IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE:
THE HON’BLE MR. JUSTICE B.A.PATIL CRIMINAL PETITION No.4011/2019 BETWEEN:
1. NANJEGOWDA S/O LATE KULLA NANJEGOWDA AGED ABOUT 70 YEARS 2. SRI ASHOKA B.N., S/O NANJEGOWDA AGED ABOUT 45 YEARS BOTH ARE R/AT BOOKANAKERE VILLAGE K.R.PET TALUK, MANDYA DISTRICT-571426.
... PETITIONERS [BY SRI P.MAHESHA, ADV.] AND:
THE STATE OF KARNATAKA BY K.R. PET RURAL POLICE REP. BY S.P.P., HIGH COURT OF KARNATAKA BENGALURU-560001. …RESPONDENT [BY SRI K.NAGESHWARAPPA, HCGP FOR RESPONDENT-STATE; SRI C.S.PREMKUMAR, ADV. FOR COMPLAINANT.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.301/2018 OF K.R. PET RURAL P.S., MANDYA DISTRICT FOR THE OFFENCE P/U/S. 498A, 306 R/W 34 OF IPC AND SECTIONS 3 AND 4 OF D.P. ACT.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present petition has been filed by the petitioners - accused Nos.1 and 2 under Section 439 of Cr.P.C. to enlarge them on bail in Crime No.301/2018 of K.R. Pet Rural Police Station, Mandya District, for the offences punishable under Sections 498A, 306 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
2. I have heard the learned counsel for the petitioners - accused Nos.1 and 2 and the learned High Court Government Pleader for respondent No.1. Complainant has also engaged the counsel by filing Vakalath. Heard Sri. C.S. Premkumar, learned counsel for the complainant.
3. The genesis of the complaint discloses that the marriage of daughter of the complainant was performed with petitioner No.2 - accused No.2 about eight years back. At the time of the marriage, dowry was given in the form of cash and gold and after two years, the daughter of the complainant was subjected to both physical and mental harassment. In the meanwhile, she has given birth to a male and a female child. Due to the ill-treatment and harassment, the complainant paid Rs.2,00,000/- and requested the accused to lookafter his daughter well. Accused No.2 addicted to bad vices and accused Nos.1, 3 and 4 used to insist the deceased to bring more dowry from her parents’ house. Subsequently, an amount of Rs.75,000/- was paid and also gold of 35 grams was given, but the said ill-treatment and harassment continued and even on advice made by the complainant, it was continued. On 30.09.2018, the complainant was informed over the phone that his daughter has been murdered. Complainant came and saw the body and filed the complaint. On the basis of the complaint, a case has been registered and after investigation, the charge-sheet has been filed under Sections 498A, 306 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
4. It is the submission of the learned counsel for the petitioners that the learned Sessions Judge has already granted bail to accused Nos.3 and 4. On the ground of parity, the present petitioners - accused No.s.1 and 2 are also entitled to be released on bail. It is his further submission that the complaint was lodged under Section 302 of IPC and subsequently, investigation reveals that it is a suicidal death and as such, Section 306 of IPC has been included by deleting Section 302 of IPC. He further submitted that at the time of alleged incident, petitioners - accused Nos.1 and 2 were working in the field and they were not in the house. No specific overt act was alleged by any of the witnesses except vague and general allegation that the accused persons used to ill-treat and harass the deceased for demand of dowry. It is his further submission that the complaint and conduct of the complainant goes to show that only to take revenge with vengeance against the accused persons, such false complaint has been registered. He further submitted that the witnesses who have been examined before the Investigating Officer are interested witnesses. Even no complaint had been registered earlier alleging that there was ill-treatment and harassment. It is also submitted that the charge-sheet has been filed and since more than ten months, the petitioners – accused Nos.1 and 2 are in custody and they are not required for the purpose of further investigation and interrogation. They are ready to abide by the conditions imposed by the Court and ready to offer sureties. On these grounds, the learned counsel for the petitioners prayed to allow the petition and to release the petitioners/accused Nos.1 and 2 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that earlier, the present petitioners have approached this Court in Crl.P.9014/2018 and the said petition was got withdrawn. On similar grounds, without there being any changed circumstances, the present petition is not maintainable. It is his further submission that CWs.9 and 10 are the son and daughter of the deceased. They were present at the time of the alleged incident and they are the eye-witnesses and they have categorically stated in their statement that it is the accused persons who used to ill-treat and harass the deceased for demand of dowry. It is his further submission that the alleged incident has taken place in the matrimonial house of the deceased and the accused No.2 who is the husband of the deceased has to give explanation under Section 106 of the Evidence Act. He has not come up before this Court with any explanation. Conduct of accused Nos.1 and 2 clearly goes to show that after the incident they were absconding and they were apprehended at a village which is 30 kilo meter away from the place of incident. Further, he submitted that accused No.2 being the husband of the deceased could have immediately come to the place of incident after coming to know that his wife has committed the suicide. Material produced clearly goes to show that it is because of ill-treatment and harassment caused by the accused persons, the deceased committed suicide by hanging. Even the opinion given by the Doctor clearly goes to show that the deceased died due to asphyxia as a result of constriction to air passage. If the petitioners - accused Nos.1 and 2 are released on bail, they may tamper with the prosecution witnesses. Hence, he prayed to dismiss the petition.
6. Learned counsel for the complainant by substantiating the arguments of the learned High Court Government Pleader submitted that though the case is registered under Section 302 of IPC, but the charge- sheet has been filed under Section 498A, 306 read with Section 34 of IPC. By relying upon the statement of CWs.9 and 10, he submitted that they are the eye- witnesses and their statement corroborates with the case of the prosecution and there is ample material as against the petitioners - accused Nos.1 and 2 for having committed the alleged offences. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for both the parties and also perused the records.
8. As could be seen from the charge-sheet material, earlier the complaint was registered under Section 498A, 302 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, but subsequently Section 302 of IPC has been deleted and the charge-sheet has been filed under Sections 498A, 306 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. This aspect of the matter are required to be considered and appreciated only before the Court below. Though the learned counsel appearing for the complainant submitted that the said act of all the accused is falling under Section 302 of IPC and false charge-sheet has been filed under Section 306 of IPC, this issue should be challenged before the appropriate Court and he can get further directions to alter the Section in the charge sheet if he produces material to that effect. This Court cannot go into the said issue.
9. On close reading of the charge-sheet material which has been made available clearly indicates that there is no case made out that it is a murder committed by the accused. But the opinion expressed by the doctor clearly goes to show that the death is due to asphyxia as a result of constriction to air passage. It shows that the deceased committed suicide. The allegation which has been made in the statement of witnesses and other records goes to show that there was ill-treatment and harassment caused by the accused persons in demanding the dowry. It is also stated that earlier an amount of Rs.2,00,000/- has been paid. At that time, harassment was continued and subsequently an amount of Rs.75,000/- and 35 grams of gold has also been given. But only allegation which has been made in the said records is that it is accused No.1 - father-in-law of the deceased has received the amount and that there is no serious allegations to the effect that he ill-treated and harassed the deceased. A general statement has been made in this behalf.
10. Insofar as accused No.2 - husband of the deceased is concerned, there is specific overt act of demand of dowry by consuming alcohol. Be that as it may, even under Section 106 of the Evidence Act, he has to come with the specific case that under what circumstances, the deceased committed suicide by hanging in her matrimonial house. Without there being any explanation, an inference can be drawn that because of ill-treatment and harassment caused by petitioner No.2 - accused No.2, the deceased committed suicide by hanging. Looking from any angle, petitioner No.2 -accused No.2 has not made out any good grounds to release him on bail. As such, the petition as against petitioner No.2 - accused No.2 is rejected.
11. Insofar as petitioner No.1 - accused No.1 is concerned, he is aged about 70 years and general allegations have been made as against him. Accused Nos.3 and 4, against whom the similar allegations are made, have already been released on bail by the learned Sessions Judge. On the ground of parity, he is also entitled to be released on bail.
12. Keeping in view the above facts and circumstances, the petition is partly allowed. Petitioner No.1 - accused No.1 is ordered to be released on bail in Crime No.301/2018 of K.R. Pet Rural Police Station, Mandya District, for the offences punishable under Sections 498A, 306 read with Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961, subject to following conditions:-
i) Petitioner No.1/accused No.1 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) Petitioner No.1/accused No.1 shall not tamper with the prosecution witnesses directly or indirectly.
iii) Petitioner No.1/accused No.1 shall not leave the jurisdiction of the Court without prior permission.
iv) Petitioner No.1/accused No.1 shall be regular in attending the trial.
v) Petitioner No.1/accused No.1 shall co- operate during the course of the trial.
Sd/- JUDGE PMR