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Sharanabasayya vs The State Of Karnataka on 22 September, 2011

Karnataka High Court Sharanabasayya vs The State Of Karnataka on 22 September, 2011Author: Anand Byrareddy

INTl ii i hG! i COURI j: KARNAIAK CIRCUIT BENCH AT F)HARWAD

DATE I) TIll S TI IL 22 1)AY OF SF PTF 1 B ER 2011 BEEORE

II IF II0N[3LE MR. JESI1CE A-D I3YRARFDDY CRIMINAL APPEAL No,2591/201()

BET WE EN:

I. Sharanabasavva,

Sro Andanava Fliremath.

Aged 27 years.

0cc: Aariculture.

2. Andanava

S 0 ShR avva I liremath.

Aged 72 ‘years,

0cc: Agriculture,

3. Smt.Siddamma.

o Andanaya Hiremath,

Aged 57 years,

0cc: Household work,

All are residents ol Kvasalapur.

koppal District PPEI1A1S (By Shri. Chandrashekar Pati 1. Advocate) p

AND:

The State of Karnataka.

By Mundargi Police.

Through Additional State

Public Prosecutor,

Circuit Bench Building,

Dharwad. RESPONDENT (By Shri Anand K Navalgimath, Advocate)

This Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure seeking to set aside order dated 6.2.20 10 passed by the learned Sessions Judge, Gadag in S.C.No.2 1/2008.

This appeal coming on for hearing this day, the court delivered the following :-

JUDGMENT

I leard the learned counsel for the appellants and the respondent.

2. The facts briefly stated are as follows: One Mudakayya Channaveerayya Hiremath of Kalakeri Village. Mundargi Taluk had complained that of his children, consisting of two sons and four daughters. Vijayalakshmi was given in marriage to accused no.1, namely, Sharanabasayya, son of Andanaiah Hiremath, about a year prior to the complaint at a mass marnage held at 1liremath Kanagalpur. It is his case that prior to the marriage, there were negotiations as regards dowry and it was agreed that he would pay Rs.30.000i- in cash and two tolas of gold and accordingly, at the time of marriage, a sum of Rs.20000/- and two tolas of gold apart from clothes and a wrist watch etc., were given and the marriage was performed. However. Rs. 10.000/- was to be paid as part ol’ the dowry. Vijayalakshmi joined her husband in her matrimonial home. It is the further case of the complainant that Ihr about two months, there were no instances of any discard between his daughter and her husband and immediately after two months, the accused namely, Sharanabasayya, his father and his mother and his brother started ill-treating Vijayalaksmi demanding the remaining amount of dowry and in this regard. she had been sent home to secure the same and at that point of time, she had informed the complainant about the ill-treatment meted out to 4

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her. The complainant and one of his sons had then gone to the house of the accused and assured them that the amount of Rs. 10.000/- would be paid within one year. since they were expecting the ground nut harvest to be made soon and that they would generate funds to pay the amount. lie had also consulted his daughter at that point of time. One month prior to the complaint. Vijayalakshmi is. said to have come to Kalakeri and stayed for about 12 days and again she had pleaded the complainant to pay the amount at the earliest as there was escalated harassment by her in-laws mid she would not be in a position to go there and live peacefully unless the demand was met. ‘[hereafter, a week prior to the complaint, the son-in-law is said to have come to take Vijayalakshmi back to her matrimonial home. On 3.12.2007 it transpires that a person from Kyasalpur had telephonically informed that Vijayalakshmi had drowned in an open well of Megalamaniyavar and that her death had taken place some time between 12 noon and 4p.m. on that day. The complainant, on being intimated ci’ this, had visited the spot where his daughter was lying dead and it was his belief that it was on account of the continued harassment meted to her by the accused that she had possibly committed suicide and accordingly had lodged a complaint with the Mundargi Police Station on 4.12.2007. [he Police had thereafter registered a case and investigation was taken up. Statements of witnesses were recorded and after completion of the investigation, a charge-sheet having been filed, the case was dropped insofar as accused no.4 was concerned. namely. the brother of accused no.1 and the charge-sheet alleged offences under Sections 498A. 304-B read with 34 of the Indian Penal Code (hereinafter referred to as the IPC’ for brevity) and Sections 3,4 and 6 of the Dowry Prohibition Act. 1961. The statements of the accused under Section 313 of the Code of Criminal Procedure (Hereinafter referred to as the ‘Cr.PC’ for brevity) were recorded and charges were framed against the accused. The Court of Sessions framed the following points for its consideration on the basis oithe evidence recorded: 6

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I) Whether the prosecution proves that A. I Sharanabasayya being a bride-groom and A.2 Andanayya being the lather of A. I and A.3 Siddamma being the mother of A.l, while

taking Vijayalaxmi daughter of complainant Mudakayya Hiremath, as a bride to A. I in a marriage talks, together set up a demand of payment of Rs.40.00O- in cash and 5 tolas of Gold as a dowry by Mudakayya Hiremath and when complainant Mudakayya H iremath declined to concede the demand, elders in the marriage talks settled that Mudakayya Hiremath to pay Rs.30,000/- in cash and 2 tolas of gold as a dowry to A. I to which also complainant Mudakayya I Iiremath did not agree and ultimately it was settled that Mudakayya Hiremath to pay cash of Rs.20,000/- and 2 tolas of gold as a dowry to A. I at the time of marriage and to pay balance dowry amount of Rs. 10,000/- after ground nut crop hanest to which A. I to 3 agreed and thereby set up demand for dowry directly beibre the parents of the bride and committed S

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an offence punishable under section 4 of the I).P.Act, 1961 beyond all reasonable doubt? 2) Vhether the prosecution proves that A. I to 3 in consequence of the said settlement, a week prior to 25.1.2007, received an amount of Rs,.20,000/- by making Mudakayya Hiremath to come to their house and making him pay said sum in the hands of .2 and further received a golden chain weighing one tola to the bride as a dowry and performed the marriage between A. I on the one hand and Vijayalaxmi on the other at Sri Siddaveer Shivacharva Math. Kandgalpura on 25.1.2007 in a mass marriage and thereby A. I to 3 received dowry in the form of cash and gold and committed an offence punishable under section 3 of the Dowry Prohibition Act, 1961, beyond all

reasonable doubt?

3) Whether the prosecution proves that A. I to 3 after Ugadi festival, while Vljayalaxmi, wife of A. 1 was residing in their residential house. constructed in their land, time and again used to S

assault her and use to subject her to cruelty. in the matter of bringing balance amount of Rs. 10,000/- towards dowry and their such willful conduct, which was of such a nature as was likely to drive Vijayalaxmi to commit suicide and thereby committed an offence punishable under section 498A read with

Section 34 of the IPC beyond all reasonable doubt?

4) Whether the prosecution proves that A. I to 3 while were residing with Vijayalaxmi in their residential house, constructed in a land, used to subject Vijayalaxmi to cruelty both physically and mentally in bringing balance dowry amount of Rs. 10,000/- and when such cruelty went intolerable, at about 12 noon, on 3.12.2007. she jumped into deserted well in an adjoining land and committed suicide and the death of

Vijayalaxmi was caused otherwise than under normal circumstances within 7 years of her marriage, and they caused a dowry death and committed an offence punishable under section S

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304-B read with Section 34 IPC, beyond all reasonable doubt?

5) Whether the prosecution further proves that. A. I to 3 after having received dowry amount of Rs.20,000/- and 2 tolas of gold, in performing the marriage between Vijayalaxmi and A. I on 25.1.2007 at Sri Siddaveer Shivacharva Math. Kandagalpura. in a mass marriage ceremony. failed to return said dowry back to Mudakayya Hiremath and thereby committed an offence punishable under section 6 of the D.P.Act, 1961 beyond all reasonable doubt?

3. The Sessions Court held points – 1.2 and 5 in the negative and insofar as points – 3 and 4 are concerned were held to have been proved and accordingly had rendered judgment sentencing the accused to undergo three years rigorous imprisonment and to pay a line of Rs. 10.000.’- each. for an ofIbnce punishable under Section 498A read with Section 34 of the IPC and further sentenced to undergo ten years to

rigorous imprisonment for an offence punishable under Section 304-13 read with section 34 of the IPC and out of the line amount of Rs.30.000/-. Rs.25,000′- was to be paid to the complainant as compensation. It is this which is sought to be challenged in the present appeal.

4. The learned counsel for the appellants, while taking this court through the reasoning of the court below and the record of the case, would point out that there was no evidence whatsoever insolbr as the alleged ill-treatment of the deceased is concerned. The court below has placed reliance on the evidence of the witnesses, which purportedly supported the prosecution case. while overlooking the witnesses, who are said to have turned hostile and has imposed the punishment while holding that the charges have been proved beyond all reasonable doubt. It is pointed out that there are major contradictions in the very complaint and First Information Report and the same are totally inconsistent with the evidence on record. as lbr instance, it is II

pointed out that in the complaint and the First Information Report it is alleged that the dowry amount of Rs.30.000 – and two totals of gold was fixed and a sum of Rs.20,000/- and two tolas of gold were to be given at the time of marriage, whereas in the evidence of the witnesses, it is stated that Rs.20.000/- was given prior to the date of marriage and nothing is spoken about the balance of Rs. 10,000/-. The discrepancy is not explained by any of the witnesses. The contradictions insofar as the depositions of the several witnesses are concerned, is unreliable, to hold that the charges against the accused have been proved beyond all reasonable doubt. It is settled legal position that when inconsistencies and contradictions are not reconciled. the benefit of doubt ought to he extended to the accused and they should be acquitted. The court below has not thought it fit to reconcile the evidence viewed as a whole. in examining whether there was evidence which established the guilt of the accused beyond all reasonable doubt. The controversy whether the deceased had accidentally slipped and 5

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fallen into the water in the well and had drowned. or whether she had deliberately committed suicide is not resolved. The evidence of PW. 10 who was engaged by the Police to retrieve the dead body of the deceased• from underwater, had categorically stated that the deceased was holding on to the pot. which would imply that she had been to the well to fetch water as there was failure of power on that day and the only other alternative source for water ‘as the open well where the deceased had fallen and since she was found holding on to a pot, it would clearly indicate that she had apparently fallen into the well by accident and that she had not committed suicide. for otherwise, she may not have been carrying a pot. 1he fact that the witnesses, whose evidence has been accepted, were close relatives of the deceased. vould give rise to a presumption that they have tendered evidence with a sole intention of ensuring that the accused are punished in order to avenge the death of the deceased and that there was no other motive and that the evidence was far from the truth. This is • 13

evident when their evidence is juxtaposed against the evidence of other witnesses, who have not supported the case of the prosecution of continued ill-treatment, which is complained of on the part of the accused. The circumstance that the court itself finds and has observed at Paragraph-40 of the judgment, to the effect that there are discrepancies in the case of the prosecution, but yet to hold that the offences alleged have been proved beyond all reasonable doubt as having been committed by the accused, is inexplicable. The court was not justified in imposing such stringent punishment in the wake ol’ the apparent discrepancies, which even the court has taken notice ot The learned counsel for the appellant would point out the ingredients of the offences punishable under the sections which are invoked are not attracted and the appellants having been convicted inspite of the same results in a miscarriage of • justice. It is pointed out that the second appellant is 73 years old as on the date of the appeal and the third accused is equally aged and to have accepted that they alongwith accused no.1 S

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were guilty of continued harassment driving the deceased to death required cogent and tenable evidence which had withstood the test of cross-examination. Since the evidence that is relied upon by the court below is only of interested witnesses, the judgment militates against all the settled principles of law and hence cannot be sustained.

5. The learned Government Pleader, on the other hand, seeks to justify the judgment and would point out that the court below has examined the evidence on record with great care and attention and it is incorrect on the part of the appellants to contend that the evidence of interested witnesses alone has been relied upon in arriving at findings against the accused. On the other hand, it is pointed out that the court below after discussing the evidence of PWs. 1 and 5. 11,12.15.17.19.22.24 as well as other records such as the Post-mortem Report. the inquest panchanama. spot panchanama. and the statements of the accused as well, has concluded that the continued S

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harassment meted out to the deceased Vijayalakshmi had caused her to commit suicide and has held that the offences punishable under Sections 498t and 304-B read with Section 34 of the IPC as having been established beyond all reasonable doubt. Insofar as the alleged discrepancies that are sought to be highlighted by the learned Counsel for the appellants, the learned Government Pleader would point out that in view of the acknowledgement of the minor discrepancies and inconsistencies by the court below, that the offences punishable under Sections 3,4, and 6 of the I)owry Prohibition Act have been held not to have been proved and accordingly. the court below has rejected the case of the prosecution to that extent. The learned Government Pleader would submit that having regard to the tenor of the law which has treated the offences punishable under the aforesaid sections as being heinous and serious offences. which attracts the extreme punishment and the offences being of such a nature as would be committed within the confines of one’s own home. where it would he cc

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difficult for the evidence of independent witnesses to come forward. It is the totality of the circumstances which have been taken into account in holding that the charges in respect of’ the said offence have been established beyond all reasonable doubt. The death of Vijayalakshmi within a short period from the date of her marriage is an outstanding circumstance which would lead to a strong probability of the deceased being driven to her death. Therefore, the findings of the court below cannot be faulted and accordingly, would submit that the appellants have not made out any case for interference with the judgment impugned.

6. In the light of the above rival contentions. the sequence of events, from the date of’ the marriage of the deceased with accused no. I are borne out by the complainant’s evidence, which is a reiteration of the statement made in the First • Information Report. The complainant has been examined as PW. I The evidence of PW. 1 alone cannot be said to be S

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sufficient to have established the case of continued harassment by the accused. The court below has reiterated the evidence of PW.I in extenso. which by itself would not be sufficient to hold that there is clinching evidence against the accused relying solely on the said witness. PW.2 is the elder sister of the deceased who has narrated that Vijayalakshmi. on her visit to her parental home, had slated about the ill-treatment meted out to her. While discussing the evidence of PWs. I and 2, the court has observed that there was inconsistency in relation to the narration of the facts regarding the demand and acceptance of dowry. hut has accepted their evidence to the extent that there was ill-treatment and cruelty to the deceased beibre she committed suicide. PW.3 is the e!der brother of the deceased. He has also reiterated the evidence as tendered by PWs I and 2. PWs 4 and 5 are independent witnesses and have supported the evidence of PWs.I to 3. PW. 12 was the Medical Officer who has merely defined the state of the dead body. PW. 15 also mentioned that he had advised the deceased that she must return 18

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to the house of the accused and that he was aware of the ill- treatment given to her. PW. 17 was the Taluka Executive Magistrate who had conducted inquest over the dead body. PW.19 was the Circle Police Inspector. PWs.22 to 24 are the Police Officers who are involved in the investigation of the case. It is the evidence of these witnesses, on the basis of which, the court below has held that the charges were proved beyond all reasonable doubt. As could be seen from the evidenc&of PWs I to 5, it is not the case of any one of the witnesses that they had actually witnessed the harassment and ill-treatment meted out to the deceased at any point of time by the accused. They are however consistent in their evidence that they were aware of Vijayalakshmi being harassed and ill treated by the accused, on information received by them from Vijayalakshmi from time to time. PWs 4 and 5 are said to be the neighbours of the complainant and hence, it is on occasional visits to the house of Vijayalakshmi, that they may have been informed of the ill-treatment by the accused. It is not &

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the evidence of the neighbours of the accused who could have poSsihl spoken about the alleged ill–treatment. I heretore. at best. it was second hand in lormation which they had recei ed. which was souaht to he reiterated belore the court. lhouah the trial court has held that on the totality of the evidence ol PWs I to 5. that it could he said that the death of V ijavalakshmi was a dovrv death as deflned under Section 304B and as on account of cruelty which is contemplated under section 49$A. ii. is the evidence of PWs I to 5 which was relevant to have established the said ollences, if in the opinion of the court belo it was that evidence which was accepted. Though Section 30413 of the IPC is worded in a very strong language, addressing circumstances where the death occurs within seven years of the marriage and on account of any bodily injury or of death occurring other than under normal circumstances being evident. This by itself would not he sufflcient br a court to mechanical l impose the punisiunent only because the death had occurred under circumstances other than normal 20

circumstances and that the death had occurred within seven years of marriage. It would go without saying that there must be other strong circumstances which are placed on record and which can be accepted as establishing the case of the prosecution beyond all reasonable doubt.

7. Viewed in that light of the matter, the question before this court would be. whether the lower court was justified in accepting the evidence of PWs I to 5 as being the evidence of strong circumstances indicating that the accused had driven the deceased to her death on account of their continued harassment and cruelty. Insofar as PWs I to 3 are concerned, their evidence, as rightly contended by the learned counsel for the appellants, can be construed as one intended to avenge the death of Vijayalakshmi. Neither of the witnesses have claimed that they were actual witnesses to harassment except on the say of the deceased. Insofar as PWs 4 and 5 are concerned, they being residents of a village, other than the village in which the 21

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matrimonial home of Vijayalakshmi was, it cannot be said that they are direct witnesses to the continued harassment and cruelty shown by the accused to the deceased. Therefore, the court below having thought it fit to impose the maximum punishment that was permissible both under Section 304B and Section 498A of the IPC, was certainly not justified. Even if there could be said to be a case of cruelty made out against the accused, it cannot be said that the cruelty that could be attributed to each of the accused was of equal measure. in the absence of categorical evidence as to the manner in which each of the accused had tormented the deceased, it becomes a difficult exercise to hold that they were all equally responsible. This again was not possible with reference to the evidence of PWs I to 5. The further circumstance that the manner in which the death is said to have occurred also does not lead to a strong presumption that the deceased had committed suicide. There is possibility that she had indeed fallen accidentally into the ‘veil and had drowned. in the light of the evidence of the Sc

witness who had retrieved the body having stated that he found the deceased holding on to a pot under water, though a drowning person may not be in a position to hold on to a pot when she is struggling to get out of water, this is an area which has not been addressed at the trial in concluding that it was a case of death by suicide. In that view of the matter, the prosecution, at best, has established a case to the extent that the accused may have been guilty of cruelty as defined under Section 498A in having constantly subjected the deceased to cruelty with a view to coerce her and her family to meet the illegal demand for the remaining amount of dowry. While it cannot be said that the same was of such a degree as to drive the deceased to her death to attract Section 304B. Therefore, the sentence imposed by the court below requires to he suitably modified.

Hence, the appeal is allowed in part. The punishment imposed by the court below sentencing the accused to undergo three years rigorous imprisonment and to pay a fine of 23

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Rs. 10,000/- each is modified to hold that accused no.1 having spent 2 years and 8 months in custody and accused nos.2 and 3 having spent 1 year 8 months in custody, the same shall be treated as the period of imprisonment for an offence under Section 498A read with Section 34 ot’the IPC. The sentence of’ rigorous imprisonment for 10 years for an offence punishable under Section 304B read with Section 34 of the IPC is set aside. Insofar as the fine amount is concerned, the same having been paid by the accused is not disturbed.

3d,..

JUDGE

nv

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