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Karnataka High Court · body

2019 DIGILAW 2167 (KAR)

Bhushan Mallik v. State of Karnataka

2019-11-14

B.A.PATIL

body2019
ORDER : Heard the learned counsel for the petitioners Sri .A. Ravishankar and also the learned Additional SPP Vijaykumar Majage for respondent-State. 2. The present revision petition has been filed by petitioners-accused Nos.3 and 4 challenging the order dated 1.8.2018 passed by XLV Additional City Civil and Sessions Judge, Bengaluru, in S.C.No.660/2015 where under the application filed under Section 227 of Cr.P.C. came to be dismissed. Challenging the legality and correctness of the order the petitioners-accused Nos.3 and 4 are before this Court. 3. The gist of the complaint is that the deceased and accused No.1 got married on 7.4.2014 and at that time the bride’s family gave clothes, jewellery worth Rs.6,00,000/- to the family of the groom in addition to spending Rs.5,00,000/- towards marriage. It is further alleged that a sum of Rs.2,00,000/- was given in cash to purchase furniture, a sum of Rs.2,00,000/- was given for miscellaneous expenses of the marriage. It is further alleged that all these accommodations were made upon the demand made by the family of the groom. It is further alleged that the accused persons after marriage started torturing and inflict the cruelty for having given less dowry in the marriage and persisted to demand a car worth Rs.6 to 7 lakhs and an amount of Rs.15 Lakhs towards marriage expenses, for which the complainant assured the parents of the groom’s family. It is further alleged that accused Nos.3 and 4 came to Bengaluru in the first week of June and stayed for 10 to 15 days. During that particular period they harassed for demand of dowry. Because of the said cruelty and other aspects the deceased committed suicide on 13.10.2014. On the basis of the complaint a case was registered and after investigation the charge sheet has been filed. Earlier the petitioners-accused approached this Court against the order of discharge. This Court in Criminal Revision Petition No.96/2018 by order dated 9.2.2018 remitted the case by issuing certain guidelines. After remittal the Court below has passed the impugned order. 4. It is the contention of the learned counsel for the petitioners that the marriage of the deceased and accused No.1 was performed on 7.4.2014, it is a love marriage. Under such circumstances, there is no question of making any demand of dowry and payment of dowry and there was no ill-treatment and harassment caused to the deceased. 4. It is the contention of the learned counsel for the petitioners that the marriage of the deceased and accused No.1 was performed on 7.4.2014, it is a love marriage. Under such circumstances, there is no question of making any demand of dowry and payment of dowry and there was no ill-treatment and harassment caused to the deceased. It is his further submission that though the alleged incident has taken place on 13.10.2014, the complaint was registered on 25.10.2014 belatedly after 12 days. It is his further submission that the deceased and accused No.1 used to stay in Bengaluru and accused Nos.3 and 4 the parents of accused No.1 used to stay in Uttar Pradesh and even it is alleged that they came for a week and they have moved together and at that time they were happy and no ill-treatment and harassment was caused to the deceased. It is his further submission that only because they are parents of accused No.1 they have been falsely roped in this case only to harass the petitioners. It is his further submission that the statement of the witnesses are vague statements though they have not seen anything about the cruelty as against the deceased they have vaguely stated in this behalf though they were not present. It is his further submission that as per the version of the complainant himself accused No.3 has not come to Bengaluru at all, but the statement of the witnesses clearly goes to show that without knowing the factual situation stereo type statement has been recorded by the police only to rope accused No.3 in the case by showing that he has also come to Bengaluru. It is his further submission that the Court below without looking into the factual matrix of the case has erroneously dismissed the application. It is his further submission that entire records and documents produced by the prosecution will not throw any light what is the actual role played by accused Nos.3 and 4. Though there is sufficient material to proceed to frame the charge, the trial court erroneously dismissed the petition. 5. It is well proposed proposition of law by the Hon’ble Apex Court that if there is any suspicion arises, the Court can discharge the accused and if a strong and grave suspicion arises, the Court can proceed and frame the charge. Though there is sufficient material to proceed to frame the charge, the trial court erroneously dismissed the petition. 5. It is well proposed proposition of law by the Hon’ble Apex Court that if there is any suspicion arises, the Court can discharge the accused and if a strong and grave suspicion arises, the Court can proceed and frame the charge. Without looking into these aspects the application has been dismissed. In order to substantiate his said contention he has relied upon the decision in the case of P.Vijayan Vs. State of Kerala and Another reported in (2010) 2 SCC 398 . He also relied upon one more decision in the case of L.Krishna Reddy Vs. State by Station House Officer and Others reported in 2013 AIR SCW 6202. He has also relied on the decision in the case of Kamesh Panjiyar Alias Kamlesh Panjiyar Vs. State of Bihar reported in (2005) 2 SCC 388 . He has also relied on another decision in the case of Union of India Vs. Prafulla Kumar Samal and another reported in (1979) 3 SCC 4 . On these grounds he prayed to allow the petition and to set aside the impugned order and discharge the accused. 6. Per contra, the learned Additional SPP vehemently argued and submitted that the materials produced by the prosecution clearly goes to show that along with accused No.1, accused Nos.3 and 4 and accused No.2 the brother of accused No.1 have ill-treated and harassed the deceased for demand of dowry and as a result of the same the deceased committed suicide. It is his further submission that the material clearly goes to show that accused Nos.3 and 4 have come to Bengaluru for a period of one week and at that time the accused persons have ill-treated and harassed. Even the complainant and another witness have clearly stated in their statement about the visit of accused No.4. It is his further submission that at the time of marriage huge dowry has been paid and subsequently the accused persons started both physical and mental ill-treatment and especially accused No.4 subjected the deceased to physical and mental ill-treatment. It is his further submission that the trial Court after considering the material placed on record has come to the conclusion that there is a grave suspicion as against the petitioners accused and as such rightly dismissed the application. It is his further submission that the trial Court after considering the material placed on record has come to the conclusion that there is a grave suspicion as against the petitioners accused and as such rightly dismissed the application. There are no good grounds to interfere with the order of the trial Court. On these grounds he prayed to dismiss the petition. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 8. On close reading of the material placed on record it indicates that the marriage has taken place on 7.4.2014 and the alleged incident has taken place on 13.10.2014 and the complaint was registered on 25.10.2014. In the complaint and other material it has been alleged that the marriage of deceased and accused No.1 is a love marriage and thereafter the other accused persons started ill-treatment and harassment for demand of dowry. While framing the charge the Court has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether there is prima facie case as against the accused has been made out. The test to determine a prima facie case would naturally depend upon the facts of each case and no straight jacket formula or universal law can be made in this behalf. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal and another quoted supra, wherein at paragraph 10 it has been observed as under: 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Even in the case of P.Vijayan quoted supra at paragraphs 11 and 25 it has been observed as under: 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 25. As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that “there is not sufficient ground” for proceeding against the accused. In other words, his consideration of the record and documents at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time when a prima facie case was not disclosed and to save the accused from avoidable harassment and expenditure. In the case of L.Krishna Reddy, quoted supra it has been observed at paragraph No.6 which reads as under: 6. The charge-sheet does not indicate any complicity so far as the parents of the deceased are concerned. Obviously, if the murder has been committed in Pondicherry a direct role in that unfortunate event cannot be ascribed to them. Of course, it is theoretically possible that they may have abetted or conspired in the crime or persuaded their son to have perpetrated the crime. However, this version is not forthcoming from the chargesheet. The appellant, in his further statement, has alleged that—“on the last 25-3-2006 night as per the plans of Ramachandra Reddy, his father Vidyasagar Reddy and mother Naarasamma, Ramachandra Reddy had killed my daughter Sujatha brutally at a hotel at Pondicherry due to dowry harassment….” This is the only statement which contains an allegation pertaining to the possible conspiracy of the husband's parents who, it must be kept in focus, were not in Pondicherry at the time when Sujatha was done to death by her husband. In our opinion, it is not sufficient to merely make a bald statement but further catenation should exist linking all the conspirators together. Sifting through the evidence i.e. the statement made by several witnesses, there is no direct imputation that either of Respondents 2 and 3 before us had either independently or along with their deceased son, made a demand for dowry. We should not lose sight of the fact that the deceased couple had earlier been living with the unfortunate wife's family, and thereafter independently of either of the parents-in-law. In fact, as has been noted by the High Court in the impugned order the statement of the complainant father of the deceased, some demands have been made by his son-in-law. We should not lose sight of the fact that the deceased couple had earlier been living with the unfortunate wife's family, and thereafter independently of either of the parents-in-law. In fact, as has been noted by the High Court in the impugned order the statement of the complainant father of the deceased, some demands have been made by his son-in-law. Our attention has been drawn to a recent judgment titled Central Bureau of Investigation v. K. Narayana Rao (2012) 9 SCC 512 : AIR 2013 SC (Cri) 448 : 2012 AIR SCW 5139), wherein after discussing the previous opinions of this Court in a number of cases including State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : ( AIR 1992 SC 604 : 1992 AIR SCW 237), it was opined that in order to make good the commission of an offence of criminal conspiracy, it should be evident that an agreement between the conspirators should have been in existence at the material time. In Kamesh Panjiyar @ Kamlesh Panjiyar quoted supra at paragraph No.11 it has been observed as under: 11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. By taking into consideration the above decisions quoted supra it gives a clear picture that if only suspicion arises in the case of the prosecution, the Court is at liberty to discharge the accused and if a strong and grave suspicion arises, the Court can proceed and frame the charge as against the accused. It is also observed in the case of P. Vijayan quoted supra that if two views are possible and one of them gives raise to a suspicion only as distinguished from grave suspicion, then the Court below is justified in discharging the accused at the stage of framing of the charge. It is also observed in the case of P. Vijayan quoted supra that if two views are possible and one of them gives raise to a suspicion only as distinguished from grave suspicion, then the Court below is justified in discharging the accused at the stage of framing of the charge. Keeping in view the ratio laid down by the Hon’ble Apex Court in catena of decisions quoted supra, I am of the considered opinion with regard to the ratio laid down by the Hon’ble Apex Court, it has been observed that there is no straight jacket formula to be applied in a particular case that it has to be applied with reference to the facts and circumstances of the case. In that light if the charge sheet material which has been made available is looked into insofar as petitioner-accused No.3 is concerned, nowhere it depicts that he has visited Bengaluru and he has stayed along with deceased and accused No.1, then under such circumstances, he ill-treated both physically and mentally the deceased does not arise at all. In order to attract the provisions of Section 304-B of Indian Penal Code, there must be evidence before the Court that soon before the death there must be some ill-treatment and harassment. Even the statement of the witnesses which has been made available does not reveal the fact that even there were phone calls made by accused No.3 to the deceased. In that light also there is no material at all. He is staying at Uttar Pradesh and the deceased and accused No.1 were staying in Bengaluru. Then under such circumstances, I am of the considered opinion that insofar as petitioner-accused No.3 is concerned, it creates a suspicion in the case of the prosecution. But insofar as accused No.4 is concerned there is material to show that she has visited Bengaluru and stayed with accused No.1 and deceased for some time and even the statement of the complainant and the complaint disclosed that when accused No.4 was present, at that time she ill-treated and harassed both physically and mentally the deceased. Insofar as accused No.4 is concerned, the definition of soon before the death is a question which has to be determined and decided only on factual circumstances of the case at the time of trial. Insofar as accused No.4 is concerned, the definition of soon before the death is a question which has to be determined and decided only on factual circumstances of the case at the time of trial. Keeping open the said point, I am of the considered opinion that there is no mere suspicion, but there is grave suspicion as against the accused No.4 is concerned. In the light of the discussion held by me above, the petition is partly-allowed. Insofar as the petitioner-accused No.3 is concerned the petition is allowed and the impugned order passed by XLV Additional City Civil and Sessions Judge, Bengaluru City in S.C.No.660/2015 dated 1.8.2018 is set aside and the petitioner-accused No.3 has been discharged from the charges leveled against him. Insofar as petitioner-accused No.4 is concerned, the same is dismissed as devoid of merits.