IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.1348 OF 2010 C/W CRIMINAL APPEAL No.1211 OF 2012 In Crl.A.No.1348 of 2010 BETWEEN:
1. Chinnaswamy @ Chikkanna @ Chikkagandu S/o. Boriah, 29 years, Tractor Driver, R/o. Badanavalu Village, Nanjangud Taluk.
2. Boriah S/o. Late Mandi Siddiah, Aged about 61 years, Coolie.
3. Lakshamma W/o. Boriah, Aged about 56 years.
(By Sri. Jagadish Baliga, for Sri. V. Padmanabha Kedilaya, Advocate) AND:
State by Nanjangud Rural Police.
(By Smt. B.G. Namitha Mahesh, HCGP) …Appellants …Respondent *** This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated:06.12.2010 passed by the V Addl. District and Sessions Judge, Mysore in S.C.No.281/09 & S.C.No.106/2010 – convicting the appellant/accused No.1 for the offence punishable under Sections 3 & 6 of D.P. Act and Section 498-A R/w 34 of IPC.
In Crl.A.No.1211 of 2012 BETWEEN:
1. Nagaraju S/o. Boraiah, Aged about 35 years.
2. Shanthamma W/o. Nagaraju, Aged about 32 years.
Both are residing at Manaju Village, Nanjangud Taluk-571301.
(By Sri. Jagadish Baliga, for Sri. V.Padmanabha Kedilaya, Advocate) AND:
State by Police Station, Nanjangud, S.H.O-571301.
(By Smt. B.G.Namitha Mahesh, HCGP) *** …Appellants …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment dated:05.10.2012 passed by the V Addl. Sessions Judge, Mysore in S.C.No.61/2011 convicting the appellants/accused Nos.2 and 5 for the offence punishable under Section 498(A) R/w 34 of IPC.
These Criminal Appeals coming on for Hearing, this day, the Court delivered the following:
J U D G M E N T The appellants in both these appeals were arrayed as accused in Crime No.203/2009 with Respondent Police Station for the offences punishable under Sections 498-A and 304-B r/w. Section 34 of Indian Penal Code, 1860, (hereinafter referred to as “IPC” for brevity) and under Sections 3 and 4 of Dowry Prohibition Act, 1961 (hereinafter called as ”D.P.Act” for brevity).
2. However, during the course of investigation, since some of the accused were shown as absconding, a split-up charge sheet was filed against them. However, in the charge sheet, the offences alleged against all the accused were punishable under Sections 498-A, 304-B, in the alternative Section 306 r/w. Section 34 of IPC and under Sections 3, 4 and 6 of D.P. Act.
3. All the five accused have faced trial in the Court of learned V Additional District and Sessions Judge at Mysore (hereinafter referred to as “Trial Court” for brevity). With respect to all the offences for which the charge sheet was filed against them, accused No.1 was tried in Sessions Case No.281/2009, accused Nos.3 and 4 were tried in Sessions Case No.106/2010, however, these two Sessions Cases were clubbed together and a common trial was held, where in order to prove the allegations against the accused, the prosecution examined 19 witnesses from PW1 to PW19; and got marked documents from Exs.P1 to P22 and Material Objects from MO1 to MO8. From the accused’ side, Exs.D1 to D4 were marked and no witness was examined. The other two accused i.e. accused Nos.2 and 5 were tried in Sessions Case No.61/2011 where, in order to prove the guilt of the accused, the prosecution has examined 20 witnesses from PW1 to PW20; got marked documents from Exs.P1 to P25(a) and Material Objects from MO1 to MO8. From the accused’ side, no witness was examined, however, Exs.D1 to D10 were got marked.
4. A common judgment dated 06-12-2010, by the Trial Court in S.C.No.281/2009 and S.C.No.106/2010 was passed whereunder all the three accused, i.e. accused Nos.1, 3 and 4 tried in those two cases were acquitted of the offences punishable under Sections 304- B and 306 of IPC.
5. Accused No.1 in addition was also acquitted for the offence punishable under Section 4 of D.P. Act, but, was convicted for the offence punishable under Sections 3 and 6 of D.P. Act and under Section 498-A read with Section 34 of IPC.
6. Accused No.3 was acquitted of the offences under Sections 3 and 6 of D.P. Act, but however was convicted for the offences punishable under Section 4 of D.P. Act and Section 498-A r/w. Section 34 of IPC.
7. Accused No.4 was acquitted of the offences punishable under Sections 3, 4 and 6 of D.P. Act, but convicted under Section 498-A of IPC.
8. In S.C.No.61/2011, under the judgment dated 05-10-2012, accused Nos.2 and 5 were convicted for the offence punishable under Section 498-A r/w. Section 34 of IPC.
9. Challenging the common judgment of conviction dated 06-12-2010, passed in S.C.No.281/2009 and S.C.No.106/2010, accused Nos.1, 3 and 4 have filed Criminal Appeal No.1348/2010; and challenging their conviction in judgment dated 05-10-2012 in S.C.No.61/2011, the remaining two accused, i.e. accused Nos.2 and 5 have filed Criminal Appeal No.1211/2012 before this Court.
10. Since both these appeals have arisen out of the same crime of the respondent Police Station, both these appeals are connected with each other and taken up for final disposal together.
11. The summary of the case of the prosecution in the Trial Court is that the deceased Sheela was given in marriage to accused No.1 on 30-04-2006 which was held at Masage Village at Nanjanagud Taluk. Prior to the marriage, in the marriage negotiations, the accused demanded a dowry of `1.00 lakh, one golden chain, one golden ring and cloths to be given to the accused. However, at the intervention of elders in the village, it was decided that CW1, the father of the deceased Sheela to pay `40,000/-, one gold chain and one gold ring and cloths as dowry. Accordingly, the same was paid/given. The deceased Sheela was also given with a pair of ear studs, pair of golden jumki (ear hangings) and pair of silver leg chain. After their marriage, accused No.1 and deceased Sheela started residing together at matrimonial village along with other accused persons. Accused No.2 is the elder brother, accused No.3 is the father and accused No.4 is the mother of accused No.1, accused No.5 is the wife of accused No.2, as such, she is the sister-in-law of accused No.1.
12. For about six months, the deceased Sheela had a satisfactory marital life with her husband. However, thereafter, she was subjected to cruelty both physically and mentally by the accused, who started demanding her to bring dowry from her parents’ house in the form of valuables like almirah, television and cash. Further, when the deceased doubted that her husband i.e. accused No.1 having illicit relationship with accused No.5, then all the accused persons quarreled with her and harassed her both physically and mentally.
Due to the unbearable cruelty meted out to her and by their ill-treatment, she committed suicide on 25-07-2009 at about 9:30 a.m. in her matrimonial house by pouring kerosene upon herself and setting fire to it. Thereby, the accused persons have committed the alleged offences.
13. The Lower Court records were called and the same are placed before this Court.
14. It is submitted from both side that though two sets of trial have been held in the matter, but the first trial being a joint trial of two Sessions Cases, i.e. S.C.No.281/2009 and S.C.No.106/2010, the deposition of the witnesses in the said cases and the exhibits and Material Object numbers as given in that particular case be taken as the basis in both these appeals.
15. The learned counsels from both sides further submit that the witnesses who have been examined in the first set of Sessions cases are the witnesses who were again examined in S.C.No.61/2011. All the material and important witnesses examined in the first set of trial are also the only material and important witnesses examined in S.C.No.61/2011.
No variation could be found in their evidence in S.C.NO.61/2011 to that of their evidence in S.C.No.281/2009 and S.C.No.106/2010. So also, the Exhibits and Material Objects.
16. It is based upon the said submission, S.C.No.281/2009 and S.C.No.106/2010 are taken as the base cases in these appeals.
17. Heard the arguments from both side.
18. Perused the materials placed before this Court including the memorandum of appeals, impugned judgments, and Lower Court records.
19. Learned counsel for the appellants in his argument submitted that none of the witnesses have stated anything about the cruelty said to have been meted to the deceased. Ex.P17 is a created complaint said to have been filed for the first time only on 20-04-2009. No whisper of alleged illicit relationship between the accused No.1 and accused No.5 is mentioned in the said complaint. Had there been any such illicit relationship, then, it would have definitely found a place in the said complaint. Therefore, no cruelty is established.
20. Learned counsel for the appellants also submitted that the demand for dowry and receipt of dowry by the accused is not proved. Admittedly, the father of the deceased being a coolie had no capacity to pay the alleged demand of dowry of `1.00 lakh. However, the marriage was performed in the house of the accused.
Learned counsel also submitted that the entire case of the prosecution regarding the demand for dowry and payment of dowry and the non transfer of the alleged dowry articles revolves around a golden ring at MO7. The recovery of the said ring is not proved. Further, when there is discrepancy in the weight of the said ring by a gram, it cannot be believed that MO7 was the ring said to have been given from the complainant’s side to the accused as dowry.
21. Learned High Court Government Pleader in her arguments submitted that it is only after the delivery of a child by the deceased after nine months when she returned to her matrimonial home that she came to know about the illicit relationship. Because of the family reputation, she did not disclose it in her complaint at Ex.P17.
Learned High Court Government Pleader also submitted that the very act from the side of the accused in not bringing the deceased back to their house within a short time after she delivered a child itself would go to show that there was mental cruelty upon the deceased by the accused.
Learned High Court Government Pleader also submitted that the complaint at Ex.P17 was filed not less than three months prior to the date of the incident. By that time, nobody could presume or believe that the victim would meet an unnatural death very shortly. Therefore, there is no point in alleging that Ex.P17 is a got-up complaint.
Learned High Court Government Pleader also submitted that the evidence of PW-1 about the deceased availing a Cow loan and the quarrel being taken place in her matrimonial home regarding the payment of the loan instalment is corroborated by the evidence of PW-18 also. Just three days prior to the incident, one such quarrel had taken place where the accused had refused to make any repayment of the Cow loan. All these aspects would go to show that the deceased was being constantly subjected to cruelty by the accused.
Learned High Court Government Pleader also submitted that the evidence of prosecution witnesses, more particularly, PW-1, PW-2 and PW-3 not only shows that there was demand for dowry by the accused and payment of dowry from the complainant’s side, and that there was also constant cruelty to which the deceased was subjected to by the accused. She further submitted that the weight of the finger ring was the belief of PW-1, the father of the deceased. Merely because there is a slight variation in the alleged weight of the finger ring at MO7 to its actual weight, the same cannot lead to any suspicion in the case of the prosecution. Further the evidence of PW-6, the independent witness is also trustworthy and would clearly go to show that accused No.1 being the husband had not transferred the ring to his wife or family of the deceased but had misused it by himself.
Learned High Court Government Pleader also submitted that the evidence of the prosecution witnesses clearly proves the guilt against the accused. The deceased like the other house wives in the Indian family system did not want to bring all illegal acts of her husband and his family to street. It is in that background, the case is required to be appreciated.
22. Among the 19 witnesses examined by the prosecution as PW-1 to PW-19, PW-1 is the father, PW-2 is the mother, PW-3 is the brother-in-law i.e the husband of the elder sister of the deceased, PW-9 is the younger brother of PW-1 as such, paternal uncle of the deceased. This relationship of the deceased with these witnesses is not in dispute. It is also not in dispute that the deceased Sheela was given in marriage to accused No.1 on 30-04-2006 and that she died an unnatural death due to burns on 25-07-2009. The evidence about these aspects through prosecution witnesses has not been denied or disputed from the side of the accused.
23. Rangaswamy, the father of the deceased who was examined as PW-1 in both the trials has uniformly stated that the marriage negotiation has taken place in his house at Badanavalu Village in the presence of Rangaswamy, his wife, elder daughter Hemavathi and her husband Revanna and from the side of the accused, accused No.2 – Nagaraju, accused No.4 – Lakshmamma, accused No.3 – Boraiah, accused No.5 -Shantamma participated. In the said negotiation, accused demanded a cash of `1.00 lakh, a watch, a gold finger ring as dowry apart from the parents of the deceased bearing the marriage expenses. Since PW-1 pleaded his difficulty, the villagers settled for a sum of `40,000/-, a golden chain, a golden ring and cloths to be given and the marriage has to be performed in the place of the accused. A sum of `40,000/- was also stated to have been given by the father of the girl to the accused towards marriage expenses. PW-1 has further stated that 15 days prior to the marriage, himself, joined by his wife – Sundaramma, Shiva and Rangaswamy went to the place of the accused and gave a cash of `40,000/ to accused No.2 - Nagaraju and at that time, accused Nos.
3 to 5 were also present. During the marriage, one golden finger ring and one golden chain were given to accused No.1.
PW1 has further stated that for about six months, his daughter led a happy married life in her husband’s house. Thereafter, when he had been to the house of the accused, his daughter told him that in her husband’s house, they are objecting her stating that she has not brought one lakh of dowry and that they were insisting for cot, cash and almirah. In that regard, accused Nos.2 to 4 and wife of accused No.2(i.e. accused No.5) were quarrelling with her. He advised his daughter and came back. His daughter came to parental house for delivery of a child. After her return to the matrimonial home, she started telling that her husband was not talking to her correctly and he has developed an illicit relationship with his sister-in-law, i.e. accused No.5.
The witness also stated that when his daughter had given birth to a child in Cheluvamba Hospital at Mysuru, it was accused No.1 alone who had come to see his wife and when asked by this witness as to why his parents had not come, he stated that they are not coming because these people had not given one lakh to them.
PW-1 also stated that for nine months after his daughter gave birth to a child, none from her husband’s family came and took her back to their house. As such, these people themselves took her back and left her in her matrimonial home. Thereafter they started harassing her alleging that she has not brought dowry and whatever given was insufficient and that in addition to that, she has also brought a child. With respect to repayment of a cow loan of `8,000/- taken in her name in her husband’s village, the accused refused to make any payment.
The witness also stated that in one such instance, the accused had assaulted their daughter and the same information was given to him by his daughter over telephone. She had also stated over phone that it was impossible for her to continue to live there. The very next day, after he received such a telephone call, his daughter died out of burn injuries in her matrimonial home. The witness has identified his complaint at Ex.P1. He has also stated that the Tahsildar has drawn the inquest panchanama as per Ex.P2 and also drew a scene of offence panchanama as per Ex.P3 at the spot of the incident and from there, they seized kerosene can, aluminium vessel, match box and kerosene lamp, which articles this witness has identified as MO1 to MO4. The witness has also identified the Mangalya and it’s part in the form of balls, which were also found on the spot of the incident at MO5 and MO6. Stating that the golden ring shown to him was given by him to his son-in-law (accused No.1), and it bears initials in English letters as ‘S.C’ upon it, the witness has identified the golden finger ring at MO7. He has also identified marriage invitation card at Ex.P4, two photographs at Exs.P5 and P6. Identifying the accused in the Court, he has stated that it was those accused who subjected his daughter to cruelty and were the cause for the death of his daughter.
Though he was subjected to a detailed cross- examination from the side of the accused, he adhered to his original version.
24. The evidence of PW-2, the mother of the deceased in both her trial, is also in consonance with the evidence of PW-1 about the pre-marriage negotiation and understanding between the parties. About the articles and valuables to be given in dowry, the evidence of this witness is exactly in the same line as that of PW-1 as stated above.
PW-2 also stated that after the marriage of her deceased daughter, for about six months, she was leading good life in her matrimonial home. Thereafter they started harassing her demanding for valuables. She has stated, all the accused were residing together and were subjecting their daughter to cruelty. Even when the in-laws of the deceased did not visit them to see the grand child born to them, accused No.1 told them that since the deceased had not brought anything from her parents’ house, they are not happy. Even PW-2 also stated that her daughter Sheela had told her that there is illicit relationship between her husband and accused No.5 and a quarrel was going on in that regard.
The witness has also stated that her daughter herself had been to Nanjanagud Police Station and lodged a complaint, Ex.P17 against the accused Nos.2 to 5. She has also stated that just a day prior to the date of her daughter’s death, her husband (PW-1) had been to their daughter’s house and at that time also relating to repayment of a Cow loan availed in the name of the deceased, a quarrel was going on in her matrimonial home. On the very next day, she died due to burn injuries.
PW-2 was also subjected to a detailed cross- examination from the side of the accused wherein she adhered to her original version.
25. PW-3 – Revanna, the brother-in-law of the deceased, i.e. the husband of elder sister of the deceased was also examined as PW-4 in the other trial in S.C.No.61/2011. In both the trials, he has stated that he too was present at the time of pre-marriage negotiation held with the accused wherein accused Nos.2 to 5 were present and demanded a dowry of a cash of `1.00 lakh and valuables. It is because of the villagers and elders that it was settled for a cash of `40,000/-, a watch, a finger ring and a chain, which were required to be given from the girl’s side.
The witness has stated that for about six months after her marriage, the deceased was living happily. Thereafter, on the occasion of festivals when he had been to his father-in-law’s house and enquiring with Sheela his wife’s sister about her well-being, he was getting an answer from her that the accused Nos.2 to 5 were subjecting her to harassment and cruelty because she did not get them Telivision, Almirah, etc. He was consoling and pacifying her. Even when she delivered the child in the Hospital, he had visited her and on enquiry by his wife, deceased Sheela told them that since no dowry amount had been given to the accused by her parental house, those people had not come to see her child.
PW-3 has further stated that deceased Sheela had also given a complaint with the Nanjanagud Police, alleging that the accused Nos. 2 to 5 were constantly harassing and subjecting her to cruelty and were demanding valuables to be brought by her from her parental house. The same was confirmed by him when he had spoken to deceased Sheela about 3 to 4 months prior to her death. He has also stated that after hearing the news of the death of Sheela due to burn injuries, he had been to her house and found that there was no one in the house and Sheela was found dead due to burns.
Even in his cross-examination, he adhered to his original version.
26. PW-4, Gurusiddaiah was also examined as PW-11 in the other trial. This witness has spoken about he being present as a panch witness when the police drew a scene of offence panchanama in the house of the accused as per Ex.P3 and seizing the articles at MO1 to MO6 and MO8 from the spot. He has identified both the panchanamas and MO1 to MO6 and MO8, in the Court. He has also stated that he has seen the dead body of Sheela in the spot, where she had sustained burns.
27. PW-5 – Doraiswami though has stated that he was summoned to the place of incident in the house of the accused where he saw the dead body of the deceased with burns on it, he stated that the police verified the dead body and made a writing regarding the injuries on the dead body and that he does not know what the police did but they took his signature at Ex.P2. Though this witness was treated as hostile when cross-examined by the prosecution, there was no change in his statement even in the cross-examination also.
28. PW-6 – Sampathlal was also examined PW12 in the other trial. This witness identifying himself as a Pawn Broker stated that he knows accused No.1 - Chinnaswamy who had been to his shop in the year 2006 to pledge a golden finger ring. At that time, by keeping the said ring under pawn, he lent him a sum of `3,000/-.
The witness has stated that when police had come to his shop along with accused No.1 and on the police producing the pawn receipt, he has given back the said golden ring to them, which the police seized by drawing the panchanama as per Ex.P7. The witness has identified the said ring at MO7 in the Court.
An attempt was made in the cross-examination that the said ring was a brand new ring which the witness has denied and stated that the same was the ring which accused No.1 had pledged in his shop.
However, the witness has stated that the weight of the said ring was 4.950 grams.
29. PW-7, K.M. Sureshkumar was examined as PW-19 in the other trial. This witness has stated that when he was then working as the Tahsildar of Nanjangud Taluk, based upon the requisition given by the respondent Police, he drew the inquest panchanama on the dead body of the deceased Sheela in her husband’s house at Masage village. He has stated that the dead body was with burn injuries. He has identified the inquest panchanama at Ex.P2. He also stated that he has recorded the statement of the parents of the deceased who were also present in the spot, who stated that the deceased was being subjected to cruelty because of non-payment of dowry to the accused persons and in this regard, he has also submitted a report to the Deputy Superintendent of Police, a copy of which is marked as Ex.P9. He has identified the photographs of the dead body at Ex.P10 stating that they were taken by the police in his presence.
30. PW-8, Basavanna, the Secretary of Grama Panchayath has stated that the house of the accused comes within the limits of his Panchayath, as such, at the request of the police, he has issued an extract of the Demand Register maintained by their Panchayath which is identified as Ex.P11.
31. PW-9, Shivaswamy was also examined as PW5 in the other trial. In his evidence, he has stated that 15 days prior to the marriage of Sheela with accused No.1, his elder brother i.e. father of Sheela asked him for a loan of `25,000/- to meet the dowry demand of the accused which was for a sum of `40,000/-. Accordingly, he gave hand loan of `25,000/- to his brother (PW-1). He also stated that his brother i.e. PW-1 also told him that he had to give to the accused a golden chain, a finger ring and cloth also. He has further stated that because of the water scarcity in their village, the marriage was performed in the village of the accused. For about six months, the deceased was living happily in her matrimonial home. Thereafter, he came to know through his brother (PW-1) that because of the non- payment of dowry, the accused was subjecting his daughter Sheela to cruelty. This witness also stated that when he had been to the house of his elder brother (PW-1) in 2008, for a ceremony, even the deceased, her sister and brother-in-law all had attended the said function. At that time, on his enquiry, Sheela told him that because she did not get valuables like Television, almirah to her husband’s house, all the accused were subjecting her to cruelty. She had also stated that a quarrel is also going on about the illicit relationship between her husband and his sister-in-law (accused No.5).
He also stated that about two months prior to the alleged incident, his brother (PW-1) told him over phone that his daughter Sheela had also lodged a police complaint against her husband’s family. The witness also stated that when he received a telephone call from one B.S. Ramu, informing him about the death of Sheela due to burns, he communicated the same to his brother (PW-1) and went to Sheela’s house only to see her dead body in the hall of the said house. He stated that Sheela died because of the dowry harassment meted out to her by the accused.
Even in the cross-examination from the side of the accused, he adhered to his original version.
32. PW-10, Shiva was examined as PW-3 in the other trial. This witness has stated that he was the marriage mediator. The marriage negotiation had taken place in the house of PW-1 during which time, he was also present. Apart from him, PW-1, PW-2, PW-3 and sister of the deceased by name Hemavathi were also present and from the side of the accused, some of their villagers were present. The Accused’ side demanded a cash of `1.00 lakh, one golden chain, one finger ring and cloths as dowry and since these people pleaded their difficulty, it was agreed for `40,000/-, a golden chain and a finger ring. Because of the water scarcity, the marriage was agreed to be performed in the village of the accused and both side agreed for the same.
The witness further stated that when Sheela had been to her parental house on the occasion of Gowri festival, he had met her and at that time, she told him that the accused were harassing her for not bringing television and almirah. Himself joined by the father of Sheela had consoled her. He has specifically stated that Sheela died because of the cruelty meted to her by the accused.
33. PW-11, Dhananjaya, a Police Constable has spoken about he apprehending the accused No.1 as per the direction of his superior and producing him before the Deputy Superintendent of Police.
34. PW-12, Dr. Mahadeva Murthy who was also examined as PW13 in the other trial has spoken about he conducting the post-mortem on the dead body of the deceased Sheela. He has stated that when he examined the dead body, he noticed nine burn injuries and there was 95% to 98% burns on the dead body which were of anti-mortal in nature. He has opined that the death of the deceased Sheela was due to shock as a result of burn injuries sustained.
35. PW-13 - Vishwanath, who was examined as PW-14 in the other trial who was working as Assistant Sub-Inspector of Police has stated that while he was on supervision, on 20-04-2009, he registered a crime based upon the complaint lodged by the deceased Sheela being present in person. He has identified the said complaint at Ex.P17 and stated that it was with respect to she being ill-treated by her in-laws, her brother-in- law and his wife. He has registered a case in their Station in C.Misc.No.88/2009 and sent a staff to bring the persons named therein, but they were not in the station.
36. PW-14, Gopala, who is examined as PW-15 in the other trial is the Head Constable who has spoken about he recording the statement of the accused with respect to the first complaint of the deceased Sheela which statement is identified at Ex.P18.
37. PW-15, Raghavendra B.G., who was examined as PW-17 in the other case has stated, as a Sub- Inspector of Police of the respondent Police Station, he received and registered a complaint given by PW-1 on 25-07-2009, as per Ex.P1 against the accused named therein in Crime No.203/2009 for the offence punishable under Sections 304-B and 498-A read with Section 34 of IPC and under Sections 3 and 4 of the D.P. Act. He has also prepared an FIR as per Ex.P19 and submitted it to the Court. He also stated that on the same day, he visited the spot and noticed the dead body of Sheela and requested the Taluka Executive Magistrate to conduct the inquest panchanama and thereafter he handed over the investigation to CW-34, Rajagopala, who was the Deputy Superintendent of Police.
38. PW-16, D. Rachappa, the Deputy Superintendent of Police, C.I.D., has spoken about he conducting further investigation in the matter and filing a charge sheet against the accused.
39. PW-17, Rangaswamy who was examined as PW-6 in the other case has stated that he was invited to the pre-marriage negotiation as such, he was also present. He has stated that the accused demanded dowry i.e. cash of `1.00 lakh, a golden chain and also a finger ring. However after negotiation, PW-1 agreed to give cash of `40,000/-, a golden ring and a golden chain. Due to the water problem at the residence of the complainant at Badanavalu village, marriage was agreed to be performed in the place of the accused at Masage village.
The witness has further stated that for about six to seven months after their marriage, Sheela was living happily with her husband. She was also visiting her parents’ house. Later, he came to know from the father of the deceased that the accused were demanded for valuables to be brought by her from her parents’ house. On one such occasion, accused No.1 was called to the house of PW-1 where he was also present and these people had advised the accused to lead an understanding happy life. He has also stated that even thereafter also, when he came to know about the quarrel between the couple, he refused to advise accused No.1 in that regard.
40. PW-18, Raghu, who is examined as PW-9 in the other trial, has stated that while he was working as the Assistant Branch Manager of the B.S.S. Micro Finance Private Limited, Nanjanagud, they used to meet the members of the Mahila Swasahayaka Sangha and provide loan for purchase of Cow and for other developmental activities to the needy persons. One such Cow loan for a sum of `8,000/- repayable at the rate of `184/- per week in 50 weekly instalments, which loan was available to the members of the Mahila Swasahayaka Sangha was lent to deceased Sheela, W/o. Chikkanna, resident of Masage village. In this regard, he has identified the loan pass Book at Ex.P20 and stated that she had repaid only two weekly instalments and thereafter she had not turned up to repay the loan amount.
41. PW-19, H.C. Rajagopal, who was also examined as PW-18 in the other trial has stated that while he was working as the Deputy Superintendent of Police of Nanjanagud Sub-Division, he was the Investigating Officer in this matter and having conducted substantial investigation in this case had handed over further investigation to another Deputy Superintendent of Police, Shi. D. Rachappa.
42. From the above evidence of the witnesses, it can be noticed that the parents of the deceased i.e. Rangaswamy (PW-1) and Sundaramma (PW-2) and Revanna, the brother in law of the deceased i.e. PW-3, have clearly and specifically stated that there was demand for dowry and acceptance of dowry from the side of the accused. They have also stated that the deceased was subjected to cruelty by the accused. The instances of cruelty also have been narrated by them.
43. PW-1 and PW-2 being the parents of the deceased have stated that apart from they hearing it directly from their daughter, whenever they met her or she used to come to their house, they have also heard about the cruelty over telephone by their daughter whenever she used to call them over the phone. Their evidence that there was pre-marriage negotiation wherein the accused demanded for dowry and collected substantial portion of it, has further been corroborated by the evidence of PW-3, Revanna, PW-9, Shivaswamy, PW-10, Shiva and PW-17, Rangaswamy. All these witnesses except Shivaswamy have stated that they knew the details of the pre- marriage negotiation whereunder the accused particularly, accused Nos.2 to 5 who participated therein demanded for dowry in the form of cash of `1.00 lakh, one golden chain, one golden ring, watch and cloths. However, due to intervention of villagers, it was agreed that cash of `40,000/-, a gold chain, a gold ring and cloths to be given to the accused No.1.
Though these witnesses were subjected to a detailed and serious cross-examination, but they have adhered to their original version even in their cross- examination also.
44. Revanna being the elder son-in-law of PW-1 has stated that apart from dowry negotiation, he has also heard about the cruelty meted to the deceased by none else than from the mouth of the deceased herself.
45. PW-9, Shivaswamy has stated as to how he has financially helped his brother i.e. PW-1 by giving him hand loan of `25,000/- to enable him to meet the dowry demand made by the accused. Even though learned counsel for the accused/appellants in his argument submitted that PW-1, the father of the deceased being a coolie, it was not possible for him to meet the alleged demand for dowry, but the evidence of PW-9, the younger brother of PW-1, Rangaswamy would go to show that he has helped his elder brother by lending a hand loan of a sum of `25,000/- to meet the dowry demand of `40,000/- made by the accused. As such, the arguments of the learned counsel for the appellants that there was no dowry demand because of financial incapacity of PW-1, cannot be accepted.
46. The evidence of PW-1, Shiva is also corroborated by the evidence of PW-1, PW-2, PW-3 and PW-9. He being the marriage mediator has given a clear picture of what the pre-marriage negotiation was and what was the agreed terms. He has clearly mentioned that there was a demand for dowry from the side of the accused.
The said evidence of PW-10, Shiva is further corroborated by the evidence of PW-17, Rangaswamy who has also stated about his participation in marriage talks. Thus, the evidence of these people would clearly go to show that there was demand for dowry from the side of the accused and 15 days prior to the marriage, accused No.3, being the father of accused No.1 has also accepted the dowry amount paid by PW-1. Further, PW-1, PW-2, PW-3 and PW-9 have also spoken about the cruelty meted to the deceased by the accused.
Though these witnesses have stated that major part of the cruelty meted to the deceased was by accused Nos.2 to 5, but they have also not spared accused No.1. These witnesses, as narrated above, have given the instances of cruelty meted to the deceased and their evidence is believable for the reason that PW-1 and PW-2 are the parents of the deceased, PW-3 is the brother-in-law of the deceased and PW-9 is the brother of PW-1, i.e. the paternal uncle of the deceased and these people have stated that they have heard about the act of cruelty from none else than from the mouth of the deceased herself. Even PW-10 also has stated that the deceased was subjected to cruelty with regard to demand of dowry.
47. The evidence of PW-1 and PW-2 that the deceased was not taken back from her parental home for about nine months after giving birth to a child, rather when the husband of the deceased came to the Hospital to see the child, he stated that, PW-1 not meeting their demand of dowry was the reason for his parents not visiting their daughter-in-law and their grand child, also would go to show that the deceased was subjected to cruelty from the side of the accused.
48. The evidence of PW-1 and PW-2 reveals that just a day prior to the alleged incident, PW-1, the father of the deceased had spoken to his daughter Sheela at which time also she had told him that the cruelty meted to her has reached such a height that it has become unbearable for her to live any more in her husband’s house.
49. It is the argument of the learned counsel for the appellants that the alleged relationship between the accused No.1 and his sister-in-law i.e. accused No.5 was not revealed in Ex.P17 and had there been any such relationship, it would have definitely found a place in the said complaint.
It is true that Ex.P17 which is lodged by none else than the deceased complainant herself with the police, (PW-13) which speaks about the cruelty meted to her by the accused Nos.2 to 5 is silent about the alleged illicit relationship between the accused Nos.1 and 5. Merely because the deceased has not stated about the alleged illicit relationship between her husband and his sister- in-law, by that itself, it cannot be considered that no such suspicion was prevailing between them.
50. As submitted by the learned High Court Government Pleader, in the Indian scenario of family life, a house wife shows more concern in protecting the reputation of her marital home rather than bringing all wrongs in her matrimonial home to the street.
Still, in the cross-examination of PW-1, a suggestion was made to this witness that deceased herself was quarrelling stating that her husband was having illicit relationship with his sister-in-law. Though PW-1 has not admitted the said suggestion as true, but by making the said suggestion, it was shown from the side of the accused that a quarrel was taking place in connection with the alleged illicit relationship between the accused Nos.1 and 5.
51. Apart from the above, it also cannot be ignored of the fact that PW-1 has stated about the accused initiating quarrel with the deceased about the repayment of cow loan availed by her. According to PW-1, the accused were refusing to pay the loan instalment. The evidence of PW-18, Raghu also would go to show that the deceased had availed a cow loan of `8,000/-, which was due to be paid in 50 equal weekly instalments of `184/- per week. Ex.P20, Pass Book of the said Micro Finance Company shows that only two weekly instalments were paid by her. It is in that connection, she was prevented by the accused to pay the loan instalments regularly.
52. In this way, the evidence placed on record would go to show that the deceased was constantly being harassed by the accused and they were also subjecting her to cruelty. That is the reason which drove the deceased herself to lodge a complaint as per Ex.P17 before PW-13, the Police Sub-Inspector, alleging harassment by accused Nos.2 to 5. It can be noticed that even in the said complaint (Ex.P17) also, she has not requested the police to punish the culprits, but she has only requested to advise them properly. Probably it is for the said reason it was not registered as a crime and no FIR was registered in that regard. But, it was registered only as a C.Misc. case in the respondent - Police Station. The said act of the deceased would go to show that she was not ready to bring the behaviour of the accused against her into street, but only when it became unbearable, she approached the police only seeking their advisory help in that regard.
53. Therefore, the argument of the learned counsel for the appellants that there was no demand and acceptance of dowry and also there was no cruelty meted to the deceased, cannot be accepted.
54. On the other hand, the Trial Court after properly appreciating the evidence led before it has arrived at a conclusion that the prosecution has proved the guilt of the accused for the offence punishable under Section 498-A of IPC read with Section 34 of IPC and Sections 3 and 4 of the D.P. Act.
55. So far as Section 6 of the D.P. Act, is concerned, it is the evidence of PW-6, Sampathlal which is of greater importance. The other witnesses, i.e. PW-1, PW-2, PW-3, PW-10 have also spoken about the golden ring also being a part of dowry given to the accused. However, PW-6, Sampathlal has stated that accused No.1 had pledged one golden ring with him in the year 2006 and availed loan of Rs.3,000/. No doubt, PW-1 and PW-2 have stated that the golden ring was weighing six grams, whereas the evidence of PW-6 coupled with the documentary evidence, i.e. Receipt at Ex.P7 said to have been issued by him shows the weight of the said finger ring as 4.950 grams. Thus, there is difference of 1.050 grams between the two. However, by that minor difference in the alleged weight of the golden ring itself, it cannot be said that the evidence of PW-1 and PW-2 in identifying the said golden ring at MO7 and evidence of PW-6 that the very same ring was pledged with him by the accused No.1., be disbelieved.
56. Thus, it is established that the accused No.1 who had received the said golden ring at MO7 as dowry has not transferred the same to his wife, immediately after his marriage with her, on the contrary, he had misused the same by pledging it and making a gain out of it in the form of a loan with PW-6.
57. Thus, the Trial Court has rightly appreciated the said fact also and convicted the accused No.1 for the offence punishable under Section 498-A and Sections 3 and 6 of the D.P. Act.
58. The defence of the accused was a total denial.
On the other hand, they confronted that the deceased was suspecting the character of accused No.1.
59. As observed above, the evidence of the prosecution witnesses, which have come in uniformity rules out the said defence and makes it clear that it was not a mere suspicion of the deceased as against the accused but it was a fact that the accused were subjecting her to cruelty demanding her to bring more valuables from her family. It is in that connection she met with an unnatural death on 25-07-2009 in her matrimonial home. Thus, the findings given by the Trial Court holding the accused guilty of the offences with which they were sentenced cannot be found fault with.
60. Regarding quantum of sentence also, the Trial Court, after considering the criminality of the guilt, has ordered proportionate sentence which cannot be called as disproportionate. Therefore, I proceed to pass the following:
O R D E R [i] Both the appeals are dismissed.
[ii] The common judgment of conviction and order on sentence dated 06-12-2010 passed by the V Additional District and Sessions Judge at Mysore, in Sessions Case No.281/2009 and Sessions Case No.106/2010 in respect of accused Nos.1, 3 and 4 (appellants in Criminal Appeal No.1348/2010); and The judgment of conviction and order on sentence dated 05-10-2012 passed by the V Additional Sessions Judge, Mysore, in Sessions Case No.61/2011, in respect of accused Nos.2 and 5 (appellants in Criminal Appeal No.1211/2012), are hereby confirmed.
The Registry is directed to transmit a copy of this judgment to the Trial Court forthwith, to enable it to proceed further in the matter for issuance of warrant of conviction, if necessary and proceed in accordance with law.
An entire copy of this judgment also be furnished to the accused/appellants in both these appeals immediately, free of cost.
Sd/- JUDGE BMV*