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 Sections 498-A, 304-B, 306 Quash – Complaint only on Suspicion

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 18th DAY OF JUNE 2014

PRESENT

THE HON’BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR AND THE HON’BLE MR. JUSTICE C.R. KUMARASWAMY

Criminal Appeal No.905/2010

BETWEEN:

State by Bannur Police…Appellant
(By Sri B.Visweshwaraiah, H.C.G.P.)

AND :

1. R. Chandrashekar
S/o S. Ramu
Aged about 34 years
R/o 10th Cross, Kallahalli, V.V. Nagara Mandya.

2. Soubhagya
W/o S. Ramu
Aged about 53 years
R/o 10th Cross,Kallahalli, V.V. Nagara Mandya

3. S. Ramu
S/o Sannegowda
Aged about 58 years
R/o 10th Cross,Kallahalli, V.V. Nagara Mandya

4. Nalina R
W/o B.M. Prasanna,
Aged about 26 years
R/o No.1125, Ganiga Koppal Road Bannur T. Narasipura Taluk..Respondents
(By Sri A.H. Bhagavan, Adv.,)

This Criminal Appeal is filed under Section 378(1)
Cr.P.C praying to grant leave to file an appeal against the
Judgment and Order dated 24.04.2010, passed by the V
Additional District and Sessions Judge, Mysore, in
S.C.No.75/2007 acquitting the respondents/accused for the
offence punishable under sections 498(A), 304(B), 306 R/W
Section 34 of Indian Penal Code and Sections 3,4 and 6 of
Dowry Prohibition Act.

This Criminal Appeal coming on for hearing, this day,MOHAN .M. SHANTANAGOUDAR .J., delivered the following.

JUDGMENT

The Judgment and Order of acquittal dated 24.4.2010 passed by the Sessions Court, Mysore in S.C. No.75/2007 is called in question in this appeal by the State. The respondents/accused were tried for the offences punishable under Sections 498-A, 304-B, 306 r/w 34 of IPC and Sections 3,4 and 6 of the Dowry Prohibition Act.

2. The case of the prosecution, in brief, is that the deceased Suhasini is the wife of Accused No.1 – Chandrashekara; their marriage was performed on 29.6.2005 ; Accused Nos.3 and 2 are father and mother of the Accused NO.1 respectively; Accused No.4 is the daughter of Accused Nos.2 and 3 and sister of Accused No.1; Accused Nos.1 to 3 are permanent residents of Kallahalli village, V.V. Nagara, Mandya, whereas Accused No.4 was living in her matrimonial house along with her husband and children in Bannur, T. Narasipura taluk, Mysore district. Accused No.1 and the deceased were living happily for about two months after the marriage. Thereafter all the accused started torturing the victim – deceased by pressurizing her to bring an additional amount of dowry; that they pressurized her to sell site standing in her name and to get money.

It is further case of the prosecution that at the time the marriage, the accused demanded Rs.2,00,000/- and gold ornaments; the parents of the deceased gave Rs.1,50,000/- towards dowry to the accused apart from 200 grams of gold ornaments; the wedding ceremony was performed at the expense of the parents of the deceased. Since the deceased could not tolerate the ill-treatment meted out against her by the accused frequently, she went away from her matrimonial house and consumed poison and consequently died. It is relevant to note that the place wherein the deceased consumed poison is at a distance of about 20 kilometers from the matrimonial house of the deceased and Accused No.1, which means the deceased went about 20 kilometers on the date of the incident and consumed poison. The incident has occurred on 3.3.2006 at about 1.30 p.m. On getting the information, the parents of the deceased along with the family members went to the spot wherein the deceased allegedly made oral dying declaration before them; thereafter all the family members including PWs.1 to 5 shifted the deceased at the first instance to Bannur Government Hospital and thereafter to Mandya Government Hospital wherein she was declared dead. The complaint came to be lodged by PW-4, the brother of the deceased as per Ex.P4 at about 1.30 a.m. on 4.3.2006 i.e., the night intervening between 3.3.2006 and 4.3.2006. The Police after investigation laid the charge sheet against all the accused.

3. During the course of the trial, the prosecution in all examined 24 witnesses and got marked 25 Exhibits and one material object in support of their case. On behalf of the defence, 5 Exhibits were got marked. The trial Court on the evaluation of the material on record and after hearing concluded that the prosecution has not proved its case beyond reasonable doubt and consequently acquitted all the accused of all the charges leveled against them.

4. Learned Government Pleader taking us through the material on record submitted that the evidence of PWs.1 to 10 is consistent and cogent; all of them have consistently deposed that all the accused had demanded dowry and received dowry; that all the accused used to demand more amount of dowry from the parents of the deceased through the deceased; since the mother of the deceased was not in a position to pay the additional amount of dowry, the deceased was being harassed and she was subjected to cruelty both physically and mentally. Thus according to the learned Government Pleader, the material on record conclusively shows that the deceased committed suicide because of the harassment meted out by her from all the accused.

Per contra, Sri A.H. Bhagavan, learned advocate for the accused argued in support of the judgment of the Court below by contending that the theory put forth by the prosecution relating to the oral dying declaration of the deceased is totally false in view of the evidence of PW-15, the doctor who examined the deceased immediately after the incident. He further submits that the evidence of PWs. 1 to 11 who are all the family members of the deceased is inconsistent and contrary to one another and consequently it is not safe to rely upon the version of these witnesses for holding against the accused.

5. PW.1 is the brother-in-law of the deceased i.e., he is the husband of the sister of the deceased. He has deposed the demand of dowry and expenses of the dowry at the time of marriage of the deceased with Accused No.1. He has also deposed about the cruelty suffered by the deceased in the hands of the accused. However, he has admitted that he was told regarding cruelty on the deceased by the accused by his wife (PW-2). Thus he is a hearsay witness.

PW-2 is the sister of the deceased and wife of PW-1; Her evidence is also on par with the evidence of PW.1; PW.2 has deposed about the dying declaration made by the deceased at the spot wherein the deceased had fallen after consuming poison. PW.3 is the uncle of the deceased. He has also deposed about the demand and acceptance of the dowry; However regarding the harassment, he is the only hearsay witness inasmuch as he came to know about cruelty and harassment from 3rd person. PW-4 is the brother of the deceased and he lodged the complaint as per Ex.P4; He has also deposed about demand of dowry and acceptance of dowry and cruelty meted out by the deceased from the accused; In his cross-examination, he admits that the complaint is lodged by him after due deliberations with his family members including PW-1; He has also admitted that the complaint is lodged against the accused purely on the suspicion that they must have harassed the victim. PW.5 is the uncle of the deceased. He has also deposed about the demand and acceptance of the dowry as also cruelty; He has also deposed about the dying declaration; In the cross-examination, he admits that he does not remember as to whether his statement was recorded by the Police during the course of investigation; However he specifically admits that he has deposed about the incident for the first time before the Court and not before anybody. PW.6 is the cousin of the deceased. He has also deposed about the demand and acceptance of the dowry. PW.7 is the uncle of the deceased. He has also deposed on par with the evidence of PW.5; However his evidence relating to cruelty is hearsay. PW.8 is the friend of PW.4. He was supposed to depose about the dying declaration. But he has turned hostile to certain extent and supported the case of the prosecution only to meager extent. PW.9 is the relative of PW.4; He has deposed about the cruelty meted out by the deceased from the accused. PW.10 is the family friend of the accused and parents of the deceased; He has also deposed about the cruelty. PW.11 is said to have paid Rs.2,00,000/- to the father of the deceased for the purpose of utilizing the same for the marriage expenses of the deceased; However no material is produced to show that such huge amount is paid by PW.11 to the father of the deceased. PW.12 is the jeweler who said to have prepared the jewelry of the deceased at the time of her marriage. PW.13 is the witness for the panchanama Ex.P11 which was drawn in respect of the house of the accused. PW.14 is the witness for scene of offence panchanama Ex.P12; The victim had fallen in the said spot after consuming poison. PW.15 is the doctor who examined the victim after the incident at Bannur Hospital at about 5.30 p.m. on the date of the incident. PW.16 is another doctor; she was consulted by the deceased for her gynecological problems. PW.17 is the Revenue Officer who has issued the extract of the house of the deceased as per Ex.P15. PW.18 is the Junior Engineer who has prepared the sketch of scene of offence. PW.19 is the Police Constable who received the phone message regarding the death of the deceased by consuming poison; He has visited the place immediately thereof; He has also deposed about the dying declaration said to have been made by the deceased. PW.20 is the doctor who has treated the deceased for health problems earlier to the incident. PW.21 is the doctor who conducted the postmortem examination over the dead body of the deceased and the PM report is at Ex.P21. PW.22 is the Taluka Executive Magistrate who conducted the inquest panchanama as per Ex.P20. PW.23 is the PSI of Bannur Police Station who registered the case in Crime No.30/2006 at Bannur Police Station initially for the offences punishable under Sections 498-A and 304-B r/w Section 34 of IPC against all the four accused based on the complaint lodged by PW.4. He has also initiated the crime to certain extent. PW.24 is the Inspector of Police who completed the investigation and laid the charge sheet.

6. The incident has occurred at about 1.30 p.m. on 3.3.2006 at Bannur village. The deceased was found lying near a temple at Bannur village by consuming poison. Froth was coming out from her mouth. According to PWs.1,2,4,5,7 and 8, all of them went to the said spot after hearing the news from the Police and at that time, the victim said to have made the dying declaration orally before the said witnesses to the effect that all the accused used to harass her and consequently she tried to commit suicide. The version of the said witnesses further reveals that all these witnesses took the injured to the Mandya Government Hospital for treatment, wherein she is declared dead. The time of death of the deceased was about 5.30 to 6 p.m. on 3.3.2006. The death has taken place in Mandya; it is a district place. Neither the doctors at Mandya nor the aforementioned witnesses tried to lodge the complaint at least immediately after the death of the deceased. Per contra, the complaint came to be lodged at about 1.30 a.m. on 4.3.2006. It is specifically admitted by PWs.1 and 4 that the complaint came to be lodged after due deliberations with all the family members. PW.1 has further admitted that they decided to lodge the complaint immediately after the death of the deceased. However no such complaint was lodged immediately thereafter. Absolutely no valid reason is forthcoming from these witnesses as to why the complaint came to be lodged belatedly, particularly when the death has occurred in the District Hospital, Mandya.

7. So far as the dying declaration is concerned, as aforementioned, PWs.1,2,4,5 and 7 have deposed that they went to the spot at about 5.30 p.m. on the relevant day immediately after hearing the news and at that point of time, the deceased declared that she tried to commit suicide because of the ill-treatment by Accused Nos.1 to 4. Thereafter according to these witnesses, the injured was shifted to the hospital by them in the four wheeler. The evidence of these witnesses to the said extent is falsified by the evidence of the doctor PW.15. The doctor PW.15 has specifically deposed in the examination-in-chief itself that P.C. No.473 had brought the victim to the hospital at about 5.30 p.m. and that the patient was unconscious at that point of time. He has also deposed that at that point of time, the pulse rate of the deceased was very low and the eye balls had become small. Since the victim needed the higher treatment, the said doctor referred the patient to K.R. Hospital, Mysore for higher treatment. His certificate is at Ex.P13. In the cross-examination, the very doctor has further deposed that when the victim was brought to the hospital by the Police, none of the relatives of the victim was present. After 15 minutes of admission of the patient, one Mr. Raghava (PW.8) came to the hospital and introduced himself as a relative of the deceased, to the doctor. It is specifically admitted by the doctor that except PW.8, none of the relatives of the deceased came to the hospital and talked to him. He has further admitted that the poison as found in the MO.1 bottle, if drunk, the person would become unconscious. From the aforementioned evidence of PW.15, it is amply clear that the victim was brought before him at about 5.30 p.m. by the Police Constable Buckle No.473 and none of the relatives including PWs.1,2 and 4 were present at that point of time. At the time of admission of the patient to the hospital itself, she was unconscious. Thus it is more than clear that none of the aforementioned witnesses had come to the spot while the victim was lying there. On the other hand, they came to the spot only after Police shifted the victim to the hospital. Consequently, they did not have any opportunity to talk with the victim at any point of time inasmuch as she was unconscious. The Police Constable NO.473 is examined as PW.19. He also did not depose about the presence of PWs.1,2,4,5 and 7 on the spot before the victim was shifted to the hospital from the scene of offence. According to the said Police Constable, only PW.8 – Raghava was present and before him the dying declaration was made by the victim. PW.8 has turned hostile to the case of the prosecution. In view of the above, it is clear that the prosecution has improved its case by bringing the theory of the oral dying declaration to support its case. The material on record clearly reveals that none of the aforementioned witnesses were present and such oral dying declaration might not have been made by the deceased in front of them, particularly when the doctor has opined that the person who consumed such poison would become unconscious immediately.

8. The material on record reveals that the marriage between Accused No.1 and the deceased has taken place on 29.6.2005 and that they were living happily for about two months and thereafter the trouble started. It is relevant to note that after two months of the marriage of the deceased with Accused No.1, the father of the deceased lost his life in the accident. In the very accident, PW.4 – the complainant had lost his one eye. Thus virtually the parents and other family members of the deceased were suffering without adequate finance. According to the prosecution, at such point of time, the harassment by the accused started. Since the father of the deceased had expired and the only brother of the deceased viz., PW.4 has lost his eye and was depending on the 3rd party for livelihood, we feel that the defence counsel is justified in arguing that such demand could not have been made by the accused. We also observe so because of the material on record, particularly the evidence of PW.4. A suggestion is made to PW.4 in the cross-examination that he could not go to hospital on his own because of the injury sustained by him in the accident. Such suggestion is admitted by PW.4, which means PW.4 himself was depending on another person for moving out of the house. He has further admitted in the cross-examination that Accused No.1 had taken him to St. Johns Medical College Hospital for treatment. However he denied that Accused No.1 had taken him to NIMHANS hospital and Gopalagouda Hospital, Mysore. He has also denied that Accused No.1 had taken him to Narayana Nethralaya for treatment. However PW.4 admits about Ex.D1, which is the admission card of Narayana Nethralaya. The aforementioned materials probablise the defence version that it was Accused No.1 and other accused who were taking care of PW.4 also. When such being the position, it could not have been possible for the accused to demand more amount of dowry from the mother and brother of the deceased, particularly when the mother and brother of the deceased did not have adequate finance to maintain themselves.

9. It is clearly admitted by PW.4 in the cross-examination that the complaint is lodged after due deliberation with all the family members including PW.1. He further admits that all of them decided to give the complaint in a particular manner and in that particular manner only complaint came to be lodged. He further admits specifically that he has lodged the complaint only on suspicion that the accused must have harassed the victim, consequent upon which the victim has taken the poison. Thus it is clear that the complaint is as a result of due deliberations by PW.4 and his family members and the complaint is lodged merely on suspicion, but not on actual facts.

10. All the aforementioned facts and materials are taken into consideration by the trial Court while acquitting the accused. Even on re-appreciating the material on record, we do not find any ground to disagree with the conclusion reached by the trial Court. Based on the material on record, the trial Court has come to a correct conclusion. This being the appeal against the Judgment and Order of acquittal, the appellate Court would be normally slow in interfering with such judgment even in case if the second view is possible under the facts and circumstances. In the present case, we find that the view taken by the trial Court is one of the possible views. Hence no interference is called for.

Appeal fails and the same stands dismissed.

Sd/-

JUDGE Sd/-

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