IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.1049 OF 2017 BETWEEN:
THE STATE BY POLICE INSPECTOR BANASWADI POLICE STATION, BANASWADI.
REPRESENTED BY STATE PUBLIC PROSECUTOR, BENGALURU – 01. ... APPELLANT (BY SMT.NAMITHA MAHESH, HCGP) AND:
ALISTER JOSEPH S/O ALBERT VERGESE, AGED ABOUT 30 YEARS, R/O MARI ILLAM, NO.H2, L/42, 1ST FLOOR, 3RD BLOCK, BDA LAYOUT, LINGARAJAPURA, BENGALURU – 560 084. ... RESPONDENT THIS CRL.A IS FILED UNDER SECTION 378(1) AND (3) CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 29.11.2016 PASSED BY THE 57TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU IN S.C.NO.1464 OF 2012 – ACQUITTING THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) AND 304(B) OF IPC AND SECTION 4 OF D.P.ACT. THE STATE PUBLIC PROSECUTOR/STATE PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE.
***** THIS CRL.A. COMING ON FOR ORDERS THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT This matter is listed for admission.
2. The State is on appeal against the impugned judgment and order dated 29.11.2016, passed by the 57th Additional City Civil And Sessions Judge, Mayo Hall Unit, Bengaluru in S.C.No.1464 of 2012, whereby the accused is acquitted of the offences punishable under Section-498(A) and 304(B) of IPC and Section-4 of D.P.Act.
3. The accused is the husband of the deceased.
Their marriage was performed on 21.08.2006. The incident is stated to have taken place on 26.07.2012 in the rented house where the accused and the deceased are stated to have been residing together along with their two children, mother-in-law and brothers-in-law. On going through the impugned judgment, we noticed some apparent discrepancies. Hence, the records of the lower court were secured.
4. We have heard the learned Additional State Public Prosecutor appearing for the State and have gone through the records.
5. The case of the prosecution is that after the marriage, the accused was making persistent demand for money from the deceased. Hence being unable to bear the harassment and cruelty meted out by the accused, the deceased was driven to commit suicide. According to the prosecution, the deceased hanged herself to the grill of the window situated in one of the bedrooms of the house. The accused and other inmates of the house having noticed the deceased hanging from the grill of the window using a shawl, removed the shawl and she was immediately taken to the Raju Clinic where she was declared as brought dead.
6. On getting the information, the mother of the deceased PW-1 lodged a complaint on 26.07.2012, at 10.15 p.m., alleging that on account of the demand for dowry and the cruelty meted out by the accused, she committed suicide. After investigation, the charge-sheet was filed against accused under Section-498(A) and 304(B) of IPC and Section-4 of D.P.Act. In the course of the trial, the prosecution examined 13 witness and got marked 13 documents as per Exhibits-P1 to P13. The shawl used for the commission of the offence was marked as MO-1.
7. In rebuttal the accused entered the witness box and examined himself as DW-1 and produced the death note stated to have been written by the deceased in her own handwriting as Exhibit-D1.8.
8. On hearing the learned counsel for the parties, the court below has acquitted the accused on the ground that the prosecution has failed to establish the ingredients of both the offence alleged against the accused.
9. We were really perplexed to know as to how the deceased could have committed suicide by hanging to the grill of the window located in the bedroom of the house. But on going through the spot mahazar, at Exhibit- P2, we have noticed that the said window is fixed at a height of four feet from the floor level. There is no indication of the measurement of the width and height of the window, as a result, the necessary material to arrive at a conclusion as to the possibility of committing suicide by hanging appears to have been withheld by the prosecution.
10. In the postmortem report at Exhibit-P5, it is stated that the deceased was five feet in height. The prosecution has not produced either the sketch of the room or any other details with regard to the measurement of the windrow so as to ascertain whether it was possible for the deceased to commit suicide by hanging herself to the grill of the window as contended by the prosecution. However, the medical opinion is to the effect that the deceased died due to asphyxia consequent to hanging. The postmortem report at Exhibit-P5, the external appearance of the dead body are noted as under:
“External Appearance : Dead body is of a female aged 26 years measuring 5 feet in length rigor mortis is present all over the body. Postmortem hypostasis is present over the back, lips and nail beds are cyanosed. Pupils fixed and dilated.
Ligature Mark : It is present obliquely over upper part of the front side of the neck above thyroid cartilage measuring 17 x 1 cms. It is situated 5 cms from the right mastoid process and 6 cms from the left mastoid process. It runs upwards and backwards towards occipital region and is absent on the back of the neck towards right side. Skin over the ligature mark is dark brown, dry hard and parchment like.”
11. It has come in the evidence of PW-10, the Medical Officer who conducted the postmortem examination that on 10.10.2012, the Investigating Officer had sought for his clarification with regard to the contusion found on the occipital region of the deceased. In reply thereto, PW-10 issued Exhibit-P7 certifying that the said injury could be caused either by fall or on account of hitting against the wall while committing suicide. Thus, the medical evidence is to the effect that the deceased committed suicide. But during the course of the trial, the daughter of the deceased who has been examined as PW-7 has stated that on the night of the incident she was sleeping along with the deceased, at that time, at about 1 p.m. the accused assaulted the deceased and took her to the bedroom. This evidence is wholly contradictory to the case of the prosecution. But in the cross-examination, PW-7 has stated that she was tutored to say so by her maternal aunt and in that context the trial court has disbelieved the version of the child witness, PW-7 and having relied on the medical evidence has held that the case is purely of suicide.
12. So far as the cruelty meted out to the deceased, the trial court has relied on the evidence of the parents and the sister of the deceased. Even though these witnesses have stated that after the marriage, the accused was pestering the deceased for money and on number of occasion, the father of the deceased PW-3, had paid Rs.2,000-3,000 and on one occasion Rs.20,000/-. It has been brought out in the cross-examination that the marriage of the deceased and the accused was performed against the wishes of the parents of the deceased. It has come in the evidence that at the time of the marriage, the deceased was pregnant for seven months. PW-1 and PW-2, who are mother and sister has unequivocally admitted in the evidence that none of them attended the marriage. In the said circumstance, the contention of the prosecution that there was demand of dowry at the time of marriage or subsequently cannot be believed. Even as per the say of PW-3, that after his retirement the accused demanded money for purchase of a car, has not been substantiated by any documentary or other acceptable evidence. Thus, even the theory of cruelty has been disbelieved by the trial court.
13. Even on reappreciation of the evidence, we do not find any reason to differ with the view taken by the trial court, except that we find that the Investigating Officer has not been examined and right from the inception an attempt has been made to withhold the crucial evidence as noted above. The brother of the accused who is stated to have shifted the deceased to the hospital has not been examined. But having regard to the over all facts and circumstances noted above, we are of the opinion that the findings recorded by the trial court do not call for any interference. The prosecution having failed to establish that the deceased was subjected to cruelty in the matrimonial home either on account of the demand for dowry or any other domestic reason, we do not find any justifiable reason to take a different view than the one taken by the trial court. Hence, we do not find any justifiable reason to admit the appeal.
14. Moreover, this appeal is preferred against an order of acquittal. We do not find any legal infirmity or perversity in the impugned order warranting re-appraisal of the evidence, based on the material produced by the prosecution. Hence, we do not find any justifiable ground to entertain this appeal. Accordingly, the appeal is dismissed at the admission stage itself.
SD/- SD/-
JUDGE JUDGE JJ