IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO. 801 OF 2013 BETWEEN:
STATE OF KARNATAKA REPRESENTED BY BETTADAPURA POLICE STATION. ... APPELLANT (BY SMT. NAMITHA MAHESH B.G.,HIGH COURT GOVERNMENT PLEADER) AND:
1. HARISHA SON OF SWAMY BOVI 29 YEARS NAGANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
2. SWAMY BOVI SON OF THIMMA BOVI 51 YEARS NAGANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
3. THAYAMMA WIFE OF SWAMY BOVI 28 YEARS NAGANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
4. SRINIVASA SON OF SWAMY BOVI 28 YEARS NAGANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
5. LAXMAMMA WIFE OF LAXMANA 26 YEARS NAGANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
6. MAHESHA SON OF CHIKKAPUTTA BOVI 39 YEARS NAGANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
7. YASHODHA WIFE OF MAHESHA 28 YEARS MOOKANAHALLI PALYA VILLAGE PERIYAPATNA TALUK-571 107.
8. LAXMANA SON OF SUBBA BOVI 31 YEARS BOMMANAHALLI VADDARAHATTI ARASIKERE TALUK HASSAN DISTRICT-573 103. ... RESPONDENTS (BY SRI. P. NATARAJU, ADVOCATE FOR RESPONDENT NOS.1 TO 3 AND 5 TO 8; APPEAL AGAINST R4 IS ABATED VIDE ORDER DATED 16.09.2019) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT DATED 13.03.2013 PASSED BY THE V ADDITIONAL SESSIONS JUDGE, MYSURU IN SESSIONS CASE NO.25 OF 2012 – ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 114, 304B READ WITH SECTION 149 OF INDIAN PENAL CODE AND SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed by the State challenging the judgment and order of acquittal passed by the V Additional Sessions Judge, Mysore vide order dated 13.03.2013 in S.C.No.25/2012 for the offences punishable under Sections 498-A, 114, 304-B read with Section 149 of Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act.
2. The brief facts of the case :-
It is the case of the prosecution that the complainant Puttalaxmamma, who is the mother of the deceased has stated in the complaint that the marriage of her daughter Parvathi was solemnized with accused No.1 of Naganahalli Palya as per the Hindu rites and customs on 19.06.2009. It is the further case of the prosecution that at the time of the marriage, the parents of the deceased had given 20 grams of gold ornaments and Rs.50,000/- as dowry to the accused. Accused Nos.2 and 3 are the parents of accused No.1, accused Nos.4 to 8 are the sisters of accused No.1 and their respective husbands. The accused looked after Parvathi well for about six months after their marriage and thereafter, they started harassing her continuously both physically and mentally and also insisted her to bring more dowry from her parents house. On one occasion, panchayath was convened and panchayathdars had advised the accused persons to look after the deceased well and inspite of the same, the accused persons continued the harassment.
3. On 11.7.2011 at about 7.00 a.m., the husband of the deceased and her in-laws, sisters-in-law and brothers-in-law had given physical and mental harassment and as a result of the same, the deceased consumed poison and neighbours Gopal Bhovi, Kulla Bhovi and Kalamma had shifted her to Bettadapura Hospital for treatment and thereafter, she was taken to Mysore for further treatment and she was declared as dead when she was taken to the hospital. The accused No.1 intimated one Somashekar over the phone with regard to the deceased consuming poison and the complainant and her husband after coming to know the same boarded the ambulance and also accompanied the deceased in the ambulance to the hospital. The deceased has a son by name Hariprasad aged about 1 year.
4. Based on the complaint, the police have registered the case against the accused persons, conducted the inquest mahazar and body was subjected to post-mortem examination and also recorded the statement of the witnesses. After completion of the investigation, the Investigating Officer has filed the charge sheet against the accused persons for the offences punishable under Sections 498-A, 114, 304-B read with Section 149 of Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act.
5. The accused persons were secured before the Sessions Court. They did not plead guilty and they claims the trial. Hence, the prosecution examined the witnesses P.Ws.1 to 29 and got marked the documents Exs.P.1 to 38 and so also got marked MO.1 to M.O.5. The defense have examined one witness DW.1 and also got marked the documents Ex.Ds.1 to 12. The accused persons were subjected to 313 statement.
6. The Court below, after hearing the arguments of the learned Public Prosecutor and defense counsel acquitted the accused persons and hence, the present appeal is filed by the State.
7. The grounds urged in the appeal by the State is that the learned Sessions Judge has given much importance to the minor discrepancies found in the evidence of the prosecution witnesses and has failed to see that these discrepancies did not go to the very root of the case of the prosecution. The Court below has also committed an error in disbelieving the prosecution witnesses on the ground that they are interested witnesses and has failed to consider that though the witnesses are relatives, their evidence is also reliable and creditworthy. It is further contended that though certain witnesses have turned hostile, the prosecution has proved its case beyond all reasonable doubts that respondents have committed the offences. The Court below has given much importance to the fact that marriage was conducted during night and it is an admitted fact that accused No.1 had married deceased since there was love affair. The fact that she died within 7 years of their marriage and there was a demand for additional dowry has not been considered. The Court below has failed to take note of the fact that the burden is cast upon the accused to offer explanation regarding unnatural death of the deceased in the matrimonial house. Hence, the judgment of acquittal is liable to be set aside.
8. High Court Government Pleader appearing for the State in her arguments vehemently submits that the accused persons, though it was a love marriage, insisted for dowry amount of Rs.1,00,000/- and 50 grams of gold from the parents of the deceased and in the presence of the elders of the village, it was decided to give Rs.50,000/- as against Rs.1,00,000/- and to give 20 grams of gold ornaments. They were examined before the Court and they have consistently deposed with regard to the demand and acceptance of dowry. The Court below also fails to take note of the fact that P.Ws.5 and 6, who are the neighbours have shifted the deceased to the hospital and none of the accused persons have shifted the deceased to provide treatment. Ex.P.35 MLC Register extract discloses that one Sri Gopal Bhovi had shifted the injured to the hospital. Accused No.1 was arrested with jewels of the deceased and mahazar was drawn with regard to the seizure of jewels of the deceased at the instance of the accused. The Court below fails to appreciate the evidence available on record.
9. Per contra, learned counsel appearing for the accused/respondents would submit that there is no dispute with regard to the fact that the death has taken place in the matrimonial house and body was cremated in the village of the husband and no complaint was lodged through out the day and the same was given in the late evening. The Court below has discussed the evidence of the prosecution in detail from para No.82 onwards and has rightly come to the conclusion that there is no any consistency in the evidence of the prosecution witnesses regarding demand and acceptance of dowry and there are material contradictions in the evidence of the prosecution witnesses regarding demand and acceptance of dowry and also subjecting the deceased for harassment to bring additional dowry. There are no good grounds to interfere with the judgment of the Trial Court to reverse the findings. Hence, there is no merit in the appeal.
10. Having heard the arguments of High Court Government Pleader appearing for the State and also the counsel appearing for the accused/respondents and also keeping in view the rival contentions urged in the appeal as well as oral submissions of both the counsels, this Court has to re-appreciate the evidence available on record. On re-appreciating both oral and documentary evidence, the points that arise for consideration before this Court are as follows:-
1. Whether the Court below has committed an error in acquitting the accused persons for the offences punishable under Sections 498-A, 114, 304-B read with Section 149 of Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act and it requires interference of this Court?
2. What order?
11. Points No.1 and 2:- Having considered the rival contentions of both the counsels and also materials available on record, there is no dispute between the parties with regard to the marriage having taken place on 19.06.2009. The marriage invitation card is also produced at Ex.P.4 and marriage photos are produced at Ex.Ps.5 to 7. The dispute is with regard to the manner of conducting the marriage. According to the accused persons, accused No.1 and deceased Parvathi fell in love with each other and the marriage was performed in a hurried manner during night hours in the Lakshmidevi Temple of Naganahalli Palya. According to the prosecution, there was a marriage negations and the parents of the accused had demanded for Rs.1,00,000/- and gold ornaments weighing 50 grams as dowry, but it was agreed to give Rs.50,000/- and gold ornaments weighing of 20 grams at the time of marriage and the marriage was performed in the Lakshmidevi Temple. There is no dispute with regard to the death of the deceased Parvathi and inquest mahazar was conducted in terms of Ex.P.2.
12. The Doctor P.W.17, in his evidence has deposed that the death was due to respiratory failure as a result of consumption of Organo Phosphorous and Pyrethroid Group of Insecticides poison. The Doctor has also given post mortem report in terms of Ex.P.18.
Though some of the witnesses have stated that it is a murder, there is nothing on record to prove the same as murder and also the investigating officer has not invoked Section 302 of Indian Penal Code.
13. Having considered the chemical analyses report, which is marked at Ex.P.36 and also considering the evidence of Doctor P.W.17, it is clear that due to consumption of Organo Phosphorous Pyrethroid Group of Insecticides poison, the death has occurred. No doubt the victim has consumed poison in the matrimonial home and the reason of committing suicide is to be analyzed later on. But taking into consideration the evidence of the Doctor and the chemical analyses report, it is clear that it is an unnatural death. The same is also not disputed in the cross-examination.
14. The prosecution in order to prove the demand and acceptance of dowry and also subjecting the deceased for both mental and physical harassment, has examined as many as 29 witnesses. It is to be noted that in order to prove the charges leveled against the accused, this Court has to analyze the evidence of the witnesses who spoke about the harassment and demand and acceptance of the dowry.
15. Keeping in view the grounds urged in the appeal and also contentions taken by the respective counsels, this Court has to analyze the evidence of material witnesses. P.W.1 is the mother of the deceased and P.W.10 is the father of the deceased, P.Ws.11 to 13 are the elder uncle of the deceased, elder aunt of the deceased and the sister of the deceased. P.W.18 is also the younger sister of the deceased. P.W.22 who is the maternal uncle of the deceased has also been examined. They have spoken with regard to the demand and acceptance of dowry. P.W.15 is the neighbour of the accused and P.W.14 is another panchayathdar who participated in the marriage negotiations talk and these witnesses are material witnesses and the same are to be considered for re appreciating the same.
16. Now we would like to take up the evidence of P.Ws.1, 10, 13 and 18, who are the parents of the deceased and sisters of the deceased. The evidence of all these witnesses are similar in nature in chief evidence regarding the marriage talks, demand and acceptance of dowry and subsequent demand for dowry and subjecting her for mental and physical cruelty.
17. P.W.1 reiterates the contents of Ex.P.1. In the cross-examination of P.W.1, it is elicited that her daughter fell in love with accused No.1 and once she had been to the village of accused No.1 stating that she would marry him. It is also elicited in her cross-examination that the villagers of accused No.1 came to their village to talk about the marriage since they fell in love. It is also elicited from the mouth of P.W.1 that both the villagers sat together and at that time, accused No.2 told them not to perform the marriage in a luxurious manner. It is also elicited that accused No.2 told that they used to perform the marriages at Lakshmidevi Temple in their village and requested them to perform the marriage in the very same temple. It is also elicited that as per the customs, the bridegroom parents have brought the saree and mangalya sara and they also gave certain gold ornaments to her daughter.
18. It is elicited in the cross-examination of P.W.1 that in the complaint it is mentioned, the accused persons demanded Rs.1,00,000/- and 50 grams of gold and so also decided to give Rs.50,000/- and 20 grams of gold. It is also elicited that when accused No.1 used to visit their house, he was in good terms with the deceased. It is also elicited that they are having documents for having paid the amount of Rs.20,000/- but they have not produced before the Court and the same is in their custody. However, P.W.1 claims that Mahalakshmamma and Sakamma have witnessed for having paid the amount of Rs.20,000/-. It is also elicited that the first accused used to enquire the health condition of her daughter when she was pregnant and he also provided treatment to her. It is also elicited that 5th accused was given in marriage to different village which is in different district and other accused persons are residing separately and their relationship between the parties are also not in dispute.
19. P.W.10, who is the father of the deceased in his cross-examination has not disputed that the deceased and accused No.1 fell in love and also the villagers of accused No.1 came to the village of the deceased and marriage talk was held and photos were taken at the time of the marriage. It is elicited that he did not give statement in terms of Ex.D.7 and also he did not mention from whom he borrowed loan to pay the dowry amount but he claims that he has given the receipt for having placed the order for gold ornaments and he has given the receipt to the Police. He admits that the gold ornaments were given out of love and affection to his daughter. He says that he has given Rs.5000/- to accused No.1, after one year of giving birth to the child by his daughter and thereafter, given the amount of Rs.20,000/- and the same was given one year prior to her death. He admits that he did not mention before the Police that the amount was given to his son-in-law and accused No.2 in terms of Ex.D.8. He also admits that he has not given statement in terms of Ex.D.9. He admits that cremation was done in the land of the accused persons.
20. P.W.13 is the sister of the deceased and in her cross-examination, she admits that accused Nos.2 and 3 told to perform the marriage in a simple manner and no priest had attended the marriage. Her parents gave the gold ornaments to her sister out of love and affection and she also attended the baby shower function of her sister. The accused No.1 used to visit the village of the deceased and talk to her and also her parents freely. She also states that the photos were taken for having given the dowry and also the gold ornaments. P.W.13 admits that she did not make the statement before the police that accused persons demanded money and told them not to perform the marriage in any choultry and to give the said amount to them and she is deposing before the Court for the first time.
21. The younger sister of the deceased P.W.18, in her cross-examination admits that as per the customs, her parents gave gold ornaments to her sister at the time of marriage. She also admits that both family members have participated in the baby shower function of her sister. She also admits that accused No.2 requested to perform the marriage in a simple manner in their village and she claims that the marriage was performed between 6.00 a.m. to 7.30 a.m. She also admits that she did not make any statement before the police that the accused persons have insisted to bring the money of Choultry and subjected her for harassment.
22. P.W.4 states that the marriage talks were held in the house of P.W.1 and the accused persons demanded the dowry and also the marriage was performed in the temple. He also claims that P.W.1 told that they have given additional dowry of Rs.5,000/- and Rs.10,000/-
apart form gold jewels given at the time of the marriage. This witness was treated as hostile by the learned Public Prosecutor partially. It is suggested that additional dowry amount was given to the accused in their house and the same was denied. He also admits in his cross-examination that both of them fell in love and marriage was performed. He claims that the marriage was performed from morning 10.30 to 12.00 noon and no priest had attended the marriage. He did not give statements in terms of Ex.D.1 and Ex.D.2 before the Police. He also states that at the time of marriage talk, he told the parents of the deceased to give chain and ring to bridegroom but he did not witness giving the same.
23. The other witnesses P.Ws.5 and 6 who shifted the victim to hospital have deposed that they came to know the deceased had taken poison and they also informed her parents about the same and her parents boarded the vehicle while shifting her to hospital. P.W.5 claims that after the marriage, the accused persons were looking after her well. This witness was treated as hostile. It is suggested that she consumed poison since she was subjected to both mental and physical harassment and the same was denied. It is suggested that she gave statement in terms of Ex.P.11 and the same was denied. It is suggested that when the victim was subjected to additional dowry harassment by the accused persons, they went and asked the accused persons and the same was denied. It is suggested that she gave statement in terms of Ex.P.12 and the same was denied. In the cross-examination by the defense counsel, it is elicited that she has not given any statement in terms of Ex.D.5. The victim was in a position to make statement when she was taken to hospital and reason for taking poison is mentioned in the hospital records. P.W.6 also in his evidence did not support the case of the prosecution regarding marriage talks but he reiterates with regard to shifting of the victim to the hospital and drawing up of mahazar. This witness has also been treated as hostile. The suggestion was made to the witness that he gave statement in terms of Ex.P.13 and the same was denied.
24. P.W.11 is the other witness, who states that the marriage talks were held 1½ month prior to the marriage and the accused persons demanded the dowry. He also states that he came to know that P.W.10 has given Rs.5,000/- and Rs.20,000/- as additional dowry. In the cross-examination, he admits that Police did not record his statement. He claims it was a love marriage and parents of the accused were also called and discussed with regard to their love. He did not visit the house of the accused and enquire about their strained relationship and also he did not invite accused No.1 and the deceased to his house. He also did not witness the payment of Rs.20,000/-. He also admits that about one month prior to her death, they were in cordial terms .
25. P.W.12, the relative of the deceased i.e., the sister of P.W.1 also reiterates that the deceased and accused No.1 fell in love and the marriage was performed.
She claims that the deceased used to inform her parents about the harassment over the phone. In the cross- examination, it is elicited that the gold ornaments were given as per the customs and also admits that accused No.2 requested to perform the marriage in their village considering the economic condition of the family. It is elicited that she does not personally know how the relationship was between accused No.1 and the deceased. She did not make any statement before police in terms of Ex.D.8 and she also did not witness the payment of the additional dowry of Rs.5,000 and Rs.20,000/- to the accused and she came to know the same only through P.W.1.
26. P.W.21 is the other witness, who performed the marriage in the temple. He claims that marriage was solemnized in the Lakshmidevi Temple. In the cross- examination, he says that the marriage was performed between 10.00 p.m. to 11.00 p.m. since they brought both the accused and the deceased at 10.00 p.m. and they did not give any marriage invitation card.
27. P.W.22 is also the sister of P.W.1 and she reiterates with regard to the demand and acceptance of dowry and also the additional dowry. She claims that they subscribed chit amount and has given the additional dowry. The Public Prosecutor treated the witness as hostile partially and a suggestion was made that she gave statement in terms of Ex.P.21 and the same was denied. In the cross-examination, the defense counsel elicited that she did not participate in the marriage talk. It is further elicited that for the first time she has deposed before the Court that the deceased had informed her once that she was subjected for harassment. The other witnesses are only the formal witnesses with regard to the mahazar and investigation done by the Police.
28. Now this Court has to re-appreciate the evidence available on record regarding demand and acceptance of the dowry and subjecting the deceased for additional dowry. It is elicited from the mouth of all the prosecution witnesses that they were in love with each other and thereafter, the marriage was performed. It is also not in dispute that the marriage was performed in a hurried manner. No doubt there are discrepancies with regard to the time of the marriage as observed by the Trial Court.
29. P.W.21, who performed the marriage claims that the bride and bridegroom were brought at 10.00 p.m. and the marriage was performed between 10.00 p.m. to 11.00 p.m. Some of the witnesses have stated different timings but the timings given by the person who performed the marriage has to be taken note of. It is also an admitted fact that no special priest was present at the time of performing the marriage. It is also evident from the records and also admissions elicited from the mouth of the parents as well as the sisters that accused No.2 himself suggested to perform the marriage in a simple manner and so also to perform the marriage in their village and accordingly, the marriage was solemnized in the Lakshmidevi Temple and the same is not in dispute. The only contention of the prosecution is that they demanded and accepted the dowry of Rs.50,000/- and gold ornaments of 20 grams and in order to substantiate the same, though parents claims that they are having document for having paid the amount, they did not produce the same before the Court or furnished the same to the Investigating Officer during the course of the investigation.
30. It is pertinent to note that regarding additional dowry of Rs.5,000/- and Rs.20,000/- paid after the marriage, it is their claim that they borrowed the said amount from Sthrishakthi Sangha and paid the same. The prosecution did not place any materials to show that they have borrowed the money from the Sangha and one of the witnesses claims that the amount was taken by subscribing the chit. There are contradictory evidence and none of the witnesses speaks about the payment of Rs.5,000/- and Rs.20,000/- in their presence. The witnesses who have been examined have also categorically admitted that the parents of the deceased have not made the payment in their presence. It is also important to note that for having demanded the money and accepted the money, the evidence of the witnesses is inconsistent and there are material contradictions in the evidence of prosecution witnesses.
31. P.W.1 states that two days prior to the marriage, marriage talks were held and one of the witnesses states that the marriage talks were held 1½ month prior to the marriage and it is also pointed out that the marriage was performed in a hurried manner. P.W.1 also categorically admitted that prior to the marriage once the deceased had visited the village of the accused stating that she would marry accused No.1. It is also elicited in the cross examination of the prosecution witnesses the gold ornaments are given as per the customs to both the bride and bridegroom.
32. Taking note of these circumstances and also evidences available on record, we do not find any reasons to reverse the findings of the trial Court. The Court below, from para No.82 onwards, has given anxious consideration to the evidence available on record. No doubt witnesses who have been examined before the Court are the relative witnesses. The contention raised by the State counsel that merely because the witnesses are relative of the deceased, the same cannot be discarded. It is a settled law that if the evidence of the relative witnesses inspires the confidence of the Court, the Court can consider their evidence. The Trial Judge, before commencement of appreciating the evidence, has clearly mentioned that even if the witnesses are relative witnesses, the Court cannot discard their evidence and the same has to be dealt with due care and caution which has been done by the Court below by considering the evidence of each of the witnesses who have spoken with regard to the demand and acceptance of dowry and also with regard to the additional demand of dowry and subjecting the deceased for both mental and physical harassment.
33. It is to be noted that the witnesses who were examined before the Court have categorically deposed that accused No.2 himself had suggested to perform the marriage in a simple manner that too in a temple. When such being the case, the case of the prosecution that the accused demanded Rs.1,00,000/- and it was settled for Rs.50,000/- and they demanded 50 grams of gold and it was settled for 20 grams cannot be accepted. In order to substantiate the case of the prosecution, there is no consistent evidence before the Court both in respect of demand of dowry prior to the marriage and subsequent to the marriage. None of the circumstantial evidence comes to the aid of the prosecution to accept their evidence. The Appellate Court merely forming a second opinion is not sufficient to reverse the findings. The Appellate Court can reverse the findings if the Lower Court ignored the material on record and if it amounts to perversity and causes miscarriage of justice. We do not find any such perversity and miscarriage of justice. The Court below has given its anxious consideration to the material on record. Hence, we do not find any merit in the appeal.
In view of the discussion made above, we pass the following :-
ORDER The appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE PYR