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The State Of Karnataka, vs H. M. Basavaraj S/O H. M. Halaiah, on 30 November, 2011

Karnataka High Court The State Of Karnataka, vs H. M. Basavaraj S/O H. M. Halaiah, on 30 November, 2011Author: Mohan Shantanagoudar Malimath

IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT DHARWAD

DATED THIS THE DAY OF NOVEMBER, 2011 PRESENT:

THE HON’BLE MRJLJSTICE MOHAN SHANTANAGOUDAR AND

THE HON’BLE MRJUSTICE RAVI MALIMATH

CR1 M IN AL A P PQ2874Ji0

BETWEEN:

The State of Karnataka

By Police SubInspector,

H.BHalli Police Station

Through Addl.SPP,

High Court Circuit Bench,

Dharwad, Appellant ( By Sri VMBanakar, AddlSPP

I. H. M. Basavaraj

S/c HNHaiaiah

Age: 33 years,

Beilary D.. istrict.

KJ3Koraah

Age: 64 years,

Bellary EDistrict.

3. H i’liDrakshaycnarnrna

C) H Ha a a

It

Age: 59 years,

Beliary District. .. Respondents (By Sri T.Hanumareddy and Sri K.L.Patii, Advocates)

This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to set aside the judgment and order of acquittal dated

17.7.2008 passed by the Presiding Officer, Fast Track Court-Ill & Addi.Sesslons Judge, Hospet, in S.C.No.158/2006, acquitting the respondents-accused of the offences punishable under Sections 498-A, 304(B), 306 R/w. Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.

This Criminal Appeal coming on for hearing, this day MOHAN SHANTANAGOUDAR,.?, delivered the following: JUDGMENT

The judgment and order of acquittal passed by the Fast Track Court, Hospet, in Sessions Case No.158/2006 is called in question in this appeal. The accused-respondents were charged for the offences punishable under Sections 498A, 304-B, 306, read with Setion 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.

2. The case of tho proeution in brief is that accused NoJ is the husband of the deceased. Accused Nos,2 and 3 are the parents of accused No 1. The marnage of the deceased and acused No 1 was performed on 27J1.2005. Accused No1 was unemployed, whereas, the deceased was a Teacher working in Government High School. It is alleged m the complaint ExP4 (complaint s lodgen by the father of the deceased that all the th!ee accused dmandea do ry ro to tho ii r jc f or t r of t c doceaseci. cor1seauet ipon which, the c oier lant -L fl(Thfl2 r –j – –1 – 3 2 A 3 3 0 Fr ir i c tow jc rria rd aio p3n w r pi ra r

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the deceased to bring additional dowry of Z1 lakh; the complainant requested the accused to send his daughter on the occasion of Pushyamasa and the accused refused to send her on account of non-fulfillment of additional amount of dowry of !1 lakh; due to which, the complainant borrowed loan of !1 lakh on the security of the salary of his daughter and paid the same to accused No.1. However, in spite of the same, the conduct of accused Nos.1 to 3 did not improve and the demand of additional amount of dowry continued. Being intolerant about the ill-treatment, the deceased committed suicide by hanging during the night intervening th

28 gth

2

between and January 2006. Though the complainant alleged that the accused committed murder of the deceased, the prosecution during the course of investigation and during the course of trial has confined its case for the offence under Section 304-6, 306, 498A of PC apart from the offence of dowry under Sections 3, ‘I)

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4 and 6 of the Dowry Prohibition Act. The complainant- father of the deceased after lodging the complaint expired during the course of investigation. Therefore, his evidence could not be recorded. The police after investigation, laid the charge sheet.

In order to prove its case, the prosecution in all examined 34 witnesses and got marked 28 documents and 15 material objects. On behalf of the defence, 9 documents were got marked. The Trial Court on evaluating of the material on record and after hearing, acquitted the accused on the ground that the prosecution has failed to prove its case beyond reasonable doubt.

3. Sri V.M.Banakar, learned Addl.SPP by taking us through the material on record, including the judgment of the Court below, submits that the evidence of PWs. 1 to 4, 8, 9 and 32, coupled with the evidence of the 0

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colleagues of the deceased, is sufficient to prove the guilt of the accused. He submits that the oral evidence on record is sufficient to prove that accused demanded dowry prior to the marriage and after the marriage and pursuant to that demand, an amount of ?75,000/- and certain amount of gold was paid prior to the marriage and certain sums of money are paid after the marriage; that the death has occurred within two months of the marriage and therefore, the presumption arises in favour of the accused and such presumption is not rebutted by the accused; and that the reasons assigned and the conclusion arrived at by the Court below are not just and proper. On these among other grounds, he prays for allowing the appeal.

Sri K.L.Patil, learned counsel appearing for the respondents-accused argued in support of the judgment of the Court below by contending that the evidence of the family members of the deceased is contradictory to V

p

t

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each other and number of improvements are found in their evidence; all such improvements made by the prosecution witnesses are spoken to by the Investigating Officer and the Investigating Officer has admitted that the family members of the deceased viz., PW5.1 to 4, 8, 9 and 32 have exaggerated the case. According to the learned counsel for the respondents, the evidence of the colleagues of the deceased is rightly disbelieved by the Court below on the ground that they are hearsay witnesses, inasmuch as, they are not the witnesses either for demand of dowry or for payment of dowry.

4. PW.1 is the brother of the deceased. He speaks about the demand and payment of dowry and the harassment by the accused. PW-2 is the sister of the deceased. Her evidence is on par with the evidence of PW-1. PW-3 is the son-in-law of PW-1 and neighbour of accused. He has also supported the evidence of PW-1. PW-4 is the neighbour of the complainant who speaks ‘J)

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about the demand and payment of dowry and the harassment. PWs.5 and 6 are also the neighbours of the complainant, out of them, PW-6 is the hearsay witness for demand and payment of dowry. PW-7 is the owner of the house wherein the deceased and the complainant i.e., the father of the deceased lived together. PW-8 is the sister of the deceased who has deposed on par with PWs.1 and 2. So also PW-9. PWs.1O, 11 and 12 are the colleagues of the deceased. They are working along with the deceased. Their evidence is hearsay, inasmuch as, they depose on the basis of the information got by them by the deceased during her life time. PWs.13, 14 and 20 are the mahazar witnesses for inquest panchanama-Ex.P-11. PW-15 has spoken about the demand of dowry and payment of dowry. He is also hearsay witness. PWs.16 and 19 are the Police Constables who participated in the investigation. PWs.17 and 28 are the brothers inter se and they are — C) —

the brothers-in-law of the complainant. They depose about the marriage talks. PW-21 is the neighbour of the accused who has deposed about the payment of dowry. PW-22 is the witness who untied the rope after coming to the house of the accused and the deceased on hearing the news of the death. PW-23 is the Taluka Executive Magistrate who drew inquest panchanama as per Ex.P-11. He has recorded the evidence of PWs.1, 2 and 8 during the course of inquest. PW-24 is the doctor who conducted the post mortem examination. Post Mortem report is at Ex.P-20. PWs. 25 and 26 are the panchas for seizure panchanama of the clothes of the deceased Ex.P-15. PWs.27 and 28 are the bank officials who have produced the bank extracts and deposed about the transactions operated by the deceased and the complainant prior to the incident in question. PW-29 is the Engineer who drew the sketch of scene of offence. PW-30 is the Panchayat Secretary who has issued the /4

— to —

house property extracts. PWs.31, 33 and 34 are the Police Officials who registered the complaint, investigated into the matter and filed the charge sheet. PW-32 is the brother of the deceased who has supported the case of the prosecution by deposing on par with PWs.1 and 2.

5. From the above, it is clear that the important witnesses in the matter on hand are PWs.1 to 4, 8 and

32. All of them are the relatives of the deceased. PW-9 is the mediator for the marriage. All of them have deposed that the accused demanded dowry prior to the marriage and the said demand was fulfilled by the father of the deceased by paying ?75,000/- in cash and instead of paying 4 tolas of gold, the father of the deceased paid Z29,000/- in cash which is equivalent sum for the value of 4 tolas of gold. However, the evidence relating to the payment of amount after the marriage is not satisfactory. The evidence in that regard is shaky. Lot II

of vanatlons are found in the evidence of aforementioned witnesses regarding payment of money toward dowry after the mamage Even the evidenct of PWs.27 and 28, if believed, will not satisfy the requirement of proved circumstance of having paid the amount to accused No.1 by the father of the deceased. The documents produced by PWc.21 and 28 no doubt reveals that the deceased, as well as her father have operated the bank accounts of the deceased and that there was joint account of the deceased and her father Merely because such bank accounts were operated prior to the marnage by the deceased and her father the same aoes not near that tne amount so irawr by the deceased and her f3ther wcre q yen a dowry to th€ utd

1 atnlr dfc uy ak t tat F fatic c t

t

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was also a teacher. The father of the deceased was not supported by his sons. PW-1 (son of complainant and brother of the deceased) was working as a lecturer. But, he was living apart from his parents. The evidence of PW-1 clearly goes to show that he was not well with his parents, inasmuch as, the complainant i.e., the father of the deceased was an eccentric personality and he did not adjust with anybody. PW-1 has even admitted that he came to the marriage of his sister just one hour earlier to the marriage. He did not even attend to any of the functions of the marriage, such as reception etc., This goes to show that PW-1 was not supporting his father in any matter, including money matters. Thus, virtually the father of the deceased was not having sufficient amount to pay huge cash of ?75,000/- + ?29,000/- prior to the marriage and ?1 lakh or so after the marriage. The bank records produced by PWs.27 and 28 very much reveal that such amounts ‘1’

I,

— I.) —

were in the bank account of the deceased. The said amounts were drawn by the deceased and her father prior to her marriage and they might have been spent for the marriage expenses. Thus, it cannot be said with certainty that such amounts were utilised for alleged payment of dowry. Thus, the parrot like depositions of PW5.1 to 4, 8 and 9, including PW-32 do not inspire the confidence in the mind of the Court, having regard to the totality of the facts and circumstances of the case.

7. The death of the deceased has occurred within two months of the marriage. It is an unfortunate case of an economically independent lady committing suicide immediately after the marriage. The defence theory put forward is that the deceased was eccentric. She used to become angry suddenly. She was having her own views and ideas; she was not having adjustable character; that she wanted to study further and to pass KAS examination, but the same could not be fulfilled by her – 14 –

because of the marriage; and that the deceased was highly ambitious and those ambitions were not fulfilled and therefore was disgusted in her life. Such defence version appears to be probable under the facts and circumstances of the case.

8. PW-34 — Investigating Officer has recorded the statements of CWs.17 to 23, and 27-29. However, they were not examined. In his deposition, PW-34 has admitted that, from their statements, PW-34 came to know that the deceased used to abuse accused No.1 that he is not like a potent man, but, he is like a woman and for that reason accused No.1 used to weep. The Investigating Officer has further admitted in the cross examination that on the date of the incident i.e., on th

28

January 2006, accused No.1, as well as, accused No.2 had been to hospital for seeing their relative who was admitted to the hospital. The aforementioned admission of the investigating officer that he has 15

recorded the statements of CWsJY to 23 and others who have statec. during the course c.f investiga.tion that the deceased vas abusing accused No.1 on the ground that accused NoJ was not manly like a potent man, but, was a female like, clearly shows that the deceased was not happy with her marriage with accused NoJ. The material collected during the course of evidence, particularly in the crossexamination of various witnesses clearly reveal that the deceased was highly ambitious and she wanted to pass KAS examination. It has also come on record that the deceased wanted to study either medical or engineering. However, she could not pursue such ambition prior to her marriage, ExD4 is the diary of the year 2000. However, the same is not maintained on davtoday basis. The said diary was used by the deceased nersonally as a note book. On perusal of EwD1., we Nnd that number of — 16 —

notings are made by the deceased, including important quotations from important people. However, in one page marked at Ex.D-1 of the year 2000, the deceased has written in her own handwriting thus to ..4.._.v..L.- jS. .t,_._……. ..qe – .r –..– •….,c ….’. sfl.: JJ%I U.fl.#.t%.F,.t %?%$.%$ JraI I — Lc. e LthSe ce& edde eza i,&4 t çJaS 3DaSr1cc ESES ñ _._: -C Ii •?–.7; — 4

E4 I .%fl..SJn,II ..n..%.J —

.t.t.,t..

.. _a___ –.. e ” w%3.w%1% 4.J… b%.I.J%’….,%ttJ ,wc, Dt.. jjC.,, The aforementioned noting supports the defence version. From the above statement, one can draw inference that the said statement was written by the deceased prior to the marriage or prior to her appointment as teacher when she wanted to study further so as to achieve something better in her life. Though the accused tried to prove before the Court that the deceased had developed suicidal tendency and had attempted once to commit suicide by consuming sleeping tablets, and for that reason, she was admitted for treatment to one Gugri hospital at Hospet, no docum ent is produce d by the defence to prove the same, However, having regard to the statement cf the deceased which is found in ExDi and having regard to the statements of certain of the witnesses before the investigating officer, the possibility of deceased suffering from depression due to frustration in life cannot be ruled out, In this view of the matter, the Trial Court is justified in. observing that the deceased herself has committed suicide for the reasons best known to her i.n the closed room.

10. The colleagues of the deceased viz,, PWs,i0 to f have deposed that accused used to give lift to the deceased til the coileqe and he used to pick up the Jeceaso: c :e cc ce e cc that the accused nd the decease.d were lovinc each other and there was no hatre dness between the two as 10

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such. PWs12 to 14 have also deposed that the deceased used to be always lonely and she did not talk anything to anybody. This also goes to show that she was hyper-sensitive. She must have felt unhappy because of non-realisation of her dreams and aspirations or she must have mentally upset because she felt that accused No.1 is not like a potent man, but, was like a female person. In this view of the matter, the Trial Court is justified in concluding that there is no abatement by anybody to commit suicide. On reappreciation of the material on record, we find that the death of the deceased was not on account of any quarrel or any sort of cruel treatment by the accused in consequence of demand of dowry, but was due to her mental weakness. It has also come on record from the evidence of PWs.1 to 2, 8 and 9, the complainant i.e., the father of the deceased was a short tempered and eccentric person. PW-1 has admitted that his sister was vs

having ambition to become KAS officer. However, PW- I could not provide assistance to his sister for pursuing the KAS examination. All these factors collectively probabalise the version of the defence that the deceased has committed suicide for other reason, but not because of the alleged cruelty by the accused or that she was aggrieved by the demand of dowry by the accused. As aforementioned, the demand of dowry and payment of dowry prior to the marriage and after the marriage is rightly disbelieved by the Trial Court, nasmuch as, the evidence in that regard is shaky and vague.

12, It is by now well settled that this Court would not normaHy i.nterfere in the order of acciuittal in case the Trial Court has taken one of the two possible. views while acquttnq Ln accused. We hnd that the vow taken by the trial Court while acquitting the accused is. nnccihln •

uncl•pr the fac.ts and c rcurfls SflSOS f the I

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case. Accordingly, we are of the opinion that no interference is called for.

Appeal fails and the same stands dismissed. a

JUDGE

Sd!

3UDGE

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