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Sections 498A, 304B Acquittal upheld by Karnataka HC

 

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF APRIL, 2016

PRESENT

THE HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR

AND

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

CRIMINAL APPEAL No.928/2012

BETWEEN:

The State of Karnataka
by Mico-layout Sub-Division Bangalore .. Appellant
(By Sri Vijaya Kumar Majage, Addl. SPP)

AND :

1. Raj Kumar
S/o Venkataraju
Aged about 27 years
R/at No.60/2, Prasad Building, 2nd Floor
Opposite to Swamy Hallo Block Factory, Chikkakammanahalli Bangalore-560 002

2. Sundaramma
W/o Venkataraju
Aged about 50 years
R/at No.60/2, Prasad Building, 2nd Floor
Opposite to Swamy Hallo Block Factory, Chikkakammanahlli Bangalore-560 002

3. Venkataraju
S/o late Giriyappa
Aged about 54 years
R/at No.60/2, Prasad Building, 2nd Floor
Opposite to Swamy Hallo Block Factory, Chikkakammanahlli Bangalore-560 002

4. Murthy
S/o Venkataraju
Aged about 24 years
R/at No.60/2, Prasad Building, 2nd Floor
Opposite to Swamy Hallo Block Factory, Chikkakammanahlli Bangalore-560 002 ..Respondents

(By Sri K.B.K.Swamy, Adv.,)

This Appeal is filed under Sections 378 (1) and (3)
Cr.P.C praying to grant leave to appeal against the
judgment and order of acquittal dated 03.02.2012 passed
by the Presiding Officer, Fast Track Court-IV, Bangalore in
S.C.No.199/2011 acquitting the respondents/accused of the
offences punishable under Sections 498A, 304B r/w Section
34 of Indian Penal Code and Sections 3,4,6 of Dowry
Prohibition Act with a prayer to set aside the judgment and
order of acquittal and to convict and sentence the accused
for the offences with which they were charged.

This Appeal having been heard and reserved for judgment, coming on for pronouncement of Judgment this day, MOHAN M. SHANTANAGOUDAR .J., delivered the following.

JUDGMENT

The Judgment Order of acquittal dated 3rd February 2012 passed by the Fast Track Court – VI, Bangalore in S.C. No.199/2011 is the subject matter of this appeal by the State.

By the impugned Judgment and Order, the trial Court has acquitted the accused of the offences punishable under Sections 498-A, 304-B r/w Section 34 of IPC and Sections 3,4 and 6 of the Dowry Prohibition Act.

2. Case of the prosecution in brief is that Accused No.1 is husband of the deceased Vinutha; Accused Nos.2 and 3 are mother-in-law and father-in-law of the deceased; Accused No.4 is brother-in-law of the deceased; during the year 2006, the deceased Vinutha eloped with Accused No.1 and they married in Muneshwara temple situated at Ooty in Tamilnadu state on 22.5.2006; after the marriage, the deceased was living with the accused in Chikkakammanahalli, Bangalore; after six months of the marriage, the accused started torturing the victim by pressurizing her to bring money from her parents; the accused used to assault and scold the deceased and subjected her to cruelty; the deceased had lodged the complaint before the Hulimavu Police Station, Bangalore; However the Police did not register the crime and advised the accused suitably. It is further case of the prosecution that Accused No.1 used to quarrel with the deceased frequently for one or the other reason; he used to tease the deceased that her parents have not spent any amount for her marriage and they have not given any jewels and other properties to him; the deceased being intolerant, told about such harassment by the accused to her sisters as well as her father; consequently sister of the deceased gave 40 grams of gold chain and other gold ornaments to the deceased; even a cash of Rs.50,000/- was borrowed by PW.1 from ‘Sthree Shakthi Sangha’ and the said amount was handed over to Accused No.1 in order to satisfy his greed; Despite the same, the ill-treatment by the accused continued; being intolerant, the deceased committed suicide by hanging herself in her matrimonial house on 16.7.2010 at 9.00 a.m; At that point of time, none of the accused were in the house; thereafter, Accused Nos.1 and 2 having come to know about death of the deceased, entered the house by breaking open the doors; on being informed, the sisters and parents of the deceased also came to the spot. Ultimately, the complaint as per Ex.P1 came to be lodged by PW.1 (elder sister of the deceased) before the Hulimavu Police Station at 7 p.m. on 16.7.2010 which came to be registered in Crime No.177/2010 by the Sub- Inspector of Police (PW.19). PW.19 prepared the First Information Report as per Ex.P36 and sent the same to the jurisdictional Police. PW.15 (Assistant Commissioner of Police) completed the investigation and laid the charge sheet.

3. In order to prove its case, the prosecution in all examined 20 witnesses and got marked 38 documents and 3 Material Objects. On behalf of the defence, no witness is examined and no documents are got marked.

4. Sri Vijayakumar Majage, learned Additional SPP taking us through the material on record submits that the evidence of PWs.1 to 6 is wholly sufficient for convicting the accused for the offence under Section 304-B of IPC or in the alternative, it is sufficient to convict the accused atleast for the offences under Section 498-A and 306 of IPC. He submits that the evidence of these witnesses is consistent, cogent and reliable; Their evidence clearly reveals the harassment by the accused on one pretext or the other, more particularly by demanding property from the parents of the deceased. He further submits that the trial Court has erred in relying upon the evidence of PWs.7,8,9 and 13 for coming to the conclusion inasmuch as those witnesses are treated as hostile by the prosecution. According to him, the reasons assigned and the conclusion arrived at by the trial Court are improper and incorrect.

Per contra, Sri K.B.K. Swamy, learned advocate for the respondents argued in support of the Judgment of the Court below. He submits that though PWs.7,8,9 and 13 have turned hostile to the case of the prosecution, their evidence is useful for the defence inasmuch as their evidence is not discredited in the cross-examination by the Public Prosecutor. Lastly, he submits that even if the second view is possible under the facts and circumstances of the case, the benefit of doubt should go in favour of the accused inasmuch as the accused is acquitted by the trial Court.

5. Before proceeding further, it would be beneficial to note the versions of each of the witnesses in brief:

PW.1 is elder sister of the deceased. She has lodged the complaint as per Ex.P1, based on which crime came to be registered. She has deposed about the marriage between the deceased and Accused No.1 in the year 2006; deceased asking sewing machine and clothes by contacting her sister (PW.2) over phone; about the deceased informing in respect of harassment by the accused and demand made by the accused; about the earlier complaint lodged before Hulimavu Police Station; about the harassment demanding site by the accused and about payment of Rs.50,000/- towards dowry to Accused No.1 after taking loan from ‘Sthree Shakthi Sangha’.

PW.2 is another elder sister of the deceased. She has also deposed almost on par with the evidence of PW.1.

PW.3 is father of the deceased. He is an agriculturist by profession. He came to know through PW.2 about the deceased marrying the accused. He has also deposed about the harassment by the accused demanding the site from him (PW.3).

PW.4 is the landlord of the house wherein the deceased and the accused were living one year prior to the incident in question. He has deposed about the harassment by the accused. He has also deposed that the harassment continued even after they left the house and started residing elsewhere.

PW.5 is the younger sister of the deceased. Her evidence is also on par with the evidence of PWs.1 and 2.

PW.6 is neighbour of the house wherein the accused and the deceased earlier lived. She has also vaguely deposed about the harassment demanding site by the accused.

PWs.7 and 8 are landlords of the house wherein the deceased and the accused were living at the time of the incident. PW.7 is the wife of PW.8. They were treated as hostile witnesses by the prosecution. Though they were cross-examined by the Public Prosecutor, nothing worth is elicited by the Public Prosecutor so as to discard their evidence, in which they have made certain favourable remarks against the case of the prosecution.

PW.9 is neighbour of the house wherein the incident has taken place. Her evidence is also almost on par with the evidence of PW.8.

PW.10 is the Assistant Engineer. He drew the sketch of scene of offence as per Ex.P5.

PWs.11, 12 and 18 are Police Officials and they participated during the course of investigation at different levels.

PW.13 is another neighbour of the deceased. He was also a tenant residing in the ground floor of the building wherein the deceased and the accused were living. He has deposed that the accused and the deceased were living amicably. He has turned hostile to the case of the prosecution.

PW.14 is the Taluka Executive Magistrate. He conducted the inquest proceedings. The inquest mahazar is at Ex.P16.

PW.15 is the Assistant Commissioner of Police. He completed the investigation and laid the charge sheet.

PW.16 is the Sub-Inspector of Police. He conducted part of the investigation.

PW.17 is the doctor. He conducted the post-mortem examination. Autopsy report is at Ex.P33. The said doctor has given the information as per Ex.P34 after examination of the synthetic veil with which the deceased had committed suicide. Further opinion of the doctor is at Ex.P27.

PW.19 received the complaint as per Ex.P1 and registered the crime. He sent the FIR to the Court. He also received the death memo – Ex.P37 through Krishnappa, Assistant Sub-Inspector of Police.

PW.20 is another Inspector of Police. He also conducted part of the investigation and handed over the investigation to PW.15.

6. As mentioned supra, the incident has taken place at about 9.00 a.m. on 16.7.2010. Immediately thereafter, Accused Nos.1 and 2 came to their house and broke open the door and shifted the dead body to General Hospital, Jayanagar. Since the victim had already died by then, the death intimation was sent to the Police by the doctors in the hospital. Death Intimation was received by PW.19, the Sub-Inspector of Hulimavu Police Station. In the cross-examination, PW.19 has admitted that at 11.00 a.m. on the date of the incident, he received information from Tilaknagar Police Station about the death of the deceased. However, the said Inspector did not register the crime. He did not even mention about such intimation in the case diary. But, he has sent a Police personnel to Tilaknagar Police Station for getting information. In the meanwhile, death memo was received by him at 12.30 p.m. Even after receipt of the death memo from hospital, he did not register the crime. However he sent Mr. Krishnappa, theAssistant Sub-Inspector of Police to the scene of offence. The complaint came to be lodged only at 7 p.m. on 16.7.2010 by PW.1 (sister of the deceased). PW.19 has clearly admitted that he has not mentioned as to why he did not register the crime immediately though he got the information about the crime in question at 11.00 a.m. on 16.7.2010.

Admittedly, there is long delay of about 8 hours in registering the crime. Though PW.19 has received the information about the crime at 11.00 a.m, he did not even mention about the crime in the case diary and thus he has not even cared to register the crime. Had the Police registered the crime immediately after getting news of the incident, there could not have been any embellishment by the prosecution? In this regard, learned defense counsel is justified in arguing that the unexplained delay appears to be purposeful and only to give scope for creating false story against the accused. In this regard, it would be relevant to note that PW.1 has clearly admitted in the cross- examination that the relatives of the deceased discussed about death of the deceased and only after discussion and due deliberation, the complaint came to be lodged. Therefore it is clear that the complaint – Ex.P1 came to be lodged after due deliberations by PW.1 with all the family members and that the Police has failed in their duty to register the crime though they had received the information about the crime at 11.00 a.m. and the death intimation sent by the hospital at 12.30 p.m. on the date of the incident. Such delay has remained unexplained. Keeping these aspects of the matter in mind, the entire evidence needs to be evaluated carefully.

7. It is not in dispute that the marriage between the accused and the deceased has taken place on 22.5.2006 at Ooty in Tamilnadu state. It is also not disputed that the deceased eloped with Accused No.1 and she married him voluntarily. It is also not in dispute that none of the family members including the sisters and parents of the deceased were agreeable for the said marriage. It was an inter-caste marriage. The deceased and the accused came back to Bangalore only after six months of the marriage. Thus it is clear that for about six months, the deceased was unheard of. Not even a complaint came to be lodged by any of the family members including the parents of the deceased about missing of the deceased. They did not care to bother about the whereabouts of the deceased for six months. None of the family members of the deceased were liking the deceased since she had married the accused, who belongs to a different caste.

8. It is also not in dispute and it is admitted that even after six months when the victim came to Bangalore and called her sisters (PWs.1 and 2) over the phone about her coming back to Bangalore after the marriage with the accused, she was not invited by any of her family members. The deceased was kept aloof from her family. Consequently, the deceased had requested to give back her sewing machine and clothes and told PW.2 that she would come and take the sewing machine and her clothes. However, the said matter was reported to PW.3 (father of the deceased) by the sisters of the deceased. The father of the deceased did not agree for deceased visiting his house since she had married the accused against his will. Hence PW.3 suggested PWs.1 and 2 to take sewing machine and clothes of the deceased to their house and to inform the deceased to collect the same from their house. Thus the sewing machine, as well as clothes of the deceased, were taken to the house of PWs.1 and 2 and the deceased came to the house of PWs.1 and 2 and took sewing machine and her clothes. Even at that point of time, she was not invited by her sisters and parents. Thereafter she started living with Accused No.1. During that that point of time, Accused No.1 was having tailoring shop. When she became six months pregnant, she informed about the same to her sisters. But her sisters did not take her to the hospital. They did not even show care and concern towards the deceased. Consequently the victim delivered her first child in the house of the accused though the 1st delivery would generally be in the parents house as per the custom in this part of the State. After delivery of the 1st child also, the deceased and the accused were living together under the same roof. Only when the deceased became pregnant for the second time, according to the prosecution, the ill- treatment by the accused started. Thereafter the deceased allegedly told about the same to her sisters and the parents. It is also alleged by the prosecution that the accused used to harass the deceased both physically and mentally to bring jewels from her parents house and also demanding to get the site from her parents. It is further case of the prosecution that a sum of Rs.50,000/- was demanded by the accused and such demand was met by Accused No.1 by raising loan from ‘Sthree Shakthi Sangha’.

Such case as made out by the prosecution with regard to the demand of dowry after the marriage also appears to be false. As is clear from the evidence of PW.3, Accused No.1 was having a tailoring shop and he was earning from such tailoring business; the deceased started coming to the parents house only after she became pregnant for the second time; he was doing coolie work and his other daughters were working in the garments factory. PW.3 has admitted that he never visited the house of the accused and that he does not know as to for what reason, the victim died. He has also admitted that the accused has never asked him dowry directly. It is categorically admitted by PW.3 that the deceased was intending to live separately with Accused No.1 only and she did not intend to live with Accused Nos.2,3 and 4. Thus the evidence of PW.3 (father of the deceased) would amply show that he was a poor man and was doing coolie work and even the sisters of the deceased were also poor and they were working in the garments factory, whereas Accused No.1 was having a tailoring shop. Though it is the case of the prosecution that a sum of Rs.50,000/- was paid by PW.1 to Accused No.1 after raising loan from ‘Sthree Shakthi Sangha’, such case as made out by the prosecution is false. The document at Ex.P25 would clearly reveal that a sum of Rs.50,000/- loan was raised by PW.1 from ‘Sthree Shakthi Sangha’ on 30.8.2010. The incident has taken place on 16.7.2010. That means PW.1 had raised the loan of Rs.50,000/- after one month of death of the deceased. Hence it is clear that the prosecution wants to improve its case by raising false plea.

9. Having regard to the entire material on record with regard to the demand of dowry etc., we are of the clear opinion that neither the parents of the deceased were in a position to pay any amount to the deceased nor her sisters were in a position to pay the amount as demanded by Accused No.1. So also there is nothing on record to show that sisters and parents of the deceased had got site so as to enable Accused No.1 to demand site from them. The marriage between Accused No.1 and the deceased took place in Ooty and both of them eloped to marry. They came to Bangalore only after six months. Admittedly, Accused No.1 and the deceased were living in a separate house for about 3 ½ years. There is nothing on record to show that Accused No.1 ever visited the house of PWs.1,2 and 5 or PW.3. However the records only reveal that the deceased used to visit her sisters’ house and the parents house after she became pregnant for the second time. Till such time, there was no demand at all by the accused. Therefore in our considered opinion, the trial Court is justified in holding that demand and payment of dowry is not proved by the prosecution.

10. The next question to be decided is as to whether the accused has committed the offences under Sections 306 and 498-A of IPC.

At the outset, we may clarify that absolutely no material muchless reliable material is found as against Accused Nos.2,3 and 4. Just six months prior to the incident in question. Accused No.1 and the deceased had joined parents of Accused No.1. Till such time, they were living separately in a different house. As admitted by PW.3 (father of the deceased) the deceased was intending to live separately with Accused No.1 only and she did not intend to live with Accused Nos.2,3 and 4. Except certain omnibus statements made by PWs.1 and 2 with regard to the so-called complicity of Accused Nos.2,3 and 4, no acceptable material is forthcoming against them. PW.3 (father of the deceased) has even admitted in the cross-examination that he does not know as to who Accused No.4 is. Therefore in our considered opinion, Accused Nos.2,3 and 4 are rightly acquitted by the trial Court since there is no evidence against them.

Insofar as the complicity of Accused No.1 is concerned, again we have got two sets of evidence. One set of evidence by the sisters, father and erstwhile house owner of the deceased; the second set of evidence is by the present landlords and neighbours of the deceased. PWs.7 and 8 are the landlords of the house wherein the incident has taken place and PWs.9 and 13 are neighbours. These four witnesses are independent witnesses. They are not related either to the accused or to the deceased. They are from different caste altogether. PWs.7 and 8 are Christians by caste. There is no ground for them to deposeagainst the case of the prosecution nor they have got any interest in Accused No.1 to depose in his favour. All of them no doubt are treated as hostile by the prosecution. However in the examination-in-chief of these witnesses, they have deposed that the accused and the deceased were living amicably and there was no quarrel whatsoever between them. They have specifically deposed that there was no demand by Accused No.1 and consequently there was no harassment. After treating them as hostile witnesses, the prosecutor has cross-examined them. Even in the cross-examination, nothing worth is elicited by the Public Prosecutor. This set of evidence runs contrary to the evidence of PWs.1 to 6. As mentioned supra, PW.3 has virtually spoiled the case of the prosecution by deposing that he does not know as to why the deceased committed suicide and that the deceased was intending to live separately alongwith Accused No.1 and she did not intend to live with Accused Nos.2,3 and 4. Thus the evidence of PW.3 practically supports the defence of the accused. As mentioned supra, the evidence of PWs.1,2 and 5 with regard to the demand of money in the form of dowry by Accused No.1 after the marriage is not proved by the prosecution. There is nothing on record to show that either the deceased or the parents of the deceased had got site in order to give the same to Accused No.1. So also the evidence relating to raising of loan of Rs.50,000/- for paying the same to Accused No.1 is also not proved inasmuch as the said amount was raised as loan by PW.1 only after one month of death of the deceased. Except the oral say of PWs.1,2 and 5 that the deceased was complaining before them about Accused No.1 demanding money, no other reliable material is produced. We find that the versions of these witnesses is cryptic, vague and omnibus. There is no specific instance of harassment by the accused. The post-mortem report as well as the evidence of the doctor – PW.17 does not disclose any injury on the dead body of the deceased except the ligature mark. Not even a scratch mark is found on the body of the deceased, which means the deceased was not subjected to physical cruelty. The evidence on record is also silent about the mental cruelty. Even assuming that the evidence of PWs.1,2 and 5 supports the case of the prosecution to certain extent, the said set of evidence runs contrary to the evidence of the independent witnesses such as PWs.7,8,9 and 13. It is no doubt true that PWs.4 and 6 are also independent witnesses inasmuch as they are earlier landlords. It is admitted by PWs.4 and 6 that the accused and the deceased were living in the house of PW.4 one year prior to the incident in question. Therefore they would not have any knowledge as to what has happened after they left the house. It is also admitted by them that they are close friends of PW.1.

Be that as it may, since two sets of evidence which run contrary to each other are available on record and as one set of evidence by independent witnesses, who are not related to either the deceased or the accused are in favour of the accused, the one which is favourable to the accused is accepted by the trial Court, more particularly when the evidence of PWs.1 to 6 is not consistent and cogent. As mentioned supra, PW.3 (father of the deceased) has even admitted the defence theory that the deceased was intending to live separately with Accused No.1 only and was not intending to live with other accused and in that regard, she must have committed suicide. Since we find that the evidence of PWs.1 to 6 suffers from inconsistencies and improvements, which are not supported by any documents and as their evidence is found to be contrary to the document at Ex.P25 regarding the alleged payment of Rs.50,000/- to Accused No.1, in our considered opinion, the trial Court has rightly disbelieved the versions of these witnesses and has rightly preferred to accept the evidence of PWs.7 to 9 and 13 in acquitting the accused.

11. Since this is the appeal against the order of acquittal and as the view taken by the trial Court is one of the possible views under the facts and circumstances of the case, we decline to interfere in the impugned Judgment Order of acquittal, more particularly when the Judgment and Order of acquittal is well reasoned.

Accordingly, the appeal fails and the same stands dismissed.

Sd/-

JUDGE Sd/-

JUDGE Gss/-

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