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State Of Karnataka vs V Prakash S/O H Venkatappa on 3 March, 2014

Karnataka High Court State Of Karnataka vs V Prakash S/O H Venkatappa on 3 March, 2014Author: K.Bhakthavatsala And K.N.Keshavanarayana

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF MARCH 2014

PRESENT

THE HON’BLE Dr. JUSTICE K.BHAKTHAVATSALA AND

THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

CRIMINAL APPEAL NO.317 OF 2010 (A)

BETWEEN:

STATE OF KARNATAKA

BY MALLESHWARAM POLICE

STATION, BANGALORE

… APPELLANT

[BY SRI.B.T.VENKATESH, SPP II)

AND:

1. V.PRAKASH

SON OF H.VENKATAPPA

AGED ABOUT 29 YEARS

NO.2074, 8TH MAIN ROAD

E BLOCK, 2ND STAGE

RAJAJINAGAR

BANGALORE.

2. H.VENKATAPPA

AGED ABOUT 68 YEARS

NO.2074, 8TH MAIN ROAD

E BLOCK, 2ND STAGE

RAJAJINAGAR

BANGALORE.

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3. SMT.GANGAMMA (DEAD)

WIFE OF H.VENKATAPPA

AGED ABOUT 64 YEARS

NO.2074, 8TH MAIN ROAD

E BLOCK, 2ND STAGE

RAJAJINAGAR

BANGALORE.

…RESPONDENTS

[BY SRI.VEERESH REDDY S PATIL & SRI.B.BASAVARAJU ADVS. FOR R1 & R2]

*****

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) & (3) OF THE CR.P.C. WITH A PRAYER TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT ORDER DATED 16.10.2009 PASSED BY THE P.O. FTC-V, BANGALORE IN S.C.NO.128/03 -ACQUITTAL THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 304B, 302 AND 114 R/W 34 OF IPC AND SECTIONS 3 & 4 OF D.P.ACT.

THIS CRIMINAL APPEAL COMING FOR ‘DICTATING JUDGMENT’, THIS DAY, Dr.K.Bhakthavatsala, J., DELIVERED THE FOLLOWING:

JUDGMENT

This is an appeal filed by the State under Section

378 (1) & (3) of Cr.P.C challenging the judgment dated

16.10.2009 made in S.C.No.128/2003 on the file of FTC-

V, Bangalore City, acquitting the respondents-accused for

the offences punishable under Sections 498A, 304B, 302

& 114 r/w Section 34 of IPC and under Sections 3 & 4 of

the D.P.Act.

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2. For the purpose of convenience, and better

understanding, ‘the respondents 1 to 3’ are hereinafter

referred to as ‘the accused Nos.1 to 3’ respectively as

arraigned in the sessions case.

3. Brief facts of the case leading to the filing of the

appeal may be stated as under:

The respondent Nos.2 and 3 are the father and

mother of Respondent No.1-accused. During the

pendency of the case before the Sessions Court,

respondent No.3/accused No3-Gangamma (mother of the

accused No.1) died. The case of the prosecution is that on

08.04.2002 accused No.1 got married to Geetha (the

deceased), daughter of PW2-Padma & PW5-Mariyappa.

Thereafter, Geetha came to the matrimonial home and

living with the accused. The accused are residents of

Rajajinagar. It is projected by prosecution that at the time

of marriage, accused No.1 received cash of Rs.25,000/-

from the parents of the deceased Geetha and they also

agreed to give a car as dowry. As the parents of the 4

deceased Geetha did not give dowry as agreed upon, the

accused refused to cohabitate with Geetha, and thus gave

physical and mental harassment to her. During the

intervening night of 12/13.10.2002 in the wee hours

namely at about 0.15 a.m. when accused No.1 tried to

sleep outside the bedroom, the deceased Geetha told him

to sleep inside the room, but the accused No.1 picked up

quarrel with her. On hearing galata, accused Nos.2 and 3

who were in the downstairs came saying that she always

makes galata and abused her, and poured kerosene on

Geetha and accused No.1 set her ablaze. As a result of

which she sustained burn injuries. Immediately, accused

No.1 shifted her to Victoria Hospital for treatment. She

had sustained 75% of burn injuries. PW14-

T.C.Narayanaswamy (ASI) recorded the statement of the

victim- Geetha and PW15-Prabhulinga Murthy received

the same and registered a case in Crime No.264/2002 of

Malleshwaram Police station against the accused for the

offences punishable under Sections 498A & 307 r/w

Section 34 of IPC. During the course of treatment, Geetha 5

succumbed to the burn injuries on 13.10.2002 at about

4.55 p.m. On receipt of death report of Geetha, the police

issued FIR adding Sections 304B & 302 r/w Section 34 of

Indian Penal Code. Accused No.1 who was arrested on

13.10.2002 was released on Bail on 20.03.2003. The

Investigating Officer laid charge sheet against the accused

Nos.1 to 3 for the offences punishable under Sections

498A, 304B, 302 & 114 r/w Section 34 of IPC. The

accused faced trial before the Court of Session.

4. In support of the case of the prosecution, it has

got examined as many as 23 witnesses, got marked

Exs.P1 to P15 and got exhibited Material Objects 1 to 5.

During the course of cross-examination of PWs 2, 3 & 7,

the defence has got a portion of their statement made

during inquest proceedings before the Taluka Executive

Magistrate as Exs.D1, D2 & D3. Further, the defence has

got marked a portion of the statement of PW5-Mariyappa

as Exs.D4 and D5. The accident register extract has been

marked as Ex.D6.

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5. After the evidence on the side of the prosecution

was closed, the trial Court recorded the statement of the

accused under Section 313 of Cr.P.C. The accused have

denied all the incriminating circumstances appearing in

the evidence of prosecution witnesses. They have not

adduced any defence evidence. In pursuance of their

defence evidence, they have got examined one

Krishnamurthy-nephew of accused No.1 (cited as CW12 in

the chargesheet) as DW1 besides examining one

Maridasappa as DW2. The defence has got marked

certified copy of the accident register extract as Ex.D6.

The Trial Court after hearing arguments, perusing the oral

and documentary evidence on record came to a conclusion

that the prosecution failed to bring home the guilt to the

accused for the offences levelled against the accused and

recorded an order of acquittal in their favour. This is

impugned in this appeal. It is pertinent to mention that

though respondent No.3-Gangamma died during trial and

the case was abated, she has been arraigned as

respondent No.3 in this appeal.

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6. Mr.B.T.Venkatesh, learned Additional State Public

Prosecutor-II submits that though there are four dying

declarations of the victim, there is a consistency in the

statement of the victim that the accused harassed the

victim and refused to cohabitate with her and the same is

amounting to an offence punishable under Section 498A

of Indian Penal Code. He further submits that the Trial

Court has held that Geetha died a suicidal death but erred

in not holding that due to cruelty by the accused No.1 to

his wife-Geetha, she was driven to commit suicide by

pouring kerosene and setting her ablaze. He contends

that the Trial Court should have convicted the respondent

No.1 for the offences punishable under Sections 498A &

306 of IPC and prays that impugned judgment may be set

aside and the accused may be convicted for the above said

offences. He has cited the following decision:

(i) (2010) 8 Supreme Court Cases 514 (Lakhan vs. State of Madhya Pradesh) on the point that where there are two contradictory dying declarations, the dying declaration, which 8

was corroborated to the greater extent by medical evidence as well as oral dying declaration made by the deceased to her parents, the second dying declaration was held reliable and the appellant/accused was convicted for the offence punishable under Section 302 of Indian Penal Code.

7. Learned counsel for the respondents-accused

Nos.1 & 2 submits that it is the accused No.1 who took

the victim to the hospital for treatment and the trial Court

has held that there was no dowry demand by the accused

either before or after the marriage and there is no evidence

on record to show that the accused has ill-treated and

harassed the victim. It is submitted that the victim had to

pass one subject of B.E., she was preparing for the

examination and at the time of the incident, he and his

nephew-DW1 were watching T.V. and on hearing hue and

cry of her (Geetha), they went to the bed room, situated in

the 2nd floor and found that she had suffered burn

injuries, immediately they took her to hospital for

treatment; and the victim herself has given statement 9

stating that she attempted to commit suicide by pouring

kerosene due to severe stomach ache. He further submits

that subsequently, at the instance of the parents of the

victim and with the help of the police, foisted a false case

against the accused by the alleged dying declaration of the

victim. He submits that the medical officer has deposed

that the victim had sustained burn injuries allover the

body and she was not in a position to subscribe her

thumb impression or subscribe her signature but Ex.P1

bearing signature of the victim; and an order of acquittal

has been recorded by the trial Court, cannot be disturbed

unless the same suffers from perversity. He submits that

the Trial Court on proper appreciation of evidence placed

on record has rightly recorded an order of acquittal and

there is no merit in the appeal and the same may be

rejected. He has cited the following decisions:

(i) (2010) 1 Supreme Court Cases (Cri) 607 (State of Rajasthan vs. Mohan Lal) in relation to case under Prevention of Corruption Act, 1988.

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(ii) 2005 Crl.L.J.2579 (State of U.P. vs. Gambhir Singh and Others) on the point that from evidence if two views are possible, the one favouring the accused shall be taken into consideration.

(iii) 2002 (2) Crimes 164 (SC) (State of Haryana vs. Inder Singh & Ors.), in which case the Trial Court convicted husband and father-in- law of deceased, on sole testimony of PW4, father of deceased, but the High Court of Punjab and Haryana set aside the conviction in appeal on the ground that evidence of PW4 stood contradicted on material particulars and the same was confirmed by Supreme Court in State appeal.

(iv) 2005 (2) Crimes 200 (SC) (Balwan Singh vs. State of Haryana) on the point that conviction of the accused under Sections 302 & 323 r/w Section 34 of IPC was set aside on the ground that the prosecution did not disclose true genesis of occurrence and motive alleged by the prosecution did not appeal.

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(v) I (2009) DMC 192 (Dunnapothula Kistaiah vs. State of Andhra Pradesh) on the point that harassment for dowry soon before death of the deceased was not established in evidence and therefore, it cannot be said that only on account of the said harassment she had taken extreme step of consuming poison and committing suicide and the ingredients of the dowry death were not established.

(vi) 2007 Crl.L.J.2300 (Biswajit Haler alias Babu Halder & Ors. Vs. State of West Bengal) on the point that since, there was no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry, conviction of the accused was liable to be set aside.

(vii) 2001 Crl.L.J. 2556 (Arvind Singh vs. State of Bihar) on the point that contents of the original FIR that the allegations with regard to demand of dowry was added by making interpolation and the case of the prosecution that the deceased alleged to have made declaration to her mother just before few minutes of her death naming her in-laws along with husband who poured kerosene to 12

burn her alive but no medical certification that deceased was in fit state of mind at time of making declaration and it was held that it is uncorroborated testimony of mother to whom deceased made the declaration and the same is not worth acceptance.

(viii) 2010 AIR SCW 3673 (Durga Prasad & Anr. vs. State of M.P.) on the point that cruelty or harassment soon before death must be proved to be in relation to demand of dowry and the allegation against accused that he had driven his wife to commit suicide by subjecting her to cruelty, the same was not proved in evidence and therefore, held that the prosecution failed to satisfy the requirements of Section 304B of Indian Penal Code and Section 113B of Indian Evidence Act.

(ix) 2011 AIR SCW 3889 (State of Rajasthan vs. Talevar & Anr.) on the point that the Appellate Court can interfere only in exceptional cases where judgment under appeal is perverse and interference in routine manner where other view is possible should be avoided.

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(x) 2008 AIR SCW 6598 (Ghurey Lal vs. State of U.P.) as to the guidelines laid down while dealing with State appeal against an order of acquittal.

(xi) 1996 Crl.L.J. 951 (Prem Dass and another vs. State of H.P.,) on the point that when ingredients of offence of cruelty and abetment of suicide was not established, presumption under Section 113A of the Evidence Act would not arise.

(xii) 1994 Crl.L.J.1602 (Basappa Dattu Hegade vs. State of Karnataka) on the point that presumption that suicide was abetted by her husband/accused can be drawn only when prosecution has discharged initial onus of proving cruelty; letter written by deceased wife to her parents not mentioning ill treatment meted out to her or reasons for committing suicide by her; evidence of cruelty reported to her near relations is not sufficient as there was no material to show that she was subjected to cruelty and the accused-husband, the accused was entitled for benefit of doubt.

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8. In the light of the arguments addressed by the

learned counsel for the parties, we formulate the following

points for our consideration:

(i) Whether the impugned judgment acquitting the respondents-accused Nos.1 and 2 for the offences punishable under Sections 498A, 304B & 302 r/w Section 34 of IPC

calls for our interference?

(ii) What order?

Our answer to the above points is as per the final

order:

Admittedly, the accused No.1 married the deceased

Geetha on 08.04.2002. The prosecution does not dispute

the acquittal recorded in favour of the accused for the

offence punishable under Section 304B of IPC. In other

words, the trial Court has held that there was no dowry

demand by the accused and therefore held that it was not

a case of dowry death. As per clause (b) of explanation to 15

Section 498A of Indian Penal Code, harassment to a

woman other than dowry demand is also an offence.

9. In the instant case, in one of the dying

declarations of the deceased, it is stated that the accused

was ill-treating and refused to cohabitate with her and as

a result of which she has taken extreme step of

committing suicide by kerosene pouring and setting

herself ablaze. In this regard, the prosecution has not

placed any cogent and satisfactory evidence. It is in the

dying declaration of the deceased that when there was a

quarrel between herself and accused No.1, on that night,

accused Nos. 2 & 3 came to the bed room situated in the

second floor and abused her and brought kerosene and

accused Nos.2 & 3 poured kerosene on her and accused

No.1 lit fire. There is no consistency in the dying

declarations. Ex.P8 alleged to be the statement of the

victim recorded by the police in the hospital has been

signed by the victim. The medical evidence on record

shows that she was not in a position to put her signature 16

or subscribe her thumb impression. Under such

circumstances, the case of the prosecution that the victim

had signed the statement at Ex.P8 does not inspire

confidence of this Court. In view of the contradictory

statements, it is the duty of the Court to examine the

evidence of the prosecution with great care and caution. It

is also in the evidence that at the time of the incident,

accused No.1 and his nephew-DW1, (cited as CW12 in the

charge sheet) have stated that they were watching T.V.

Under such circumstances, the wife of accused No.1 was

driven to commit suicide is not sufficient to hold that the

accused No.1 has committed offences punishable under

Sections 498A and 306 of IPC. Admittedly, the accused

No.1 took the victim to the hospital for treatment. The

contention of the prosecution that the first statement of

the victim that herself committed suicide as accused No.1

was present at that time of recording the statement and

therefore, she made such statement also cannot be

accepted. The Trial Court is justified in rejecting the case

of the prosecution and extending the benefit of doubt in 17

favour of the accused. The decision relied upon by the

prosecution is of no avail. In our view, the impugned

judgment does not call for our interference. Accordingly,

we answer points for consideration.

10. In the result, we pass the following order:

Appeal fails and the same is hereby rejected.

SD/-

JUDGE

SD/-

JUDGE

SS*

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