IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.977/2014 (C) BETWEEN:
SULEMAN S/O. ABDUL REHAMAN AGED 29 YEARS R/O KUNIGANAHALLI VILLAGE SAKALESHAPURA TALUK HASSAN, KARNATAKA-573 134 ... APPELLANT (BY SRI PRATHEEP K.C., ADVOCATE) AND:
STATE OF KARNATAKA BY SAKALESHAPURA RURAL POLICE REP. BY ADDL. PUBLIC PROSECTOR ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 28/30-1-2014 PASSED BY THE ADDITIONAL SESSIONS JUDGE, HASSAN, IN S.C. NO.150 OF 2011, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHALBE UNDER SECTION 304(B) OF IPC AND SENTENCING HIM TO UNDERGO LIFE IMPRISONMENT FOR THE SAID OFFENCE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is preferred by the accused (appellant herein) against the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Hassan, in Sessions Case No.150 of 2011, vide judgment dated 28-1-2014, convicting the appellant - accused for the offence punishable under Section 304(B) of the Indian Penal Code (for short, ‘IPC.’) and sentencing him to undergo imprisonment for life.
2. The appellant/accused was charged for the offences punishable under Sections 304(B) and 302 of the IPC by the respondent – Police while filing the charge-sheet before the committal Court. After committal proceedings and after securing the accused, the trial Court framed the charges against the accused for the offences punishable under Sections 304(B) and 302 of the IPC. The trial Court has tried the accused for the above said offences and convicted and sentenced him accordingly, as noted supra.
3. The prosecution in all examined as many as 30 witnesses as P.W.1 to P.W.30 and got marked 21 documents as Ex.P.1 to Ex.P.21 and material objects i.e., M.O.1 to M.O.4. The accused was also examined under Section 313 of Code of the Criminal Procedure, but he has not taken any special defence. It is only his defence that, he was not responsible for the death of the deceased and it was an accidental fire death due to stove burst in the house. He has also examined D.W.1, Jubedha, his mother on his side. After considering the entire oral and documentary evidence on record, the trial Court has convicted the accused for the offence punishable under Section 304(B) of the I.P.C. and sentenced him accordingly.
4. Learned counsel for the appellant has contended that, though the witnesses examined before the Court are all kith and kin of the deceased and none of the neighbours have supported the case with regard to demand of dowry, even accepting the evidence of the relatives, there is no material to show that there was any demand of dowry, cruelty and harassment soon before the death of the deceased. The story projected by the prosecution on the date of the incident that, the deceased, being frustrated in life, was proceeding to matrimonial home to catch a bus in the bus stand, at that time, the accused assaulted her and taken her back to his home. He submits that, this particular incident has not been proved before the Court, therefore, there is no satisfactory or adequate evidence before the Court, which is acceptable one to draw an inference that, there was ill-
treatment and harassment by the accused to the deceased in demand of money as dowry, therefore, Section 304(B) of the I.P.C. is not attracted.
5. Even if the Court accepts that, some evidence is available on record to prove that, there was demand of money or dowry, but there is no sufficient evidence to hold that, there was any cruelty or harassment soon before the death of the deceased. Therefore, at the most, the alleged offence attracts Section 498A of the I.P.C. He further submitted that, the accused has already undergone more than seven years of imprisonment. Therefore, even if he was convicted for the offence punishable under Section 498A, he may be released forthwith considering his detention in jail as punishment for the said offence. Therefore, he pleaded for allowing the appeal or reducing the sentence passed by the trial Court.
6. Learned Additional State Public Prosecutor has submitted before the Court that, the consistency of the evidence in the prosecution witnesses with regard to demand of dowry right from the date of marriage and thereafter shows that, there was continuous taunting and harassment by the accused in demand of dowry. Though there is some gap in between the demand and death of the deceased, that is not sufficient to draw an inference that, there was no cruelty or harassment in demand of dowry soon before the death of the deceased. There is no explanation by the accused as to why the deceased has to commit suicide in the house of the accused. The cumulative effect of entire the evidence on record discloses that prosecution has proved the case beyond all reasonable doubts, for the offence punishable under Section 304(B) of the I.P.C. Therefore, he submitted that there is no reason to interfere with the judgment of conviction and order of sentence passed by the trial Court.
7. Before adverting to the above said rival contentions raised before this Court, we feel it just and necessary to have a brief cursory look at factual matrix of this matter and the evidence of the prosecution witnesses.
8. There is no dispute that the deceased, Smt.
Afsatha, was given in marriage to the accused on 13-8- 2009 as per the Muslim rites and customs at Badriya Jumma Masjid, Kagadi Katte, Somwarpet Taluk in Madikeri District. It is alleged that, at the time of marriage, there was a demand of dowry of Rs.1,25,000/- and 80 grams of gold in consideration of the marriage. Accordingly, gold and cash amount were given. After the marriage, the husband and the wife lived happily for sometime. After two months of the marriage, it is alleged that, the accused started demanding for further amount from the deceased and in turn, she was informing to her parents as well as to her brothers to adjust the money. In this context, it is the specific allegation that, on 10-12-2009, an amount of Rs.5,000/- was given. Again on 15-12-2010, an amount of Rs.3,000/- was given and on 23-4-2011, an amount of Rs.50,000/- was again given by P.W.1 by selling his car. In spite of that, the accused did not desist himself from demanding further amount and continued to harass and ill-treat the deceased in cruel manner.
9. In this backdrop Particularly, on 23-5-2011, being frustrated in life, the deceased wanted to go back to her parental house, therefore, she went to the bus stand and there also, the accused assaulted and ill- treated her and brought her back. Soon after return the deceased had committed suicide by pouring kerosene on herself in the house of the accused. The suicidal death was only because of the cumulative effect of demand of dowry by the accused. In spite of the relatives of the deceased have paid so much of money, ill-treatment did not stop. Therefore, the deceased, being fully frustrated in life, within seven years of marriage, committed suicide. Therefore, P.W.1, in this context, after death of the deceased lodged a complaint and Police have investigated the matter and led the charge-sheet.
10. The evidence of the prosecution witnesses discloses that P.Ws.1 and 2 are the brothers of the deceased. P.W.3 is the sister. P.W.4 is the mother, P.Ws.5 to 7 and P.W.23 are close relatives of the deceased and they have categorically stated with regard to marriage taken place between the accused and the deceased and 80 grams of gold has been given and an amount of Rs.1,25,000/- paid in consideration of the marriage and further, they have also spoken about the ill-treatment and harassment given by the accused to the deceased, in demand of dowry. P.W.8, was a Grama Panchayat President, examined with regard to payment of Rs.3,000/- by P.W.1 and also, who saw the dead body of the deceased burning. P.W.9 has also seen the burning of the deceased and P.W.10 also spoken similarly about the said fact. P.W.11, jewelry shop owner, in fact, stated that P.W.1 got a gold jewelry prepared for the purpose of marriage of his sister, i.e. wife of the accused.
P.W.12 has seen the deceased burning and also the dead body, but he also turned hostile for the prosecution.
P.W.13 is the person, who performed the marriage of the accused and the deceased as a Khazi. P.W.14 is the person, who printed the marriage invitation card of the deceased and the accused. P.W.15 is the marriage mediator, who was examined to establish not only the marriage of the accused and the deceased, but also the conduct of the accused, but he has also not supported the case of the prosecution. P.W.16, is the witness to EX.P.2. He has supported the case of the prosecution and he has stated that, in his presence, M.Os.1 and 4 have been seized by the Police, which are a kerosene can and a black burka partially burnt, but he has not supported MOs.2 and 3 are concerned. The evidence of this witness is not so material because, there is no dispute with regard to the death of the deceased in the house of the accused due to burn injuries. According to the accused, it is due to stove burst, the deceased sustained those injuries. P.W.17 is also a witness to Ex.P.2. He has also supported the case of the prosecution. P.W.19 is the Doctor, who conducted post- mortem examination on the dead body of the deceased. Here itself, we can say that, it is not the case of the prosecution that, the accused has committed the murder of the deceased. It is clear case of the prosecution that, the deceased has committed suicide due to cruelty and harassment by the accused. The evidence of P.W.19 is also supported by the evidence of P.Ws.21 and 22, who are the witnesses to the inquest mahazar drawn on the dead body of the deceased as per Ex.P.17. Invariably all the related witnesses viz., PWs. 1 to 10, PW.12 and PWs.21 to 23 have categorically stated that the deceased died due to burn injuries. Only the crucial point to be considered is that, whether those burn injuries are sustained due to accidental stove burst or self inflicted due to the misconduct or the cruelty by the Accused.
11. PW.19-Dr.Govindaraj has categorically stated that, the death was due to burn injuries and there is no elucidation of facts in the course of cross-examination that, the death might have been occurred due to stove burst. In the course of cross-examination, a suggestion has been put to this witness that, in the case of stove burst, if the kerosene is spurted on the body of the deceased, the injury sustained by the deceased may also be possible. But, as could be seen from Ex.P2 (Spot Mahazar) and the evidence of the witnesses- PWs. 16 & 17, there is no suggestion to these witnesses that, at the time of the police conducting spot mahazar, they found any burnt or damaged stove in the house of the Accused, in order to support the defence of the accused.
Therefore, in our opinion, this is a superfluous defence taken by the accused. There is absolutely no probability of stove burst in the house of the accused, so that the deceased could sustain burn injuries due to stove burst. But. the fact remains that the accused has not denied the death of the deceased due to burn injuries. Therefore, the prosecution case is fully probabilised that, the death of the deceased was due to burn injuries and even all the related witnesses have stated that, due to ill-treatment and harassment, the deceased poured kerosene on herself and lit fire. Therefore, the prosecution has established the suicidal death of the deceased in this case.
12. PW.20-Abdul Khadar is a panch witness to Ex.P3, under which the police have recovered the marriage invitation card and jewels purchased receipt as per Ex.P5. Both PWs.18 and 20 have spoken about the said aspect of recovery. In connection with the said recovery, the Mahalakshmi Jewellary Shop owner was also examined as PW.11 (Ganapath). PW.11 has stated that, PW.1 has got prepared some jewellaries weighing 88 Gms.. for the purpose of the marriage of the deceased and the accused and the jewellary bill (Ex.P5) also supports the said evidence. The said gold articles were given in marriage as consideration, is also supported by the evidence of the brothers, sister, mother and relatives of the deceased viz., PWs. 1 to 7. Therefore, we have no doubt with regard to demand of some money at the time of marriage and giving of some gold jewelleries in consideration of the marriage. The learned counsel has submitted that, the said articles were given in marriage not as dowry, but as religious gifts by the parents of the deceased. He has also brought to our notice Ex.P6, which is the Marriage Register Extract and submitted that, at the time of execution of the said document, the accused had also given a gold Necklace to the deceased. The evidence of the prosecution witnesses consistently show that, there was demand of Rs.1,25,000/- and receipt of the same, and also gold articles in consideration of the marriage. Therefore, there is no need for us to discuss in detail sofar as these aspects are concerned.
13. PW.24 –Mohan is a formal witness, who carried the FIR to the jurisdictional Court; PW.25-Kala Krishnaswamy was working as Dy.S.P., who recorded the statement of PWs. 2 & 3; PW.26-Raju M.N. is the PSI, who registered a case on the complaint lodged by PW.1 and dispatched the FIR to the jurisdictional Court; PW.27-K.L. Ganesh is the Investigating Officer, who conducted the spot panchanama as per Ex.P2 and seized MOs. 1 to 4; PW.28- Upendra is the Investigating Officer, who after completion of the investigation, laid a charge sheet; PW.-29-K.Mathai is the Tahsildar, who conducted inquest on the deceased; PW.30-P.Mallesha is the Scientific Officer, who issued the FSL report.
14. DW.1-Smt. Jubedha is no other than the mother of the accused.
15. On careful evaluation of the evidence, we have noticed that, the main witnesses are PWs. 1 to 7 and out of them, PWs. 1 to 4 are close relatives of the deceased. They have categorically stated about the marriage of the deceased and the accused. Particularly PW.1 has stated that, on three occasions, he has paid money to the accused on demand made by him and he has also stated that, the accused has been ill-treating and harassing the deceased in demand of money, even after the marriage. It is the specific case of PW.1 that, on 15.12.2010 he paid a sum of Rs.3,000/- and he paid Rs.5,000/- on 23.04.2011 and thereafter, he paid a sum of Rs.50,000/-. In the course of cross-examination, so far as these aspects are concerned, a suggestion was made to PW.1 that, he has not maintained any receipt or photograph while paying the said amounts particularly a sum of Rs.1,25,000/- and gold articles prior to the marriage and payment of Rs.3,000/- Rs.5,000/- and Rs.50,000/- subsequent to the marriage. It is very difficult to accede to the said cross-examination, because no person will maintain such accounts which has been paid with a fond of hope that the family of the deceased and the accused would set right in future and the accused may give a good life to his wife and he will look after her with all love and affection. When such was the mentality of the relatives of the deceased, no body can expect that such a situation may arise in future so as to keep any evidence. Therefore, no person can maintain the receipt for having paid such amount, as they are close relatives of him. Therefore, even in the absence of any documents to support the evidence of the close relatives, particularly the sisters and brothers, on that ground alone their evidence cannot be brushed aside. The other relatives viz., PWs. 5 to 7 in fact, to some extent supported the evidence of PWs. 1 to 4 with regard to payment of dowry and further demand of dowry to the accused and in that context, there was ill-treatment and harassment by the accused.
16. What could be gathered from the evidence of these witnesses is that, there was demand of dowry in the form of cash by the accused for the purpose of constructing a house and for other purposes. It is also the case of the prosecution that, the accused was addicted to alcohol and he neither taking care of his family nor bringing house-hold articles to his house and on various occasions, the house-hold articles were also supplied by PW.1 and others. Of course, there was a serious cross-examination sofar as payment of Rs.50,000/- by PW.1 by selling his car. Admittedly, PW.1 has not produced any material to show that, he owned a car and sold the same and paid Rs.50,000/-, out of the sale consideration. Even accepting that the said amounts have been paid, the amount appears to have been paid lastly on 23.04.2011 ie., about a month prior to the date of the alleged incident. For the purpose of establishing that soon before the death of the deceased there was a demand, the payment of the said amount on the last occasion was on 23.04.2011, as stated by PW.1 himself and which is also to some extent supported by the other witnesses.
17. In the evidence of PWs. 1 & 2, they have categorically stated that, after last payment noted above, ie., payment of Rs.50,000/-, for a period of one month, the deceased was talking with PW.1. But, in the course of examination-in-Chief or in the cross-examination, he never stated about, during that period of conversation, whether the deceased has complained against the accused, that he further demanded any amount and for that reason, the accused ill-treated and harassed the deceased. PW.1 has categorically stated that, though his sister was talking with him every day, but last two days prior to death of the deceased, she did not speak to him and the accused has got deleted the phone numbers and call details in the mobile of the deceased. But, PW.1 has also not produced any material, particularly his phone number and the call details etc. to show that, even after the last demand on 23.04.2011, there were conversations between himself and his sister and in those conversations, she has complained against her husband.
18. Though there is some improvement in the evidence of PWs. 1 to 4 that, on the date of incident, the deceased being frustrated in life, wanted to go back to her parental house, therefore, she was in the bus-stand and accused has scolded and assaulted her in the bus- stand and taken her back. That was the last occasion the cruelty and harassment was alleged to have been adverted to the deceased by the accused. Even it was not spoken to by any of the said witnesses that, if the accused wanted to send her back to her parental house in demand of any dowry or other things, why should he assault her and take her back to his house. This also creates a doubt whether there was payment of the alleged Rs.50,000/- by PW.1 and whether still the accused had further demanded for money. So far as this area is concerned, the evidence is conspicuously absent. Therefore, in our opinion, with all conclusiveness the witnesses say that there was demand of dowry and the call received by them to the effect that the accused has assaulted the deceased on the date of the incident and taken her back to the house and only because of that, she was frustrated in life and she poured kerosene on herself and lit fire. But, in the absence of any clinching material before the Court to show that soon before the incident in question there was cruelty and harassment, therefore the provision of Section 304(B) of IPC does not attract and it is not the proper provision, which has been adopted by the trial Court, to convict and sentence the accused.
19. In this context, we feel it appropriate to extract the provision of Section 304(B) of IPC, which reads as under:
Sec 304-B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death1’, and such husband or relative shall be deemed to have caused her death.
Explanation- For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
(emphasis supplied) 20. In order to prove this provision, the prosecution must establish that the death was occurred not under normal circumstances and within seven years of her marriage and there must be some material to show that she was subjected to cruelty or harassment by her husband or any relative of her husband in demand of dowry, soon before the death, then only it amounts to dowry death. Of course, in this particular case, the death was established that it was happened under normal circumstances and the death was also occurred within seven years. But, there is no material to show that the deceased was subjected to cruelty and harassment by her husband ie., accused in demand of dowry soon before her death. Therefore, in our opinion, the trial Court has committed a serious error in drawing an inference that the offence committed by the accused falls under Section 304(B) of IPC.
21. Be that as it may, though the offence would not fall under Section 304(B) of IPC, nevertheless on re- evaluation of the entire evidence, we are of the opinion that there was some ill-treatment and harassment by means of demand of dowry and in demand of some further money from the deceased or from her relatives. The demand of money, in our opinion, amounts to demand and for the purpose of unlawful gain, he demanded the said amount from the kith and kins of the deceased. In that context, invariably all the witnesses have stated that there was assault on the deceased and abused the deceased and also he treated her in a cruel manner and harassed her in a manner so that she frustrate in her life and commit suicide. Therefore, in our opinion, the evidence placed before the court definitely would fall under Section 498-A of IPC and such an act of the accused has driven the deceased to commit suicide.
22. In order to attract Section 498-A of IPC, the prosecution has to establish that, the husband or relatives of husband have subjected such woman to cruelty and if the willful conduct of the accused is of such nature, which would likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, in this particular case, in our opinion, the prosecution has established that, there was demand for money and harassment by the accused. But, there is no material to show that, soon before the death, there was any cruelty in this regard. Therefore, in our opinion, the offence falls under Section 498-A of IPC. Here the first explanation to Section 498-A also shows that, the willful conduct of the accused was of such nature, which is likely to drive such woman to commit suicide. Here in this particular case, actually the conduct of the accused in demanding money has driven the deceased to commit suicide. There is absolutely no other defence taken up by the accused stating the reason for which the deceased has committed suicide in the house of the accused, except taking flimsy grounds in the course of cross-examination that the deceased died due to stove burst. On the other hand, the prosecution, beyond reasonable doubt has established that the death was suicidal, as the deceased being frustrated in life because of the ill-treatment and harassment meted out to her by the accused. Therefore, the misconduct of the accused virtually facilitated the deceased to commit suicide. Therefore, whoever facilitates any person to commit suicide, it would fall under Section 306 of IPC. Therefore, on over all analysis of the oral and documentary evidence on record, we are of the opinion that the offence under Section 304(B) of IPC is not made-out, however, the offences under Section 498-A and 306 of IPC are made-out.
23. Though the trial Court has not framed any charges for the offences under Section 498-A and 306 of IPC, these offences are lesser offences compared to the offences punishable under Section 304(B) of IPC. The maximum punishment prescribed for the offence under Section 498-A and 306 of IPC are lesser than the punishment prescribed for the offence under Section 304(B) of IPC. If Section 304(B) of IPC is proved, the accused may be punished with life imprisonment to the maximum extent. Therefore, even there is no charge framed for the offences under Sections 498-A and 306 of IPC, but ample evidence is put-forth by the prosecution in order to draw such an inference. Therefore, in the above circumstances, we prefer to allow the appeal in part.
24. Now the question arises that, what would be the punishment that can be imposed against the accused for the above said offence.
25. Section 498-A of IPC is punishable with imprisonment for three years and fine. Section 306 of IPC is again punishable with imprisonment for 10 years and also fine. The accused in this particular case was arrested on 24.05.2011 and since then, he has been in judicial custody and he has already undergone imprisonment for seven years and eight months. Therefore, we feel it just and necessary to treat the imprisonment already undergone by the accused, as the sentence awarded against him. Hence, with the above said observation, we proceed to pass the following order:-
ORDER i) The appeal is partly allowed. Consequently, the Judgment of Conviction dated 28.01.2014 and Order of Sentence dated 30.01.2014 passed by the Additional Sessions Judge, Hassan, in S.C. No.150/2011, against the appellant/accused- Suleman for the offence punishable under Section 304-B of IPC, is hereby set aside.
ii) The appellant/accused is convicted for the offences punishable under Sections 306 and 498-A of IPC.
iii) The appellant/accused is sentenced to undergo Simple Imprisonment for three years and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for three months, sofar as the offence under Section 498-A is concerned.
iv) The appellant/accused is sentenced to undergo Rigorous Imprisonment for seven years six months for the offence punishable under section 306 of IPC and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for two months. Both the sentences are ordered to run concurrently.
v) It appears the above said punishment has already been undergone by the accused. Therefore, if the appellant/accused has already undergone the above said punishment, he shall be set at liberty forthwith, if he is not required in any other case.
The Registry is hereby directed to communicate this order to the concerned Jail Authority forthwith, for release of the appellant/accused forthwith, if he has already undergone the punishment imposed by this court as noted in this judgment and if he is not required in any other case.
Sd/- JUDGE Sd/- JUDGE kvk/KGR