IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1103 OF 2010 BETWEEN:
Sri. Keshava, Aged about 33 years, Son of Sri. Kubera Naidu, Residing at No.31, 7th Cross, ‘B’ Block, Kempapura Agrahara, Magadi Road, Bengaluru-560 023. ...Appellant (By Sri. Madhusudhanan, Advocate for Lex Nexus, Advocate) AND:
The State of Karnataka, Represented by the Station House Officer, K.P.Agrahara Police Station, Bengaluru. ...Respondent (By Sri. Divakara Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment dated:20.09.2010 passed by the P.O. FTC-VI, Bengaluru in S.C.No.272/2009 - convicting the appellant/accused for the offence punishable under Section 498-A and 306 of IPC and Sec.4 of the D.P.Act. The appellant/accused is sentenced to undergo S.I. for two years and pay a fine of Rs.5,000/- (Rupees Five Thousand) in default of payment of fine he shall undergo S.I. for further three months – for the offence punishable under Section 4 of D.P.Act. The appellant/accused is sentenced to undergo S.I. for three years and to pay a fine of Rs.5,000/- (Rupees Five Thousand) in default of payment of fine he shall undergo S.I. for further three months – for the offence punishable under Section 498-A of IPC. The appellant/accused is sentenced to undergo S.I. for three years and pay a fine of Rs.10,000/- (Rupees Ten thousand) in default of payment of fine he shall undergo S.I. for further three months –for the offence punishable under Section 306 of IPC. All the said substantive sentences shall be run concurrently.
This Criminal Appeal having been heard and reserved for Judgment on 04.01.2019, this day the Court delivered the following:
JUDGMENT The appellant who was accused No.1 in SC No.272/2009 before the learned City Fast Track (Sessions) Judge, Bengaluru City (FTC No.VI) [henceforth for the sake of brevity referred to as “trial Court”] has challenged the judgment of conviction and order on sentence dated 20.09.2010 passed by the trial Court against him convicting him for the offences punishable under Sections 498-A and 306 of Indian Penal Code, 1860 [henceforth for the sake of brevity referred to as “IPC”] and under Section 4 of the Dowry Prohibition Act [henceforth for the sake of brevity referred to as “DP Act”] and sentenced him accordingly.
2. The summary of the case of the prosecution in the Court below was that; the marriage of deceased Smt.Renuka was performed with accused No.1 on 01.09.2000 and at the time of marriage, the complainant had given gold ring, clothes, household articles to the accused. After the marriage, accused No.1 started demanding further dowry of `40,000/- and `25,000/- which were also given to the accused. Still, the accused continued his demand for more money in the form of loan, towards which also, the complainant had paid an amount of `1,50,000/-. Accused No.1 joined by accused Nos.2 and 3 who are his parents started harassing deceased Smt.Renuka and subjecting her to cruelty. They were also pestering her to bring more dowry from her parental house. Due to unbearable harassment meted to her, she consumed poison on 16.09.2008 at about 8.30 pm., The accused shifted the deceased to Victoria Hospital for treatment and informed the same to the complainant. However, by the time, the complainant and his wife rushed to the hospital, their daughter was found dead. Based on the complaint lodged by the father of the deceased, the police conducted investigation and filed charge sheet against all the three accused including the present appellant for the offences punishable under Sections 498-A and 306 of IPC and under Sections 3 and 4 of the DP Act r/w Section 34 of IPC.
3. The charges were framed against the accused for all those offences alleged against them in the charge sheet. Since, the accused pleaded not guilty, the prosecution in order to prove the alleged guilt of the accused, examined 22 witnesses as PWs.1 to 22 and got marked documents from Exs.P1 to P30(a) and material objects at MOs.1 to 3. Neither any witness was examined nor any documents was marked as exhibits from the accused side. After hearing both side, the trial Court by its impugned judgment acquitted the accused Nos.2 and 3 of all the charges leveled against them and accused No.1 of the charge punishable under Section 3 of the DP Act. However, it convicted him for the offences punishable under Sections 498-A and 306 of IPC and for Section 4 of the DP Act. It sentenced accused No.1 accordingly.
4. Among the 22 witnesses examined by the prosecution, apart from the official witnesses, the family members of the deceased who were examined as PWs.1 to 4 have supported the case of the prosecution. PWs.5 and 6 who are the panchas for inquest panchanama also supported the case of the prosecution. Whereas, PWs.7 to 13 and PW19 who were projected as neighbours to the accused and PW17 the alleged landlord of the premises have turned hostile to the prosecution, as such, they have not supported the case of the prosecution.
5. PW1 – Sri.Jayaram and PW2 – Smt.Bhagya are the parents of the deceased. Both of them in their examination-in-chief have uniformly stated that their second daughter Renuka was given in marriage to accused No.1 / appellant on 01.09.2000. Prior to the marriage, during the marriage talks, the accused had demanded golden ring, gold neck chain and domestic utility articles. Those items were give to them. Only for about 10 to 15 days, accused has taken proper care of the deceased. Thereafter, accused No.1 demanding an additional dowry of `40,000/- started assaulting the deceased and also started subjecting her to cruelty and was denying her the food. They had also sent the deceased back to her parental house, asking her to bring the dowry amount. Thus, one week after such return, the accused had been to the house of these witnesses and taken back the deceased along with a sum of `40,000/-dowry amount from PW1.
6. The witnesses have also stated that subsequently in May 2006 also the accused demanding another sum of `25,000/- as dowry, has assaulted the deceased and sent her back to her parental house. In that connection, PW1 had given a complaint to K.P.Agrahara Police Station on 19.05.2006. The police summoning accused to the police station had advised them suitably, after which, they had taken back the deceased to their house.
7. On 21.05.2006, at about 6.30 pm., accused No.1 joined by another two persons had been to the house of PW1 and assaulted the deceased, in which regard also, one more complaint was given before J.P.Nagar Police Station. The police summoning the accused had scolded him and advised him suitably.
8. PWs.1 and 2 have further stated that though accused No.1 had taken back his wife again, but, after two months, they demanded a loan of `1,50,000/- on the pretext of constructing a house building. These witnesses got that loan to the accused. Two months thereafter, once again, the accused started assaulting the deceased and demanding her to get a sum of `1,50,000/- from her parents to clear the previous loan of `1,50,000/- made by them.
9. That being the case, on 16.08.2018, at about 10.50 pm., while PW1 was in his house, accused No.1 informed him that Renuka was dead. Thereafter, these people went to Victoria Hospital and saw the dead body. Witnesses have stated that though they presume that it was a murder, still the people from the accused side pressurised that the matter would be settled, as such, no complaint must be lodged, he delayed in lodging the complaint. The witnesses have also stated that according to them the deceased was administered poison and was killed by the accused.
10. Both these witnesses were subjected to a detailed cross examination from the accused side, wherein, they adhered to their original version, however, the suggestion made to both the witnesses that the deceased committed suicide due to the unbearable stomach ache which she was suffering was not admitted as true by them.
11. PW3 – Revathi and PW4 – Gajalakshmi, sisters of the deceased Renuka have also given their evidence on the lines of evidence given they their parents ie., PWs.1 and 2. Both PWs.3 and 4 have also stated that there was demand from the accused side, both prior to and after the marriage of the deceased sister Renuka with accused No.1. Both the witnesses have also stated that after the marriage, accused No.1 demanded for additional dowry of `40,000/- and `25,000/- and received it. Both these witnesses also have stated that apart from demanding for dowry and receiving the same, the accused had also taken a loan of `1,50,000/- through PW1 and that, after the marriage of the deceased with accused No.1, all the accused were constantly and continuously subjecting their deceased sister to cruelty. Both these witnesses were subjected to a detailed cross examination from the accused side wherein, they adhered to their original version.
12. PW5 – S.Shivashankar and PW6 – Shivaji have stated that the deceased Renuka died on 16.09.2008 and that the inquest panchnama as per Ex.P9 was drawn in their presence, for which, they have subscribed their signature.
13. PW7, the neighbour of the house of the deceased and the accused, except stating that the deceased committed suicide by consuming poison has pleaded his ignorance about the alleged cruelty stated to have been meted to her by the accused. As already observed, PWs.8, 9, 10, 12, 13 and 19, in their evidence, though stated that the deceased was their neighbour have pleaded their total ignorance about the nature of the death of the deceased, as well her marital life.
14. PW20 – the Assistant Director of Forensic Science Laboratory, Bengaluru has stated that the articles sent to him for examination including the viscera of the deceased have revealed that there was content of phosphide ions in the portion of small intestine, liver and kidney examined by him. He has identified the report issued by him at Ex.P26.
15. PW22 – Dr.Pramoda K, incharge of Forensic Medicine, Victoria Hospital, Bengaluru has stated that she has conducted postmortem on the dead body of the deceased Renuka and noticed that no demonstratable external injuries were seen in the body and all the internal organs were found intact and congested. However, she collected viscera and sent it for chemical examination. After receiving the opinion from Forensic Science Laboratory, the said doctor opined that death was due to respiratory failure as a result of consumption of substance containing phosphide ions. Witness has identified the postmortem report issued by her at Ex.P27, her opinion as to the death of the deceased at PW28.
16. In the light of the above evidence of the witnesses, it was the argument of the learned counsel for the appellant that though the accused does not dispute that the death of the deceased was suicide, it is only the family members of the deceased who have supported the case of the prosecution. But all the independent witnesses including the neighbours have not supported the case of the prosecution. Learned counsel also submitted that admittedly, the inquest panchanama at Ex.P9 has not been drawn by the Taluka Executive Magistrate, but it is drawn by the Investigating Officer, as such, the same is not reliable. He also submitted that there is no clear and cogent evidence to show that there was any demand for dowry and that the deceased was subjected to cruelty in connection with the alleged demand for dowry. Learned counsel also submitted that none of the prosecution witnesses have stated that there was any abetment from accused No.1 for the suicide of the deceased. He also submitted that in the previous two complaints said to have been lodged by PW1, nothing was alleged about the cruelty said to have been meted by the accused to the deceased. Finally, he stated that when, on the same set of evidence, accused Nos.2 and 3 are acquitted, the trial Court has erred in convicting the accused for the alleged offences.
17. Learned High Court Government Pleader for the respondent in his argument submitted that it is not in dispute that prior to the death of the deceased two complaints were filed against the accused which is the proof of cruelty meted to the deceased by the accused. The cogent evidence of the family members of the deceased proves beyond doubt that the deceased was subjected to cruelty which led her to commit suicide, as such, the prosecution has proved the guilt of accused No.1 beyond doubt.
18. It is not in dispute that the marriage of the deceased Renuka had taken place with the present appellant / accused No.1 on 01.09.2000 and thereafter, the deceased started living in her matrimonial home. It is also not in dispute that on 16.09.2008, deceased Renuka died unnatural death. The evidence of the prosecution witnesses including PWs.1 to 4 on these points have remained undenied from the accused side.
19. Parents of the deceased, as well, her elder sisters who were examined as PWs.1 to 4 have uniformly stated that at the time of marriage of the deceased Renuka with accused No.1, they had given to the accused a golden ring, golden chain and domestic utility articles as demanded by them. These witnesses have further stated that after the marriage also accused No.1 continued demanding dowry to be brought by the deceased from her parental house. They have stated that he had demanded on one occasion for a sum of `40,000/- and on another occasion for a sum of `25,000/-. The demand of `40,000/- made by accused No.1 / appellant was met by them. The evidence of PWs.1 to 4 on these points have come out in a uniform manner. PWs.1 and 2 who are none else than the parents of the deceased stated that apart from demanding the dowry of a sum of `40,000/- to be brought by the deceased from her parents, accused No.1 was also subjecting the deceased to cruelty by physically assaulting her and also denying her of food. Both the witnesses have also stated that at the insistence of the appellant, PW1 – the father of the deceased also arranged in getting him a loan of `1,50,000/-.
In the cross examination of all these four material witnesses, some more details about the demand for dowry of `40,000/- was brought in. PW1 – father of the deceased, has stated that it was his daughter ie., the deceased herself has told him that accused was putting her to trouble and demanding dowry of a sum of `25,000/- and `40,000/-. Though an attempt was made in the cross examination of PW1 to elicit that the parental family of the deceased was economically poor, but, PW1 though admitted that they were economically not well but, has stated that by taking money from his relative one Sri.Keshav, he had given that `40,000/-.
20. Though the witness has stated that the said amount was towards the demand for dowry made by his son-in-law and it was the accused who had received the said amount and only thereafter had taken back the deceased to their house. In this manner, PW1 apart from adhering to his original version, has also given some more details in his cross examination which further corroborated his statements made in his examination-in-chief about the deceased being subjected to cruelty by her husband and also the demand that was being made by her husband for dowry.
PW1 – father of the deceased apart from narrating more detail about the demand made by his son-in-law for dowry, has also placed a detailed picture as to the cruelty meted by his son-in-law towards the deceased in that connection. Apart from stating that his son-in-law was assaulting the deceased and also denying her the food, PW1 has also given two more instances, when the accused is said to have barged into his house and manhandled the inmates there. According, PW1 at that point of time, the accused had already sent his wife ie., the deceased to her parents house. In that connection, the prosecution has also got marked a copy of the complaint dated 22.05.2006 shown to have been given by the deceased to the K.P.Agrahara Police, Bengaluru. Even in the said complaint also, the deceased is shown to have stated that her husband being addicted to consumption of liquor was repeatedly subjecting her and her children to cruelty. When she had returned to her parents house along with two children, accused No.1 was also said to have barged to their house on two occasions ie., on 19.05.2006 and 22.05.2006 and assaulted her in connection with the custody of the children. It is only when accused No.1 is said to have repeated the said act on 22.05.2006, his wife ie., the deceased has lodged a complaint with the police on 22.05.2006. Thus, the evidence of PW1 that apart from demanding for dowry accused No.1 was also subjecting the deceased to cruelty has been further corroborated by the complaint by the deceased herself to the police at Ex.P29.
21. Merely because in the said complaint the deceased has not stated about demand for dowry said to have been made by her husband, by that itself, it cannot be taken that there was no demand for dowry. It cannot be lost site of the fact that the said complaint at Ex.P29 was with respect to cruelty meted to the complainant by her husband ie., accused No.1 and about the custody of the children, as such, the complaint is confined only to that incident and the fact, as such, it is not correct to look for any allegation about the demand for dowry in the said complaint.
22. Evidence of PWs.2, 3 and 4 are also exactly on the similar lines as that of PW1 with respect to demand for dowry made by accused No.1 and cruelty practiced by him against deceased Renuka. Even in their cross examination also, the accused could not elicit any favourable statement for him. On the other hand, even PW2 – mother of the deceased also has stated that the demand of the accused for dowry of `40,000/- was met by them by borrowing the said amount from others. Though PW2 has stated that further demand of `25,000/- made by accused No.1 was not met by them, but, evidence of PWs.1 and 2 are clear and specific that accused No.1 had made demand several times for a dowry, for a sum of `40,000/- at the first instance and thereafter, for another sum of `25,000/-, out of which the first demand of `40,000/- was met by them borrowing amount from other people.
23. PW2 as a mother of the deceased has also stated in her evidence about accused No.1 subjecting her daughter to cruelty and her daughter lodging a complaint before K.P.Agrahara police station, in one such instance. Witness also stated that she had accompanied her daughter, when she had been to police station to lodge a complaint against her husband about he subjecting her to cruelty. Thus, both PWs.1 and 2 have given more details in their cross examination which favours the prosecution than making any statement favourable to the accused.
24. The evidence of PWs.3 and 4 who are the sisters of the deceased are also in consonance with that of PWs.1 and 2. Therefore, merely because the neighbours of the deceased have pleaded there ignorance about the alleged demand for dowry made by accused No.1 and the cruelty said to have meted to the deceased, by that itself, the prosecution case cannot be disbelieved. On the other hand, the cogent and trustworthy evidence of PWs.1, 2, 3 and 4 corroborated by the complaint given by none else than the deceased which is at Ex.P29 and a copy of the police diary at Ex.P30, which also shows that based upon the complaint of the deceased, the police had summoned accused No.1 to their police station and had advised him, would all go to prove beyond reasonable doubt that accused No.1 has subjected his wife ie., deceased Renuka to cruelty and also has demanded dowry and harassed his wife and her parental family. Though similar allegation were also made against accused Nos.2 and 3, but they were acquitted by the trial Court for the reason that even according to PWs.1, 2, 3 and 4, the parents of accused No.1 was residing in a separate house and accused No.3 was loving his daughter-in-law cordially. Thus, the evidence placed on record go to show that the practicing of cruelty against the deceased and demand for dowry was not by accused Nos.1, 2 and 3 jointly, but, it was individually by accused No.1 alone, as such, the argument of the learned counsel for the appellant that in view of the fact that accused Nos.2 and 3 are acquitted for the similar offence would deserve the acquittal of accused No.1 also, cannot be accepted.
25. It is not in dispute that deceased Renuka whose marriage with accused No.1 was performed on 01.09.2000, died in an unnatural manner on 16.09.2008. According to inquest panchanama which is at Ex.P9, the death of the deceased was due to consumption of poison, since she was subjected to cruelty by the accused. Though PWs.5 and 6 have stated in their evidence that the inquest panchanama was drawn in their presence, but, they have not spoken anything about the contents of the said panchanama. It is also noteworthy that, though the death of the deceased was an unnatural, still the inquest panchanama was not drawn by Taluka Executive Magistrate, but it is drawn by the Investigating Officer himself. However, the accused have not disputed that the death of deceased is unnatural. On the other hand, it is the specific defence of the accused that deceased Renuka committed suicide as she was suffering from unbearable stomach ache. Suggestions to that effect were made in the cross examination of PWs.1, 2, 3 and 4. However, those witnesses did not admit those suggestions as true.
26. According to PWs.1, 2, 3 and 4, the death of deceased Renuka was a murder by the accused. According to them, the accused after administering the poison to the deceased has throttled her, causing her murder. Even according to those witnesses, it is only their opinion as to the cause of death. The said opinion of PWs.1 to 4 is not corroborated by any other evidence either oral or documentary.
27. PW22 – Dr.Pramoda K, who has conducted the postmortem examination on the dead body of the deceased Renuka has specifically stated that there was no demonstratable external injuries seen over the body. Also stated that on internal examination, all the organs were found intact and congested. Had there really been throttling of the deceased by any one, much less, by the accused, then there ought to be some external marks or other symptoms of resistance etc., Thus, in the absence of any medical observation in that regard, the mere imagination of PWs.1 to 4 that death of the deceased was a murder is unbelievable.
28. PW22 – the doctor has also stated that at the time of postmortem examination, she had collected contents of the stomach, sample blood and sent it for its chemical analysis. The report of the Forensic Science Laboratory received in this regard which is at Ex.P26 shows the presence of phosphide ions in the stomach, liver portion and blood sample examined by it. After receiving the Forensic Science Laboratory opinion even PW22 – the doctor has also opined that the death of the deceased was due to respiratory failure, as a result of consumption of the substance containing phospide ions. Thus, the death was due to consumption of poisonous mixture.
29. Admittedly, it is not even the case of the prosecution that any of the accused had administered the said poisonous mixture to the accused. On the other hand, it is also the case of the prosecution that deceased had consumed poison and committed suicide. The doctor evidence also says that death was due to consumption of suspension containing phosphide ion, as such, the trial Court has rightly held that death of the deceased was a suicide.
30. It is further case of the prosecution that the said suicide of the deceased was abetted by the accused who were three in numbers initially. As already observed above, considering the evidence of PWs.1 to 4, wherein, they have given clean chit to accused Nos.2 and 3 who are the parents of accused No.1, the trial Court has rightly acquitted them from the alleged offence. However, it convicted accused No.1 who is the husband of the deceased even for the offence punishable under Section 306 of IPC.
31. Merely, because the death of the deceased is said to be suicide and that she was subjected to cruelty and harassment for dowry by her husband ie., accused No.1, only the trial Court has rightly acquitted them from the alleged offence. However, it convicted accused No.1 who is the husband of the deceased even for the offence punishable under Section 306 of IPC.
32. Merely because the death of the deceased is said to be suicide and that she was subjected to cruelty and harassment for dowry by her husband ie., accused No.1, by that itself it cannot be concluded that there was any abetment by accused No.1 for that suicide by the deceased.
33. In order to hold a person as guilty of abetting a suicide there ought to be some instigation by the alleged abettor or some intentionally aiding by that person which has caused the deceased to commit suicide or atleast there must be some nexus establishing the alleged act of the accused to the death of the deceased and also of some proof to show that the act of the accused has driven the deceased to commit suicide.
In the case on hand, as already observed above, the only material witnesses who had spoken about the death of the deceased are the parents and sisters of the deceased who also have only opined that according to them the death of the deceased was murder caused by the accused. In view of the analysis made above, the said opinion that the death of the deceased was a murder, since has failed to be established and it is established that the death of the deceased was a suicide, the evidence of PWs.1 to 4 would in no way take further the case of prosecution in showing that accused No.1 has abetted the said suicide by the deceased. None of the witnesses much less PWs.1 to 4 anywhere whispered that the act of the deceased has resulted in abetting the suicide committed by the deceased. It is also not the evidence of PWs.1 to 4 that the cruelty meted by accused No.1 to his wife had compelled her to commit suicide.
34. Merely because the accused No.1 was subjecting his wife to cruelty, by that itself, it cannot be concluded that the situation compelled the deceased to commit suicide or that there was any abetment by the accused in the deceased committing suicide. However, the trial Court merely by finding that deceased was subjected to cruelty has jumped to a conclusion that even the suicide committed by the deceased was also due to the abetment of accused No.1.
35. Since, the said finding of the trial Court on the said point is without any proper reasoning and without a proper appreciation of the evidence placed before it, I have no hesitation to say that the said finding of the trial Court holding the accused guilty of the offence punishable under Section 306 of IPC is erroneous. As such, while confirming its finding holding accused No.1 guilty for the offences punishable under Section 498-A of IPC and under Section 4 of the DP Act, but its finding holding the accused No.1 guilty of the offence punishable under Section 306 of IPC deserves to be set-aside. The sentence ordered by the trial Court for the proved offence punishable under Section 498-A of IPC and Section 4 of DP Act also being appropriate for the proven guilt against accused No.1, the same does not warrant any interference by this Court. Accordingly, I proceed to pass the following;
ORDER (i) Appeal is allowed in part.
(ii) The judgment of conviction and order on sentence passed by the City Fast Track (Sessions) Judge, Bengaluru City (F.T.C No.VI) passed in SC No.272/2009 dated:20.09.2010 holding the appellant / accused No.1 guilty of the offence punishable under Section 306 of IPC and sentencing him accordingly is set-aside.
(iii) Accused No.1 / appellant is acquitted of the offence punishable under Section 306 of IPC. However, the judgment of conviction and order on sentence holding the accused guilty of the offence punishable under Section 498-A of IPC and Section 4 of DP Act and the sentence ordered for this proven guilt stands confirmed.
Registry to send copy of this judgment to the trial Court, to enable it to issue the modified warrant of conviction.
Registry to issue a free copy of this judgment to the appellant free of cost, immediately.
Sd/- JUDGE GH