IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 9TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.720 OF 2013 BETWEEN:
THE STATE OF KARNATAKA BY YELAHANKA UPA NAGAR POLICE BENGALURU. ... APPELLANT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR - 2) AND:
DR. PRAVEEN @ PRAVEEN KUMAR SON OF KRISHTIAH AGED ABOUT 38 YEARS RESIDING AT NO.1226, 8TH ‘B’ CROSS 2ND STAGE, YELAHANKA UPA NAGARA BENGALURU-560 064. ... RESPONDENT (BY SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR SMT. RENY SEBASTIAN, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 10.01.2013 PASSED BY THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-
XIV, BENGALURU IN SESSIONS CASE NO.1156 OF 2010 – ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 304B OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.06.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed against the judgment of acquittal dated 10.01.2013 passed in S.C. No.1156/2010 on the file of Additional Sessions Judge, Fast Track Court-XIV, Bengaluru City.
2. The factual matrix of the case is that; the marriage of the deceased – Dr.Padmaja - daughter of P.W.1 was solemnized with the accused on 14.02.2004.
At the time of marriage, gold ornaments weighing 39 grams were given to the accused and the gold ornaments weighing about 300 grams were given to the deceased – Dr.Padmaja as a dowry. After the marriage, the deceased – Dr.Padmaja and accused started to lead married life in Bengaluru City. During the said stay, the accused started demanding additional dowry and on that ground, he was giving physical and mental torture to the deceased continuously. Being fed-up with the same, the deceased on 25.06.2010 between 09.00 a.m. to 12.00 noon committed suicide by hanging to ceiling fan. Hence, police have filed the charge sheet against the accused for the offence punishable under Section 304-B of Indian Penal Code. During the course of trial, an application under Section 216 of Cr.P.C was filed by the Public Prosecutor to invoke under Section 498-A of Indian Penal Code and additional charge was framed for the offence punishable under Section 498-A of Indian Penal Code.
3. The prosecution, in order to prove guilt of the accused, examined P.Ws.1 to 22 and got marked Exs.P.1 to 41 and material objects M.O.Nos.1 to 4. Thereafter, the accused was examined under Section 313 of Cr.P.C and accused did not choose to lead evidence. The learned trial Judge after hearing the arguments of Public Prosecutor and learned counsel for the accused, acquitted the accused of the charges leveled against him.
4. Being aggrieved by judgment of acquittal, the present appeal is filed and in the appeal memorandum, it is contended that judgment of acquittal is not sustainable in the eye of law. P.W.1 is the father of the victim and P.Ws.2 and 3 are the brothers of the victim and in their evidence, they have specifically stated about the demands made by the accused and also subjected her for physical and mental cruelty. The Court failed to visualize the entire evidence. P.W.4 is the spot mahazar witness. P.W.5 is the inquest mahazar witness. P.Ws.7 to 10, 12 and 13 concur with the evidence of prosecution corroborating the ingredients of the charges. P.W.11 is the goldsmith, who supplied the jewelry at the instance of P.W.1 for the purpose of marriage of the victim with the accused.
P.W.14 being the Taluka Executive Magistrate, conducted the inquest. P.W.15 is the Medical Officer, who issued the Postmortem Report as per Ex.P.33. P.Ws.16 to 22 are the Police Officials, who have investigated the matter and filed the charge sheet. The Court below failed to consider these materials and P.W.6, though turned hostile, her evidence establishes physical and mental cruelty as against the victim at her matrimonial home. The factum of cruelty and demand are not disputed by the relatives of the victim. In spite of the same, the Court below passed the order acquitting the accused. Hence, it requires interference of this Court.
5. Sri.I.S.Pramod Chandra, learned Additional State Public Prosecutor in his arguments, vehemently contended that suicide has taken place in the house of the accused. P.Ws.1 to 3 and 10 supports the case of prosecution with regard to cruelty. P.Ws.7 and 9 have spoken that they have advised the accused not to harass the deceased. In spite of these materials available on record, the Court below has committed an error in appreciating both oral and documentary evidence and prayed this Court to reverse the finding of the trial Court and convict the accused for the charges leveled against him.
6. Per contra, learned counsel appearing for the respondent/accused would contend that there is no proximity in the evidence that the deceased was driven to take a decision of committing suicide and nothing on record shows that she was subjected to harassment. Ex.P.29 is the note maintained by the deceased herself, which refers that she was suspecting that her husband was having illicit relationship with staff nurse. On the date of incident, no quarrel had taken place between the deceased and the accused and no injuries are found on the body of the deceased. The learned trial Judge at para 26 of the judgment elaborately discussed the evidence of the prosecution witnesses and has rightly come to the conclusion that there was no material to bring the accused within the charges framed against him. Hence, there are no grounds to interfere with the judgment of acquittal. Accordingly, he prayed this Court to dismiss the appeal.
7. Having heard the arguments of learned Additional State Public Prosecutor appearing for appellant-State, learned counsel appearing for the respondent-accused and having considered the material on record, the points that would arise for our consideration are:
1. Whether the Court below has committed an error in acquitting the accused for the offence punishable under Section 498-A of Indian Penal Code?
2. Whether the Court below has committed an error in acquitting the accused for the offence alleged against him under Section 304-B of Indian Penal Code?
Point No.1:-
8. The prosecution mainly relies upon the evidence of P.Ws.1 to 3, who are the father and brothers of the deceased and also the evidence of P.Ws.7 to 10 who participated in the reception on the next day of marriage.
P.W.10 is the servant who worked for 10 days in the house of the accused and the deceased. The other witnesses are formal witnesses i.e., Executive Magistrate who conducted the inquest and P.Ws.16 to 22 are the Police Officials who conducted the investigation and other mahazar witnesses. The charges leveled against the accused is for the offences punishable under Sections 498-A and 304-B of Indian Penal Code.
9. In order to prove the charges, we have already pointed out that P.Ws.1 to 3 and 7 to 10 are the material witnesses. Before going to the evidence, we would like to make a reference in respect of the contents of complaint, which is marked as Ex.P.1 given by the father of the deceased, who has been examined as P.W.1. In the complaint, it is stated that marriage was performed at Anantapur in February, 2004 and thereafter, they came to Bengaluru for reception. The family members of the accused ignored to guide the family members of the deceased to reach the reception place. In this regard, the father of the deceased quarrelled with the parents of the accused. It is also alleged that thereafter the accused and his parents started harassing her daughter demanding huge money from P.W.1. His daughter herself used to advise him not to part with money since she was well qualified. In the meanwhile, both of them have joined PG Course at Kolar. They were not happy together since he was subjecting the daughter to both physical and mental torture. One day, when she was severely beaten, she called him and her brother – Mr.Suresh, who stay at Bengaluru. Immediately he rushed to Kolar to bring back the deceased. There, his brother was subjected to assault by accused and his gang in the presence of his father – Krishthia. It is his further allegation that his daughter reached his house and refused to return to Kolar. He further says that accused was doing Post Graduation course of three years duration. He planned to send his daughter for two years fellowship and she joined at Araivind Eye Hospital at Madurai and accused never visited to see his daughter. The relationship was strained. After completion of her fellowship education, she joined her husband in December 2009 and both started to live together at Yelahanka and there also she was subjected to harassment. In the meanwhile, parents of the accused went to USA without informing the same. They planned to commit the murder. The daughter also told that accused is having illicit relationship with staff nurse and used to come late. Once when he visited daughter’s house, she has shown the marks of physical torture and she was waiting for the arrival of parents of accused. In the meanwhile, she was fed up with harassment. On seeing the body hanging from the ceiling fan, he suspected the fowl play of the accused and lodged a complaint that he has committed the murder.
10. Based on the complaint, police have registered the case for the offences punishable under Sections 302 and 304-B of Indian Penal Code. The Police after investigation and obtaining the report particularly based on the Postmortem Report, which is marked as Ex.P.33, filed the charge sheet for the offence punishable under Section 304-B Indian Penal Code . During the course of trial, when the application is filed for altering the charge for the offence punishable under Section 498-A and the same was invoked.
11. Firstly, before appreciating the evidence, we would like to mention here that in terms of Ex.P.33 – Postmortem Report, the Doctor has opined that the cause of death was due to Asphyxia consequent to hanging and the same has not been disputed. During cross- examination of doctor, who has been examined as P.W.15 has also not disputed the cause of death. Hence, it is clear that death was due to asphyxia consequent to hanging.
12. Now, we would like to re-appreciate the evidence with regard to, whether the deceased was subjected to harassment and whether it attracts Section 304-B of Indian Penal Code. No doubt, death has occurred within seven years of the marriage. Under Section 113-B of the Indian Evidence Act, 1872, there is a presumption that when the death is taken place within 7 years, dowry death must be presumed.
13. Now, let us appreciate the evidence regarding harassment. P.W.1 who is the father, in his evidence, he says on the very next day of the marriage, trouble has started. The family members of the accused did not communicate the place of reception and also he claims that he gave gold ornaments worth Rs.2,00,000/- to his daughter and also gave a ring and chain to the accused. He also says that on the very next day of reception, ill-will had developed. He has given the details with regard to both of them pursuing their education after marriage. Further, she was sent for delivery in a bus alone without informing. Thereafter, they did not come to see the child when she gave birth to a child on 28.03.2006. After some days, they came to see the child and stayed in a hotel for two days. It is also his evidence that one day when they were staying in Kolar pursuing their education, the accused had stamped with boot leg to his daughter. At that time, she had called her brother P.W.2 who was staying in Bengaluru. When P.W.2 came, accused and his gang members assaulted him. She also joined for fellowship at Madurai and after completion of their education, they came and stayed at Yelahanka house. There also she was subjected to harassment. The daughter was telling that he had developed illicit relationship with staff nurse and came late to the house. He had given assurance that he will come and talk to them. In the meanwhile, he came to know that she committed suicide on 25.06.2010. Then he gave the complaint and police have investigated the case. In his cross-examination, he admits that Exs.P.23 and 29 were in the brief case of his daughter and the same was found when they searched for any death note. He also says that he gave Exs.P.23 and 29 and take back the same from the Inspector. He admits that only after going through Exs.P.23 and 29 only he came to know about the accused having illicit relationship with other lady. He admits that before giving the complaint, he had read Exs.P.23 and 29 but, he did not mention the same in the complaint in order to produce the same before the Court. Again, he says that his daughter called in the month of March and informed that her husband is having relationship with other women. One month prior to taking the esteem step of committing the suicide, he admits that both of them were there in Kurnool in a rented house. Both of them were cordial when they were at Kurnool and thereafter, they came back to Yelahanka. He admits that when his daughter was in Yelahanka, he was depositing money in terms of Exs.P.25 to 28 and the said amount was deposited in June and February and also he deposited the amount to the account of his daughter at Anantapur Bank. Further, he admits that amount was given to his daughter just five days prior to committing the suicide. He further admits that his daughter used to come to house at around 6.00 p.m. and does not know the timings of her husband.
He claims that his daughter was telling not to pay any amount to accused. Further, he admits that his daughter did not ask any amount to the accused. In the cross- examination, suggestions are made that he did not make particular statement before Police regarding harassment and the same is denied. He further admits that in the complaint and in the statement, he did not mention anything about Exs.P.23 and 29.
14. P.W.2, in his evidence, says that they gave golden ornaments at the time of marriage and his sister was telling that accused was making galata with her and his evidence is also in the line of the evidence of P.W.1. During the cross-examination, it is elicited that he did not go to Kolar when his sister and accused were there in Kolar. He also admits that for a period of two years both of them were there in Kurnool and during the said time also, he did not visit Kurnool. He admits that when the accused was coming late to house, his sister was suspecting that he was having relationship with some other lady. He further admits that when he went to the house of his sister they found Exhs.P23 and P29 within 10 minutes which was given to Police. The Police have examined and returned the same to them. He admits in the cross-examination that while making statement before the Police he did not make any statement that the accused and their family members did not demand any dowry. He claims that they have given ring, chain and agreed to perform the marriage with their expenses. Throughout the cross-examination suggestions are made that the evidence which he has given before the Court was not stated either before the Tahsildar or with the Police and those suggestions are denied. He further admits that Exhs.P23 and 29 were found prior to giving complaint. Himself, his brother and father read the contents of the said document and then only they came to know about the accused having relationship with some other lady and his sister was suspecting the same.
15. P.W.3 is also another brother of P.W.2. In his evidence also he reiterates the evidence of P.Ws.1 and 2. He was subjected to cross-examination. In the cross- examination, he says about the Reception which was conducted on the next day. After the said incident, there was ill-will between his father and father of the accused. He does not know about the marriage talks. He also visited when his sister was in Kolar. After she came from Madurai, he did not visit the house of his sister. He admits that the deceased was quarreling with the accused suspecting that he had illicit relationship with other lady and the same was informed five months prior to her death. In the cross-examination of P.W.3, it is suggested that he did not make any statement before the Police or the Tahsildar in the line of evidence which he has given in his chief evidence and the said suggestion was denied. He admits that Exhs.P23 and P29 were seen in the house of his sister. It is suggested that his sister did not complain anything about the harassment and demanding of additional dowry.
16. P.W.4 is the mahazar witness in respect of Ex.P2 and P.W.5 is inquest mahazar witness. Their evidence is not material since there is no dispute with regard to cause of death of the deceased. P.W.6 is the servant who was working in the house of the deceased and the accused and she did not support the case of the prosecution and she claims that both were cordial. She was getting the salary from the accused. She only noticed the body in the hanging position. She informed the same to the neighbours and also to the husband. In the cross-examination, a suggestion was made that both the husband and wife were quarreling for trivial issues and the same has been denied. It is further suggested that on the previous day also, both of them quarelled and she denied the same.
17. P.W.7 is the Lab Technician working with P.W.1. He says he has attended the Reception after the marriage. He says that there was galata between P.W.2 and the accused at Kolar and they pacified. They have not given any complaint. In the cross-examination, he admits that he does not know whether they were residing in Bengaluru. He did not visit the house of Suresha-P.W.2.
He claims that P.W.1 was invited to go to Kolar.
18. The other witness is P.W.8 who is the friend of P.W.1. He also says that he attended the Reception and there was a galata in the Reception. In the cross- examination, a suggestion was made that no such incident had taken place in the Reception, the same was denied.
19. P.W.9 is also having acquaintance with P.W.1.
He says that when the daughter of P.W.1 informed about ill-treatment, he called to go to Kolar. He says accused went to assault P.W.2 and pacified both of them. In the cross-examination he says that he cannot tell how long they were in Kurnool. Thereafter at Kolar and also at Madurai. He says that he witnessed the incident of assault made to P.W.2 by the accused.
20. P.W.10 claims that he went to Madurai along with the deceased. She was there for about 12 days and during that time, there was a quarrel between the accused and the deceased. She claims that deceased was subjected to harassment. She further claims that only herself, her husband and child were there in the house and none visited the house from the family of the deceased. In the cross-examination, when they came to Bengaluru, the galata has taken place. She further admits that the deceased was not going to any work when she came back to Bengaluru. Only accused was returning to house at 4 p.m. and he used to leave the house at 8 a.m. in the morning. The other witnesses are formal witnesses.
21. Now let us consider the evidence of P.Ws.1 to 10. The main witnesses are P.Ws. 6 and 10. P.W.6 claims that they were cordial and there was no quarrel between them as against that P.W.10 says that they used to quarrel with each other at Madurai. When they came back to Bengaluru, galata started and P.W.10 also says that only the accused was attending duty and the deceased was not working. This evidence is against the evidence of all other witnesses and no incriminating evidence from the mouth of P.W.6. The evidence of P.W.10 cannot be believed, since she stayed only for a period of 12 days in the house of the accused and the deceased as claimed by her. P.W.10 says that the deceased was not working. But the evidence of other witnesses show that she was also working. Hence the evidence of P.W.10 cannot be accepted regarding harassment. The other witnesses are P.Ws. 7 to 9 who are working with P.W.1 and also having acquaintance with P.W.1 and their evidence is also that the accused subjected the deceased for harassment. They went to Kolar and also participated in the panchayath and advised the accused. It is further important to note that they say an incident that has taken place when they visited Kolar viz., the accused assaulted P.W.2. It is pertinent to note that P.W.2 has not spoken anything about the incident of assault made to him when he went to Kolar. It is further important to note that P.W.2 in the cross-examination categorically admits that when his sister was in Kolar, he did not visit Kolar. Hence the evidence of P.Ws. 7 to 9 is not credible with regard both mental and physical harassment. The evidence appears to be an improvement.
22. Now the question before the Court is with regard to the evidence of P.Ws.1 to 3. P.W.1 is the father, P.Ws. 2 and 3 are brothers of the deceased. It is emerged in the evidence that no demand was made at the time of the marriage for dowry and also for giving jewels. However, P.Ws.1 to 3 say that they gave chain and ring and the evidence disclose that they did not demand the jewels and the dowry, it is only a customary practice that they have given the same. P.Ws. 1 to 3 claim that the accused was having illicit relationship with the Staff Nurse which was suspected by the deceased. The deceased used to tell the same and the same was informed five months prior to her death. P.Ws.1, 2 and 3 have categorically admitted in the cross-examination that when they have seen Exhs.P23 and 29 then only they came to know about the illicit relationship and hence the very evidence of P.Ws.1 to 3 that the deceased informed about the illicit relationship with the Staff Nurse prior to her death is doubtful.
23. On perusal of Exhs.P.23 and 29 no doubt the recitals disclose about suspecting the accused by the deceased about the illicit relationship. Regarding the harassment is concerned, no material is placed before the Court to come to the conclusion that there was harassment. Records disclose that after the marriage, she went to Kurnool for her further education and accused also joined her. He was studying to join the P.G.course at Kurnool. P.Ws.2 and 3 have categorically stated that they did not visit Kurnool and they cannot say any harassment between them. P.W.1 also claims that he gave money to his daughter and no material is placed regarding the payment made to the accused by P.W.1. The fact that the deceased also pursued her education after the marriage is not in dispute. P.W.1 made the payment. No one says that the accused demanded money from P.Ws. 1 to 3.
P.W.3 categorically admits that whatever payment he made that was in 2010 and also payment was made when she was in Ananthpur. P.W.1 also admits that when they were in Kurnool both of them were cordial. P.Ws.1 to 3 say that the deceased was suspecting that her husband was having illicit relationship with another woman. P.W.6 was working with the accused and deceased is not in dispute. P.W.1 also admits the same. P.W.1 claims that she is the relative of the accused, but nothing is suggested in the cross-examination of P.W.6 that she is the relative. She is the witness who was staying along with the accused and deceased at the time of death of the deceased. She has not spoken anything about the harassment, she claims that all were cordial. It is pertinent to note that Exhs.P23 and 29 though found before giving the complaint, the same was not given to the Police. They claim that the Police after seeing, returned the same. I have already pointed out that P.W.2 did not say anything about the assault made by the accused when he visited and instead he admits that he did not visit Kolar. A person who was subjected to assault should say that he was assaulted and the same is not been forthcoming in his evidence. It is also pertinent to note that it is not the case of the prosecution that galata had taken place between the accused and the deceased either on previous day or on the date of the incident. There is no material before the Court and no proximity which has driven the deceased to commit suicide. The evidence which has been emerged clearly shows that she was having doubt against her husband that he is having illicit relationship with the Staff Nurse. None of the witnesses have been examined with regard to this aspect. With regard to the suspicion which was in the mind of deceased appears to have lead her to take the extreme step of committing suicide. In order to drag the accused for the charges under Section 304-B and also for 498-A there must be sufficient evidence. P.Ws.1 to 3 are the relative witnesses. No doubt relative witnesses evidence cannot be discarded, if it inspires confidence in the Court. P.Ws. 7 to 9 who have been examined though supports the case of the prosecution, their evidence does not inspire the confidence of the Court. They are the employees of P.W.1 and they are having acquaintance with P.W.1.
24. Based on these evidences, this Court cannot come to the conclusion that there was harassment and the deceased was driven out to take a extreme step of committing suicide. The Court below while appreciating the evidence available on record meticulously considered the evidence of both the oral and documentary evidence and has come to the right conclusion that there is no material to convict the accused for the charges levelled against him. At the first instance there was no allegation of harassment and it discloses that at the time of evidence the harassment was introduced as an after thought. Only after recording the evidence that too on the application of the Prosecutor, charges have been framed for the offence under Section 498-A. It is further pertinent to note that P.W.1 while lodging the complaint alleged that the accused committed the murder. Based on the PM report Ex.P33, charge sheet has been filed only for the offence under Section 304B of Indian Penal Code. It appears P.W.1 made all his effort to bring home the guilt of the accused. In order to invoke Section 304B, there is no material. The evidence clearly discloses that after the marriage both husband and deceased have pursued their further education and they were staying in different places like Kurnool, Kolar, Madurai and thereafter have stayed in Bengaluru. None of the neighbouring witnesses have been examined in order to prove the harassment.
25. Hence, we are of the opinion that we do not find any reasons to reverse the finding of the trial Court to come to the conclusion that the learned trial Judge has committed an error in appreciating the evidence.
26. In view of the discussions made above, the Criminal Appeal stands dismissed.
Sd/- Sd/-
JUDGE JUDGE akc/st/nbm