Karnataka High Court
State Of Karnataka vs V Prakash S/O H Venkatappa on 3 March, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
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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, 1988.10
(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*