Karnataka High Court
Thirumala Prakash S/O M ... vs State By Subramanyapura Police Station on 17 September, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.1434 OF 2005
Between:
Thirumala Prakash
S/o M.Venkatanarayana
Age: 39 years
R/a No.45
Sri Kamala Nilaya
1st Cross, M.G.Road
Uttarahalli
Bangalore - 560 061 ... Appellant
(By Shri Nitin R. and Shri B.Siddeswara, Advocates for Shri
C.H.Hanumantharaya, Advocate)
And:
State by Subramanyapura
Police Station, Bangalore ... Respondent
(By Shri K.R.Keshava Murthy, State Public Prosecutor)
---
2
This Criminal Appeal is filed under Section 374(2) Cr.P.C.
against the judgment dated 24.1.05 passed by the P.O, FTC-V,
Bangalore in S.C.No.695/02 convicting the appellant - accused
for the offence punishable under Section 498-A, 304-B and
Sections 3 and 4 of D.P.Act and sentencing him to undergo R.I.
for 6 months and to pay fine of `25,000/- I.D. to undergo S.I. for 3
months for the offence punishable under Section 3 of D.P.Act and
further sentencing him to under R.I. for 6 months and to pay fine
of `25,000/-, I.D. to under S.I. for 3 months for the offence
punishable under Section 4 of D.P.Act and all the sentences shall
run concurrently.
This Appeal coming on for Hearing this day, the Court
delivered the following:-
JUDGMENT
Heard the learned counsel for the appellant and the learned State Public Prosecutor.
2. The appellant was the accused before the Court below in the following circumstances:
The complainant one Ramamohan Gupta had alleged that his youngest sister Arunamba was married to the accused on 13.2.1998 at Chintamani. The complainant and his brothers 3 Nagarjuna and Shivaprasad are said to have performed the marriage of Arunamba. It is further alleged that at the time of the negotiations for the marriage, the appellant had demanded dowry and with particular reference to the property situated in Chintamani and it was also suggested that since the property was already bequeathed to Arunamba, the same should be conveyed in favour of Arunamba. However, it was pointed out that there was a civil suit pending in O.S.No.132/1995 before the Senior Civil Judge, Chintamani filed by one Raghuramaiah Shetty, the son born to the first wife of the complainant's father and in that view of the matter they had agreed to execute the documents in favour of accused assuring him of transfer of property after the disposal of the suit, but since the accused did not agree to such an arrangement and hence, a partition deed has been executed and registered in favour of Arunamba. It is further alleged that as per the admission made by the accused, they had agreed to give him a 4 scooter worth `32,000/-, apart from cash to enable him to purchase clothes, 2 kilograms of silver and 180 grams of gold articles worth about a sum of `85,000/- and also performed the marriage by spending `1,00,000/-. It was further alleged that Arunamba went to reside in her matrimonial home and an year later she gave birth to a male child and again the complainant and his family had spent `50,000/- towards the naming ceremony of the baby and gifted `10,000/- on the demand of the accused.
Thereafter, six months later, the accused started demanding and compelling Arunamba to get cash instead of the property since there was inordinate delay in the proceedings that was pending, as already stated, in a sum of `1,50,000/- and this lead to her continuous ill-treatment, mentally and physically compelling her to approach the complainant and his family and to get money instead of the property. Since they were not in a position to meet the demand, it is alleged that the cruelty meted to Arunamba was 5 of such a degree that she was driven to commit suicide. In this regard, it is stated that the complainant met Arunamba when she had come to attend the Court proceedings in relation to the civil suit and from her pleas it could be understood that she was under
immense pressure to get the property, for otherwise she would not be left in peace. Thereafter, she is said to have stayed with DW-1 and one day later, she is said to have returned to her matrimonial home and committed suicide. On the same day at about 10.30 p.m. the complainant is said to have received phone call informing him that his sister had committed suicide and it was the complainant's allegation that it was indeed accused who was responsible for her death as he was ill-treating her from inception to fetch more dowry and it is on account of this ill-treatment that she had been driven to commit suicide.
3. On the basis of the said complaint, a case was registered in Crime No.270/2002 for the offences punishable under Sections 6 498-A, 304-B of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) and under Sections 3 and 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as 'the D.P.Act', for brevity). The case was registered under the above provisions primarily, since the deceased had died within 7 years of her marriage. After conducting further investigation and the Court below having framed charges, the accused - appellant had pleaded not guilty and claimed to be tried. The prosecution tendered evidence through PW-1 to PW-17 and marked several exhibits apart from material objects. After recording the statement of the accused under Section 313 of Criminal Procedure Code, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity) and after hearing both sides, the Court below had framed the following points for consideration:
"(i) Whether the prosecution proves beyond all reasonable doubt that accused being the husband of deceased K.R.Arunamba, married her on 13.2.1998 7 as per the customs prevailing in the community at Vasavi Kalyana Mantap, Chintamani, Kolar Dt., and began to reside at Uttaralli, Subramanyapuram, House No.45 and forcing her to bring dowry from her parents and relatives, and thereby you are committed an offence punishable u/S 498-A of IPC?
(ii) Whether the prosecution further proves that accused being the husband of deceased K.R.Arunamba on 28.8.2002 at 8.00 p.m. accused is responsible for the death of K.R.Arunamba which occurs otherwise than under normal circumstances within 7 years of her marriage and it is shown soon before marriage of her death, she was subjected to the cruelty or harassment by you in connection with demand for dowry and thereby you committed an offence punishable u/S 304-B of IPC?
(iii) Whether the prosecution further proves that at the time of marriage accused accepted cash of Rs.13,000/- and Bajaj Scooter from the parents of deceased K.R.Arunamba and thereby committed an offence punishable u/S 3 of D.P.Act?8
(iv) Whether the prosecution further proves that accused being the husband of deceased K.R.Arunamba began to reside with her in the house numbered above and place and extension as mentioned above, accused forcing or demanding the deceased and of her parents to give property or cash and thereby committed an offence punishable u/S 4 of D.P.Act?"
4. The Court below had answered the points in the affirmative and the appellant was convicted and sentenced to rigorous imprisonment for 7 years for the offence punishable under Section 304-B of IPC, rigorous imprisonment for 6 months with a fine of `25,000/- for the offence punishable under Section 3 of the D.P.Act and rigorous imprisonment for 6 months with a fine of `25,000/- for the offence punishable under Section 4 of the D.P.Act. The sentences were to run concurrently. Out of the fine amount to be paid, `40,000/- was ordered to be given as 9 compensation to PW-2 - mother of the deceased. It is this which is sought to be questioned in the present appeal.
5. The learned counsel for the appellant while taking this Court through the record, would point out that the evidence of DW-1 and DW-2 who are the brother and sister-in-law of Arunamba has not been appreciated in the proper perspective. Further, the prosecution had relied on the evidence of PW-1, the complainant and the brother of the deceased, to establish that the appellant committed offences punishable under Sections 498-A, 304-B of IPC and Sections 3 and 4 of the D.P.Act. PW-2 Ashwathamma is the mother of the deceased, PW-3 Nagarjuna is brother of the deceased, PW-4 Padmavathy, PW-5 Shashikala and PW-6 Vasavamba are the sisters of the deceased. The evidence of PW-1 to PW-6 who are all the family members of the deceased Arunamba was to the same effect. The evidence of each of these witnesses suffers from omissions and material contradictions 10 which have been overlooked by the Court below. There is total lack of corroboration of the evidence of these witnesses by independent witnesses. In that, the learned counsel would point out that there was lack of communication between Arunamba and her family members on account of a dispute whereby the land which was bequeathed to her by her father could not be transferred in her favour in view of the pending suit and PW-1 who was managing the affairs was not keen in transferring any property in her favour apart from 1 acre 18 guntas of land which was already transferred in her favour even at the time of marriage and therefore, when the said witnesses were not aware of the conditions under which Arunamba was leading her life with the accused, it is highly improbable to the said witnesses having supported the case. Though DW-1 and DW-2 had in their evidence stated the relationship as between Arunamba and her brothers and sisters being cold on account of the pending dispute 11 and her demand that a total extent of 5 acres of land should be transferred in her favour and this being resisted by brothers and sisters, the Court below has overlooked the same and has ignored. The learned counsel would submit the serious infirmity as regards the inordinate delay in lodging the first information report alleging the offence against the present accused would indicate that there was premeditation to frame the accused on baseless allegations. The delay in filing the first information report was over 16 hours which was inexplicable, as the place where the deceased had committed suicide was Bangalore and therefore, there was no impediment to lodge the complaint forthwith. Even according to the complainant, he had received information about the death of the deceased at 10.30 p.m. and there is no explanation forthcoming as to why there was delay of over 16 hours in lodging the complaint when the complainant had immediately come over to Bangalore and has not explained the reasons for the delay nor 12 has the Court below addressed the same. It is further pointed out that PW-1 to PW-6 have categorically admitted during their cross- examination that several valuables and cash that has been given to the deceased and the appellant at the time of marriage were customary gifts and given as per the customs prevailing in their community and that it was given with love and affection. Therefore, the allegation made in the complaint that the appellant had demanded the scooter, cash or other valuables and had also insisted that the land which was bequeathed to the deceased ought to be transferred in her favour, are contradictory to the statements that have been elicited in the cross-examination. It is further pointed out that insofar as the allegation of constant demand for dowry and the pressure allegedly brought on Arunamba to demand that cash be provided instead of the land as there was inordinate delay in transferring the land in question, is sought to be urged and established by producing a document which was produced 13 before the Court in an unusual manner. In that, an alleged proposed draft sale deed was prepared and produced as if it was drawn up at the insistence of the accused. The said document, in no way could establish that the appellant was demanding dowry and therefore, the document was executed. It would have no evidentiary value and was a mere draft prepared for the purpose of producing the same and to influence the mind of the Court and it was an unsigned document and would not establish the case at all. In the absence of any corroborating evidence or first hand evidence of the said witnesses PW-1 to PW-6, to establish that they had infact seen the appellant commit any acts of cruelty as against the deceased, there was no material whatsoever to bring home the charges against the accused. Further, the document produced at Ex.P17 has been relied upon to demonstrate the state of mind of the deceased and the allegation of cruelty against her, are also sought to be brought home on the basis of the same. It is 14 admitted by the prosecution that the document Ex.P17 is said to be written by the deceased in her hand in two installments. The first installment, while she was residing in the home of the accused and the second installment of the document when she was visiting her brother and even as she was writing the document, it is said to have been snatched away by one of her sisters PW-4 and was preserved by her, awaiting the death of the deceased as it were, in order to produce the same in the case. This is the suggestion and theory sought to be propounded by the prosecution. Even if the document is taken as having been established, whether the contents indicate that there was cruelty meted to the deceased by the accused is a moot question. In this regard, the entire document is reproduced hereunder:
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6. The learned counsel would submit that first of all, it was necessary for the prosecution to establish that the document was indeed written by the deceased. Since the deceased was no longer alive and it was not possible to take recourse to Section 45 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act', for brevity), it was necessary for the prosecution to have invoked Section 73 of the Evidence Act to establish that the document was indeed written by the deceased Arunamba. That exercise not having been carried out, it cannot be said that the document was proved. Even if it was held to be proved, the contents of the document, as already stated, do not indicate that there was cruelty of such a degree as to drive her to commit suicide. On the other hand, the indication is that she has always suffered in life, before her marriage, under her brothers and sisters, and continued to suffer even after her marriage. This would not disclose that there was ill-treatment on the part of the 27 accused and would only indicate the sensitive state of mind of feeling depression and suffering, not necessarily on account of any ill-treatment by the accused. The learned counsel would point out that it is also established by the admissions made by the witnesses PW-3 and PW-4 who have stated that Arunamba, the deceased, was the youngest in the family and was the favourite of their father and hence, she had been pampered by the father, was given to be extremely sensitive and therefore, could withdraw into depression at the slightest provocation and hence, the document Ex.P17 does not indicate that any change has been brought about only on account of the alleged ill-treatment by the accused meted out to her in his demand for dowry. It is also pointed out that the neighbours of the accused were examined as PW-9 and PW-11 who however have stated that the accused and the deceased were living a normal life and all was well between them. Therefore, the most crucial evidence would have been that of independent 28 witnesses who were privy to the conduct and behaviour of the accused and the deceased, namely the neighbours who would be in a position to speak to the fact that the appellant and the deceased were living normally as husband and wife. The allegations of cruelty from inception of the marriage and beyond, is not established. On the other hand, the deceased had borne a child one year after the marriage and the child continued to be in the custody of the accused and his family and therefore, the learned counsel would submit that the only evidence of PW-1 to PW-6 and the documents Ex.P17 and Ex.P18 are sought to be relied upon by the Court below in holding that the prosecution had established its case beyond all reasonable doubt. On the other hand, it is clear that the witnesses would not have been privy to the day-to-day life of the accused and the deceased and it is not their case that the deceased was informing them constantly of ill- treatment or was being sent home to fetch more dowry. The 29 evidence on record would show that there was a cold relationship between Arunamba and her brothers and sisters and that after her marriage she hardly ever visited the house of the complainant and his family, except when the child was born and naming ceremony was held in the house. Thereafter, she had only visited the family of the complainant because of the civil dispute pending and she had infact aligned her relationship with the first brother, who had lost faith in PW-1 and the others.
7. The learned State Public Prosecutor, on the other hand, would seek to justify the judgment of the Court below and would highlight Ex.P17 in particular, to demonstrate that there was cruelty meted out from inception as it is not in dispute that the letter has been written at the earliest point of time indicating that all was not well with the deceased and the accused and the fact that there was constant demand for dowry also stood established by reference to Ex.P18 which was a document which was forced 30 to be executed by the complainant and his family to appease the accused and to avoid any further cruelty being meted out to the deceased. Generally, the learned counsel takes the Court to the record to substantiate that the findings of the Court below are fully justified, particularly the evidence of PWs-1, 2, 4 and 6.
8. From a reading of the judgment and on examination of the record and taking into account the rival contentions and allegations being made in respect of the offences punishable under Sections 498-A and 304-B of IPC and Sections 3 and 4 of the D.P.Act, it was necessary for the prosecution to establish that not merely had the deceased died within 7 years of marriage, but also that such cruelty was meted out to her, as a result of which she was driven to commit suicide. As is clear from the language of the above Sections, namely 304-B and 498-A of the IPC, as the emphasis is on the nature of cruelty being of such a degree that it would drive a woman to commit suicide, in this regard, therefore, 31 the burden was heavy on the prosecution to establish through direct evidence as to such cruelty being meted by the accused to the deceased. The evidence that is on record is of PW-1 to PW-6, of which much reliance is placed on the evidence of PWs-1, 2, 4 and 6 and particularly, on the documents Ex.P17 and Ex.P18. Insofar as the witnesses are concerned, as already stated, the relationship between those witnesses and Arunamba was cold to the degree of distancing themselves from each other. She was not in the habit of visiting them and there was much bitterness in her against them even prior to marriage and it only got worse after the marriage. Therefore, the question of any disclosure by the deceased of having been ill-treated by the accused is dim. This aspect of the matter appears to have been overlooked by the Court below. There is contra evidence which has been placed on record of DW-1 and DW-2 who have spoken to this. The Court below has completely ignored the same. In establishing that there was 32 cruelty and cruelty meted to a wife by the husband would probably be within the confines of their home but if indeed there was such cruelty, there is always room for the same being stated atleast by the neighbours who would be in a position to witness signs of such discord by the day-to-day conduct of the accused and the deceased. In this regard, though the prosecution examined two witnesses namely, PW-9 and PW-11 to demonstrate that there was cruelty meted out by the accused to the deceased, the evidence that has emanated is contrary. In that, those witnesses have categorically stated that all was well with the deceased and the accused and they were living as a normal couple and they could not find anything unusual in their behaviour. Therefore, it could not be said that the prosecution had discharged its burden with reference to the oral evidence that was tendered in support of the charges.
33
9. Insofar as the material evidence that was produced and which has strongly influenced by the Court below in arriving at a finding that the accused had committed offence punishable under Sections 3 and 4 of D.P.Act, it is also found to be infirm. In that, though there was allegation of the accused having made a demand for a scooter at the time of marriage and though it was claimed that PW-1 had raised a loan of `32,000/- in order to purchase such a scooter and give it to him at the time of marriage, the evidence tendered did not support this contention namely, that a loan had been raised and a scooter was purchased only on the demand of the accused to give it to him at the time of marriage and the Court has negatived such an allegation, but proceeded to hold that the accused had yet committed the offences punishable under Sections 3 and 4 of D.P.Act, particularly with reference to Ex.P17 and Ex.P18. The contents of Ex.P17 have already been extracted hereinabove and as could be made out from the same, the 34 deceased was only expressing her feelings of depression and not being happy either before her marriage or during her marriage. This did not indicate that there were demands for dowry except that she was complaining about her in-laws grumbling of not being treated properly at the time of wedding. This was at the earlier point of time of marriage and thereafter, the deceased having borne a child to the accused and no further incident having been reported directly to the complainant and his family, it could not be said that Ex.P17 supported the further acts of cruelty on the part of the accused as the document said to have been written three months after the marriage it would pale into insignificance when she had continued to live with the appellant over the years and had also borne him a child. More significantly, the document has not been proved in accordance with law. In that, as rightly pointed out by the learned counsel for the appellant, the deceased not being available in order to establish that Ex.P17 was in her 35 handwriting, the only recourse was to invoke Section 73 of the Evidence Act in order to establish that it was indeed written by the deceased. That exercise not having been carried out, the self- serving statements that it was a letter written by the deceased has been accepted by the Court below which is not tenable and therefore, it cannot be said that the document was proved and even if it was indeed written by the deceased, in the opinion of this Court it did not disclose that she was suffering extreme cruelty of a degree, driving her to commit suicide.
10. Insofar as Ex.P18 is concerned, it was a draft document unsigned and was of a nebulous nature and in any case it was an unregistered document and not a document which has conveyed any property but only indicated a vague proposal. It had been produced only to influence the mind of the Court and to suggest that the accused was indeed pressurizing the family into executing such a document. The said document was of no consequence and 36 as it did not convey any right in favour of any person, let alone the accused and hence, the said document also could not have been relied upon in finding that the prosecution had proved its case beyond all reasonable doubt. Though the judgment of the Court below is extensive, it is found unnecessary to address each and every aspect that is spelt out by the Court below while reiterating the statements of witnesses and other documents in arriving at its findings. Therefore, the brood contours and the requisite ingredients which the prosecution was required to establish and the manner in which the Trial Court has proceeded to address the same are alone discussed and in the opinion of this Court, the prosecution has failed to establish this beyond all reasonable doubt. Consequently, the appeal is allowed. The judgment of the Court below is set aside. The accused is acquitted. The bail bond 37 executed by the appellant is cancelled. The fine amount, if any, paid by him, shall be refunded to him.
Sd/-
JUDGE RV