IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.1017/2014 (C) BETWEEN:
1. SATHISHA S/O RAMEGOWDA AGED 28 YEARS 2. RAMEGOWDA S/O LATE KULLEGOWDA AGED 53 YEARS 3. JAYAMMA W/O RAMEGOWDA AGED 46 YEARS 4. VASU S/O RAMEGOWDA AGED 25 YEARS ALL ARE R/AT NAGARURU VILLAGE K.R.PET HOBLI MANDYA DIST – 576 163 … APPELLANTS (BY SRI. A. H. BHAGAVAN, ADV.) AND:
STATE OF KARNATAKA BY KIKERI POLICE STATION MANDYA, REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU – 560 001 … RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 5/6.11.2014 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA SITTING AT SRIRANGAPATNA IN S.C.NO.75/2013 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A, 304B, 201 R/W 34 OF IPC AND UNDER SECTION 3, 4 AND 6 OF D.P.ACT. AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants who are arraigned as Accused Nos. 1 to 4 before III Addl. District and Sessions Judge, Mandya, sitting at Srirangapatna (for short, ‘trial Court’) in SC No.75/2013 have called in question the judgment of conviction and order of sentence dated 05/06.11.2014, passed by the trial Court convicting them for the offences punishable under Sections 304(B), 498(A) and 201 of IPC and also under Sections 3, 4 & 6 of the Dowry Prohibition Act (for short, ‘D.P. Act’).
2. The learned Sessions Judge has convicted Accused Nos.1 to 4 (appellant Nos.1 to 4 herein) for the above said offences and sentenced Accused Nos. 1 to 3 (Appellants 1 to 3 herein) to undergo imprisonment for life and Sentenced Accused No.4 to undergo simple imprisonment for 7 years for the offence punishable under section 304(B) of IPC. All the accused persons were also convicted and sentenced to undergo imprisonment for one year and to pay fine of Rs.5,000/- for the offence punishable under section 498-A; and two years imprisonment for the offence punishable under section 201 of IPC with fine of Rs.5,000/- with simple imprisonment for a period of one month’s default sentence; and five years imprisonment and to pay fine of Rs.15,000/- with default sentence for the offence punishable under Section 3 of the D.P. Act and also six months imprisonment and fine of Rs.10,000/- with default sentence for the offence punishable under Section 4 of the D.P Act; and as well as to pay fine of Rs.,10,000/- with default sentence of two months for the offence punishable under section 6 of the D.P.Act.
3. We have heard the arguments of the learned counsel Sri. A.H. Bhagavan for the appellants/accused and the learned SPP for the Respondent –State. We have carefully re-evaluated the oral and documentary evidence adduced and produced by the prosecution before the trial Court. We have also gone through the judgment of the trial Court.
4. Before adverting to the submissions made on both sides, we deem it just and necessary to have the brief factual matrix of this case.
5. The case of the prosecution is unfolded on the basis of the FIR initially filed by PW.1-B.J.Manjunath before Kikkeri Police Station. It is stated therein, that the complainant-Manjunath, is the younger brother of the deceased Geetha. Father of the deceased by name Javaregowda had four children, two daughters and two sons. Out of them, the deceased Geetha was given in marriage to Accused No.1 – Sathisha. Accused Nos. 2 to 4 are no other than the father, mother and brother of Accused No.1. The marriage took place on 23.05.2006 in the house of PWs. 5 & 6. It is further stated that on 04.07.2012 in the early morning, the complainant received a telephone call from Accused No.2-Rangegowda to the effect that, the deceased Geetha died due to heart attack. Immediately, the complainant and others went to the house of the accused and saw the dead body of the deceased Geetha. On seeing the dead body, they suspected that, the death may not be due to heart attack but due to strangulation, as they found ligature mark around the neck of the deceased. They also observed some injuries on the body of the deceased Geetha, therefore, they suspected that, the accused persons must have committed murder of the deceased. It is also glimpsically stated that the accused persons had been ill- treating and harassing the deceased in demand of dowry.
6. On the above allegations, FIR has been lodged and the same has been registered by the respondent – Police in Crime No. 123/2012 initially for the offences punishable under Sections 302, 304(B) r/w 34 of IPC. Subsequently, the inquest proceedings have been conducted and after the Post-Mortem examination and after examination of the witnesses to the prosecution, the Investigating Agency has come to the conclusion that, the accused persons are responsible for the death of the deceased, as such, they laid charge sheet against the accused – 1 to 4 for the offences punishable under Sections 302, 304(B), 498(A) and 201 of IPC and also under Sections 3, 4 & 6 of the D.P. Act r/w. Section 34 of IPC. All the accused persons were initially arrested and it appears Accused Nos. 2 to 4 were released on bail. Accused No.1 has been in Judicial Custody since the date of his arrest i.e., from 07.07.2012. The trial Court has framed charges for the above said offences and put the accused persons on trail.
7. The prosecution in order to bring home the guilt of the accused, examined as many as 23 witness Viz., PWs.1 to 23 and the material objects-MOs.1 to 6. The defence also got marked the contradicted versions of the statements as per Exs.D1 to D2. The accused were also examined under Section 313 of Cr.P.C. and they have also led defence evidence by examining three witnesses –DWs. 1 to 3 and closed their side.
8. The learned Sessions Judge after hearing the arguments on both sides in detail and after appreciating the oral and documentary evidence on record, including the defence taken up by the accused, arrived at a conclusion that prosecution has proved the guilt against the accused for the offences for which they were convicted and sentenced. However, the accused persons were acquitted of the offence punishable under section 302 of IPC. Being aggrieved by the above said judgment of conviction and order of sentence, the appellants/accused are before this court.
9. Sri. A.H. Bhagawan, the learned counsel for the appellants/accused has strenuously argued before this Court. He began his arguments by submitting that the whole of the evidence of the prosecution witnesses particularly material witnesses ie., the kith and kin of the deceased, viz., father, mother, uncle, brothers of the accused have totally improved their version with regard to demand of dowry, acceptance of dowry and subsequent demand of money as dowry, during the course of evidence before the Court. He argued before the Court that, with reference to the demand of dowry and acceptance of the same, and subsequent demand and cruelty must have been stated in their 161 statement before the Police or in the FIR. Except the said improved portion before the court, there is nothing in their statement to connect the accused persons for the offences alleged against them. Particularly he submits before the court that, in order to establish the offence under Section 304 (B) of IPC, it is incumbent upon the prosecution to establish that, soon before the death of the deceased, there was committal of cruelty on the deceased, by the accused persons, in demand of dowry. Learned counsel also contended that, during the course of evidence before the court, the prosecution attempted to convert the case as if it was a murder, though there was no sufficient material in the charge sheet to come to such a conclusion. He also submits before the court that, the other independent witnesses and also the witnesses who are the neighbourers of the accused and deceased, have virtually turned hostile to the prosecution. Therefore, the only evidence available to the Court is the evidence of kith and kin of the deceased which is full of contradictions and omissions. In such an eventuality, he requested the court to examine and appreciate the said evidence very meticulously in order to arrive at a conclusion. He further contended that, the trial Court has simply swayed away with the fact that the death has occurred in the house of the accused and though there are lot of improvements and contradictions in the evidence of the prosecution witnesses, the same has not been properly appreciated and considered by the trial Court, He has drawn our attention to the improvements and contradictions in the evidence of the witnesses, which we are going to consider in detail little later, while appreciating the evidence of those witnesses individually.
10. The learned counsel for the appellant has also contended that the accused have taken a defence that, the father and mother of the deceased have kept the jewellaries of the deceased with them and further the accused has given a loan of Rs.40,000/- to PW.5 and the same has not been returned to him. The deceased was often visiting the house of her father in demand of her jewellaries and the amount paid to them. As they did not heed to the request of the deceased, she was frustrated in life and due to which, she might have committed suicide and that has been blown up by the prosecution witnesses particularly the relatives of the deceased in order to lay a false case against the accused persons. Therefore, for all these reasons, the learned counsel submitted that the accused are entitled to be acquitted by giving the benefit of doubt upon the above said circumstances.
11. Per contra, the learned Addl. SPP argued before this court that, even though there are contradictions and omissions in the evidence of the prosecution witnesses, if the remaining portion of the evidence is analyzed in proper manner, that is sufficient to bring home the guilt of the accused for the offences for which, they were convicted and sentenced by the trial Court. The learned SPP also submitted before the Court that, though the independent witnesses, who are the neighbourers, have turned hostile, but the proper witnesses are the relatives of the deceased. The deceased would have disclosed her difficulties only before her father, mother, bother etc. and merely because the neighbouring witnesses have not stated anything about the ill-treatment and harassment on the deceased, it cannot be said that, there was no ill-treatment or harassment to the deceased. Further, he contended that the Court has to examine the entire evidence and on over all understanding of the prosecution case, has to arrive at a conclusion. Even on accepting the evidence of the accused, it clearly goes to show that all was not well between two families. According to the prosecution there was ill-treatment and harassment with respect to demand of dowry. But, according to defence, the deceased herself was frustrated due to some transaction between her family and the family of her father. In this context, the court has to strike balance between these two serious aspects to arrive at a conclusion. He submitted that the material available on record strengthens the case of the prosecution. Therefore, he submits that, there is no room for interference with the impugned judgment of conviction and sentence passed by the trial Court.
12. Before delving into the material evidence available on record, we would like to have a brief cursory look at the evidence adduced by the prosecution before the trial Court:
12.1 PW.1 is no other than the brother of the deceased, who lodged a report before the Jurisdictional Police station as per Ex.P1 and he has stated about his presence at the time of drawing up of the spot mahazar (Ex.P2); PW.2-Puttaraju, PW.3-Gujjegowda, PW.4- Mahesha, PW.-5-Javaregowda and PW.6-Sarojamma are the relatives of the deceased. PW.2 is the uncle, PW.3 is another relative and PW.4 is the resident of the same village and PWs. 5 & 6 are the father and mother of the deceased. All these witnesses were examined before the court in order to establish the marriage talks prior to the marriage and also to prove the demand and acceptance of dowry and as well as subsequent conduct of the accused in further demanding the dowry and about the cruelty meted out by the accused to the deceased. PW.7- Kalamma, PW.8-Nanjamma, PW.9-Heggadi Ningegowda and PW.10-Kantharaju are all residents of Nagaruru Village, Bhukanakere Hobli, KR Pet Taluk, respectively. They are the neighbourers of the accused. They were examined to establish the cruelty and demand of dowry by the accused also. But all these witnesses have not supported the case of the prosecution. PW.11-Vijaya is the inquest panch, who supported the case of the prosecution stating that he has signed Ex.P8, which is inquest proceedings. PW.12-Nanjappachari, is the junior Engineer, who prepared a sketch of the spot (Ex.P10).
12.2 There is no dispute with regard to the death of the deceased and also the place where the dead body was found as per Ex.P10 (Sketch) PW.-13 Nagesha and PW.14-Mayigowda are the residents of Nagaruru Village, where the accused and deceased were residing along with other family members and they have not supported the case of the prosecution in any manner. PW.15- Hanuman Ram is the Pawn Broker, resident of Bhukanakere. He was examined before the court to establish that, one set of hangings were pledged with him, by Accused No.1. PW.16-Sheela is the Woman Police Constable, who guarded the dead body of the deceased and shifted the same to Post Mortem examination etc.. She was also a formal witness. PW.17- S.T.Gangadhar is the PSI, Malavalli Town Police Station, who has registered a case on the basis of Ex.P1 lodged by PW.1 in Crime No. 123/2012 and registered a case against the accused and dispatched the FIR to the jurisdictional Court. He has also apprehended Accused Nos. 1 & 2 on 07.07.2012. PW.18-Dr. H.N. Nagaraja, who worked as Tahsildar at K.R. Pet at relevant point of time. On the request of the Police, he conducted inquest as per Ex.P8. PW.19-Dr. Hemanthkumar is the doctor, who conducted Post Mortem examination on the dead body of the deceased and issued Post-Mortem Report as per Ex.P15 stating that, the death of the deceased was due to hanging. We would like to discuss the evidence of this witness later to ascertain whether the death of the deceased was actually homicidal or suicidal in nature; PW.20-Keerthi M.K., the Police Constable, who carried the FIR to the Jurisdictional Court. In our opinion, he is also a formal witness. PW.21-Devegowda is the PDO. He issued katha extract of the house of Accused No.2. As we have already referred, there is no dispute with regard to the incident took place in the house of Accused No.2; PW.22-Kala SPDCRP of Musuru. She took over further investigation from PSI, visited the spot and drew up Mahazar in the presence of panchas-Smt. Bhagyalakshmi and Smt. Savitha. PW.23-Smt. N. Krithika is the Scientific Officer of FSL, Mysuru and she stated about the contents of the stomach of the deceased examined by her.
13. Apart from the above, the defence also examined three witnesses-DWs. 1 to 3.
13.1 DW.1 –Impana is the daughter of Accused No.1 and the deceased. She has deposed before the Court with reference to how the death of the deceased occurred in the house of the accused.
13.2 DW.2-Basave Gowda speaks about PW.5 borrowing Rs.50,000/- from him on assurance of Accused No.2.
13.3 DW.3-Nanjegowda, is the resident of Nagaruru village and he was the very close relative of the accused and as well as PWs. 5, 7 and 6. He has stated that there was no demand or acceptance of dowry at the time of marriage or prior to the marriage of Accused No.1 with the deceased.
14. Out of the said witnesses, the prosecution has mainly relied upon the evidence of PWs. 1 to 6 for the purpose of establishing the demand and acceptance of dowry, and also the subsequent cruelty meted to the deceased by the accused in demand of further dowry from the father and mother of the deceased.
15. Before adverting to the evidence of the witnesses- PWs. 1 to 6 with reference to the defence evidence, we would like to examine whether the death of the deceased was proved to be homicidal or suicidal ?
16. It is the case of the prosecution that, the deceased died a homicidal death. Therefore, when the case was registered, for the offence under Section 302 and as well as under Section 304-B of IPC. the Court framed charges for the offence under Section 302 of IPC and also gave a finding that, it is a homicidal death. The court has to examine whether the death of the deceased was homicidal or suicidal. The homicidal death pre- supposes that killing of one human being by another. The act of a person, who killed other person should be apparent on the face of the record, where the court can definitely draw an inference that it is a homicidal death. The definition sofar as the suicidal death is concerned, it is the death by a person who died and the act of killing oneself is the distinguishing factor. Therefore, in that context, the evidence of the Doctor requires to be examined by this Court.
17. PW.19 is the Doctor, who conducted Post Mortem examination on the dead body of the deceased. He has categorically stated about the injuries around the neck and also other injuries on the body of the deceased and thereafter examining the ligature mark and also injuries, he has suspected that it must be the homicidal death. Though the Doctor has not definitely given his opinion that it is a homicidal death, but the possibility of the homicidal death is specifically expressed by the Doctor. Though he has stated so in the examination chief, but as could be seen from the Post Mortem report, which is marked at Ex.P15, the Doctor has categorically stated that the death was due to hanging. The doctor has also examined the Lungi (ligature) which was furnished to him and he has stated that, the ligature mark found on the neck of the deceased could not have been caused by the said Lungi and for that reason, he has stated that, the death may be homicidal in nature. During the course of cross-examination, though he has reiterated the above said aspects, but he has stated that there was fracture of hyoid bone and he has also stated that the fracture of hyoid bone was due to hanging of the body to the ligature and he has further stated that, he cannot definitely say whether it was a homicidal or suicidal death. He has also stated that, the death may be suicidal also. In view of the above facts and circumstances, the other evidence on record also to be examined by the court in order to draw a specific inference.
18. The defence also examined DW.1, who is no other than the daughter of the accused and the deceased. DW.1 has categorically stated before the court as to how the death of her mother occurred on that particular day.
She has stated that, she was very much present in the house on that day and at about 9.00 ‘O’ Clock in the night, they all had their dinner and thereafter, this witness, the deceased and the brother and sister of DW.1 slept in a room and Accused Nos. 2 to 4 slept in the hall portion and her father was not in the house and he had been to the paddy land. In the morning at about 6.00 a.m., she found her mother’s body was hanging to the roof of the house. Immediately she telephoned to her father and secured him. In the course of cross- examination, nothing was suggested to this witnesses, as to how the incident happened in the house, whether the accused persons have actually on the previous day of the incident have caused any injury to the deceased or they have hanged the deceased or even they have strangulated and thereafter hanged the deceased to the roof of the house. In the absence of such suggestions, there is absolutely no reason as to why equal importance should not be given even to the defence evidence. Therefore, looking to the above said facts and circumstances of the case, the court though cannot step into shoes of the expert, in order to draw an inference but can give its opinion regarding the cause of death. Therefore, mystery of death whether it is suicidal death or homicidal death is not in fact conclusively established before the court by the prosecution. When such doubt arises in the mind of the Court, whether the death is suicidal or homicidal, general principle of criminal jurisprudence is that, the benefit of such doubt should always be given in favour of the accused. Therefore, before drawing such an inference under law, we would like to say that the prosecution has failed to establish that the death of the deceased was homicidal in nature.
19. The death by hanging may also of two types, one is homicidal or suicidal. If at the intervention of 3rd party, hanging takes place then it cannot be a suicidal death, but it is homicidal death. In this particular case, there is absolutely no evidence of whatsoever that the accused persons have actually hanged the body of the deceased after committing murder or they hanged the deceased alive to the roof of the house. In the absence of such materials or even in the absence of any suggestions to the witnesses to that effect particularly to DW-1 it is very difficult to draw such an inference.
20. When the suicide takes place in the house, of course it becomes the responsibility of the inmates of the house to explain as to why and in what manner such suicidal death occurred in the house. Particularly in this case, the deceased was the wife of Accused No.1 and they lived happily for many years and after about six years of the marriage, the incident taken place in the house of the accused. The accused has given explanation that the deceased herself hanged in the house for the reasons best known to her and they are not responsible for her death. Therefore, the Court has to examine what must be the reason for that lady to commit suicide in the house.
21. The trial Court has not convicted the accused persons for the offence under Section 302 of IPC and convicted them for the offences under Sections 304-B, 498-A and 201 r/w. 34 of IPC and also Sections 3, 4 & 6 of the D.P.Act. In the absence of any appeal preferred by the State, this court cannot venture upon to evaluate the material as to whether the offence falls under Section 302 of IPC, but the court has to examine sofar as the other offences are concerned, whether the prosecution has proved the guilt beyond all reasonable doubts.
22. In order to establish the offence under Section 304(B) of IPC, the prosecution has to establish the ingredients of the said provision. The said provision reads thus:-
“Section 304(B).-. 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.
Explanation.—For the purpose of this sub- section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(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.
23. Therefore, it is the bounden duty of the prosecution to prove before the Court that, the death was occurred not under normal circumstances within seven years of marriage. That has been established before the court. It is also to be established that, soon before the death, the deceased was subjected to cruelty and harassment by her husband or any relative of her husband for or in connection with any demand for dowry, then only such death can be called as dowry death. Therefore, the other ingredients of the provision of Section 304 (B) of IPC that, soon before the death there was any cruelty and harassment in demand of dowry is sine qua non for the purpose of holding the accused guilty under this provision.
24. In order to prove the offences under Sections 3, 4 & 6 of the D.P. Act, the law prescribes that, there must be demand and acceptance of dowry prior to the marriage or at the time of marriage and the same shall be in consideration of the marriage. Sections 4 & 6 define that, after the marriage, if there is any demand for dowry and the said demand is not fulfilled by the other side, then the said provisions are attracted.
25. In order to attract first part of the provision of Section 498-A of IPC, the prosecution has to establish two aspects. One is, any willful conduct, on the part of the husband of the woman or any relative of the husband of the woman, which amounts to cruelty and which is sufficient or likely to drive a woman to commit suicide or to cause grave injury or danger to her life or limb or health. According to second part sub-section (A) to Section 498 of IPC, there should be an ingredient that, the willful conduct or cruelty should be in demand of any dowry or any act of willful demand by the accused persons. Whereas, second part of Section 498(A) of IPC pre-supposes that harassment or cruelty should be made with a view to coercing a women or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
26. The case of the prosecution as may be visualized through-out is that, prior to the marriage, there were marriage talks and the accused persons have demanded Rs.50,000/- from the parents and relatives of the deceased and also 50 gms. of gold. But, ultiamtely, after the marriage talks, the said quantum of demand was reduced to Rs.30,000/- and 35 gms. of gold, and according to the said understanding between two families, the parents of the deceased have paid an amount of Rs.30,000/- and also 35 gms. of gold by way of jewellaries like necklace, ear-studs and nose-stud , and the said articles were given at the time of the marriage itself.
27. It is the further case of the prosecution that, after the marriage, the accused have further demanded for an amount of Rs.20,000/- out of Rs.50,000/-, which was due at the time of marriage and also the gold necklace of the deceased left in the house of the accused also was not returned. On the other hand, the accused has taken defence that, actually the accused persons have never made any demand of any amount or jewellaries before or after the marriage, but on the other hand, the accused himself has sold his motor cycle and gave an amount of Rs.40,000/- to the father of the deceased. Further, the defence of the accused is that, the gold necklace of the deceased was left in the house of the parents of the deceased and her parents also did not return the necklace nor repaid the amount. The deceased was fully frustrated because of non-payment of the said amount and also not returning her necklace by her parents and family members, therefore she has committed suicide in the house of the accused.
28. In the above said background of the prosecution case and the defence, the court has to examine whether the above said factual aspects are sufficient to prove the guilt of the accused to the hilt. Of course the prosecution has mainly relied upon the evidence of kith and kin of the deceased. We have already referred above the gist of the prosecution case. Amonst the prosecution witnesses, there is no support from the neighbourers viz., PWs. 7, 8, 9, 13 and 14. However, the evidence of PW.8 and PWs. 1 to 6 is relevant for consideration, because the entire case of the prosecution revolves around the evidence of these witnesses. Of course, in the examination in chief of these witnesses, they invariably states that, they were all present at the time of marriage talks prior to the marriage between Accused No.1 and the deceased. In examination-chief, they fully supported the case of the prosecution stating that, about one month prior to the marriage between Accused No.1 and the deceased, the marriage talks were held and at that time, all these witnesses along with Sri. Ningegowda and Smt. Vanajakshi were present. Out of them Gujjegowda, Mahesh and father and mother, brother and uncle of the deceased were examined. They have stated that, in the marriage talks the accused persons have demanded Rs.50,000/- of cash and 50 gms. of gold and thereafter, it was reduced to Rs.30,000/- cash and 35 gms. of gold after negotiation. They have also stated that, after the marriage, the accused started demanding money for the purpose of constructing a house and in that context, it is alleged that PW.5 has sold his house and paid a sum of Rs.42,000/- to the accused and in spite of that, the accused were not happy and they started demanding the remaining amount of Rs.20,000/- out of Rs.50,000/-. In this context, there was consistent pestering of the deceased with all cruelty to secure the money. It is also stated that, on the date of incident, they came to know about the death of the deceased when they went to the house of the accused and saw the dead body of the deceased, at that time, they observed some injuries on the body of the deceased and also ligature mark around the neck of the deceased. Even it is stated by them that, the accused persons were assaulting and abusing the deceased and also staring at her always when she did not bring money from the house of her parents. It is the further say of these witnesses that, about one year prior to the death of the deceased, there was some compromise talks between the parties in a panchayat and Accused Nos. 2 & 3 were also called the panchayat and PWs. 5 & 6 have assured that they will pay the amount later and thereafter, the deceased was again taken back to the matrimonial home. It is also the evidence of the prosecution witnesses that, about two months prior to the incident, another panchayat was held and in that panchayat also there was a compromise and in terms of the compromise, the deceased went back to her matrimonial home. This is the sum and substance of the evidence of the kith and kin of the deceased.
29. In the course of cross-examination, what was elicited by the learned counsel for the accused is only with regard to the conversations regarding demand and payment of dowry, but what the witnesses have stated, in their evidence before the court have not been stated either in the FIR by PW.1 or in their 161 Cr.P.C., statements made before the Police and further, though they had some opportunity to state all those things at the time of inquest proceedings, they did not disclose these particular aspects in their earlier statements. Learned counsel for the appellant, as we have already referred to, has strenuously contended that, the ingredients of Section 304(B) of IPC and Sections 3 & 4 of the D.P. Act with regard to demand and acceptance of dowry and cruelty, soon before the death are all conspicuously absent in the earlier statements of these witnesses, and these witnesses, have improved the same during the course of their evidence before the court. He has suggested all these things in the course of cross- examination of these witnesses. Though the witnesses have denied the said suggestions, on the other hand, they consistently stated that, they have stated so before the Tahsildar while conducting inquest proceedings and also in their 161 Cr.P.C. statement made before Police. In order to test the veracity of the evidence these witnesses, the cross-examination of the Investigating Officer has been done meticulously.
30. PW.22 Investigating Officer has categorically stated at paragraph-22 of his examination with reference to the improvements made by the witnesses before the court or omissions made in their earlier statement and the Investigating Officer has admitted in categorical terms that, the said witnesses have not stated before him with reference to the demand of dowry of Rs.50,000/- and 50 Gms. of gold at the time of marriage talks and after negotiation, it was reduced to Rs.30,000/- and 35 gms. of gold and that the said amount and quantum of gold has been given to the accused persons at the time of marriage etc. Further the improvement with regard to subsequent demand of dowry and cruelty for the purpose of demanding dowry are also proved to be improvements before the court.
31. In that context, on careful perusal of the evidence of the said witnesses in examination chief and as well as their 161 Cr.P.C. statement and also the evidence of the Investigating Officer, we found that, there are lot of improvements made by these witnesses in their evidence before the court regarding demand of dowry and acceptance of dowry and after the marriage further demand of money etc.
32. In the above background, if the cross- examination of the said witnesses as a whole, excluding the improvements is taken into consideration, there is no evidence regarding demand or receiving money of Rs.30,000/- and as well as receiving of gold jewellaries by the accused persons. According to them, it is only according to the customs, some cash and gold or silver items were given. It is categorically suggested particularly to PWs. 5 & 6 that, there was a custom in their family to pay cash and jewels to the bride at the time of marriage. PW.6 has categorically admitted that, giving some gold articles to the bride is a custom in their family also and in terms of customs, they have given gold jewels to the deceased. Even these suggestions have been made to almost all the witnesses. Though other witnesses, have not categorically stated that, they have given the said cash and gold articles in pursuance of the customary procedure, though they have admitted that there is custom to that effect, but in this case, they have stated that only due to demand they paid the said amount and given gold jewels. But the fact remains that the payment of Rs.30,000/- and as well as giving jewels to the bride is not much in dispute. However, whether the said cash and gold items were actually given as dowry, is the question that has to be thrashed out by the court.
33. Apart from the improvements, as we have carefully examined, there is no evidence with regard to any demand or acceptance of money as dowry, paid by PWs.5 and, 6 and, as well as receiving the same by the accused persons. Though we find here and there some glimpses in the evidence of these witnesses with regard to the payment of some amount and receipt of the amount and jewellaries, but candidly no evidence is available, that it was only due to demand by the accused persons, cash and gold items were given to them by PWs. 5 & 6 and the same were received by the accused persons. Therefore, in our opinion, if the improved portion in the evidence of these witnesses is taken out, the distorted version remains for consideration of the court. But, in our opinion, the same is not sufficient to come to a definite conclusion that, because of demand of dowry in cash and gold items, they have been given by the parents of the deceased. We are of the opinion that, there is no specific evidence excluding the improved portion to come to a conclusion that, there was demand and acceptance of dowry and with reference to dowry, there was any cruelty to the deceased, however, the fact remains that, some panchayaths were also held between two families. Though it is argued by the learned counsel that holding of panchayat is also an improvement by the witnesses, but, reading of the whole evidence in this context, it shows that the deceased was often visiting the house of her parents and her uncle Puttaraju (PW.2). PW.2 has stated that, the deceased told before him that, there was ill- treatment and harassment in her matrimonial house. Likewise, she was also telling before her parents and her brother with regard to her precarious condition in the house of the accused. Though the prosecution has not placed sufficient material to come the conclusion that the said ill-treatment or harassment was only due to the demand and dowry or in respect of gold jewels, but there is sufficient evidence to establish that, all was not well in both the families and it is established during the course of evidence that, the deceased visiting the house of her parents often, was not much disputed. On the other hand, we have also observed that the defence of the accused and the evidence of DW.1 in this regard also play a dominant role. DW.1 – Impana daughter of the deceased has categorically stated that, about three days prior to the incident , the deceased has visited the house of PWs. 5 & 6 and thereafter, she came back to the house of the accused and from that day, she was not in happy mood and virtually she was in very dull mood and she has not stated the reason for her unhappiness to any inmates of the house, including Accused No.1. There is no explanation in this regard before the court. It shows that something had happened in the family of the accused so as to send this lady often to the house of her parents (PWs. 5 & 6). As we have observed, it is also elicited in the cross-examination of the witnesses that, during that particular point of time, when the amount of Rs.42,000/-
alleged to have been paid by PW.5 to the accused, there was some difficulty in the family of the accused and there was some damage to the cart of Accused No.1 and he was in need of money. The other version that is the case of the accused is that, he himself has sold his motor cycle and gave an amount of Rs.40,000/- to PW.5 and the deceased has left her gold jewel in the house of PW.5. Perhaps that may be the reason for the precarious condition of the deceased in the house of the accused and there might have been some demand by accused through the deceased, either for return of Rs.40,000/- alleged to have been paid by Accused No.1 or also to bring back the jewels for the purpose of utilisation of the same in order to solve his problem in the family. On the other hand, it also pre-supposes that, the accused No.1 has demanded further amount for the purpose of solving his problem in the family, though not in the nature of any dowry from PWs.5 & 6.
34. Looking to the over all evidence, it pre- supposes that, either the accused No.1 was demanding for money from PWs. 5 and 6 independently or he was demanding the money which alleged to have been paid by him to PW.5 because of that, there must be some pressure on the deceased by Accused No.1, to bring money. Therefore, we are of the opinion that the deceased must have got frustrated in life because of pestering or forcing by Accused No.1 for money due to which she was often visiting the house of her parents in demand of her jewels or money from them. It is also evident from the records that the family of PWs. 5 & 6 is not much affluent and they are also agriculturist and they are also not having any other source of income. On the other hand, the family of the accused is also not so much affluent and during the period of incident, the Accused were in dire need of money. Whatever may be the reason, either demand of money from PWs. 5 & 6 or getting money alleged to have been paid by Accused No.1, to PW.5, the deceased must be used as a tool for the purpose of satisfying the demand of Accused No.1. Therefore, in that regard, it cannot be ruled out that, there was ill-treatment and harassment by Accused No.1 sofar as the deceased is concerned. In this context, whether the harassment was sufficient to drive a woman to commit suicide is also a question to be answered by this court.
35. The basic understanding in the family is that, the wife can tolerate physical or any mental harassment by anybody in the family, only when there is existence of strong love and affection and support by the husband. If the husband also does not support wife and shows hostile attitude towards his wife and fails to take care of his wife, and he will not standby her to protect her interest, in such an eventuality, the wife will lost her hopes in life and mentally she will go on disintegrating herself. Therefore, in this background, it has to be seen that, what would be the mental attitude of the husband and what would be the mental status of the deceased and any such circumstance existed or not to be visualized by the court. Even demanding of money whether it was paid by the parents of the deceased or demanded by the accused and receipt of the same, irrespective of that, there was some pestering on the deceased by Accused No.1. etc.
36. Therefore, we are of the opinion that, the said circumstances must have frustrated the deceased so as to commit suicide in the house of the accused. On the other hand, we have already made an observation that, actually the persons who are in the house of the accused must be knowing as to what happened in the house of the accused on the date of incident and what was the reason for the deceased to commit suicide. It is evident from the evidence on record that, for a period of more than six years, the deceased was pulling on her life along with Accused No.1 and also she was often visiting the house of her parents. It is also evident that, on the last occasion when the deceased came back from her parents house, three days prior to her death, she was not happy and she was totally in dull mood. The reason was not explained by DW.1 and Accused No.1, who are the material witnesses, the evidence is vague or false that the deceased might have committed suicide because she was frustrated in life. What was the reason for the frustration of the deceased is only known to the members of the family. But, such reasons are not forth coming in the evidence of the defence witnesses or the accused himself. An alternative inference that could be drawn is, Accused No.1, who is responsible to take care of his wife and expected to stand by her side, protecting her interest, must be the person responsible for the frustration of the deceased so as to drive her to commit suicide.
37. On over all evaluation of the entire evidence on record and on meticulously going through the evidence of the witnesses elicited in the cross-examination and examination in chief, as we have already observed, there was some cruelty and harassment by Accused No.1 in not supporting his wife through out and made her to mentally collapse in her life. On the other hand absolutely we do not find any meticulous evidence sofar as Accused Nos. 2 to 4 are concerned as to what type of ill-treatment or harassment was meted out by them to the deceased and that has not been specifically stated by any of the witnesses. But the witnesses have simply blamed all the accused and gave an omnibus statement, stating that Accused Nos.1 to 5 were harassing and ill-treating the deceased. We are of the opinion that the said omnibus statement in the facts and circumstances of the case, are not sufficient to draw an inference that Accused Nos.2 to 4 were also responsible for the death of the deceased and they were also ill-treating and harassing the deceased in demand of any money or gold, or otherwise.
38. In the above circumstances, the prosecution in our opinion, has not established that there was cruelty or ill-treatment by Accused Nos. 2 to 4 soon before the death of the deceased in demand of dowry so as to attract Section 340(B) of IPC. However, there is sufficient evidence to establish that Accused No.1 is the person who is responsible for causing frustration to his wife (the deceased) in the family so as to drive her to commit suicide. Therefore, by means of his misconduct or wrongful conduct, he subjected her to suffer in her life and driven her to commit suicide. Therefore, definitely his act attracts abetment to commit suicide by deceased. Hence, we are of the opinion that, though Accused No.1 is not liable for punishment for the offence under Section 304(B) of IPC, but he is definitely liable to be punished under Section 306 of IPC and also under Section 498-A of IPC.
39. As we have already stated above, there was total improvement in the evidence of the material witness so far as demand and acceptance of dowry is concerned and also subsequent demand of dowry and in respect of that cruelty was adverted to by all the accused persons. Therefore, we are of the opinion that the evidence available on record is insufficient and inadequate to draw an inference that the prosecution has proved the case beyond reasonable doubt so for the offences punishable under Sections 201, 304(B) IPC and Sections 3, 4 and 6 of D.P.Act., sofar as it relates to Accused Nos.1 to 4 are concerned. Therefore, with the above observation, we are of the opinion that Accused Nos. 2 to 4 are entitled to be acquitted for all the offences, for which they are convicted and sentenced by the trial court. However, Accused No.1 is liable to be convicted for the offences punishable under Sections 498-A and 306 of IPC.
40. The next question arises that, what would be the appropriate and commensurate punishment that the court has to levy on Accused No.1.
41. As the trial court has already imposed punishment of imprisonment for one year and imposed fine of Rs.5,000/- for the offence punishable under Section 498-A of IPC, we do not disturb the punishment imposed against Accused No.1. However, we convict and sentence Accused No.1 to undergo imprisonment for a period of eight years and to pay fine of Rs.10,000/- for the offence punishable under Section 306 of IPC.
42. Considering the status of the Accused No.1 in the society and the facts that, there are no previous antecedents alleged against him; he is not an anti-social element and also considering the age of his parents and also his three children are still under the care and custody of his family we feel it just and appropriate to impose the sentence of 8 years and direct him to pay fine of Rs.10,000/-, which would commensurate with the offence committed by him under Section 306 of IPC, 43. With the above observations, we pass the following:
ORDER i) The appeal is partly allowed.
ii) Accused Nos. 2 to 4 are acquitted of the offences punishable under Sections 304(B), 498-A and 201 of IPC r/w.
Section 34 of IPC and also under Sections 3, 4 & 6 of the D.P.Act iii) Accused No.1 is also acquitted of the offences punishable under Sections 304(B) and 201 of IPC r/w. Section 34 of IPC and also under Sections 3, 4 & 6 of the D.P.Act iii) The judgment of conviction and order of sentence passed by the trial court in respect of the offence punishable under Section 498-A of IPC, convicting and sentencing Accused No.1 to undergo imprisonment for one year and to pay fine of Rs.5,000/-, in default to undergo Simple imprisonment. for one moth, is hereby confirmed.
iv) Accused No.1 is convicted for the offence punishable under Sections 306 of IPC and he is sentenced to undergo imprisonment for a period 8 years and to pay fine of Rs.10,000/-, in default, to undergo further Simple Imprisonment for six months.
v) Accused No.1 is also entitled for set off under Section 428 of Cr.P.C.
Sd/- JUDGE Sd/- JUDGE KGR*