence. To that extent, the conviction and sentence against accused No. 1 does not call for interference and the same is liable to be affirmed. 14. Keeping in view the above discussions, appeal is partly allowed. To that extent, the conviction and sentence against accused No. 1 does not call for interference and the same is liable to be affirmed. 14. Keeping in view the above discussions, appeal is partly allowed. In respect of accused No. 2 and 3 the judgment and order dated 22.06.2012 passed in Sessions Case No. 90/2011 is set aside. So far as accused No. 1 is concerned, the sentence for offences under Section 304B of IPC and Section 4 of the D.P. is set aside. However, the order of conviction and sentence pertaining to the offence under Section 302 is confirmed. The appeal is disposed of accordingly.