498A Acquited, appreciation of evidence of views

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 5TH DAY OF AUGUST 2014

:PRESENT:

THE HON’BLE MR.JUSTICE MOHAN M SHANTANAGOUDAR AND THE HON’BLE MR.JUSTICE K.N.PHANEENDRA

CRIMINAL APPEAL NO.775 OF 2009
C/W
CRIMINAL APPEAL NO.443 OF 2009

CRL.A.NO.775/2009

BETWEEN:

STATE OF KARNATAKA BY KOPPA POLICE …APPELLANT
(BY SRI. B.VISWESHWARAIAH, HCGP)

AND:

1. B K MUTTAIAH @ MUTTURAJ
AGED ABOUT 35 YEARS
R/O BIDURUMALE KOPPALU MADDUR TQ.MANDYA DIST.

2. CHIKKABHADRAMMA
W/O KEMPEGOWDA
AGED ABOUT 55 YEARS
R/O BIDURUMALE KOPPALU MADDUR TQ.

3. ANITA
W/O SHANKARA
AGED ABOUT 21 YEARS
R/O NO.615, 7TH CROSS MUNESHWARA EXTENSION BANGALORE-58

4. VANAJA
W/O JAGADISHA
AGED ABOUT 27 YEARS
R/O KOPPA, MADDUR TQ.

5. UMESHA
S/O KEMPEGOWDA
AGED ABOUT 28 YEARS
R/O NO.280, 1ST MAIN HEGGANAHALLI BANGALORE-10…RESPONDENTS
(BY SRI. H C HANUMAIAH, ADV.)

THIS CRIMINAL APPEAL IS FILED UNDER U/S 378(1) (3) CR.P.C WITH A PRAYER TO O GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED;18.5.2009 PASSED BY THE PRESIDING OFFICER OF FAST TRACK COURT-II, MANDYA IN S.C.NO.71/2005 ACQUITTING THE RESPONDENT NO.1 OF THE OFFENCES P/U/Ss.304-B,306 OF IPC AND SECs.3,4 AND 6 OF THE DOWRY PROHIBITION ACT AND RESPONDENTS NOS.2 TO 5 OF THE OFFENCES P/U/SS.498-A,304-B AND 306 OF IPC R/W SEC.34 OF IPC AND SECs.3, 4 AND 6 OF D.P.ACT.

CRL.A.NO.443/2009

BETWEEN:

B.K.MUTHAIAH @ MUTTURAJ
S/O KEMPEGOWDA
R/O BIDIRUMALE KOPPALU
MADDUR TALUK MANDYA DISTRICT…APPELLANT
(BY SRI.H C HANUMAIAH KSA REDDY, ADV.)

AND:

STATE OF KARNATAKA
BY KOPPA POLICE
BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING BANGALORE…RESPONDENT
(BY SRI.B.VISWESHWARAIAH, HCGP)

THIS CRIMINAL APPEAL IS FILED UNDER U/S.374(2)
CR.P.C WITH A PRAYER TO SET-ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE PASSED AGAINST THE
APPEALLANT DATED 18.05.2009,PASSED BY THE HON’BLE
FAST TRACK COURT-II,MANDYA IN S.C.NO.71/2005-
CONVICTING HIM FOR THE OFFENCE P/U/S 498(A)OF
IPC.A-1 IS SENTENCED TO UNDERGO RI FOR 3 YEARS
AND TO PAY FINE OF Rs.10,000/-(TEN THOUSAND)IN
DEFAULT TO UNDERGO RI FOR 3 MONTHS.OUT OF FINE
AMOUNT,A SUM OF Rs.8,000/-(EIGHT THOUSAND).

THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY MOHAN M SHANTANAGOUDAR J.,DELIVERED THE FOLLOWING:-

JUDGMENT

The judgment and order of conviction dated 18.05.2009 passed by the FTC-II, Mandya in S.C.No.71/2005 is the subject matter of these two appeals.

Totally 10 accused were tried for the offences punishable under Sections 304B, 306  498A of Indian Penal Code and Sections 3, 4  6 of the Dowry Prohibition Act. The trial Court acquitted all the accused for the offences punishable under Sections 304B, 306 of Indian Penal Code and Sections 3, 4  6 of the Dowry Prohibition Act. However, convicted accused No.1 for the offence punishable under Sections 498A of Indian Penal Code.

2. Crl.A.No.775/2009 is filed by the State questioning the judgment and order of acquittal passed against all the accused for the offences punishable under Sections 304B, 306 of IPC and Sections 3, 4 6 of the D.P.Act. Crl.A.No.443/2009 is filed by the convicted accused No.1 against the judgment and order of his conviction for the offence punishable under Section 498A of Indian Penal Code. Since, both the appeals arise out of the same judgment and order dated 18.05.2009 passed in S.C.No.71/2005, both the appeals are heard together and decided by this judgment.

3. The case of the prosecution in brief is that, deceased Manjula is the daughter of PWs 1 and 2. Accused No.1 is the husband of deceased Manjula. Accused Nos.2 to 10 are parents and near relatives of accused No.1. Prior to the marriage, the accused demanded dowry in the form of cash and ornaments and during marriage talks it was decided that the parents of the deceased should give Rs.80,000/- in cash and 100 gms of gold to the accused; the marriage was performed in a large scale by PWs 1 and 2; after the marriage, the couple lived in Bangalore amicably for certain period; the couple used to often visit Bidremalekopallu Village (the native place of accused No.1); during the wedlock, a female child by name Priyanka is born; subsequent to marriage, the accused started pressurizing the deceased to get money from her parents; in order to satisfy the demand of the accused, PWs 1 and 2 had paid Rs.45,000/- in cash about three years prior to the incident; they had paid Rs.1,55,000/- prior to one year of the incident; even thereafter, the accused No.1 demanded Rs.50,000/- for getting his sister’s marriage performed; the marriage of Anitha, the sister of accused No.1 was conducted on 06.06.2004; one day prior to the marriage of Anitha i.e., on 05.06.2004, all the accused told the deceased that she should part away with her gold ornaments and thereafter forcibly took the jewelry of the deceased in order to give the same to Anitha; since, the deceased could not bear the harassment meted out to her by her husband and relatives, she consumed excessive propranolol tablets, which is used to control the hyper tension; The victim was shifted to hospital but she breathed her last in the hospital itself on 07.06.2004.

A message was sent to the parents of the deceased; PWs 1 and 2 being the parents of the deceased and their relatives came to Bidremalekopallu Village and thereafter, PW1 lodged a complaint as per Ex.P2, which was received by PW18-the Sub-Inspector of Police of Koppa Police Station, Maddur Taluk. Based on the same, Crime No.41/2004 is registered by PW18and sent first information report as per Ex.P24. PW19 is the Investigating Officer who completed the investigation and laid the charge sheet.

4. In order to prove its case, the prosecution in all examined 19 witnesses, got marked 39 exhibits and 16 Material Objects.

5. The Trial Court, on evaluation of the material on record, passed the impugned judgment of conviction and sentence acquitting all the accused for the offences punishable under Sections 304B, 306 of IPC and Sections 3, 4 6 of the D.P.Act and also acquitted accused Nos.2 to 10 for the offence punishable under Section 498A of IPC. However, accused No.1 alone was convicted for the offence punishable under Section 498A of IPC.

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6. PW1 is the father of the deceased. He lodged the first information as per Ex.P2 before the Sub-Inspector of Police of Koppa Police Station (PW18), based on which Crime No.41/2004 was registered by PW18. The first information is at Ex.P2. The first information report sent to the learned JMFC is at Ex.P24. PW2 is the mother of the deceased. PWs 1 and 2 have deposed about the demand of dowry, payment of dowry prior to the incident; they have also deposed about the harassment by the accused, more particularly, by accused No.1 meted towards the deceased. PW3 is the sister of PW2. PW4 is another sister of PW2. PWs 2 and 3 are sisters of PW2. Both of them have also deposed about the demand of dowry, payment of dowry and harassment by the accused. PW5 is the husband of PW4 and uncle of deceased. He was supposed to depose about the demand of dowry by the accused and payment of dowry by PWs 1 and 2 and subsequent harassment by the accused. However, he has turned hostile. PW6 is a friend of PW1. He was also supposed to depose about the demand of dowry, payment of dowry and also harassment. He has also turned hostile. PW7 is also the relative of PWs 1 and 2. He has also deposed about the demand of dowry and payment of dowry. PW7 used to help PW1 by lending money whenever required. PW8 is the Real Estate Agent who was instrumental in selling the site belonging to PW1 to third party to meet the demand of money by the accused. PW9 who also turned hostile, is the landlord of the house wherein accused No.1 and deceased last resided. PW10 is the Doctor who conducted post mortem examination. Post mortem report is at Ex.P18. He has given the opinion as per Ex.P20. He has opined that the death is due to excessive consumption of pills. PW11 is another Doctor who assisted PW10 in conducting post mortem examination. PW12 is the officer of Forensic Science Laboratory. He examined the viscera sent to him by the Investigating Officer. His report is at Ex.P19, which discloses that the blood of the deceased was containing excess amount of propranolol chemicals. PW13 is the Junior Engineer, who drew the sketch of the scene as per Ex.P21. PW14 is the Head Constable, who watched the seized articles and also participated during the investigation. PW15 is a Police Constable. He carried the seized articles for Forensic Laboratory for chemical examination. PW16 is the Doctor at Koppa Government Hospital. He examined the victim initially. His written report is at Ex.P22. The said Doctor told the relatives of the deceased to shift the victim for higher treatment but unfortunately, the victim breathed her last. PW17 is the Taluka Executive Magistrate, he conducted inquest panchanama over the dead body, his report is at Ex.P14. PW18 is the PSI, he registered the case based on the first information lodged by PW1 and he sent FIR to the jurisdictional Magistrate as per Ex.P24. He conducted the investigation in part. PW19 is the Investigating Officer who completed the investigation and laid the charge sheet.

7. PWs.10 and 11, the doctors who conducted post- mortem examination over the dead body of the deceased Manjula have deposed that there were no external injuries over the dead body. All the organs were in tact; both of them have opined that death of the deceased was due to “myco-cardial depression” as a result of drug (propronal) intoxication. In the cross examination, they have deposed that a person suffering with Hypertension, will sustain fluctuation of Blood Pressure (‘BP’ for short) on account of stress, strain and tension. By virtue of mob tension also, a person suffering from BP may suffer fluctuation in her/his BP level. However, they also admit that a patient suffering from BP may sometime consume high doses of anti hypertension drugs in order to control BP; the FSL report Ex.P-19 establishes the presence of tablet propronal in the stomach of the deceased at the time of post mortem. From the aforementioned material, the Trial Court, in our considered opinion is justified in concluding that the death of the deceased was, as a result of consuming excessive dose of tablet.

8. It is relevant to note here itself that the blood which was sent for examination by FSL (item No.6) contain concentration of propronal in blood to an extent of 0.764 mg per ml. Thus, it is clear that the deceased had consumed excess quantity of tablet on the date of the incident, consequent upon which, her death has occurred.

Ex.P-20 is the opinion of doctors. The doctors, PWs.10 and 11 have opined that because of the biological variation depending upon the individual response, 40 mg of propronal in one particular person may bring about a fatal result. On the other hand, even maximum/high dose of drug may not have any effect on different person. The report further clarifies that 0.764 mg/ml. is the higher quantity of drug which an average adult individual in ordinary course may tolerate. The person with illness may consume more quantity of drug, as was consumed by the victim.

9. PW5, the husband of PW4 and co-brother of PW1 had also participated in the marriage talks. He was present whenever the alleged demand was made by the accused. So, PW5 is well conversant with all the happenings in the family. He has deposed that the accused are not at all at fault and there was no demand from the accused and consequently there was no demand of dowry at the time of marriage. He has further clarified in his deposition that accused No.1 had not at all demanded any amount even after the marriage. Thus, the evidence of PW5, who is the husband of PW4, co-brother of PW1 fully supports the defence, there is no reason as to why his evidence should be ignored.

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10. Insofar as offence u/s.304B of IPC is concerned, we have to find out as to whether the death was due to harassment meted out by the husband or his relatives. To prove the said aspect, PWs.1 to 5 are examined. PWs.1 2 are the parents of the deceased. PW3 is the relative of PW2, PWs.4 5 are the aunt and uncle of the deceased.

Though PWs.1 2 in the examination in chief have deposed that the accused and his relatives demanded `1,50,000/- as dowry, plus gold ornaments prior to the marriage, during marriage talks, and though they have deposed that the accused No.1 was used to humiliate and torture the victim by pressurizing her to bring certain amounts after the marriage, we find from the materials on record that such versions of PWs.1 2 are full of improvements. The omissions were brought out in the cross examination of the Taluka Executive Magistrate PW-17. In FIR Ex.P2, nowhere it reveals that any of the accused had demanded dowry either in the form of cash or in the form of gold prior to the marriage. On the other hand, the FIR lodged by the father of the deceased clarifies that PWs.1 2 paid Rs.80,000/- cash for marriage expenses and 100 grams of gold suomoto voluntarily to the accused. He further admits in the cross examination that such offering of certain gold ornaments to the bride or bridegroom in the marriage are customary in nature. He further admits, in their custom, usually, marriage expenses are borne by the parents of the bride. Therefore, it is clear that there was no demand of dowry by any of the accused including A1 prior to the marriage. Even with regard to the demand by A1 after the marriage is concerned, nowhere the records disclose that such amount was demanded as a part of dowry. On the other hand, the admissions of PWs.1 2 make it clear that, at an undisputed point of time accused No.1 had received Rs.25,000/- cash from PW1 and the same was repaid by him. Another amount of Rs.50,000/- was allegedly asked by A1 for the purpose of marriage expenses of his sister namely Anitha. It is not un-common and so also, it is the admission of PW2 that generally, the relatives request for certain sums of money whenever required and the said amount would be repaid subsequently. Merely because A1 had asked for Rs.50,000/- for performing the marriage of his sister itself would not mean that he had demanded an additional amount of dowry. On the other hand, it can be inferred from the surrounding facts that, A1 had requested his father-in- law for providing finance to perform the marriage of his sister. PW-17, the Taluka Executive Magistrate who recorded the statements of PWs.1 2 during the inquest had admitted that PWs.1 2 have not stated before him about the demand of site by the accused; about the demand of Rs.1,27,000/- plus 45,000/- by A1 etc., Thus, all the statements made before the Court on oath relating to the demand of money by A1 or his relatives after the marriage are omissions, since such omissions are grave, they amount to contradictions. We find that PWs.1 2 have improved their case from time to time.

11. Further depositions of PWs.1 2 as also the evidence of PW8 that PW1 sold his site which was standing in the name of his wife at Bangalore in order to satisfy the demand of A1 after the marriage. But no document is produced to show that such site existed in the name of either PW2 or his wife; so also there is nothing on record to show that such site if any was sold to third parties by any registered deed. Admittedly, there is no deed which evidences the sale of any property which was standing in the name of either PW1 or PW2. Thus, the prosecution has built up a make believe story before the court.

If the omissions as brought out in the evidence of PW17 are excluded from consideration, then virtually, the evidence of PWs.1 2 will be of no use to the case of the prosecution to prove the offence under Sections 498A  304(B) of IPC. There was no occasion for the accused to demand any amount from PWs.1 2 and consequently, there was no occasion for accused to harass the victim on that account.

The very reasons may also hold good for the offence punishable under Section 306 of IPC also since there is nothing on record to show that the accused used to harass the victim by pressurizing her to bring any amount either in the form of dowry or otherwise. It is not open for the prosecution to contend that the accused were the reason for the victim consuming excess amount of drugs. The prosecution has come out with the story that on 5.6.2004 i.e. one day prior to the marriage of Kum.Anitha (sister of accused), all the accused grouped together and forced the deceased to part away with the gold ornaments and consequently, the accused forcibly took away the gold ornaments belonging to the deceased in order to hand over the same to Anitha. But such evidence on record cannot be believed in view of the statement made by PW1 in his first information report. Ex.P2, the FIR clearly reveals that when the accused demanded the deceased to give her gold bangles which were worn by her on 5.6.2004, the deceased refused part with. However, curiously, the prosecution has improved its case during the course of trial by making out that the accused forcibly took the gold ornaments from the deceased. It is also admitted by the prosecution witnesses that generally in marriages, the gold ornaments of one lady would be worn by another lady only for the purpose of marriage and thereafter i.e., after the completion of the marriage ceremony, the gold ornaments will be returned to the owner of the gold ornaments. Thus, there is nothingun-common in wearing the gold ornaments of one person by another in marriages. More over, in the matter on hand, PW1 has admitted in Ex.P2 that the deceased did not part with the gold bangles.

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12. The materials on record also is clear on the point that the deceased was wearing her gold ornaments including the bangles at the time of her death. PW10 admitted in the cross examination that nobody including this deceased had lodged any complaint with regard to forcible extraction of gold ornaments by the accused belonging to the deceased. Therefore, there was no harassment or as such on the deceased.

Moreover, small, petty and negligible differences of opinion between the deceased and A1, if any cannot be said to be the reason for the victim to commit suicide. The normal human conduct will have to be looked into in such matters.

13. For the very reasons as mentioned supra, we find that the prosecution has not made out any case u/s.498A of IPC also. The Trial Court in our considered opinion, mainly on assumptions has convicted the accused for the offence punishable under Section 498A of IPC. There is no legal material against the accused to convict them for the offence punishable under Section 498A of IPC also.

14. The defence theory is that the victim was suffering from BP even prior to her marriage and she used to consume tablets for the same. PW2 has admitted in the cross examination that the deceased had suffered abortion on two occasions earlier. However, she has denied the suggestion of the defence that such abortion had taken place because of the high BP of the deceased. Exhibits P28 and P30 are the panchanamas relating to seizure of the tablets. The said mahazar clearly reveals that the deceased had went along with a girl to Nandi Medical Stores and to Srivinaya Medical Stores situated at Koppa Town and about one day prior to the incident in question, she purchased Inderal-40 tablets (on the box it contains ‘propronalal tablets’). Thus, it is clear that the victim herself went along with her daughter Kumari Ashwini and purchased the tablets. Ex.P25 panchanama relating to the room in which the deceased had slept during the fateful day (relating to the house situated at Kamakshipalya) wherein the deceased and A1 were living. The said panchanama reveals that the empty tablet strips were hidden under the mat/bed, where the deceased was slept and even certain unconsumed tablets were also seized. The Trial Court looking to the totality of the facts and circumstances of the case, has concluded that there is every possibility of victim consuming higher dose of drug in order to control her BP. Such view taken by the Trial Court cannot said to be perverse in view of the facts and circumstances of the case, more particularly in the absence of any adequate material to show that accused used to harass the victim in any manner.

15. Since this is an appeal against the order of acquittal passed by the Trial Court in respect of Section 304B and 306 of IPC and Section 3, 4, and 6 of Dowry Prohibition Act and as the view taken by the Trial Court appears to be a possible view, under the facts and circumstances of the case, this court would be slow in interfering when such finding of fact is given. There cannot be any dispute that accused is presumed to be innocent till they proved to be guilty and once held not guilty of charges, he enjoys the benefit of such presumption, which could be interfered with by the courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. Since the view taken by the Trial Court is one of the possible views, the judgment of the Trial Court insofar as it relates to the acquittal of the accused for the offence punishable under Sections 498A, 304B, 306, of IPC and Sections 3, 4 and 6 of DP Act, need not be interfered with. So also, as there is no adequate material to convict A1 for the offence punishable under Section 498A of IPC, the judgment and order of conviction by the Trial Court in that regard is also liable to be set aside. According, following Order is made:
Criminal Appeal No.443/2009 is allowed and Criminal Appeal No.775/2009 stands dismissed. Accused No.1 is acquitted of the charge u/s.498A of IPC also.

SD/-
JUDGE SD/-

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