IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY 2018
THE HON’BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL.No.1269/2012 C/W
CRIMINAL APPEAL Nos. 1316/2012 AND 1317/2012
IN CRIMINAL APPEAL No. 1269/2012
AGED ABOUT 36 YEARS,
HANDANAKERE HOBLI,C.N.HALLI TALUK,TUMAKURU DISTRICT.
(NOW IN JUDICIAL CUSTODY CENTRAL PRISON, BENGALURU)…APPELLANT
(By Sri. HASMATH PASHA, ADVOCATE)
STATE OF KARNATAKA,
BY HANDANAKERE POLICE STATION,
(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) …RESPONDENT
(By Sri. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 08.06.2012/11.06.2012 PASSED BY THE FAST TRACK COURT – III, TUMAKURU IN S.C.NO. 144/2009 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) AND 304(B) OF IPC AND SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT.
IN CRIMINAL APPEAL No. 1316/2012
STATE OF KARNATAKA
BY HANDANAKERE POLICE …APPELLANT
(By Sri. VIJAYAKUMAR MAJAGE, ADDL. SPP)
AGED ABOUT 39 YEARS,
HANDANAKERE HOBLI,C.N.HALLI TALUK – 572 119. …RESPONDENT
(By Sri. I.S. PRAMOD CHANDRA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 08.06.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT – III, TUMAKURU IN S.C.NO. 144/2009 – ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 AND 201 OF IPC.
IN CRIMINAL APPEAL No. 1317/2012
STATE OF KARNATAKA
BY HANDANAKERE POLICE …APPELLANT
(By Sri. VIJAYAKUMAR MAJAGE, ADDL. SPP)
AGED ABOUT 39 YEARS,
HANDANAKERE HOBLI,C.N.HALLI TALUK – 572 119….RESPONDENT
(By Sri. I.S. PRAMOD CHANDRA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 CR.P.C., PRAYING TO MODIFY THAT PART OF THE JUDGMENT AND ORDER DATED 08.06.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT – III, TUMAKURU IN S.C.NO. 144/2009 AND IMPOSE ADEQUATE SENTENCE ON THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A, 304B OF IPC AND SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT.
THESE CRIMINAL APPEALS HAVING BEING HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SREENIVAS HARISH KUMAR J., PRONOUNCED THE FOLLOWING :
The judgment dated 08.06.2011 passed in S.C.No.144/2009 on the file of Fast Track Court – III, Tumakuru has given rise to these three appeals. The learned Sessions Judge found accused guilty of the offences punishable under Sections 498-A, 304-B of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act, and sentenced him for each of the offences. He has acquitted the accused of the offences punishable under Section 302, 201 IPC.
2. Accused has preferred the appeal 1269/2012 challenging the judgment in so far it relates to convicting and sentencing him for the offences punishable under Section 498-A, 304 B IPC andSections 3, 4 and 6 of Dowry Prohibition Act.
3. The State has preferred two appeals. Appeal 1316/2012 is filed under Section 378 (1) of Cr.P.C. questioning the correctness of acquitting the accused of the offences punishable under Section 302, 201IPC. In the appeal 1317/12, the State has questioned the inadequacy of the sentence imposed on the accused for the offences under Section 498-A, 304-B IPC and Section 3, 4 and 6 of Dowry Prohibition Act and has further prayed for imposing maximum sentence awardable for these offences. All these appeals are disposed of by a common judgment. The prosecution case in brief is as follows:
4. On 28.11.2008, one Siddha Bovi made a report to the police as per Ex.P.2 stating that when he performed the marriage of his daughter Shyla with the accused about five years ago, he gave cash of Rs.5,000/- and a gold ring weighing 5 grams to the accused before the marriage. He also gave a pair of ear studs and jumki (hangings) to his daughter Shyla. The husband and wife lived cordially for about 2 years after the marriage. Whenever his daughter came to his house, she used to complain of ill treatment to her by the accused for the sake of additional dowry. About six months prior to lodging of the complaint, he gave Rs.5,000/- to the accused. On 23.11.2008 at about 8.00 p.m., his daughter telephoned to him and told that her husband was demanding money again . On 27.11.2008 at about 8.00 a.m. a cousin of accused viz., Ananda came and told him that Shyla was not being seen in the village since last night and enquired him about her. Immediately he went to Ramaghatta i.e, the village of the accused and searched for his daughter till evening. Again on 28.11.2008 at about 6.00 a.m. Ananda telephoned and told him that dead body of Shyla was found floating in a pond called Gorasanakatte. He went to that place immediately with his relatives. He suspected the involvement of the accused in the death of his daughter as he found injury mark on her neck. Therefore he reported this incident to the police who held investigation and charge sheeted the accused for the offences punishable under Section 498-A, 304-B and 302 and Section 201 IPC and Section 3,4 and 6 of Dowry Prohibition Act.
5. The learned Sessions Judge appreciated the evidence both oral and documentary, and came to a conclusion that prosecution was not able to prove the offences punishable under Sections 302 and 201of IPC charged against the accused and therefore acquitted him of these offences, but he also held that prosecution case as regards other offences punishable under Section 498-A and 304 IPC and Section 3, 4 and 6 of the Dowry Prohibition Act had been proved by the prosecution and therefore convicted the accused for these offences.
6. Assailing the findings of the learned Sessions Judge, the counsel for the appellant in Crl.A.No.1269/2012 argued that the trial court’s judgment convicting the accused for the offences punishable under Section 498-A 304B IPC and Section 3, 4 and 6 of Dowry Prohibition Act was a result of improper appreciation of evidence. Absolutely there is no evidence to show that deceased was subjected to cruelty in connection with demand for dowry soon before her death. Money of Rs.5,000/- and a ring given to the accused at the time of marriage was nothing but customary gifts. PW-2 and 3 being the parents of the deceased deliberately created a story that there was a demand for additional dowry of Rs.10,000/-. Their evidence is unbelievable if assessed in right perspective. The complainant i.e., PW.2 has clearly stated in Ex.P.2 that his daughter and son-in-law lived cordially for two years after the marriage. If the deceased was subjected to ill-treatment thereafter in connection with demand for dowry, the prosecution should have first proved demand for additional dowry and consequent harassment of the deceased. The best witnesses to speak with regard to harassment or ill-treatment meted out to the deceased were the neighbours of the accused at Ramaghatta village and none of them was examined by the prosecution. The evidence given by PW-2 to 6 cannot be believed without corroboration from independent witnesses. The trial court acquitted the accused of the offence under Section 302 IPC. The deceased suffered homicidal death. Dead body was found floating in a pond. When the trial court came to conclusion that there was no evidence connecting the accused with homicidal death of the deceased, its further conclusion that death was due to ill-treatment of the deceased in connection with dowry demand would not stand to any reason. There was no demand for dowry, the deceased wanted to come over to Bangalore and settle down there. The accused refused to leave the village and therefore there was incompatibility between the accused and the deceased. The accused has explained the circumstances under which his wife might have died and his innocence in her death. The trial court’s conclusion to find the accused guilty of the offences punishable under Section 489A 304B of IPC and Section 3,4 and 6 of Dowry Prohibition Act was nothing but an error in appreciation of evidence and application of law. Relying upon a division bench judgment of this court in State of Karnataka Vs. Dr.H.A. Ramaswamy (ILR 1996 Kar.1107), he argued for allowing the appeal and setting aside the judgment of the trial court relating to conviction of the accused for the above said offences.
7. In Crl.1316/2012, the learned Addl. S.P.P. argued that the evidence given by the witness P.W.2, 3 and 4 prove that accused had committed murder of his wife. PW-5 has stated very clearly that he noticed an injury on the neck of the deceased. PW-6 has deposed that accused throttled the deceased to commit her murder. The evidence of these witnesses is corroborated by the evidence of the doctor examined as PW-12. Ex.P.9 is the opinion given by PW-12. The learned Sessions Judge has not appreciated the evidence of these witnesses. When the trial Judge held that deceased did not commit suicide and that it was homicide, it should have been held that it was the accused who committed the murder of his wife. Therefore acquitting the accused of the offence under Section 302 was not proper and argued for convicting the accused for this offence also.
8. In Crl.A.No.1371/2012, the learned Addl. S.P.P. argued that trial court erred in awarding inadequate sentence for the offences punishable under Section 498- A 304B and Sections 3, 4 and 6 of Dowry Prohibition Act that have been proved against the accused. He submitted that the trial court should have awarded maximum sentence prescribed under law.
9. The learned counsel appearing for the respondent/accused in Crl.No.1316/2012 and 1317/2012 argued that Sessions judge had rightly arrived at a conclusion that there was no evidence for holding accused guilty of offence under Section 302 IPC. There are no eye witness to the incident. The prosecution should have proved the circumstances to connect the accused with the said offence. The evidence given by PW-2 to 4 cannot be relied upon to hold the accused guilty of this offence. The opinion of the doctor cannot be based to convict the accused. The evidence of PW-2 to 4 only show their suspicion that accused might have committed the murder. This suspicion does not take the place of legal proof. Therefore the trial court rightly came to conclusion that accused should be acquitted of this offence. This portion of the judgment cannot be disturbed to hold the accused guilty of the offence under Section 302 IPC.
10. In the light of points urged by the learned counsel during their arguments, the following points can be formulated for discussion:
i. Has the learned Sessions Judge committed an error both on facts and law in acquitting the accused of the offence under Section 302 IPC?
ii. Has the learned Sessions Judge erroneously held that the accused is guilty of offences punishable under Sections 498-A and 304B IPC and Section 3,4 and 6 of Dowry Prohibition Act?
iii. If the answer to point NO.2 is in negative,are there grounds to enhance the sentence for the offences punishable under Sections 498-A and 304B IPC and Section 3,4 and 6 of Dowry Prohibition Act?
iv. What order?
11. The learned trial court Judge has held that death of the wife of the accused was homicidal . He has referred to the evidence given by the doctor examined as PW-12 to come to this conclusion. He has ruled out the possibility of suicide by logically concluding that if a person commits suicide by drowning in water, there are chances that the water will fill into the stomach and it is impossible that the hyoid bone will break. P.W-12 did not find water in the stomach, but found fracture of hyoid bone. Moreover there was injury mark on the neck. He also held that investigation officer did not investigate about the homicidal death and therefore there is no legal evidence either direct or indirect to connect the accused with the murder of deceased Shyla. He held that the ornaments worn by the deceased were intact on the dead body and therefore it was not a case of murder for robbing the valuable articles. Ex.P.8 does not reveal that she was subjected to rape prior to her death. Therefore the possibility of somebody committing her murder after committing rape can also be ruled out. In his opinion there are circumstances that point at the accused to suspect that he might have committed murder. But suspicion cannot be considered as legal proof and merely on presumption the accused cannot be convicted for the offence of murder.
12. The evidence thus appreciated by the learned Sessions Judge in our opinion appears to be proper. On reappraisal of evidence, what we find is that the prosecution case as regards homicidal death of the deceased is based on circumstantial evidence. Indeed, the testimony of PW-12, the doctor who conducted autopsy, establishes homicidal death; his opinion is that death was due to asphyxia as a result of compression of neck. There are no eye witnesses. None of PW-2 to PW-9, the prime witnesses speaks about a circumstance or circumstances pointing at the accused; rather what can be gathered from their evidence is their suspicion about involvement of accused in the death of his wife. At least there is no witness from Ramagatta village who saw the accused being with his wife before the actual incident had occurred. In Ex.P.7, the inquest, it is clearly recorded that no body was with the deceased at about 12 noon on 26.11.2008 when she left the house. Therefore we also come to the conclusion that there is no evidence to hold the accused guilty of offence under Section 302 IPC and thereby endorse the findings of the learned trial court judge to answer point No.1 in negative. Point No.2:
13. The learned judge of the trial court has taken two views as regards demand for dowry. In regard to cash and jewellery given at the time of marriage, he has held that they were customary gifts; and in regard to second part relating to demand for additional dowry of Rs.10,000/- two years after the marriage, his conclusions are that PW-2 to PW-11 testify that there was such a demand and consequently the deceased was being harassed. He has ruled out the probability in the defence version, but holds that since death occurred unnaturally within seven years of marriage and that there are circumstances indicating that the accused might have strangulated his wife though there is no legal proof, the accused could be held guilty of offences under Sections 498A, 304B IPC and Sections 3,4and 6 of Dowry Prohibition Act. The Sessions Judge has also drawn presumption under Section 113-Bof Indian Evidence Act.
14. We concur with the findings of the Session Judge with regard to first part that the money and the jewellery given before or at the time of marriage were just customary gifts. If we assess the evidence of the prime witnesses, particularly of PW-2, 3, 5 and 6, we also arrive at the same opinion. But as regards second part, we find it difficult to agree with the findings of the trial court. The reasons being that whenever there are allegations against the husband or his parents or other accused about ill-treatment meted out to wife in connection with demand for dowry, there must be consistent and cogent evidence. Usually in a case of this nature, the witnesses are relatives of the deceased; and it is not the rule that their evidence should never be believed at all because of their close relationship with the deceased. It is also a point to be borne in mind that these witnesses have a tendency to exaggerate the events and for this reason strict scrutiny of evidence is essential.
15. Before we reappraise the evidence with regard to harassment of the deceased for additional dowry after the marriage, we think it necessary to analyze the scope of Section 498A and Section 304B IPC.Section 498A IPC postulates that if a woman is subjected to cruelty either by her husband or relative of a husband, the husband or such relative shall be punished with imprisonment extending upto three years and fine. There are two explanations for the term ‘cruelty’. What amounts to cruelty according to explanation (a) is wilful conduct of the husband of a woman or his relative driving a woman to commit suicide, or causing grave injury or danger to her life, limb or health, either physical or mental. Explanation (b) is related to harassing a woman with a view to coercing her or any person related to her in connection with unlawful demand for any property or valuable security, or her failure to meet such a demand. Demand for dowry is unlawful and therefore explanation (b) is related to Section 304BIPC; they go together or Section 498A merges with Section 304B, if harassment is in connection with demand for dowry. At times, explanation (b) of Section 498A does not merge with Section 304B of IPC, if harassment is not in connection with demand for dowry and if demand can be related to some other purpose. Presumption available under Section 113B can be raised only if it is a dowry death as defined under sub-section (1) of Section 304B IPC, but presumption as to dowry death cannot be attached unless there is proof with regard to cruelty. In Sections 304B IPC and Section 113B of Indian Evidence Act, the expression employed is “it is shown that soon before her death”. It is therefore clear that proof as regards cruelty is essential. Division bench of this court in State of Karnataka Vs. Dr. H.A. Ramaswamy (ILR 1996 Kar.1107) has held as below:
“Cruelty for or in connection with dowry soon before her death will have to be established as a fact. In a case where death is shown to be of the type referred to in Section 304-B then there would not be any need to have recourse to the presumption, as cruelty of the type referred to in that Section will have to be proved even to attract that presumption. Another point to be noted is cruelty for or in connection with dowry must be shown soon before the death. It is not sufficient if cruelty of the type referred to in the Section at some point of time much prior to the death is proved.”
16. Now in the instant case, no doubt the death of the wife of accused took place within seven years of their marriage and it was not natural. The first two requirements of Section 304 B IPC are present, but there is no evidence as regards subjecting the deceased to cruelty for the purpose of dowry. The learned sessions judge has believed the evidence of PW-2 to PW- 9 and PW-11. But scrutinizing their evidence, we find that their evidence as regards cruelty or harassment is insufficient. Through they have stated that the accused again demanded Rs. 10,000/- and in that connection he ill treated his wife, their evidence cannot be believed. The best witness to speak about ill treatment on the deceased was some body form the neighbourhood of the accused. None of them is examined. It is not as if the evidence of close relatives of deceased cannot be believed, but their evidence must be trust worthy. Here what can be apparently made out is involvement of two persons, viz Nagararajappa and Govindappa a retiredAssistant Police Sub-Inspector in registration of FIR. PW-2 and PW-3 have denied the suggestion given to them about Govindappa’s involvement, and the learned trial court judge has observed that evidence of witnesses should be appreciated on the basis of their educational, social and economical back ground, to believe their evidence. PW-2 and PW-3 are the parents of the deceased and it is quite natural that they have denied Govindappa’s involvement. But evidence of PW4 and PW5 cannot be brushed aside. PW4 has given an evasive answer when it was suggested to him that entire complaint was made ready at the instance of Govindappa. An evasive answer is indicative of an attempt to suppress a particular fact. The answers given by PW-5 in the cross examination disclose that he, PW-2 Sidda Bhovi and one Nagaraj went to police station at 1.00 p.m., and he states that accused was also present at the police station and at that point of time, some other persons of the village were also present in the police station, and a panchayat came to be held which went on up to 6 pm. He further states that CPI Ravi Prasad advised them to settle the matter among themselves and police had asked the accused and his parents to give Rs.2,00,000/- to PW-2 Sidda Bhovi. He has admitted to these suggestions. These are not stray answers. PW-5 is another son-in-law of PW-2 and is employed at Bengaluru. He may have denied other suggestions, but there is his another clear answer that Govindaiah got the complaint written from Nagarajaiah and obtained signature of PW-2 Sidda Bhovi on it. Therefore the truth in the complaint cannot be believed, and it is for this reason that oral testimony of PW-2 to PW9 and PW11 is difficult to be believed.
17. The learned Sessions Judge has given a strange reason for discarding the compromise move in the police station. He has ascribed the reason that non compoundable offences cannot be compromised. Weare unable to agree with this reason. There is no scope for compounding of the offences alleged against the accused once the charge sheet is filed, but any move for compromise or settlement before registration of complaint need not be disbelieved, if evidence is there to that effect. Hence, from the available evidence, an inference can be drawn that failure of compromise might have resulted in a complaint in the nature of dowry death being filed.
18. Though the defence has made a feign attempt to introduce a different cause for the death, its improbability cannot be a reason for fastening presumption under Section 113B of the Indian Evidence Act. The prosecution evidence is initially unbelievable. There is no proof for subjecting the deceased to cruelty soon before her death. Therefore we arrive at a conclusion that the trial court has erred in holding the accused guilty of offences punishable under Sections 498A and 304B IPC and Sections 3,4and 6 of Dowry Prohibition Act. Point No.2 is answered in the affirmative.
Point Nos.3 and 4:
19. Obviously in view of point No.2 being answered in affirmative, there is no scope for enhancing the sentence for the offences punishable under Sections 498A and 304B IPC and Sections 3, 4 and 6 of Dowry Prohibition Act, rather the accused deserves acquittal of these offences and hence we proceed to pass the following:
ORDER i. Criminal Appeal No.1269/2012 is hereby allowed. Judgment passed in S.C.No.144/2009 by Fast Track Court-III, Tumakuru dated 8.6.2011 in so far as it relates to convicting the accused for the offences punishable under Section 498A and Section 304BIPC and Sections 3,4 and 6 of Dowry Prohibition Act is hereby set aside, the accused is acquitted of these offences.
ii. Criminal Appeals Nos.1316/2012 and 1317/2012 are hereby dismissed.
iii. Accused shall be released from imprisonment forthwith if his presence is not required in any other case.