IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL APPEAL NO.782 OF 2011 BETWEEN:
MR. SAGAIRAJ AGED 30 YEARS S/O LURDUSWAMY R/AT. SILUBEPURA POST HESARAGATTA HOBLI BANGALORE NORTH TALUK.
(BY SRI. D.R. SUNDARESHA, ADV.) AND:
… APPELLANT STATE OF KARNATAKA BY SOLADEVANAHALLI POLICE.
(BY SRI. HONNAPPA, HCGP) - - -
… RESPONDENT This Criminal Appeal is filed under Section 374(2) Cr.P.C. praying to set aside the conviction and sentence passed in S.C.No.32/2008 dated 18.7.2011/20.7.2011 passed by the Presiding Officer, Fast Track Court-III, Bangalore Rural District, Bangalore, convicting the appellant/accused No.1 for the offence P/U/S 498-A, 304(B) of IPC and Section 3 and 4 of D.P. Act and the appellant/accused No.1 is sentenced to undergo R.I. for two years and two months and to pay a fine of Rs.5,000/- in default to undergo S.I. for 3 months for the offence P/U/S 498(A) of IPC & etc.
This Appeal coming on for Orders this day, the Court delivered the following:-
JUDGMENT Heard the learned counsel for the appellant, the learned High Court Government Pleader for the respondent – State and perused the records.
2. The appellant who is accused No.1 in S.C.No.32/2008 has preferred this appeal challenging the judgment of conviction and sentence passed by the Presiding Officer, Fast Track Court-II at Bengaluru vide judgment dated 18.07.2011.
3. The Trial Court has convicted the accused No.1 (the appellant herein) and sentenced him to undergo rigorous imprisonment for 2 years and 2 months and to pay a fine of `5,000/-, in default to undergo simple imprisonment for 3 months for the offence punishable under Section 498A of IPC. The Trial Court also convicted and sentenced the appellant to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/-, in default to undergo simple imprisonment for 6 months for the offence punishable under Section 304-B of IPC. For the offences under Sections 3 and 4 of Dowry Prohibition Act, the Trial Court has sentenced the appellant to undergo 2 years 2 months of rigorous imprisonment and to pay a fine of `5,000/-, in default to undergo simple imprisonment for 3 months for the offence under Section 3 of the D.P.Act and also sentencing him to undergo simple imprisonment for 2 months and pay a fine `500/- with a default sentence of 20 days of simple imprisonment for the offence under Section 4 of the D.P.Act.
4. The brief factual matrix of the case are that, undisputedly the deceased Stelly Mary, sister of the complainant by name Tony Mariraj of Thambuchetty Palya, St.Anthony Temple, K.R.Puram, Bengaluru was given in marriage to the appellant on 05.05.2006. It is alleged that at the time of marriage, `1,00,000/- dowry and 10 grams of gold finger ring, watch, necklace, gold chain, gold bracelet were given to the appellant in consideration of the marriage and after performance of the marriage also, on demand, the complainant also gave one almirah, bed set, mixi, table fan and other household articles. It is the further case of the prosecution that after the marriage, for some time, they looked after the deceased with all love and affection. But, later the accused – appellant and his family members started ill-treating and harassing the deceased in demand of further dowry and the same was disclosed by the deceased to the complainant. In this connection, on 22.08.2006, there was a panchayat held in the house of the accused. The complainant, his friends and other relatives had been to the house of the accused and they advised accused persons not to ill-treat and harass the deceased so that the amount will be given within short time. Inspite of that, the accused never desisted themselves from ill-treating and harassing the deceased. Due to the frustration on 01.04.2007, the deceased has telephoned to her brother with regard to ill- treatment and harassment to her and thereafter, the complainant Tony Mariraj along with his friend had been to the house of the accused and requested them to give some time and he will pay the amount of `1,00,000/- as he is going to receive compensation in an accident case and requested the accused to look after the deceased well. But, to the dismay of the complainant, on 04.04.2007, in the evening at about 7 p.m., he received an information that the deceased had committed suicide in the house of the accused. He went to the house of the accused and saw the dead body of the deceased. Therefore, he suspected that the said death of the deceased was due to ill-treatment and harassment by the accused persons in demand of dowry. Therefore, he lodged a complaint and the police have registered a case in Crime No.70/2007 for the offences under Sections 498A and 304-B of IPC. After thorough investigation, the police found that there are sufficient materials to put the accused on trial before the Sessions Court. Therefore, they laid the charge sheet. The accused were released on bail during the pendency of the proceedings. After committal of the proceedings, the Trial Court secured the presence of all the accused persons and tried them. The Trial Court has framed charge for the offences under Sections 498A and 304-B of IPC and Sections 3 and 4 of D.P.Act, for which the appellant is convicted.
5. The prosecution, in order to bring home the guilt of the accused, examined as many as 12 witnesses as PWs 1 to 12 and got marked 21 documents as Exs.P1 to P21 and material objections M.Os.1 to 5. The accused were also called upon to enter into defense witness, if any, after examining under Section 304-B of IPC. As the accused did not choose to lead any evidence and after hearing both the sides, the Trial Court held that accused Nos.2 to 8 have lack of sufficient evidence against them. However, the Trial Court convicted accused No.1 for the offences as noted supra.
6. Learned counsel for the appellant Sri.D.R. Sundaresha seriously contends before this Court in support of the grounds urged in the memorandum of appeal that when the Court has acquitted accused Nos.2 to 8 when common allegations are made, charges are also framed in common against all the accused persons, there was no evidence distinctly and separately available against accused No.1 in order to convict him for the above said offences. The allegations are inseparable in nature. Therefore, he submits that the Trial Court has not properly appreciated the oral and documentary evidence on record in order to arrive at an appropriate conclusion. He also submits before the Court that the evidence of the witnesses who are no other than the close relatives of the deceased i.e. the complainant who is the brother and other witnesses who are father and friends of the complainant have to be very carefully and meticulously scrutinized by the Court. Therefore, before arriving at a conclusion, the Trial Court has to satisfy itself whether it is sufficient to prove the case of the prosecution beyond reasonable doubt. The Trial Court has committed serious error in not properly appreciating the evidence on record. Therefore, he requests the Court to re-evaluate the materials on record and the accused No.1 is entitled to be acquitted as there is no separate and distinct evidence available against him.
7. Per contra, learned HCGP has submitted before the Court that on overall reading of the entire evidence on record though the witnesses are related witnesses but the evidence stands to the scrutiny of the Court and they withstood the cross-examination and reiterated about the ill- treatment and harassment and particularly they advised accused No.1 not to ill-treat and harass the deceased. It is contended that it is the husband who has to take care of the wife in the matrimonial home. If he does not take care of his wife, that itself amounts to willful misconduct on his part and he himself has demanded the dowry of `1,00,000/- from the complainant. Therefore, there is distinct and separate material available against accused No.1. Further, the evidence of the complainant is fully supported by other witnesses. Though they are friends of the complainant but, they withstood the cross-examination and very naturally deposed before the Court as to what happened. Therefore, the Trial Court is right in convicting the appellant for the aforesaid offences. Hence, he submits that there is no error to interfere with the judgment of conviction and sentence passed by the Trial Court and as such, the appeal deserves to be dismissed.
8. In the wake of the submissions made by the learned counsel for the appellant and the learned HCGP, this Court has to examine as to whether the offences alleged against the appellant has been proved beyond all reasonable doubts and whether the judgment of conviction for the above said offences and sentences passed by the Trial Court is proper and correct under the facts and circumstances of this case.
9. The records disclose that the material witnesses examined to be deeply considered by this Court is the evidence of PW-2 Tony Mariraj and also the witnesses PW-7 Girish PW-8 – Prabhakar, PW-10 Shanthakumar and PW-11 Arogyaswamy, father of the deceased in this regard. Before adverting to the evidence of material witnesses, let me have glance through the evidence of the prosecution witnesses as such.
10. PW-1 Arun Kumar is the neighbour. He did not depose anything except he states that after the death of the deceased, he went to the house and saw the dead body of the deceased. But in the course of cross-examination, it is elicited in support of the accused that the accused persons were looking after the deceased with all love and affection and further, on the date of the incident, accused No.1 had been to his duty in KSRTC and he was not present when the incident happened. It is also stated that the relationship between the complainant and his aunt Nirmala i.e. the mother of the accused was not good. Nirmala did not attend the marriage of the deceased. The above said material is not subjected to any further cross-examination by the learned prosecutor. It is also stated that the deceased was not healthy. Even from the date of marriage she was complaining about back pain. Her husband was taking her to hospital and members of her family were looking after her well. Let me consider this witness later, after evaluation of other material witnesses.
11. PW-2 Tony Mariraj is no other than the brother of the victim. PW-3 Thomasraj is only an inquest witness who has signed Ex.P2 Inquest Mahazar and also stated that he has only attended the marriage. He has not spoken anything about the demand or acceptance of dowry at the time or after the marriage. PW-4 K.Chandramohan is a witness for seizure of Exs.P6 and P7. PW-5 Dr.K.S.Pradeep has conducted the post mortem examination of the deceased who gave the opinion that the death of the deceased is due to asphyxia as a result of hanging. There is no dispute whether this aspect is concerned by the accused. PW-6 Babu is the photographer who has taken photo of the dead body and other things. PW-7 M.Girish is a friend of PW-2 who visited the house of the accused and advised accused No.1 with reference to demand of dowry of `1,00,000/- and also assurance given by PW-2. PW-8 Prabhakar is a police personnel. After the post mortem examination, he handed over the dead body to PW-2. PW-9 R.Mallesh who was the investigating officer, has conducted investigation in part while he was working as Dy.S.P. at that point of time. PW-
10 Shanthakumar and PW-11 Arogyaswamy are elder brother and father of the deceased. They have spoken about the ill-treatment and harassment by the accused - appellant and also the information that were given by the deceased to them with reference to the status of the deceased in the house of the accused. PW-12 Pratap Singh is the Investigating Officer who filed charge sheet after the investigation before the Court.
12. On the basis of the above said materials on record, in my opinion, the evidence of PW-2, PW-7, PW-10 and PW-
11 are very important who spoke about the alleged offences against the appellant and other accused persons.
13. PW-2 has categorically stated in support of the complaint averments. But, specifically he has stated with reference to giving of gold ornaments at the time of marriage and performing of the marriage of the deceased with the accused and also ill-treatment and harassment thereafter in demand of dowry. Specifically speaking about the ill-treatment and convening of the panchayat, he has deposed that on 22.08.2006, himself and his parents along with other witnesses by name Girish, Harinath, Gopalakrishna and Somashekara went to the house of the accused and accused No.1 and his family members were also present and at that time he assured the accused that he would pay cash of `1,00,000/- as soon he receives the compensation from a motor vehicle case as he met with an accident and he is awaiting the money and requested the accused to take care of his sister. In order to corroborate this piece of evidence, the panchayat was held in the house of the accused, the prosecution has examined PW-7 Girish.
PW-7 has infact supported the evidence of this witness. He has stated that on that particular day i.e. on 22.08.2006, they went to the house of the accused. By that time, PW-2 has informed him that he has got some problem in the family with reference to the marital life of his sister and he also told that the accused No.1 has been demanding an amount of `1,00,000/- as further dowry and then they went to the house and advised accused No.1 not to do anything to Stella Mary and not to demand any money as PW-2 has assured to pay that amount after getting the compensation. Later, he came to know that the deceased committed suicide. In the course of cross-examination, of course he has corrected himself with regard to the date of going to the house of accused. He has stated that the accused No.1 is a conductor in KSRTC bus. He did not know the timings of his duty and it is suggested that accused No.1 went to his duty on 22.08.2006 and he was not present. But the said suggestion was denied. He did not disclose about attending any panchayat. He cannot say the details of all the events taken place in the year 2006-07 but he says that he can remember the events.
14. Except eliciting the above facts, nothing has been elicited as to why this witness has to give false witness before the Court. Nothing is suggested that because of friendship between himself and PW-2 he has given false evidence. Therefore, merely because he is a colleague of PW-2, unless there is material evidence available on record to show that due to the friendship or the professional relationship it cannot be said that this witness has given false evidence before the Court. It is quite natural under the circumstances that a person may divulge his problems with his colleagues. Like that way, PW-2 might have divulged his problems with his elderly colleague as PW-2 and that person were practicing together as advocates. As it is stated that the interestedness of a witness should emerge from the evidence itself, unless the Court is satisfied that the witness is deposing falsehood, only on the basis of such relationship or interestedness, such evidence should not be disbelieved merely on that relationship. Therefore, sofar as the convening of the panchayath on 22.08.2006 is concerned, it is fully corroborated by this witness with the evidence of PW- 2.
15. Coupled with the evidence of these two witnesses, sofar as this particular aspect is concerned, the other witnesses i.e. relative witnesses PW-10 and PW-11 who are also the brother and father of the deceased, have stated with reference to the demand of `1,00,000/- at the time of marriage and taking of wrist watch and other gold ornaments and subsequent to the marriage also, receiving some articles, they have spoken to in their evidence. In the course of cross-examination, infact PW-11 has stated that he contributed an amount of `80,000/- for the marriage but he did not pay `1,00,000/- to the accused personally. But some jewels were got prepared by him and some were by his son and his son has paid an amount of `1,00,000/- towards dowry in consideration of the marriage. There is no much cross-examination sofar as this witness is concerned. In the course of cross-examination, it is elicited that he contributed an amount of `80,000/- for the marriage but he has not actually paid an amount of `1,00,000/- to the accused but he reiterated that his son has paid the said amount. It is suggested to the evidence that the victim was suffering from back pain and her health condition was not good. Such suggestion has been denied. Almost all the witnesses have denied the suggestion made during the course of the cross- examination. Therefore, such defense taken by the accused abruptly in the course of cross-examination, is not supported by any other medical evidence. The accused has not lead any evidence on his side nor has he produced any document to show that the deceased was suffering from back pain and that too, due to back pain, she was so frustrated in life to commit suicide. The defense, in my opinion, has not even established by preponderance of probability. Apart from that, the witness in the course of cross-examination, has reiterated about the ill-treatment and harassment by the accused. Also that he had been to the house of the accused to see the dead body. It is suggested to him that the death of the deceased was not due to ill-treatment or harassment by the accused, but such suggestion has been denied. There is not even a suggestion that the death of the deceased was only due to health condition of the deceased. In the same fashion, the evidence of other witness PW-10 has been dealt with.
16. Further, the evidence of PW-2 with reference to the continuous ill-treatment and harassment pestering the deceased to bring `1,00,000/- from her house, is conspicuously absent in this case. Of course, the prosecution has relied upon the evidence of PW-2 with reference to the incident happened on 01.04.2007 i.e. nearly after 8 months from the date of convening of panchayat i.e. on 22.08.2006. But none of the witnesses have stated as to what transpired between these two dates from 22.08.2006 to 01.04.2007.
17. Be that as it may, on 01.04.2007, according to the prosecution, PW-2 received a telephonic call from the deceased alleging that the accused person were using vulgar language for abusing her. In that context, it is stated that PW-2 went to the house of the accused along with his friend and accused No.1 to accused No.8 were present at that point of time and they advised the accused persons and the complainant has stated that he is expecting compensation from a motor vehicle case within few days and then he will pay the amount. But abruptly on 04.04.2007, the incident of death of deceased occurred in the house of the accused.
18. Sofar as this particular incident is concerned which is alleged to have taken place on 01.04.2007, it is not even corroborated by other witnesses i.e. PW-10 and PW-11. They never stated that they had been to the house of accused in connection with the particular aspect. Therefore, the Court has to visualize whether this particular portion of the evidence of PW-2 has been proved beyond reasonable doubt and the same is acceptable. The telephonic conversation between the deceased and PW-2 though it was available to the police, the same has not been secured and placed before the Court to show that atleast on that day, she conversed with her brother PW-2. The said Girish, the friend of PW-2 has not been examined before the Court. So these two important aspects should be very carefully scrutinized by the Court. Whether such evidence was available to the prosecution or not and if available, why that material witness has been withheld without any elucidation of evidence from the mouth of Investigating Officer. None of the Investigating Officers have stated as to why they were not able to produce the document to show the conversation between the deceased and her brother and why the prosecution has not examined the friend of PW-2 is also not forthcoming in the evidence of any witnesses, particularly, in the evidence of Investigating Officer. Therefore, one cannot conclusively say that such incident happened. Therefore, the fact remains that from 22.08.2006 to 1.04.2007 what transpired between the family of the complainant and the accused is not forthcoming.
19. In the above said backdrop, now let me consider the provisions of law which invoked the learned Sessions Judge to convict the accused. Section 304-B of IPC contemplates 3 necessary ingredients to be proved by the prosecution beyond reasonable doubt.
Section 304-B reads thus:
“304B. Dowry death-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
20. The said provision clearly indicates that the death should be happened unnatural within 7 days of the date of the marriage. Sofar as that aspect is concerned, there is no doubt that, the said ingredient is complied in this particular case. The second ingredient is that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband or in connection with any demand of dowry, then only such death shall be called as dowry death. Therefore, the proximity between the ill- treatment and harassment and death of the deceased has to be established by the prosecution beyond reasonable doubt. Though there is no fixed rule or circumstance to arrive at the conclusion, but on the basis of circumstances of the case, the Court should be in a position to reasonably drive itself to a conclusion that there was ill-treatment and harassment for demand of dowry soon before the death of the deceased. As visualized from the entire evidence, none of the witnesses have stated as to what happened from 22.08.2006 to 04.04.2007 with reference to demand of dowry. Of course, some evidence is placed before the Court up to 22.08.2006. There was some ill-treatment and harassment to the deceased with reference to demand of dowry.
21. Be that as it may, soon before the death has to be understood by the Courts that atleast within reasonable time there should be evidence of some ill-treatment and harassment. That too such ill-treatment and cruelty with reference to dowry, and must be sufficient to drive a woman to commit suicide. In my opinion in this case, it is not a reasonable time to arrive at a conclusion that after the lapse of 8 months in the absence of any evidence, there was ill- treatment and harassment to the deceased to drive her to commit suicide. Therefore, the Trial Court infact has not bestowed its attention to appreciate this particular fact and the issue before it, has particularly swayed a way to appreciate the overall evidence of prosecution in order to convict the accused for the offence under Section 304-B of IPC. I am of the opinion that, the said observation by the Trial Court is liable to be turned down and the conviction and sentence passed by the Trial Court so far as Section 304-B is concerned, is not tenable.
22. Now coming to the other findings under Section 498A of IPC and Sections 3 and 4 of D.P.Act are concerned, it is evident from the evidence of PW-2 as well as father and brother of the deceased that at the time of the marriage, some gold articles and cash of `1,00,000/- was given. Though I have already narrated that there was some discrepancy with reference to the payment of the amount, but nevertheless in the course of cross-examination, it is not totally disproved by the accused that such things have not at all happened and particularly, on 22.08.2006, the friend of PW-2 had been to the house of accused No.1. They specifically advised accused No.1 as it was found that there was some demand of `1,00,000/- as dowry by accused No.1 and distinctly there was advise to accused No.1 and thereafter, the death occurred in the house of the accused. Though this Court cannot draw an inference that it was a dowry death, but nevertheless on either looking into the entire evidence, the witnesses or related witnesses but it is quite natural that the deceased can only spelt out her problems with the relatives. No other person can be taken into confidence to disclose all the problems which happened in the matrimonial home. Therefore, in the natural course of events, when the deceased has disclosed the same to her brothers and father, with regard to ill-treatment and harassment she meted out in the house of the accused and particularly when the death occurred in the house of the accused, there is absolutely no explanation by the accused regarding the reason for the death of the deceased and the defense taken by the accused is not substantiated by any probabilities. In such an eventuality, the Trial Court was right in coming to the conclusion that the prosecution has proved the case for the offence under Section 498A of IPC.
23. Added to the above, with fond of hope after the marriage, the wife will come to the house of the husband that she will be taken care of by the husband. If the husband shows a good leaf to her life, she will tolerate anything in the matrimonial home. If the husband himself does not show any love and affection and take care of her and protect her interest, that becomes an end of her life in the matrimonial home. That conduct of the husband, in my opinion, to be taken note of. The fact as to what made a lady to commit suicide without any reason being established before the Court and therefore, rightly the Trial Court has observed that it is the responsibility of accused No.1 to take care of the wife and he has to explain as to in what manner it prompted the wife to commit suicide. Therefore, in my opinion, transaction which has taken place on 22.08.2006 is sufficient to draw the inference that only due to ill-treatment and harassment by means of willful misconduct by not taking care of his wife and also demanding dowry from her brother, it might have permitted her to commit suicide. Therefore, the above findings are sufficient and are properly appreciated by the Trial Court so as to convict the accused under Section 498A of IPC. But, the accused – appellant is entitled for the benefit of set off for the period of 8 months already undergone in judicial custody.
24. Sofar as demand of dowry and acceptance is concerned, there are lot of discrepancies in the evidence of PW-2 as well as in the evidence of father of the victim examined as PW-11. Though it is stated that at the time of marriage, an amount of `1,00,000/- was given and gold articles were given but some of the documents produced before the Court are also found to be discrepant which is elicited during the course of cross-examination. Of course, some bills are produced before the Court to show that after the marriage, some articles were given to the accused like fan and other things, but it is not elicited that those were given only on the basis of demand made by accused persons. Therefore, the demand of dowry prior to the marriage and after the marriage is not substantially established before the Court. However, there was some demand for money of `1,00,000/- by the accused. Whether it was only due to demand of dowry because no conversation between the family members of the accused and deceased is brought out in the evidence of PW-2 and other witnesses as to whether there was any dowry to be paid at the time of marriage and something has to be paid later, etc. Therefore, under the above circumstances, considering the discrepancy in the evidence of witnesses, it could be said that the demand of dowry prior to the marriage has been established so as to draw an inference that the accused have committed offence under Section 3 of D.P.Act. However, it is placed before the Court by way of evidence that on 22.08.2006 and prior to that, there was demand for a sum of `1,00,000/- by accused No.1 or by any member of his family. For that reason only, the panchayat was convened in the house of accused No.1 and they requested the accused not to ill-treat and harass the deceased. Though the Court has arrived at a conclusion that the materials are not sufficient to attract Section 304-B of IPC but the subsequent demand for an amount of `1,00,000/- is established. Therefore, the provision under Section 4 of the D.P.Act, in my opinion, has been properly considered by the Trial Court in convicting and sentencing the accused for the above said offences.
25. Under the above said circumstances, I find sufficient reasons to interfere with the judgment of conviction and sentence of the Trial Court sofar as it relates to the offence under Section 304-B of IPC and Section 3 of D.P.Act. But there is no reason to interfere with the judgment of conviction and sentence passed by the Trial Court for the offence under Section 498A and Section 4 of D.P.Act.
26. For the above said reasons, I proceed to pass the following order:
Appeal is partly allowed. The judgment of conviction and sentence dated 18.07.2011 passed by the Trial Court for the offence under Section 304-B of IPC and Section 3 of D.P.Act is hereby set aside and accused – appellant is acquitted for the said offences.
Sofar as judgment of conviction and sentence passed by the Trial Court for the offences under Section 498A and also Section 4 of D.P.Act is hereby confirmed. The accused – appellant is entitled for the benefit of set off for the period already undergone by him in prison under Section 428 of Cr.P.C.
As the appeal is heard and disposed of on merits, I.A.No.1/2019 does not survive for consideration and is accordingly dismissed.
Sd/- JUDGE RV