IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR.JUSTICE K.N.PHANEENDRA AND THE HON’BLE MR.JUSTICE K.NATARAJAN CRIMINAL APPEAL NO.857/2016 BETWEEN:
1. ALTHAF S/O ABDULLA AGED ABOUT 36 YEARS 2. SHABBIR S/O ABDULLA AGED ABOUT 42 YEARS 3. RAJA SAB S/O ABDULLA AGED ABOUT 31 YEARS 4. MRS. PEERAMBI W/O LATE ABDULLA AGED ABOUT 62 YEARS HOUSE WIFE 5. PURUNNISA W/O SHABBIR AGED ABOUT 34 YEARS HOUSE WIFE ALL ARE RESIDING AT JAYANAGAR VILLAGE HOSANAGARA TALUK SHIVAMOGGA DIST. PIN: 577418.
(BY SRI C V NAGESH, SR.COUNSEL A/W SRI H P LEELADHAR, ADV.) AND:
STATE OF KARNATAKA BY HOSANAGAR POLICE STATION SHIMOGA DIST.
PIN: 577418.
(BY SRI VIJAYA KUMAR MAJAGE, ADDL.SPP) ... APPELLANTS ... RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 23.03.2016 AND SENTENCE DATED 26.03.2016 PASSED BY THE II ADDL. DIST. AND S.J., SHIVAMOGGA IN S.C.NO.16/2014 - CONVICTING THE APPELLANT/ACCUSED NO.1 TO 5 FOR THE OFFENCE P/U/S 498(A) AND 304(B) OF IPC AND SEC. 3 AND 4 OF D.P. ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants were arrayed as accused No.1 to 5 before the II Additional District and Sessions Judge at Shivamogga in Sessions Case No.16/2014 for the offences under Sections 3 and 4 of the Dowry Prohibition Act and also under Sections 498-A and 304-B read with Section 34 of Indian Penal Code (for short ‘the IPC’).
2. The trial Court, by its judgment dated 23.03.2016 has arrived at a conclusion that the prosecution has proved guilt of the accused beyond all reasonable doubts and (a) sentenced them to undergo simple imprisonment for three years and to pay a fine of Rs.5,000/- each with default sentence of six months for the offence under Section 498-A of IPC;
(b) sentenced them to undergo simple imprisonment for life and to pay a fine of Rs.10,000/- each with default sentence of two years for the offence under Section 304-B of IPC and also;
(c) sentenced them to undergo simple imprisonment for five years and to pay a fine of Rs.15,000/- each, with default sentence to undergo simple imprisonment for six months for the offence under Section 3 of the Dowry Prohibition Act and as well; and (d) sentenced to pay a fine of Rs.2,000/- each, with default sentence to undergo simple imprisonment for one month for the offence under Section 4 of the Dowry Prohibition Act.
Being aggrieved by the above said judgment of conviction and order of sentence, the appellants have preferred this appeal.
3. We have heard the arguments of Sri.C.V.Nagesh, learned Senior counsel for the appellants and also Sri Majage the learned Additional SPP for State.
4. Learned Senior Counsel elaborated the grounds of appeal in detail which we are going to consider little later, likewise the counter arguments submitted by the Additional SPP. Before adverting the appreciation of material evidence on record, we feel it just and necessary to have few factual aspects of this particular case.
5. There is absolutely no dispute with regard to the fact that the deceased by name Nazima was given in marriage to accused No.1 (appellant No.1 herein) on 18.05.2008 and thereafter she started living in her marital home and she committed suicide on 11.05.2013 at about 3.30 p.m., in the house of the accused. At that time, she was having a child aged about 5 months.
6. In the above said background, it is the case of the prosecution that, at the time of marriage, that too prior to the marriage, there was demand of Rs.50,000/- cash and 15 tolas of gold by the accused persons and on demand, the said amount was paid and gold articles were also given in consideration of the marriage as dowry. Thereafter, the said lady Nazima went to the house of accused and she started living there to perform her marital obligations. It is the further case of the prosecution that, the accused persons have further started demanding an amount of Rs.25,000/- cash and one gold chain as additional dowry in consideration of the marriage. In this regard, they started harassing and ill- treating the deceased. The cruelty was of such nature, which was sufficient for her to cause grievous injuries to her life or limb and also sufficient to drive her to commit suicide. It is also the allegation that, on various occasions, the accused have demanded money and parents of the deceased have paid some money to the accused. In spite of that, thirst for money of the accused was not satisfied. In this context, it is further alleged that, on 11.05.2013 she committed suicide in the house of the accused because of the ill-treatment and harassment in demand of dowry. Even soon before her death, there was ill-treatment to her. Therefore, on the above said grounds, the father of the deceased immediately after the death of the deceased lodged a complaint as per Ex.P1 on which basis, the police have registered a case in Crime No.75/2013 for the offences under Sections 498-A and 302 read with Section 34 of IPC at the initial stage and they started investigation. During the course of investigation, the police found that the offence under Section 302 was not made out, but the remaining offences as charged against them were made out, therefore laid a charge sheet against them. After filing of the charge sheet, the trial Court has secured the presence of the accused persons and tried and found them guilty and accordingly sentenced them as noted supra.
7. Learned Senior Counsel for the appellants contends before the Court that, the evidence of P.W.1, P.W.5 and P.W.6 is only available to the prosecution. However, he drew our attention by taking us through the evidence of all the witnesses meticulously and submitted that, there is absolutely no evidence either in Ex.P1-(report) or in the evidence of these witnesses that, actually who demanded the dowry, who received the dowry and what is the nature of ill-treatment that was adverted to the deceased, so as to come to the conclusion that there was cruelty of such nature which was sufficient to drive a lady to commit suicide. He further submits before the court that there was no other evidence available to support the contention of the prosecution that there was demand for dowry and payment of cash and gold to any one of the accused persons. Learned counsel also submits before the Court that, the charges framed by the trial Court are not so happily worded and the accused were not made known as to what are the charges leveled against them, particularly the ingredients of Section 304-B of IPC conspicuously not seen in the charges framed by the trial Court. Last, but not the least, learned counsel submitted that, the evidence of P.W.1, P.W.5 and P.W.6, even, as it is accepted considering their examination-in-chief itself, there is inadequate and insufficient evidence to draw any inference that the accused have committed any of the offences charged against them. Therefore, the learned Senior Counsel pleaded for allowing the appeal and consequently for acquittal of the accused. It is submitted by the learned counsel for the accused that accused Nos.4 and 5 are already enlarged on bail.
8. Per contra, learned Additional SPP has contended before the Court that though there is no specific meticulous evidence let in, but over all reading of entire evidence of the prosecution, evidence of P.W.1, P.W.5 and P.W.6 inspire confidence to show that, there was some cruelty and ill- treatment in demand of dowry. Though there is no evidence to show that soon before the death there was any demand, but continuous taunting and demanding dowry, goes without saying, that, because of that reason only the deceased had committed suicide in the house of her husband. Therefore, definitely inference can be drawn based on the surrounding circumstances. The trial Court, in fact after appreciating the entire evidence on record has arrived at a conclusion that prosecution has proved the case beyond all reasonable doubts. There is absolutely no scope for this Court to interfere with the judgment of conviction and sentence passed by the trial Court. Therefore, he pleaded for dismissal of the appeal.
9. In the wake of above said submissions made by the learned counsel for the parties, we feel it just and necessary to have cursory look at the evidence of prosecution case before adverting to the appreciation of material evidence on record.
10. P.W.1/Mr.Dastagir Sab is none other than the father of the deceased. He has spoken about lodging of the complaint, ill-treatment, harassment with regard to demand of dowry and death of the deceased in the house of accused, etc. P.W.2 and P.W.3 by name Gafoor Sab and Lokesh are neighbors of the accused. These two witnesses have not whole heartedly supported the case of the prosecution. In fact, P.W.2 has only stated that he has seen the dead body and he was witness for Ex.P9-Mahazar in which two pieces of veil cloth have been recovered. There is absolutely no incriminating evidence, as such in the evidence of P.W.2., though the learned counsel has relied upon the evidence of these two witnesses to establish that there is supporting evidence to the conduct of the accused. P.W.3 Lokesh, totally turned hostile to the case of the prosecution. We would also like to discuss the evidence of P.W.2 & P.W.3 along with the evidence of other material witnesses. P.W.4 one Mr.Satish is a panch witness to inquest under Ex.P11. Ex.P3 to Ex.P6 are the photographs of the dead body taken at the time of drawing inquest. He was also panch witness to Ex.P7 with reference to seizure of marriage invitation card and photographs. He also never stated anything about the conduct of the accused and there is no incriminating material available. P.W.5 Fathima, mother of the deceased almost reiterated the evidence of P.W.1. P.W.6 Mr.Habeeb is a paternal Uncle of the deceased i.e. brother of P.W.1. He also virtually reiterated the evidence of P.W.1 who is also scribe of Ex.P1. P.W.7-Musthafa is formal witness to speak about the registration of marriage of the accused and deceased in Jamat who produced Ex.P17. P.W.8-Dr.Suresh who conducted Post Mortem examination on the dead body of the deceased who gave an opinion with regard to cause of death of the deceased as at Ex.P18; Ex.P19 as FSL report and opinion at Ex.P20. After looking at the FSL report, it is observed that, result of death is due to asphyxia due to hanging that could be caused with the help of veil which is seized in this particular case. P.W.9-Ramakrishnaiah is a formal witness who conducted inquest as per Ex.P11. P.W.10-Dr.Veeresh M.R. who examined hyoid bone and neck structures and gave opinion as per Ex.P20 which indicates that hyoid cartilage; thyroid cartilage and Cricoid cartilage were all intact. P.W.11, P.W.12, P.W.13 and P.W.14 are Investigating Officers. Particularly, P.W.14 is the Deputy Superintendent who laid charge sheet against the accused persons. P.W.13 Santhosh Kumar has registered Crime No.75/2013 on the basis of Ex.P1 and dispatched the FIR/Ex.P2 to the Court.
11. As rightly contended by the learned Senior counsel, there is no other evidence except the evidence of P.W.1, P.W.5 and P.W.6 who are the close relatives of deceased.
Before adverting to the evidence of these three witnesses to consider whether the prosecution has proved the case beyond reasonable doubt, it is just and necessary to examine the evidence of P.W2 and P.W.3.
12. P.W.2-Gafoor Sab is a neighbour who is also a witness to Ex.P9 with regard to seizure of material objects M.Os.1 and 2 which is not so relevant as there is no dispute with regard to death of the deceased. Even the evidence of prosecution witnesses; the inquest Mahazar Ex.P11; Doctor’s evidence and the opinion expressed in the Post Mortem report show that, the deceased has committed suicide by hanging herself and the death is due to asphyxia as a result of hanging. The prosecution in fact has proved suicidal death of the deceased. He also deposed that he new the accused, deceased and other family members of the accused. After marriage, the deceased Nazima had come to the house of the accused and in fact, on the date of death of Nazima, this witness was not present and he came in the evening at 5.30 p.m. He further deposed that he came to know that the deceased has committed suicide and in fact the accused had taken the deceased to the hospital and admitted there, he came to know the death of the deceased in the hospital. He categorically deposed that the accused were taking care of the deceased and deceased Nazima was hale and healthy when she was in the house of the accused and she was doing house hold works. He did not know as to why she committed suicide. Therefore, the neighbor, who is a competent witness at least to say whether there was any quarrel in the house of accused for any reason pleads his ignorance as to the occurrence of death and he has not been cross-examined by the prosecution on his aspect.
Therefore, this piece of evidence cannot be easily brushed aside.
13. P.W.3 also similarly stated that, he was also a neighbour and he also saw the accused and deceased residing together. Prior to the death of the deceased, on one Friday, i.e., a day prior to her death she had come back to the house of the accused. He also never stated anything about ill-treatment or harassment by the accused at any point of time. When this witness was cross-examined by the prosecution suggesting that, he had stated that the accused were harassing the deceased in demand of dowry, he denied having given any such statement before the Court. He has reiterated what P.W.2 has stated to the effect that, the accused persons and deceased were living together happily and the accused were looking after her with all affection. Therefore, from the evidence of these witnesses who are neighbours, nothing worthwhile is elicited. In this background, the evidence of kith and kin of the deceased has to be appreciated.
14. Of course, P.W.1 and P.W.5 are father and mother of the deceased. P.W.1 has deposed that he has given complaint as per Ex.P1 and he got it written through P.W.6, his own brother. In Ex.P1, as rightly contended by the learned counsel for the accused, we have observed that there is absolutely no allegations with regard to demand of dowry or payment of any dowry either by cash or gold at the time of marriage talks that had taken place prior to the marriage. But in one sentence, it is stated that the deceased was telling that family members of her husband were ill-treating her. But, what type of ill- treatment, when they started ill-treating her and what is the reason for ill-treatment has not been even broadly stated in Ex.P.1. It is only stated that because of ill-treatment, the deceased died in the house of the accused. Therefore, what are the allegations made with reference to Sections 3 and 4 of Dowry Prohibition Act, 498A and 304B of IPC; ingredients or at least broadly to attract the ingredients of these provisions are not stated in Ex.P1 i.e. FIR.
15. We have carefully examined the inquest report which is marked as Ex.P11. In that also, the statement of the witnesses recorded particularly the father and mother, it is admitted that in their evidence they have not stated about the demand of dowry or payment of any dowry or gold prior to or after the marriage. In an omnibus manner, they have only stated that on account of ill-treatment, their daughter Nazima died in the house of accused. Therefore, in this background, the evidence of these witnesses had to be evaluated. It is not that they had no opportunity to disclose the real fact before the police in Ex.P1 or before the Tahsildar who conducted inquest. Of course, we can draw inference for the death of the deceased that, because of the grief, P.W.1 & P.W.5 might not have stated meticulously in detail about the ill-treatment and harassment. But, there must be some semblance of factual objects in these documents to arrive at a conclusion whether really there was any such ill-treatment which was spoken to by the witnesses during evidence in the absence of such materials in the documents which was recorded by the competent authorities, at the earliest point of time. In the above said backdrop, now we would like to consider the evidence of these three witnesses.
16. P.W.1, of course, in the examination-chief has stated that about six years ago, there was marriage talks for payment of Rs.50,000/- towards dowry and 15 tolas of gold and he in fact paid a sum of Rs.50,000/- and 15 tolas of gold to the accused party. But, he never stated who are all present at the time of these talks, who demanded money and who received money, nothing is in detail stated in the examination- chief itself, so far as demand and acceptance of dowry is concerned. He further stated that one year after the marriage, the accused persons started ill-treating and harassing the deceased demanding a further sum of Rs.50,000/- and also it is stated that at one point of time Rs.10,000/- was given to them and in spite of that, they continued their demand for money and gold. Here also, in a omnibus manner it is alleged against all the accused persons, but there is no specific allegation as to whom Rs.10,000/- was given, when and at what time, etc. Likewise, during the course of cross-examination, it is elicited with regard to the factum that all these demands and other things were spoken to by them only after receiving the medical report of death of the deceased. This creates serious doubt. P.W.1 and others have given a complaint alleging that, the accused persons have committed an offence of murder. After receipt of the Post Mortem report, when they came to know that it was not a murder and it is only suicide, perhaps they wanted to implicate the accused persons under some other provisions of law. Therefore, it appears that subsequent statements of witnesses in which, demand of dowry and other things cropped up. Prior to that, as rightly pointed out by the learned senior counsel, at the time of inquest and at the time of lodging the first report, there is absolutely no allegation of demand or payment or acceptance of dowry or ill-treatment particularly in demand of dowry.
17. In the cross-examination, it is further stated that normally if there is any such difference arises in the family, they will go to Jamat for the purpose of resolving their disputes. In this particular case, they did not go to Jamat at all. But, for that, explanation given is that the matter has not been reached to that extent to go to Jamat and they were under the impression that differences were very small and it would be resolved in the family itself. He also admitted that at no point of time, they have provided any medical treatment to the deceased. They have not produced any material to show that at the time of marriage, any amount was paid and with regard to purchase of gold ornaments, they have absolutely no evidence with them. In this background, it was suggested that there was some differences in the family of P.W.1 themselves, for which, deceased was frustrated in the house of P.W.1 itself and immediately after going to the house of accused, she might have committed suicide.
18. P.W.5 is the mother of the deceased. Of course, in the examination-chief, in an omnibus manner she has stated that at the time of marriage, they had given Rs.50,000/- cash and 15 tolas of gold towards dowry and she also never stated as to who demanded the money or gold or to whom the amount was given at that point of time. It is also stated by her that, her daughter was telling that, they have to give some more money to the accused persons towards dowry, but it is not stated by this witness as to who demanded dowry. Therefore, it gives rise to a doubt whether the deceased herself was asking for remaining amount of dowry or gold or in pursuance of any cruelty by the accused, she was forced to ask her parents. It is also not made clear in the evidence of these witnesses. She has also stated that often P.W.1, P.W.5 and P.W.6 were giving some money, in spite of that the accused persons were ill-treating and harassing the deceased. It is also not stated as to whom the said amount was paid out of five accused persons.
19. Coming to the cross-examination, she further contradicted the evidence given by other witnesses by deposing that, at the time of marriage talks, Jamat persons were present and documents have been prepared in this regard. She has stated that giving and taking at the time of marriage was reduced into writing. It is specifically stated that, on behalf of the accused, some of their relatives were present in the marriage talks, but she do not remember as to who are those persons and also doubtfully expressed that, she cannot say who demanded the amount, on which date, and to whom the amount was paid by them. She also states that she do not remember in which shop they purchased gold, etc. Therefore, the evidence of these two witnesses P.W.1 and P.W.5 are so inadequate to draw any inference to hold that the accused persons have demanded any dowry or any gold articles in consideration of the marriage, at any time.
20. Last but not the least, the evidence of P.W.6 who is the paternal Uncle of the deceased further damaged the case of the prosecution by saying in the examination-in-chief itself that, on behalf of the accused persons, some persons have demanded for payment of Rs.50,000/- and 15 tolas of gold and President of Jamat was also present there when the marriage talks were taken up. It is also stated that the documents were prepared in this regard. Though he has stated that the deceased was disclosing that the accused persons had been demanding for gold which was not given at the time of marriage, there is absolutely no allegations to the effect that Nazima was telling before this witness that, there was any ill-treatment or harassment which was so harsh that she made up her mind to commit any damage to her life or limb or commit suicide. It is the evidence of this witness that when the deceased came to the house of accused, she was having a child aged about 5 months. It is the evidence of these witnesses that they had taken back the deceased to her maternal house after delivery of the child. Absolutely there is no evidence as to when the deceased was brought back to the house of the accused, was there any quarrel by the accused persons or any demand of dowry or gold articles at that point of time, so that the court can at least draw an inference that, because of the misconduct of the accused persons, the deceased must have committed suicide in the house of the accused.
21. In order to attract the provisions of Sections 3 and 4 of the Dowry Prohibition Act, the prosecution must specifically establish that, there was demand of dowry by the accused persons and there was payment of any money or gold articles in consideration of the marriage and subsequent to marriage, there was further demand of any dowry or gold articles in consideration of marriage and to that extent was there any cruelty meted out by the accused persons on the deceased for non-payment or non-fulfilling of the demand made by the accused persons. So far as these ingredients are concerned, they have spoken that there was ill-treatment, harassment by the accused persons in an omnibus manner, even it is not stated what was the nature of ill-treatment or harassment in order to ascertain whether such ill-treatment or harassment was so harsh and sufficient to drive a woman to commit suicide. In this background, learned counsel for the appellants has relied upon a decision of Hon’ble Apex Court reported in (2002) 5 SCC 177 between GIRDHAR SHANKAR TAWADE v/s STATE OF MAHARASHTRA wherein the Apex Court has observed that:
“In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and no dehors the same. To have an event some time back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall be have to be a series of acts in order to be a harassment within the meaning of Explanation (b).”
Therefore, it is not that on one or two occasions some quarrel had taken place in the family is sufficient to draw any inference, but there should be ample material for the court to draw an inference or even to hold that, cumulative effect of the circumstances of conduct of the accused was sufficient to advert that there was cruelty which was sufficient to drive a woman to commit suicide. In our opinion, the above evidence in this case is not sufficient to draw any such inference.
22. Learned Senior counsel also relied upon another ruling reported in LAWS (KAR) 2016 4 118 between STATE BY SANJAYANAGAR P S v/s DEEPAK KUMAR AND OTHERS wherein at paragraph 61 of the judgment, this Court has observed that:
“61. ……………………., it must be proved by the prosecution that the deceased had been subjected to cruelty soon before her death in connection with the demand for dowry. As held in KAMESH PANJIYAR .v. STATE OF BIHAR, 2005 2 SCC 388, ‘there must be existence of proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the allegation of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.’ In the instant case, it is not the case of the prosecution that soon before her death, Radha was subjected to cruelty for the purpose of dowry. The only incident that took place two years prior to her death cannot be considered as a live link to disturb her mental equilibrium.
In the instant case, it is not the case of the appellants that soon before her death; the deceased was subjected to cruelty for the purposes of dowry. Therefore, by reading the above judgments, it is made clear that even for the purposes of attracting Sections 498-A or 304-B of IPC, there must be cruelty in demand of dowry which was of such a nature, which is sufficient to drive a woman to cause any injury to her life or limb or drive her to commit suicide. In order to attract Section 304-B of IPC, there must be some linking material or linking evidence to show that there was demand of dowry soon before the death of the deceased which is proximate to the death of the deceased and is sufficient to draw an inference of the guilt of the accused under Section 304-B of IPC.
23. Of course, in this particular case, death of the deceased occurred in the house of the accused. We are afraid to throw any burden or onus on the accused to explain as to why the deceased has committed suicide, in the absence of prosecution/establishing the fact that the death was due to misconduct or ill-treatment or harassment by the accused persons. Therefore, ill-treatment and harassment by the accused is sine qua non, in order to arrive at a conclusion that, the deceased has committed suicide at the instance of the accused persons, the prosecution has not explained or proved to crack the mystery with regard to suicidal death of the deceased. But the fact and law reminds us that, the burden of proof which is on the prosecution has not been discharged. Therefore, we are of the opinion that the prosecution though has lead some evidence before the trial Court which is highly inadequate and insufficient to draw any inference of commission of any offences under the provisions of Dowry Prohibition Act or under Sections 498-A or 304-B of IPC.
24. The trial Court, in fact, has not bestowed its attention to meticulous reading and evaluating the evidence of P.W.1 and P.W.5 as well as P.W.6 who are the prime witnesses to the prosecution in this particular case. Under the above said situation, we have no hesitation to set aside the judgment of the trial Court. Accordingly, we pass the following:
(i) The appeal is allowed. Consequently, the judgment of conviction dated 23.03.2016 and Order of Sentence dated 26.03.2016 passed by the II Addl. District and Sessions Judge, Shivamogga, in S.C.No.16/2014, is set aside. The appellants-1 to 5 (A1 to A5) are acquitted of the offences punishable 498A and 304B of the IPC and Sections 3 and 4 of the D.P Act.
(ii) Appellants-.1 to 3 (A1 to A3) are ordered to be released from the custody forthwith, if they are not required in any other case.
iii) The Bail and Surety Bonds executed by Appellants-4 and 5 (A4 & A5) are hereby cancelled, as the impugned sentence passed against them has already been suspended and they have already been released on bail by this Court vide order dated 16.09.2016.
iv) The registry is directed to communicate this order to the concerned Jail Authorities forthwith for release of accused Nos.1 to 3 forthwith, if they are not required in other case.
(iv) If any fine amount has already been deposited by the appellants – 1 to 5 (A1 to A5), the same shall be refunded to them, on proper identification and acknowledgement.
Sd/- JUDGE Sd/- JUDGE mpk/-* CT:bms