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Anand Ashok Kambale @ Samagar vs State Of Karnataka on 5 June, 2014

Karnataka High Court Anand Ashok Kambale @ Samagar vs State Of Karnataka on 5 June, 2014Author: K.N.Phaneendra

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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 5TH DAY OF JUNE, 2014 BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL REVISION PETITION NO. 100099/2014 BETWEEN:

1. ANAND ASHOK KAMBALE

@ SAMAGAR

AGE: 27 YEARS,

OCC: AGRICULTURE

R/O.KARADAGA

TQ: CHIKODI

DIST: BELGAUM

2. ASHOK DADU KAMBALE

@ SAMAGAR

AGE: 52 YEARS,

OCC: AGRICULTURE

R/O.KARADAGA

TQ: CHIKODI DIST: BELGAUM

3. SMT. REKHATAI ASHOK DADU

KAMBALE @ SAMAGAR

AGE: 41 YEARS,

OCC: AGRICULTURE

R/O.KARADAGA

TQ: CHIKODI DIST: BELGAUM

… PETITIONERS

(BY SRI M B GUNDAWADE & SRI K.N. KANBARGI, ADVOCATES)

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AND :

STATE OF KARNATAKA

THROUGH STATE PUBLIC PROSECUTOR

HIGH COURT DHARWAD BENCH

BY SADALAGA POLICE STATION.

… RESPONDENT

THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO EXAMINE THE RECORDS AND PROCEEDINGS OF THE TRIAL COURT SO AS TO SATISFY IN RESPECT OF CORRECTNESS, LEGALITY OF THE ORDER DATED 6.2.2014, PASSED ON THE BASIS OF THE PROSECUTION AND PASSING AN ORDER TO RECASTE THE CHARGES U/S 498-A, 304-B, 302, 201 R/W 34 OF IPC AND SEC. 3 & 4 OF D.P. ACT AND SET ASIDE THE ORDER DATED 06.02.2014 IN S.C.NO.62/2013 PENDING BEFORE THE VII-ADDL. DIST. & SESSIONS JUDGE, BELGAUM, CHIKODI.

I.A. NO. 1/2014 IS FILED FOR GRANT OF STAY. THIS CRIMINAL REVISION PETITION A/W. I.A. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

The petitioners have challenged the order passed by VII Additional District and Sessions Judge, Belgaum, sitting at Chikkodi in S.C. No.62/2013 dated 06.02.2014 in allowing the applications under Sections 231(1), 242(2) read with Section 311 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity).

2. The prosecution had filed said application to alter the charge by incorporating the charges under Section 3 of Dowry Prohibition Act, 1961 (hereinafter referred to as ‘D.P. Act’ for brevity) and under Section 304B of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’ for brevity) and alternatively for the offence punishable under Section 302 of I.P.C.

3. Learned counsel for petitioners strenuously contended that police had filed charge sheet only for the offences punishable under Sections 498A and 306 read with 4

Section 34 of I.P.C. In fact, after hearing the parties and after going through the charge sheet papers, at the initial stage, the court has framed charges under the above said provisions. Subsequently, after recording the evidence and after recording the statement of accused persons under Section 313 of Cr.P.C. it appears that the learned Public Prosecutor had filed an application for altering the charges by incorporating Section 3 of D.P. Act and Section 304B of I.P.C.

4. I have carefully perused the orders passed by trial Court. The trial Court had earlier framed charges for the offences punishable under Sections 498A and 306 read with Section 34 of I.P.C. After recording the evidence and after going through the application filed by learned Public Prosecutor, the trial Court has found that during the course of evidence the witnesses have categorically stated that the death was due to demand of dowry and also the death has occurred within seven years from the date of marriage. 5

Therefore, even considering that the deceased has committed suicide, it attracts the offence punishable under Section 304B of I.P.C. Section 304B of I.P.C. reads as follows-

304B. 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 death”, and such husband or relative shall be deemed to have caused her death. ”

5. Therefore, looking into the provision of this section, the wordings used clearly mandates that, “if any death occurs otherwise than under normal circumstances” that clearly goes to show that even the commission of suicide amounts to death otherwise than in normal circumstance 6

therefore it is also deemed to have been incorporated in this particular section so as to attract Section 304B of I.P.C. If the death is coupled with other circumstances i.e., to say, there must be demand of dowry soon before her death and because of that demand of dowry she has committed suicide, then under such circumstances the offence punishable under Section 304B of I.P.C. is attracted. Therefore, I do not find any strong reasons in order to interfere with the orders of learned Sessions Judge so far as incorporating Section 3 of D.P. Act and Section 304B of I.P.C.

6. I have also perused the evidence of witnesses. They have stated about the demand of money and the cause of death of the deceased. Whether the demand of money amounts to demand of dowry has to be thrashed out during the course of trial and the same has to be appreciated by trial Court while appreciating the other materials on record. 7

7. Now coming to the other important point raised by learned counsel for petitioners that, though there is absolutely no material on record to frame charges under Section 302 of I.P.C. which was framed alternative to Section 304B of I.P.C., the learned Sessions Judge has committed an error in passing the order to frame charges alternatively under Section 302 of I.P.C. The post mortem report shows that the death was due to drowning, but while explaining the external injuries on the body, it has been clearly mentioned that there was a cut lacerated wound over the occipital region on head measuring 1 mm depth, length 2.5 cm. The doctor has not at all stated about the nature of this injury and how this injury has been caused and whether it is antemortem injury or postmortem injury. During the course of evidence one witness by name Shivanand has stated in his examination-in-chief that the accused persons have assaulted the deceased to death and committed her murder. Thereafter they have thrown the dead body into the river. This particular aspect is also supported by some of the other 8

witnesses. The evidence of doctor has also been recorded. The other witnesses by name Raju was a witness to the inquest panchama and he has stated that there were two head injuries on the dead body. The doctor has also stated that there were injuries on the head portion of dead body. In the examination-in-chief the Doctor has also stated that those injuries could have been caused if the deceased was assaulted with any hard object. He has never stated that those injuries are antemortem or postmortem in nature. Therefore, I am of the opinion that framing of alternative charge under Section 302 of I.P.C. under the above doubtful circumstances does not call for any interference by this Court. Though the learned Sessions Judge has not discussed all these things in the order, nevertheless, his conclusion is not improper. Therefore, I do not find any strong reason to interfere with the order passed by learned Sessions Judge. Hence, petition deserves to be dismissed. Accordingly, petition is dismissed. 9

The observations made in this order is only for the purpose of considering whether the order passed by learned Sessions Judge is correct or not and the learned Sessions Judge should not be persuaded by the above said observations while appreciating the evidence on record. In view of dismissal of main petition, I.A. No.1/2014 for grant of stay does not survive for consideration. Accordingly, I.A. No.1/2014 is disposed of. Sd/-

JUDGE

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