IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K. SOMASHEKAR AND THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV CRIMINAL APPEAL NO. 1108 OF 2015 BETWEEN Manjunatha S/o Shivanna, Aged 26 Years, Kodihali Village, Kadur Taluk, Chikkamagalur District-577101. ... Appellant (By Smt. Priyanka .S. Angadi, Advocate) AND State of Karnataka By Tumkur Rural Police, Tumkur – 572101 Represented by Learned High Court Government Pleader, High Court Buildings, Bengaluru – 01. ... Respondent (By Sri. Vijayakumar Majage, Addl. SPP.) Crl.A. filed under Sec. 374(2) Cr.P.C by the advocate for the appellant praying that this Hon'ble court may be pleased to set aside the judgment and sentence dated 26.06.2014 passed by the II Addl. District and Sessions Judge, Tumkur in S.C.No.65/2013 - convicting the appellant/accused for the offence P/U/S 498A, 302 and 304B of IPC.
This Criminal Appeal, coming on for hearing, this day, K.SOMASHEKAR, J., delivered the following:
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 26.06.2014 passed by the II Addl.District and Sessions Judge, Tumkur in S.C.No.65/2013 convicting the accused for the offences punishable under Sections 498A, 304B and 302 IPC, 1860. The accused was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 302 IPC. For the offence punishable under Section 304B of IPC, the accused was sentenced to undergo rigorous imprisonment for a period of 7 years and for the offence punishable under Section 498A of IPC, he was sentenced to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.5000/- and in default, to undergo rigorous imprisonment for a period of 3 months. It was ordered that the substantive sentence of imprisonment shall run concurrently and the sentence of default of payment of fine shall run consecutively.
2. The factual matrix of the appeal is as under: It is the case of the prosecution that deceased Radha was working in a garments factory and she fell in love with accused. They eloped for about a week and when they returned back, elders performed the marriage of the accused and deceased Radha. Thereafter, Radha started living with the accused at Kudroli, Mangalore. After some time Radha called her mother Jayamma – and sister Nagaveni and told that accused was harassing and ill-treating her, demanding dowry of Rs.50,000/- and a motor bike. Hence, they were invited to the house of Jayamma – mother of deceased Radha. Accused was properly advised with a promise to arrange for cash and motorbike as early as possible. Even thereafter, the accused did not stop harassing. Further, accused brought deceased Radha to the house of CW.1 Gangamma at Manangi. On 07.12.2012 at 10.00 a.m., there was some altercation that took place in between accused and the deceased and the accused caught hold of her neck and dragged her to a stone riveted well in the backyard of the house and pushed her into the well. Though neighbours came there, they could not save the deceased and she died due to drowning. People from fire-brigade lifted the dead body from the well. On receipt of complaint, the SHO, Tumkur Rural police station registered a case in Cr.no.400/2012 for the offences punishable under Sections 498A, 302 and 304B of IPC and took up investigation. Further, Dy.SP, Tumkur Rural Sub Division took up investigation and recorded the statements of witnesses and collected material evidence and laid charge sheet against the accused for the aforementioned offences. Thereafter, the committal court taking cognizance against the accused for the aforesaid offences, registered a criminal case in CC No.360/2013 and committed the case to Sessions Court. The Sessions Court after hearing arguments of learned counsel on both side, framed charges and the same was read over to the accused. Accused pleaded not guilty and claimed to be tried and thereafter, the case was set down for evidence.
3. During the course of trial, the prosecution in order to prove its case, got examined 12 witnesses as PW.1 to PW.12 and got marked 14 documents as per Ex.P1 to P14. Subsequently, the accused was examined as required under Section 313 of Cr.P.C. for enabling the explanation of incriminating evidence that appeared against him and the accused denied truth of the evidence of prosecution witnesses. Subsequent to recording statement, as contemplated under Section 233 of Cr.PC., the accused did not come forward to adduce any defence evidence.
4. Subsequently, the Court below after hearing the arguments advanced by the counsel for the accused and prosecution sides, convicted the accused for the offences punishable under Sections 498A, 302 and 304B of IPC. It is this judgment which is under challenge in this appeal.
5. We have heard the arguments advanced by learned counsel for the appellant and learned Addl.SPP for the State. We have perused the entire records.
6. Keeping in view the arguments advanced by them, the point that would arise for consideration in this appeal is:
Whether the judgment of conviction and order of sentence dated 26.06.2014 passed by the Court below in S.C.No.65/2013 is justified under law ?
7. Learned counsel for the appellant/accused contends that the judgment and sentence of the Court below is perverse and erroneous and against the evidence adduced and materials produced and it is based on erroneous presumptions and hence, it is opposed to law. He further contends that the Court below has failed to observe that the prosecution has miserably failed to establish the case against accused beyond all reasonable doubt, as the evidence adduced by the prosecution is contradictory and the witnesses have given different version which raises suspicion as to the commission of the alleged incident.
8. Further it is contended that the Court below has failed to properly consider the evidence of PW.2 who is the author of complaint Ex.P2 and also the evidence of PWs.3, 6 and 8 who are highly interested and related witnesses and they had a personal grudge against the accused as he was from a different caste and eloped with deceased Radha and married her thereby ruining their wish and efforts in getting the deceased married to a person of their own caste.
9. Further, he contends that the Court below has failed to consider that PW.2 herself has admitted in her evidence that the complaint was drafted by others after much deliberation and the contents of which are unknown to her. Further, her husband who was the only eye witness to the incident has not been examined and other inmates of the house of PW.2 i.e., her son, daughter-in-law, grandchildren have not been examined by prosecution and no other persons from the neighborhood have been examined.
10. Further it is contended that the Court below has failed to take note of the fact that mother of deceased – CW-6 Jayamma to whom the accused allegedly made demand for dowry has not been examined and the father of deceased is also not been cited as witness. The prosecution has not placed any evidence to show that there was any demand for dowry from the accused who allegedly took part in the settlement and in pacifying the accused. It is contended that the incident has not occurred at the matrimonial home of the deceased but in the house of PW.2 and the evidence of doctor who has given the post mortem report as per Ex.P11 is contrary to the case alleged by PW.2 that accused dragged the deceased to the well and threw her into it, but the Doctor has opined that there are no injury marks including any abrasions found on the body of deceased Radha. Hence, the court below has committed error in convicting the accused for the aforesaid offences.
11. Further, it is contended that PWs.3, 6 and 8 are the kin of deceased Radha and they are interested witnesses. None of these witnesses have agreed for the marriage of the deceased with the accused as he belonged to a different community. All these witnesses have admitted that accused belongs to a different community and at the initial stage they were not willing to the marriage and they were not happy with the relationship of the accused, it is implied that they are in inimical terms towards the accused, as he ruined the life of deceased – Radha.
12. Further, it is submitted that the court below grossly erred in convicting the appellant for the offences aforementioned. On a cumulative reading and appreciation of the entire evidence on record, it clearly goes to show that the court below has failed to appreciate the evidence in proper perspective manner. The court below has acted on certain legal and factual presumptions which cannot be sustained and the case of the prosecution suffers from proven improbabilities, infirmities, contradictions and the evidence of the prosecution witnesses cannot be relied upon and it is not worthy of credence. On all these grounds, learned counsel for the appellant/accused seeks intervention of this court by setting aside the judgment of conviction and order of sentence rendered by the trial Court for the aforesaid offences.
13. On controvert to the contentions of learned counsel for the appellant/accused, learned Addl.SPP contends that deceased – Radha died within few months of her marriage. The prosecution witnesses have spoken specifically about the demand of dowry by the accused and spoken about the complaint narrated by Radha with regard to ill treatment given by the accused. The death of Radha is an unnatural death within 7 years of her marriage and she having been treated cruelly, there is a presumption under Section 113(B) of the Indian Evidence Act which would nail the accused. All the aspects such as cruelty meted out to deceased Radha, her unnatural death within the time span of 7 years and demand of dowry by the accused were proved. Therefore, the trial Court looking into all these aspects and coupled with the gravity of the charges proved against the accused has rightly convicted the accused person. Therefore, the judgment of conviction and order of sentence passed by the court below does not call for any interference. Hence, it is prayed that the appeal being devoid of merits, may be dismissed.
14. In this background it is relevant to go through the evidence placed by the prosecution in order to establish the guilt of the accused. PW.2 – Gangamma who is the author of the complaint - Ex.P2 and grand- mother of deceased-Radha. She has stated in her evidence that deceased Radha used to work in garments. She eloped with accused for certain days. After some time they came back and marriage was performed in front of her house. All her relatives were present at the time of marriage. She has stated in her evidence that when accused came to her house along with deceased Radha, he called her mother-in-law over phone and demanded cash of Rs.50,000/- and a motorbike. When PW.2 said that it can be discussed later, accused caught hold of the neck of her grand- daughter and dragged her towards backyard of her house, she tried to rescue her. But accused dragged her near a well and pushed her into the well. She made hue and cry and though people from surrounding came there, they were afraid of climbing down the well and rescuing deceased-Radha from drowning. After that she lodged complaint with the police who came at the spot as per Ex.P2. The people from fire brigade came there and lifted the dead body and mahazar was drawn as per Ex.P3.
15. PW.3 is the brother-in-law of deceased Radha. He has stated in his evidence that Radha used to work at Garments and she eloped with the accused and came back after a week. Their marriage was celebrated at Manangi at the residence of PW.2 and he was present at the time of marriage. After marriage, deceased and accused used to reside at Kudroli and after 1 ½ months, accused along with deceased Radha came back to Manangi and contacted PW.6-Nagamani over phone and demanded Rs.50,000/- and a motor bike. On 07.12.2012 accused contacted CW.6 who is no other than the mother of deceased over phone and demanded her to pay him cash of Rs.50,000/- and also a vehicle and threatened that he will leave her daughter if his demand is not met with. Later he came to know through his wife that accused has pushed Radha into the well. He came around 4.00 p.m to Manangi. The dead body was lifted and police conducted inquest over the dead body as per Ex.P10.
16. PW.4 is the Doctor working at Tumkur Government Hospital and conducted post mortem examination of deceased Radha. He has stated that there were no injuries on the dead body of the deceased, but the lungs and abdomen was full of water and he has opined that the death is due to asphyxia as a result of drowning. Ex.P11 is the post mortem report.
17. PW.6 – Nagamani is none other than the sister of deceased Radha and wife of PW.3 and she has reiterated the same lines as that of PW.2 and PW.3 regarding working of deceased at Garments and marriage with accused. She has further stated in her evidence that deceased Radha used to contact her over phone and narrate the torture given by her husband demanding dowry of Rs.50,000/- and a motor bike.
18. PW.8 – Chowdamma is the maternal aunt of deceased Radha. She has also stated in her evidence Radha eloped with accused and came back after a week. Their marriage was celebrated at Manangi in front of the house of PW.2. After marriage, they started residing at Kudroli. Accused contacted CW.6 over phone and demanded for dowry. She was present at that time. After half an hour they got information that accused pushed Radha into the well.
19. PW.1 is the engineer who visited the spot and drew the sketch of the scene of occurrence as per Ex.P1. PW.5 is the fire officer who lifted the dead body from the well. PW.7 and PW.10 are the attestors to the mahazar as per Ex.P.3 drawn at the scene of crime. PW.9 – is the Dy.SP who was working at Tumkur Rural Division at the relevant point of time. He has stated in his evidence that after taking charge of the investigation he recorded statements of PW.3 and PW.8. On 10.12.2012 he recorded the statement of PW.5. He received RTC extract as per Ex.P12 from the concerned department. He prepared seizure mahazar as per Ex.P13 and he seized photos as per Exs.P.4 to 9. Finally he filed the charge sheet before the Court. PW.11 is the Executive Magistrate who has drawn the inquest mahazar over the dead body of Radha. PW.12 is the Sub Inspector who has recorded the statement of the complainant and registered the case and also prepared the mahazar as per Ex.P3.
20. In this background, it is relevant to state here that there is no dispute with regard to the relationship between the accused and deceased Radha and there is no dispute that their marriage took place at Manangi. Accused and deceased lived together at Kudroli. Even it is not in dispute that accused was in Manangi along with deceased Radha on 07.12.2012. The Court below while ascertaining whether the death of deceased was homicidal or otherwise has relied on the evidence of PW.4 Doctor who conducted post mortem examination of deceased Radha. He has opined that there were no injuries on the dead body of the deceased. But the lungs and abdomen was full of water and he has given opinion that the death is due to asphyxia as a result of drowning. Relying on the evidence of PW.4 coupled with the contents of Ex.P11 the post mortem report, the Court below held that the prosecution has established the death of Radha as the homicidal death. But the Court below failed to notice that the evidence of doctor who gave PM report is contrary to the contents of the complaint lodged by PW.2 that accused dragged the deceased to the Well and pushed her into it. But PW.4 opines that there were no injuries nor any abrasions were found on the dead body of the deceased. Therefore, there are clouds of doubts in the theory put forth by the prosecution in order to prove its case that accused was the cause for the death of Radha.
21. The prosecution to prove its case strenuously relied on the evidence of eye witness i.e., PW.2 Gangamma who is none other than the grand mother of deceased Radha. PW.2 has stated in her evidence that when accused came to her house along with deceased Radha, he called her mother-in-law over phone and demanded cash of Rs.50,000/- and a motorbike and when PW.2 said that it can be discussed later, the accused caught hold of the neck of Radha and dragged her towards backyard of her house and pushed her into the stone riveted well. She tried to rescue her and she also made hue and cry. Though people came there, they were afraid of climbing down the well. But in the cross-examination she has stated that any hue and cry raised by the side of her house can be heard in the village. Nearly 10 persons came there and she cannot say the names of all those persons. It is further elicited in the cross-examination that she filed the complaint after consulting with a panchayath member and the complaint was filed after deciding in what manner the complaint is to be filed. The court below having observed that PW.2 is a rustic villager having no education and she is not expected to remember and narrate every small thing could not have accepted the evidence of PW.2. Mere because she is a rustic villager it cannot be said that her evidence said to be adduced for the prosecution is a gospel truth. The Court below having accepted the contention that there is discrepancy in the evidence of PW.2 and the complaint Ex.P.2 with regard to the manner in which accused dragged the deceased towards the well, erroneously held that these types of discrepancies are bound to occur due to lapse of time and cannot be made much of. The court below has not taken into consideration that at the time accused pushing Radha into the well, some people had gathered at that time. Even the investigating officer has not recorded statements of those witnesses who were present. There were only two houses near the well. Even the inmates of those two houses situated near the well have not been examined. Under these circumstances, it appears that there is some camouflage relating to the prosecution evidence to prove the guilt of the accused beyond reasonable doubt. Therefore, we are of the view that it requires re-appreciation and re- evaluation of the entire evidence on record, as the trial Court has not properly appreciated the evidence in a proper perspective in so far as the evidence of PW.2 who is no other than the grand mother of deceased Radha. There is no piece of evidence produced by the prosecution relating to alleged demand of Rs.50,000/- and a motor bike. The evidence of PW.2 is untrustworthy for acceptance and her evidence is not corroborated by other source of prosecution evidence in so far as dowry demand and harassment given by the accused.
22. The prosecution in order to prove its case has relied on the evidence of PW.3 – brother-in-law, PW.6- Sister and PW.8-maternal aunt of the deceased. They have categorically and meticulously stated as to what actually happened on that particular day. All of them have stated that deceased Radha eloped with the accused and came back after a week. Their marriage was celebrated at Manangi at the residence of PW.2. After marriage, deceased and accused resided at Kudroli and after 1½ months, accused along with Radha came back to Manangi and contacted PW.6 over phone and demanded Rs.50,000/- and a motor bike. On 07.12.2012 accused contacted CW.6 who is the mother of deceased over phone and demanded her to pay him a cash of Rs.50,000/- and a motor bike and later they came to know that accused has pushed Radha into the well. In this regard, the Court below has failed to notice that none of these witnesses had agreed for the marriage of the deceased with the accused as he belonged to a different community. In fact, in the cross- examination also all these material witnesses have admitted that the accused belong to a different community and at the initial stage they were not willing to give Radha in marriage to the accused. But after Radha eloped with the accused and returned to their place, they voluntarily celebrated the marriage of Radha with the accused. Even after the marriage they were not happy with the relationship of the accused. It is pertinent to note that PWs.3, 6 and 8 are the kin of deceased and are interested witnesses. The evidence of these witnesses needs to be corroborated with cogent, consistent and acceptable evidence in order to prove the guilt of the accused with regard to accused treating the deceased cruelly demanding her to bring dowry.
23. The Court below has not properly appreciated the theory of the prosecution with regard to the situation of the well and the house of PW.2 relying on the evidence of PW.9, the IO. PW.9 has stated during the cross-examination that accused dragged the deceased through the back door of the house of PW.2. But PW.2 in her evidence has stated that the accused has dragged Radha towards the well by the side of the house. The contradictions in the evidence of these material witnesses will create a doubt in the theory projected by the prosecution that the accused ill-treated deceased Radha for additional dowry and in that regard pushed Radha into the well. The Court below having noticed the admission of PW.9, erred in convicting the accused for the aforesaid offences.
24. Further, the Court below has failed to consider that the husband of PW.2, the other eye witness to the incident has not been cited as a witness and he has not been examined and further the other inmates of the house of PW.2 i.e., her son, daughter-in- law, grandchildren have not been cited as witnesses and have not been examined by the prosecution. The prosecution has not examined the neighbour, CW-5 who is the brother of PW.2. The father of the deceased has also not been examined by the prosecution to prove the guilt of the accused for the offences which he has been charged. Hence, it was for the prosecution to adduce cogent, consistent and acceptable evidence to probabalise that the accused had caused death of deceased Radha for dowry.
25. Learned counsel for the appellant/accused has placed reliance on a decision of this Court in Crl.A.No.357 c/w 222/1992 wherein it is held as under:
16. Section 113B of the Indian Evidence Act makes provision for a presumption as to dowry and it reads as hereunder:
-B. Presumption as to dowry death – When the question is whether a person has committed the, dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation – For the purpose of this section, ‘dowry death’ shall have the same meaning as in Section 304B of Indian Penal Code.
To attract the presumption it must be established that soon before her death a woman had been subjected to cruelty or harassment in connection with any demand for dowry. If that fact is established then there would be scope for presumption that death was dowry death even though there may not be any clear evidence regarding cause of death. If there is evidence regarding death by burns or other unnatural cases including suicide or bodily injuries within 7 years of marriage of the women, then there is no presumption that she had been subjected to cruelty in connection with dowry by her husband or his relative. Cruelty for or in connection with dowry soon before her death will have to be established as a fact. In a case where death is shown to be of the type referred to in Section 304B, then there would not be any need to have recourse to the presumption, as cruelty of the type referred to in that section will have to be proved even to attract the presumption. Another point to be noted is cruelty for or in connection with dowry must be shown ‘soon’ before the death. It is not sufficient if cruelty of the type referred to in the Section at some point of time much prior to the death is proved.
Bearing in mind the above legal position we have to consider the evidence on record to find out whether the charges against the accused have been established. The death of Radha being an unnatural death within 7 years of her marriage is not disputed. We have to see whether the accused had subjected deceased Radha to cruelty or harassment in connection with any demand for dowry. In the instant case, deceased – Radha was working in a garment factory. She fell in love with accused and they eloped for about a week. After their return elders performed the marriage of the accused and Radha and thereafter, Radha started living with the accused at Kudroli. At that time there was no whisper for any demand of dowry in the form of cash or in the form of articles. Even there is no evidence on the part of the prosecution that accused demanded a motor bike. There is no direct evidence of the accused actually demanding or desiring further dowry after the marriage. The evidence in this regard is only that of close relatives of the deceased who state that deceased Radha used to contact over phone and narrate the torture given by her husband demanding dowry. In view of close relationship and affection, any person in the position of witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. In this case, PWs.3, 6 and 8 have admitted during cross- examination that accused belongs to a different community and at the initial stage they were not willing to give Radha in marriage to the accused. The court below only relying on the evidence of these witnesses who are none other than the kin of deceased Radha and they being interested witnesses, erroneously convicted the accused for the aforesaid offences. The Court below has failed to see that prosecution has not proved its case by placing cogent, corroborative and acceptable evidence to probabalise that the accused had caused death of deceased Radha for dowry. Therefore, in this appeal the same has to be re-appreciated in a proper perspective manner as the Court below has misdirected as well as misread the evidence of prosecution in proving the guilt of the accused.
26. At a cursory glance of all these material witnesses, the matter requires to be appreciated in a proper perspective manner, but the Court below has not given any credentiality to the cross-examination of PWs.2, 3, 6 and 8 wherein the defence counsel elicited certain materials which runs contrary to evidence of PW.12, PSI who recorded FIR and so also conducted spot mahazar. It is relevant to note that when a person is pushed forcibly to the well which is stone riveted also consisting water some injuries would have been caused. Ex.P1 is the sketch prepared by PW.1 – Assistant Engineer. Even it does not indicate whether deceased Radha was struggling while she was pushed into the well on 07.12.2012. Even in the spot mahazar as per Ex.P3, drawn by PSI in the presence of PW.5, 7 and 10, that PWs.7 and 10 have not supported the contents of Ex.P3 and their evidence has been given a complete goby. In Ex.P3 – Mahazar it is not specifically indicated whether any signs of struggle of deceased-Radha while pushing her into the well. Even in the evidence of PW.9 being an IO who laid the charge sheet and PW.12, being PSI, nothing is forthcoming relating to any struggling or any altercation that took between accused and deceased on 07.12.2012. Even in the inquest proceedings conducted by the Taluka Executive Magistrate-PW.11, nothing is forthcoming relating to any injuries inflicted on the person of deceased-Radha at Ex.P10. Therefore, it appears whether deceased herself jumped into the open well due to depression as she was loving the accused even prior to marriage and her family members had not consented to the said marriage as the accused belonged to a different community. Hence, there are clouds of doubts in the theory projected by the prosecution that accused had caused the death of deceased – Radha by pushing her into the well. Therefore, in this appeal it requires to re-appreciating the entire evidence on record independently whether the deceased was meted with physical and mental harassment at the hands of accused.
27. Learned Addl.SPP pointed out that the Trial Court had given conviction for a period of 7 years and to pay fine for the offence under Section 498A IPC. Whereas the sentence for the said offence is imprisonment for a term which may extend to three years and also with fine. Even after noticing the terms of the said provision, the Court below erred in holding that accused is liable to be punished with rigorous imprisonment for a period of 7 years and with a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months. The court below has committed an irregularity while sentencing the accused under the said offence. Therefore, the judgment passed by the court below needs interference.
28. Therefore, for the aforesaid reasons and findings, we are of the opinion that the prosecution has miserably failed to establish the guilt of the accused for the offences aforesaid and the Court below has misdirected as well as misread the evidence of prosecution in proving the guilt of the accused. The point taken up for consideration is answered accordingly. Hence, for the aforesaid reasons, we proceed to pass the following:
ORDER Appeal preferred by appellant/accused is hereby allowed. Consequently, the judgment of conviction and order of sentence passed by the II Addl.District and Sessions Judge, Tumkur, in S.C.No.65/2013 dated 26.06.2014 convicting the accused for the offences punishable under Sections 498A, 304B and 302 of IPC is hereby set-aside. The accused is acquitted of the charges levelled against him.
Accused is ordered to be released from the custody forthwith, if he is not required in any other case.
Registry is hereby directed to intimate the concerned Jail Authorities to release accused from custody forthwith.
If the accused has already deposited any fine amount, the same is ordered to be refunded to him on proper identification and acknowledgement.
Sd/- JUDGE Sd/- JUDGE DKB