IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.397 OF 2019 BETWEEN:
State of Karnataka By Chandra Layout Police Station Bengaluru City Through the State Public Prosecutor O/o the Advocate General High Court Building Dr. Ambedkar Veedhi Bengaluru-560001. …Appellant (By Sri.M.Divakar Maddur, HCGP) AND:
Mr. Nagasundar S/o late Rajashekar Aged 41 years Resident of Jyothi Nilaya Main Road Kollegal Town Chamarajanagar District-571440. …Respondent (By Sri.L.K.Srinivasamurthy, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the judgment and order of acquittal dated 23.8.2018 passed by the LXXI Additional City Civil and Sessions Judge, Bengaluru city CCH-72 in S.C.No.681/2012.
This Criminal Appeal coming on for Admission, this day the Court delivered the following:-
JUDGMENT This appeal has been preferred by the State challenging the legality and correctness of the judgment and order of acquittal passed by the LXXI Additional City Civil and Sessions Judge, Bengaluru city in S.C.No.681/2012 dated 23.8.2018.
2. I have heard the learned High Court Government Pleader for the appellant-State and the learned counsel for the respondent-accused.
3. Though this case is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
4. The facts leading to the case are that the marriage of the respondent-accused and the deceased got performed on 7.7.2002. The accused-respondent was working as a Driver in BMTC, Bengaluru and after the marriage, started to reside at Byraveshwarnagar, Nagarbhavi, Bengaluru. Out of the said wedlock, they have a son by name Veeresh. On 14.3.2007, at about 10.45 p.m., accused informed C.W.1, the mother of deceased, that her daughter committed suicide and that he will bring the dead body to Kollegal for cremation. Thereafter, he took the dead body and the body was buried hurriedly. After two and a half moths of burial, complainant and her relatives suspected the conduct and attitude of the accused and on 30.5.2007 accused threatened C.W.1 to return his son to his custody and also lodged a complaint in this regard. However, C.W.1 handed over the son to the custody of the accused.
Subsequently, complainant lodged the complaint as per Ex.P1. After investigation, charge sheet was filed for the offence punishable under Sections 498A, 306 and 201 of IPC. Thereafter, by following the procedure, case was committed and the Sessions Court took cognizance of the offence and secured the presence of the accused. After hearing the learned counsel for the accused and the learned Public Prosecutor, charge was prepared and read over to the accused. Accused pleaded not guilty and claimed to be tried, as such, trial was fixed. In order to prove the case of prosecution, it has examined 22 witnesses as P.Ws.1 to 22 and got marked Exs.P1 to P31. During the course of cross-examination of P.W.1, the accused got marked Exs.D1 and D2. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. He has not examined any witnesses on his behalf. However, he denied all the incriminating materials. After hearing the learned counsel appearing for the parties, the trial Court acquitted the accused. Challenging the legality and correctness of the said judgment, the State is before this Court.
5. The main grounds urged by the learned High Court Government Pleader are that the judgment of acquittal passed by the Court below is contrary to law and evidence placed on record. It is his further submission that P.W.1- mother of the complainant, P.W.3-sister of the deceased, P.W.4-brother of the deceased have categorically deposed about the ill-treatment and harassment caused by the accused to the deceased. They have also clearly deposed that the deceased committed suicide because of the demand of site made by the accused. The conduct of the accused clearly shows that he has hidden the act committed over the deceased and has hurriedly took the body without informing to the police and by threatening the witnesses has buried the body. It is his further submission that P.W.6, the owner of the house of accused has clearly stated that when they asked about the death of deceased, he has confessed that deceased committed suicide. The said fact has not been properly appreciated by the trial Court. Even though there was ample material, without considering the same, the trial Court has wrongly acquitted the accused. When the accused has suppressed the material of deceased committing suicide that itself goes to show that he has removed the ligature and has destroyed the evidence. Under such circumstances, the accused ought to have been convicted for the offence under Section 201 of IPC. On these grounds, he prayed to allow the appeal and to convict the accused by setting aside the impugned judgment.
6. Per-contra, learned counsel appearing on behalf of the respondent-accused has vehemently argued that there is a delay of seven months in filing the complaint. It is his submission that when the body of the deceased was buried, the relatives and friends of deceased were present and at that time no such allegations were made. Even the evidence of P.W.1 clearly shows that when they demanded to give back their grand son, the accused refused and as such, with an intention to take revenge, a false complaint has been registered. It is his further submission that the post mortem report Ex.P21 and the opinion given as per Ex.P22 clearly shows that there were no signs of deceased having committed suicide. The FSL report Ex.P16 also clearly shows that no toxic material has been detected to come to the conclusion that it is a homicidal death. It is his submission that all the witnesses have subsequently stated with regard to the ill-treatment and harassment by the accused. When the body was present, at that time, they have not raised any objection and if really, there was ill-treatment and harassment demanding site, definitely they could have informed the police. He further submitted that during the course of cross-examination of P.W.1, she has admitted the execution of Ex.D1, which clearly shows that deceased and accused were cordial and no such ill- treatment and harassment was there and they have also categorically admitted that she has died a natural death. When all the materials are taken into consideration, it clearly shows that the trial Court has come to a right conclusion and has rightly acquitted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the appeal.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including the lower Court records.
8. The prosecution, in support of its case, has examined 22 witnesses.
P.W.1 is the mother of the deceased and she is also the complainant. In her evidence, she has deposed that her deceased daughter has been given in marriage to the accused on 7.7.2002 and thereafter they started living at Bengaluru. After one and half years of marriage, her daughter gave birth to a male child. When her daughter used to come to her parental house, she used to tell that there was ill-treatment and harassment by the accused. The accused used to insist for transfer of site standing in the name of the complainant to the name of the deceased and if not, she can go and stay in her parental house. She has further deposed that on 4.3.2007 accused and deceased came to marriage ceremony and on that day, accused did not allow her to speak with her daughter and as such, she did not exchange her feelings on that day. Further on 14.03.2007 at about 10.45 p.m., accused called to the mobile phone of her son and intimated that her daughter Veena has committed suicide and asked them to come to Kollegal. He did not reveal any details properly and when they called back, he did not respond to the call. Thereafter, they went to Kollegala in a car. At about 1.30 p.m. in the midnight they were taken to P.G.Palya and there the accused and his other relatives brought the body of her daughter in a Tata Sumo vehicle and took inside the house. When she asked as to why deceased committed suicide, accused told that she had become pregnant. As they did not wanted a child, for that reason, she has committed suicide. Accused had told that deceased committed suicide by locking the door and by breaking open the door, body was removed. At that time, she did not suspect the accused and subsequently, after she came to know that because of ill-treatment and harassment meted out to her, her daughter has committed suicide, she went to the police station and filed the complaint as per Ex.P1. During the course of cross-examination, she has admitted that earlier it was decided to perform the marriage in ‘Guru Nanjappa choultry’, but because of financial difficulty, marriage has been performed in the choultry belonging to the joint family of her first son-in-law free of cost.
She has further deposed that after the marriage of the deceased till her death no complaint has been filed before the police. The burial was made by taking procession in the village and she has attended the burial. She has further deposed that her first daughter Hemavathi tried to commit suicide when her maternal family members refused to give them property. Other suggestions have been denied by this witness.
P.W.2 is the resident of P.G.Palya. He has deposed that about 2-3 years back, Bengaluru police exhumed the body and he was not in the village on that day. During the course of cross-examination he has deposed that when the burial was done, mother of deceased, her sister and brother were present and about 300-400 persons were present at the time of burial of the dead body.
P.W.3 is the sister of the deceased. She has also reiterated the evidence of P.W.1.
P.W.4 is the brother of the deceased. He has also reiterated the evidence of P.W.1.
P.W.5 is the seizure mahazar pancha of the marriage invitation card and marriage photographs of accused and deceased, as per Exs.P4 and P5.
P.W.6 is the owner of the house. In her evidence, she has not supported the case of prosecution. But, however, she has deposed that about 8-10 days after the incident accused came to their house and she made an enquiry. At that time, accused told that deceased committed suicide when he had been to work. When he came back and knocked the door, there was no reply, as such, he along with neighbours broke open the door and saw that deceased had committed suicide by hanging. During the course of cross-examination nothing has been elicited.
P.W.7 is the witness to Exs.P6 and P11. He has partly turned hostile.
P.W.8 is the spot mahazar pancha to Ex.P2. He has not supported the case of prosecution and was treated hostile.
P.W.9 speaks about the ill-treatment and harassment said to have been caused by the accused. During the course of cross-examination nothing has been elicited so as to discard his evidence.
P.W.10 is the seizure mahazar pancha to Ex.P6. He has not supported the case of prosecution.
P.W.11 is also witness to Ex.P6. He has also not supported the case of prosecution.
P.W.12 is the witness to spot mahazar and his statement is as per Ex.P12. But, he has not supported the case of prosecution and has been treated as hostile.
P.W.13 participated in the burial. He has deposed that deceased committed suicide by hanging and some people were telling that she died because of heart failure and some were telling that she was not keeping well for a week. This witness has also been treated as hostile.
P.W.14 is the priest who performed pooja of the dead body. He has deposed that the body was brought to P.G.Palya and at the request of elders he performed pooja. At that time, he enquired with the police as to how she died and the villagers told that it is a natural death, but he did not ask the accused as to how she died and as per the rituals, burial was done. This witness has also been treated as hostile.
P.W.15 is the Assistant Director of FSL who conducted the FSL and issued the report as per ExP15.
P.W.16 is the Assistant Director of DNA Centre. He has examined the hairs and other materials sent for examination and has given the report as per Ex.P16.
P.W.17 is the PSI who has sent the requisition to the Assistant Commissioner for exhuming the dead body.
P.W.18 is the Doctor who has examined the materials sent, after exhuming the dead body and he has given his opinion as per Ex.P21 and final report as per Ex.P22.
P.W.19 is the Chairman of the P.G.Palya Gram Panchayat. He has deposed that the body has been brought to P.G.Palya for burial and the body has been buried in the land situate in front of Gram Panchayath office and she has given the certificate as per Ex.P23.
P.W.20 is the Police Constable who carried the seized articles to FSL for chemical examination.
P.W.21 is the Dy.S.P. who received the complaint and conducted part of investigation.
P.W.22 is also the Dy.S.P. who investigated the case completely and filed the charge sheet as against the accused.
9. On a close reading of the material on record, the first and foremost aspect urged by the learned counsel for the respondent is that there is a delay of 7 months in filing the complaint. Though it is contended by the learned High Court Government Pleader that since the accused had threatened the complainant and her family members there is a delay in filing the compliant, in order to substantiate the said fact nothing has been stated in the complaint. As could be seen from Ex.D1, the letter written by the complainant and her son, the brother of the deceased, the deceased and accused were cordial without any differences and they had a son aged about three and half years. Two and half months prior to that date, on 14.3.2007 her daughter by name H.V.Veena Kumari died suddenly and they have received back all the gold articles and other articles given at the time of marriage to the accused and they are not having any suspicion on the accused. Even during the course of cross-examination of P.W.1, she has deposed that she has not filed any complaint about the ill- treatment and harassment to the deceased. She has also deposed that because of financial crisis the marriage which was arranged to be held in Guru Nanjappa Choultry was not performed and it was performed free of cost in the choultry belonging to her first son-in-law. All these materials if taken into consideration, the contention of the complainant that there was an ill-treatment and harassment to the deceased for transferring the site standing in the name of the complainant, appears to be suspicious. The contention of the learned High Court Government Pleader that due to the harassment and ill- treatment she committed suicide by hanging is unacceptable. Be that as it may.
10. Even as could be seen from Ex.P16, the FSL report, it indicates that no poisonous substance or toxic material was found in the body of the deceased. Further, Ex.P22, the opinion of the doctor of the FSL clearly shows that most of the soft tissues including the neck tissues of the deceased were missing and no poison was detected in FSL examination. On going through all the materials, the prosecution has failed to establish the fact that deceased died a homicidal death. Though the learned High Court Government Pleader vehemently argued that P.W.6, the owner of the house has stated in her evidence that accused confessed the fact of deceased committing suicide and if the said confession statement is taken into consideration, it may establish the fact that deceased might have committed suicide by hanging, but does not throw any light to the fact that because of ill-treatment and harassment and instigation made by the accused, she committed suicide by hanging.
11. It is a settled proposition of law that though the statement of the accused could be considered as an extra judicial confession, but it is considered to be very weak piece of evidence unless it is corroborated by substantive evidence. Further, it is also well settled proposition of law that in case of presumption if any doubt arises, under such circumstances, the benefit of doubt should go to the accused.
12. On a close scrutiny of the entire evidence on record, it would not point out the guilt of the accused and the prosecution has failed to establish the fact that the deceased committed suicide because of the intolerable torture and harassment caused by the accused. There are no good grounds to interfere with the judgment of the trial Court. The trial Court has rightly appreciated the evidence and material placed on record and has come to a right conclusion in acquitting the accused. There is no perversity or illegality in the impugned order and as such, it deserves to be confirmed.
Petition being devoid of merits, same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE bkp