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2020 DIGILAW 1475 (KAR)

Raghavendra @ Ravi v. State Of Karnataka

2020-07-23

B.A.PATIL, M.G.UMA

body2020
JUDGMENT M.G.Uma, J. - The appellant has preferred this appeal aggrieved by the impugned judgment of conviction dated 21.11.2017 and order of sentence dated 28.11.2017 passed by the learned Principal District and Sessions Judge, Uttara Kannada, Karwar (hereinafter referred to as the 'trial Court') in S.C.No.59/2009, whereunder the accused is convicted for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act and under Section 498(A), 304(B) and 302 of IPC. 2. Heard the learned advocate Sri.J.S.Shetty for the appellant through video conference and learned Addl.SPP Sri.V.M.Banakar for respondent-State, who is physically present before the Court. 3. It is the contention of the prosecution that deceased Shobha was given in marriage to the accused on 08.04.2009 and after the marriage, she started residing in her matrimonial house. At the time of marriage, several gold and silver articles, utensils and clothes were given as per the demand by the accused. They have also paid cash to the accused as per his demand. But in spite of that, accused was demanding for additional dowry and used to harass the deceased, both physically and mentally. The deceased, who could not tolerate the cruelty by the accused, committed suicide on 23.06.2009 between 5.30 to 6.00 pm in the house of the accused. In this regard, PW9-the brother of the deceased, lodged first information as per Ex.P12 with the police, against the accused and the FIR was registered in Crime No.92/2009 of Karwar town police station. After investigation, the charge sheet was filed against the accused for the above said offence. 4. The learned Magistrate took cognizance of the matter and after following the procedure, committed the matter to the Court of Principal District and Sessions Judge, for disposal in accordance with law. The Trial Court after securing the presence of the accused, framed charges against him for the above said offences. Accused pleaded not guilty and claimed to be tried. 5. In order to prove the guilt of the accused, the prosecution examined 24 witnesses, got marked 26 documents and identified 35 material objects. 6. On the basis of the these materials on record, the trial Court formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to pass the impugned judgment and order of sentence as stated above. 6. On the basis of the these materials on record, the trial Court formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to pass the impugned judgment and order of sentence as stated above. Aggrieved by the said judgment of conviction and order of sentence, the accused has preferred this appeal on various grounds. 7. The learned advocate for the appellant submitted that the impugned judgment of conviction and order of sentence is illegal, perverse and the same is liable to be set aside. He submitted that there is absolutely no material placed before the trial Court to prove the guilt of the accused, either under the provisions of the Dowry Prohibition Act or under Indian Penal Code. The witnesses examined by the prosecution have spoken to regarding the marriage of the deceased with the accused and she committing suicide in the house of the accused, when there were nobody in the house. Under such circumstances either Sections 3 and 4 of Dowry Prohibition Act or Sections 498(A), 304(B) or Section 302 of IPC, are not at all attracted. Even though none of the witnesses have spoken about the cruelty or harassment meted to the deceased in her matrimonial house by the accused, the trial Court erred in forming an opinion that the said fact is proved by the prosecution. The approach of the trial Court has resulted in miscarriage of justice. Therefore, he prays for the interference by this Court to set aside the impugned judgment of conviction and order of sentence passed by the trial Court by allowing the appeal and acquitting the accused for all the above offences. 8. Per contra the learned Addl.SPP Sri.V.M.Banakar, vehemently submitted that the prosecution examined PWs.1 to 4 and 6, who are the close relatives of the accused. They have stated in their evidence that several gold and silver articles, clothes and utensils were given to the accused, at the time of the marriage. PW9-the brother of the deceased, PW10- the mother and PW11-the sister of the deceased have categorically stated regarding the guilt and cruelty meted to the deceased. They have stated in their evidence that several gold and silver articles, clothes and utensils were given to the accused, at the time of the marriage. PW9-the brother of the deceased, PW10- the mother and PW11-the sister of the deceased have categorically stated regarding the guilt and cruelty meted to the deceased. Further he stated that the post mortem report along with the evidence of PW18 and the inquest mahazar Ex.P9 discloses that the deceased had died an unnatural death and immediately thereafter U.D.RNo.13 of 2009 was registered and subsequently the complaint was came to be lodged by PW9-the brother of the deceased. 9. During investigation, M.Os.1 to 35 were seized, which were given by PWs.9 and 10 to the accused. If all these materials are taken into consideration, it is clear that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The trial Court has taken into consideration all these materials on record and has rightly formed an opinion that it is the accused, who demanded and accepted the dowry from PWs.9 and 10 at the time of his marriage and even after the marriage, he treated the deceased with cruelty, by demanding additional dowry. The deceased died due to suicide by pouring kerosene and litting fire within 21/2 months after her marriage with the accused and therefore the trial Court is right in convicting the accused for the above offences. He submits that since there are no grounds made out by the appellant, the appeal deserves to be dismissed. 10. We have given our thoughtful consideration to the materials placed before us, including the trial Court records. 11. The prosecution in order to prove the guilt of the accused, examined PW1-the mother, PW2-the father, PW3-the younger brother and PW4-the brotherin- law of the accused and PW6-the sister of the accused. All these witnesses have admitted that during the marriage of the deceased with the accused, some of the gold and silver articles, clothes and utensils were given. However, these witnesses have categorically stated that they never demanded any of these articles, as dowry but as by usage and custom, PW10 had given these items. PW1 further states that she herself produced the gold and silver articles, which were given to the deceased. 12. The prosecution also examined PW5-the neighbor, who has not supported the case of the prosecution. 13. PW1 further states that she herself produced the gold and silver articles, which were given to the deceased. 12. The prosecution also examined PW5-the neighbor, who has not supported the case of the prosecution. 13. Pw7 is the inquest mahazar pancha. The inquest mahazar Ex.P9 is said to have been drawn in the presence of this witness. But the witness has not supported the case of the prosecution. PW8 is the mahazar witness to the seizure mahazar Ex.P10, whereunder the gold and silver articles as per M.Os.30 to 35 were seized. 14. Pw9 is the brother of the deceased, the complainant, who lodged the complaint as per Ex.P12 on 01.07.2009. It is pertinent to note at this juncture that the incident had taken placed on 26.03.2009 between 5.30 to 6.00 pm, but the complaint was came to be registered on 01.07.2009. There is delay of about 8 days in lodging the complaint. No explanation whatsoever is given by the prosecution for the delay in lodging the complaint. Admittedly, when the U.D.R. was registered about the unnatural death of the deceased in U.D.R.No.13/2009 and the inquest mahazar was conducted as per Ex.P9, the statement of the brother, mother and sister of the deceased were recorded and admittedly in their statement, they have not alleged any cruelty or harassment on the part of the accused towards the deceased. On the other hand, this witness admitted that he had stated before the police that his sister had committed suicide. 15. It is also pertinent to note that PWs. 9 and 10 have specifically stated in their evidence that it was PW11, the sister of the deceased, who stated that the deceased had informed her on the previous day of the incident about the ill-treatment by the accused. PW11 in her evidence states that, when she had called the deceased on the previous day and invited her to her place, the deceased stated that the accused is treating her with cruelty. Except this witness there is absolutely no other witness, who spoke about the harassment meted to the deceased by the accused. Even the evidence of PWs.9 and 10 with regard to this illtreatment and cruelty is the hearsay evidence, that is on the basis of the say of PW11. Except this witness there is absolutely no other witness, who spoke about the harassment meted to the deceased by the accused. Even the evidence of PWs.9 and 10 with regard to this illtreatment and cruelty is the hearsay evidence, that is on the basis of the say of PW11. PWs.9 and 10 during cross examination stated that immediately after the incident, they had given the statement before the police to the effect that the deceased was living cordial life with the accused and his family members and that the accused was not ill-treating her in any manner. They also admitted that in the statement, they have stated that they do not have any suspicion in the death of the deceased in the house of the accused. 16. Even though the prosecution examined PW12, the uncle of the deceased, he also spoke about the giving of gold weighing seven tolas to the accused at the time of marriage. But however, during crossexamination he admitted that his statement was recorded by the Tahasildar on the next date of the incident and he pleaded his ignorance that the accused was not responsible for the death of the deceased. 17. The prosecution examined PW13, the neighbor, who broke open the door of the house of the accused and tried to rescue the deceased when she was set ablaze. The evidence of this witness clearly goes to show that the door of the house was latched from inside and he had forcibly opened the door and gained entry into the house. This version is supported by the evidence of PW1-the mother of the accused, who also stated that, when the incident had taken place, she was away and when she came back, she found the door of her house closed from inside and there was no response from the deceased even when she called her. Therefore, she requested PW13 to look into the house. All these materials disclose that there were nobody except the deceased in the house when the incident had taken place. Even according to the case of the prosecution, it is a case of self-emulation. But the contention of the prosecution that the accused was demanding dowry and he was treating her with cruelly is not proved by the prosecution by placing any cogent and acceptable material. Even according to the case of the prosecution, it is a case of self-emulation. But the contention of the prosecution that the accused was demanding dowry and he was treating her with cruelly is not proved by the prosecution by placing any cogent and acceptable material. The version of PW11 in that regard is not acceptable in the absence of any corroboration. 18. Even though PWs.1 to 4 have admitted that several gold and silver articles were given to the deceased at the time of marriage, they clearly denied that they had ever demanded any dowry. But on the other hand, PW10 had given those items voluntarily to the deceased and not to the accused. This version of PWs.1 to 4 cannot be ignored while considering the materials on record. 19. It is pertinent to note that, immediately after the incident, UDR No.13/2009 was registered. The inquest mahazer as per Ex.P9 was conducted and the statements of the family members of the deceased, including her brother PW9 was recorded. In spite of that, they have not made any allegation against the accused for treating the deceased with cruelty or harassment or regarding demand for dowry. Strangely the complaint as per Ex.P12 came to be lodged on 01.07.2009 i.e., after lapse of about 7-8 days. That itself indicates that the case has been registered only after deliberation and discussion to implicate the appellant/accused and to see that he is convicted. PW9 the complainant has not assigned any reason for the delay in lodging the complaint. If at all the version of PW11 is to be accepted that the deceased had complained regarding ill-treatment by the accused with her on the previous day, definitely the said fact could have been stated by her before the Tahasildar and even to PWs.9 and 10 could also suspected the role of the accused in the unnatural death of the deceased. 20. From the materials on record, even though the prosecution is successful in proving that the deceased died an unnatural death sustaining burn injuries within few months after her marriage, it has failed to prove that it was the dowry death due to harassment by the accused by demanding additional dowry. We are conscious of the fact about the presumption under Section 113(A) of the Evidence Act. We are conscious of the fact about the presumption under Section 113(A) of the Evidence Act. If an unnatural death takes place within seven years of marriage, then a presumption has to be drawn that it is a dowry death. But the initial burden is always there upon the prosecution to prove that there was demand of dowry and because of the said ill-treatment deceased died unnatural death. Then burden shifts on the accused to disprove the same. The material produced in this behalf is not sufficient to held that there was demand for dowry. Under these circumstances, we are of the opinion that the prosecution has failed to prove its contention regarding commission of the offence by the accused. Therefore, the accused is entitled for the benefit of doubt and he has to be acquitted. 21. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has based its reasoning only on the version of PWs. 9 to 11 and recovery of M.Os. 1 to 35 and formed an opinion that the prosecution is successful in proving the guilt of the accused. When there are absolutely no allegation made against the accused by the mother, brother and sister of the deceased immediately after the incident and when such allegation came to be made after long lapse of eight days, the trial Court should have scrutinized the materials before it carefully and should have given the benefit of doubt to the accused. 22. Under these circumstances, we are of the opinion that the appellant should succeed and he is entitled to be acquitted. 23. In the result we proceed to pass the following: ORDER Appeal is allowed. The impugned judgment of conviction dated 21.11.2017 and order of sentence dated 28.11.2017 passed by the learned Principal District and Sessions Judge, Uttara Kannada, Karwar in S.C.No.59/2009, convicting the accused for the offence punishable under Sections 498(A), 304(B) and 302 of the IPC and under Sections 3 and 4 of the Dowry Prohibition Act is set aside. The accused is acquitted of all the charges leveled against him. The bail bonds and surety bonds stand cancelled.The fine amount, if any, deposited by the accused if any, is ordered to be refunded to the accused on due identification and acknowledgement. Send back the lower Court records.