Karnataka High Court
State Of Karnataka vs Gurumurthy on 4 January, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL NO.669 OF 2014
BETWEEN:
STATE OF KARNATAKA
BY RURAL POLICE,
CHITRADURGA. ... APPELLANT
(BY SRI. CHETHAN DESAI, HCGP)
AND:
1. GURUMURTHY,
S/O. CHANDRAPPA,
AGED ABOUT 24 YEARS,
OCC: COOLIE.
2. CHANDRAPPA @
CHANDRASHEKHARAPPA,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE.
3. HANUMAKKA,
W/O CHANDRAPPA @
CHANDRASHEKHARAPPA,
AGED ABOUT 48 YEARS.
4. KAVITHA,
2
W/O SURESH,
AGED ABOUT 25 YEARS,
HOUSEHOLD WORK.
ALL ARE KURUBARU BY CASTE,
R/O. DODDASIDDAVVANAHALLI VILLAGE,
CHITRADURGA TALUK-577 501. ...RESPONDENTS
(BY SRI. UMESH FOR R.B. DESHPANDE ADVS.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 30.10.2013 PASSED BY THE PRL. DIST. AND S.J.
CHITRADURGA IN SESSIONS CASE NO.33 OF 2012 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 304B AND 302 R/W 34 OF IPC AND U/S 3,4 AND 6 OF D.P.
ACT AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS, THIS DAY,
DR. H.B. PRABHAKARA SASTRY J., DELIVERED THE FOLLOWING:-
JUDGMENT
The present respondents were tried by the Court of Principal District and Sessions Judge at Chitradurga (henceforth for the brevity referred to as the 'Sessions Court' ) for the offence punishable under Sections.3, 4 and 6 of the Dowry Prohibition Act and Section 304(B) read with Section 34 of the IPC and the said Sessions Court by its judgment dated 30.10.2013 acquitted the accused from all the offences charged 3 against them. It is against the said judgment of acquittal the complainant police have preferred this appeal.
2. The summary of the case of the prosecution in the Sessions Court is that the complainant one Smt. Neelamma, said to be the mother of the deceased Smt. Bhagyamma reported to the police on 9.6.2011 stating that her daughter Bhagyamma was given in marriage to the first accused - Gurumurthy, whose marriage was performed in a temple near Aimangala village. The accused Nos. 2 and 3 are the parents of accused No.1 and accused No.4 is the sister of accused No.1. Though they lived happily for about 9 months after the marriage, thereafterwards all the four accused started insisting the deceased to go for coolie work. If the deceased refused to go for coolie work, the accused were not providing the food to the deceased and were asking her to cook the food for herself, if she needed. They were compelling the deceased to do lot of household work. Whenever the deceased revealed her difficulties before her mother, she used to be consoled. Three months before the date of complaint, the deceased and the accused No.1 came to the 4 house of the complainant in connection with Yugadi festival. But after the festival the accused Nos.2 and 3 refused to take back the deceased and that they asked the complainant and her husband not to send their daughter to their house. Whereas, accused No.1 came to their house and asked his wife i.e. the deceased to put signature on some papers to enable him to take divorce from her. Then the complainant and her husband advised the accused No.1 not to go to the extent of divorcing his wife and requested him to lead cordial life with his wife. The accused returned to his house at that time, but came back after three days and once again put pressure on his wife to sign the divorce papers. On 9.6.2011 at about 2.00 p.m. the complainant went out of the house in connection with her flower business and she received telephone call from one Gangadharappa of her village. She was asked to return to the house immediately, as her daughter's condition was very bad. So, when the complainant returned to the house, she saw her daughter being laid on a pyol (PÀmÉÖ) in front of her house and she found her daughter dead. When she enquired, she came to know that her 5 daughter committed suicide by hanging herself inside the house to a beam in the ceiling. Therefore, in the complaint it was alleged that the deceased had committed suicide being unable to bear the torture meted out to her by all the accused. It was revealed during investigation that the accused were insisting on the deceased to bring dowry from her parents house and in that connection they were harassing. That the accused No.1 himself caused the death of this wife by strangulating her with a saree. Therefore charge sheet was filed for the offences punishable according to Sections 3, 4 and 6 of Dowry Prohibition Act and under section 304B read with Section 34 of IPC.
3. Even though the charge sheet did not include the offence punishable under Section 498-A of the IPC, however, the Sessions Court after going through the records found it necessary to frame charge against the accused before it, even for the offence punishable under Section 498-A IPC. Accordingly, charges were framed against the accused before it for the offence punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and under Section 498A and 304B read 6 with Section 34 of IPC. Since the accused pleaded not guilty, the trial was conducted.
4. In order to prove its case, the prosecution got examined 21 witnesses from P.W.1 to P.W.21 and got marked from Ex.P.1 to Ex.P.14(e) and material objects at M.Os.1 to 5. From the accused side no defence evidence was led. However Ex.D.1 to Ex.D.3 were marked in the cross-examination of prosecution witnesses. After analysing the materials before it, the Sessions Court by its judgment dated 30.10.2010 acquitted the accused Nos.1 to 4 (respondent Nos.1 to 4 herein) of the charges they faced trial.
5. Being aggrieved by the said judgment of the Sessions Court, the complainant police have preferred this appeal.
6. The learned High Court Government Pleader in his arguments reiterated the contentions taken up by them in their memorandum of appeal and submitted that the Sessions Court did not appreciate the evidence of P.W.1 and P.W.2 properly 7 which led to an erroneous conclusion leading to acquittal of the accused from the charges for the offence punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. He further submitted that regarding the dowry harassment and consequential death of the deceased also, the Sessions Court has arrived at an erroneous conclusion which has resulted in miscarriage of justice.
7. On the other hand, learned counsel for the respondents/accused in his argument submitted that admittedly there are no eye witnesses to the alleged incident. The alleged concept of " last seen theory" put-forth by the prosecution was a mere allegation, but it could not prove the same. As such, in the absence of any material and cogent evidence, the Sessions Court has rightly acquitted the accused of the alleged offences.
8. The relationship between the deceased-Bhagyamma and the present accused is not in dispute as has come out in the evidence of P.W.1 and P.W.2 who are the parents of the deceased-Bhagyamma, the marriage of the deceased with accused No.1- Gurumurthy. It is not in dispute that the deceased 8 was married to the accused No.1 Gurumurthy in the year 2009. Accused No.2 -Chandrappa and accused No.3 - Hanumakka and accused No.4- Smt.Kavitha, respectively are the father, mother and elder sister of accused No.1. It is also not in dispute that the death of Bhagyamma has occurred on 9.6.2011 approximately between 2 to 2.45 p.m. P.W.1- mother of the deceased is the complainant in the case. The complaint was made by her on the very same day i.e. 9.6.2011 at 18.00. hours.
9. It is interesting to note that in the complaint nothing has been stated about the accused demanding dowry either before the marriage or at the time of the marriage or even thereafter till the death of Bhagyamma. When the complaint was silent about the alleged demand for dowry, for the first time a statement regarding demand for dowry has been made by P.W.1 and P.W.2. the parents of the deceased before the Tahsildar who conducted the inquest mahazar on 10.6.2011 as per Ex.P.5. It is the statement of the parents of the deceased as well as the evidence of P.W.1 and P.W.2 before the Sessions 9 Court that at the time of marriage the accused put-forth demand for Rs.1.5 lakhs and some gold as dowry in which a sum of Rs.12,000/- was paid to them keeping the balance of Rs.1.38 lakhs to be payable later. P.W.1 and P.W.2 have also stated that apart from cash the accused also had demanded a gold ring of one tola which was given to accused No.1 at the time of marriage. It is further evidence of P.W.1 and P.W.2 that for about 9 months after their marriage the husband and wife were living happily, but thereafter all the accused started ill-treating the deceased demanding her to bring the alleged due of dowry of Rs.1.38 lakhs. They were also asking her to attend agricultural field work, to wash cloths and to tend the cattle. It is the further evidence of P.W.1 and P.W.2 that accused were manhandling the deceased. Further, the accused No.1 had brought the deceased (his wife) to the house of P.W.1 and P.W.2 and was also compelled his wife that she should bring the balance of dowry amount or should give consent for divorce. However, in their cross-examination, P.W.1 and P.W.2 could not give further details of the alleged demand for dowry both in the form of cash and gold. On the contrary, P.W.1 admitted in her 10 cross-examination that, in her complaint she has not mentioned about the alleged harassment of the deceased by the accused.
Similarly, P.W.2 also could not able to give details of the alleged demand for dowry as promised by them to meet the said demand in the due course. Though P.W.1 and P.W.2 have mentioned the names of one Kanumappa, Kenchappa, Prema Kumar, Shanthamma and Ningamma, as the persons when the marriage negotiation was said to have taken place, but the prosecution did not examine the said Kanumappa, Shanthamma and Prema Kumar and they are not cited as witnesses in the charge sheet at all. Thus, the evidence of P.W.1 and P.W.2 could not able to establish beyond all reasonable doubt that there was any demand for dowry from the accused and any ill-treatment in that regard by them upon the deceased.
Though the prosecution has examined P.W.3- Rajashekhar projecting him as a person present during marriage negotiations, but he stated that he does not know anything. The witness has turned hostile and did not support the prosecution. 11
P.W.5 Kenchappa, who is the brother of P.W.1 though has supported the prosecution regarding the alleged demand of dowry, but in his cross-examination he has stated that nothing was reduced into writing as to how much money or in what manner the dowry should be given.
P.W.8 -M.Kenchappa, though has stated about the alleged demand for dowry from the accused, but in his cross- examination he could not give the details as to when and how the negotiation took place and at what time frame was agreed to pay the alleged balance of dowry amount.
P.W.14-Eshwarappa, is a hearsay witness, who has clearly stated in his evidence that he came to know about the demand of dowry only from P.W.1, as such, he has not heard directly from the deceased.
P.W.5 - Kenchappa, who admittedly is the brother of P.W.1, no doubt has supported the case of the prosecution by stating that the accused had demanded for dowry for a sum of Rs.1.5 lakhs and a gold ring of one tola, out of which 12 Rs.12,000/- and a gold ring was given to the accused No.1. However, the accused continued to pester the deceased to bring the remaining balance of the dowry. Interestingly, the very same witness in his cross examination has stated that it was on 14.5.2010 when the marriage negotiation was held. Undisputedly the marriage of the deceased with accused No.1 has taken place in the year 2009. Therefore, an year after the marriage, taking place of marriage negotiations and demanding dowry in that negotiations does not arise. Therefore, his testimony is not reliable.
10. Considering all these aspects and more particularly, the fact that no allegation regarding the demand for dowry was spelt in the complaint lodged by none else other than the mother of the deceased, at the first instance, the court below has rightly arrived at a conclusion that prosecution could not able to establish the alleged guilt of the accused punishable under section 3, 4 and 6 of the Dowry Prohibition Act and as such, we do not find any reason to interfere with the said finding.
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11. With respect to Section 498A of the IPC is concerned, the first material available on this point is the complaint at Ex.P.1 lodged by P.W.1, wherein the complainant who is none else other than the mother of the deceased has stated that the accused were asking the deceased to go for coolie work and if she failed to go for coolie work, they used to refuse her food. Further, they were also asking her to attend too much domestic work which she find it difficult to do. In her evidence also P.W.1 has reiterated the same.
Similarly, P.W.2-Nagarajappa, father of the deceased and P.W.5-Kenchappa, maternal uncle have deposed in their examination-in-chief that the accused were asking the deceased to go to coolie work and if she failed to go for coolie work, they used to refuse her food. Further, they were also asking her to attend too much domestic work which she find it difficult to do. However, the accused have denied the same in the cross- examination of those witnesses.
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On the other hand, P.W.3-Rajashekhar and P.W.4- Gangadharappa, have not supported the case of the prosecution on the point. While P.W.3 has stated that the deceased being taken care of well by the accused. P.W.4 has stated that he does not know for what reason the deceased had returned to her parental house.
P.W.6 -Kenchamma, on whose evidence also the prosecution has relied upon pleaded her ignorance about the alleged ill-treatment said to have been meted out to the deceased by the accused.
P.W.8- M.Kenchappa, another witness for the prosecution has sailed along with P.W.3 on this aspect of the alleged ill- treatment to the deceased by the accused. Therefore, it is only the evidence of P.W.1 and P.W.2 who speak mainly about the alleged cruelty said to have been meted out to the deceased by the accused. Even if the evidence of P.W.1 and P.W.2 are taken to be true on the point, still the allegation is only to the extent that the deceased was being asked to attend agricultural field work and domestic work. A member of the house if asked to 15 attend the family work the same cannot be considered as a cruelty meted to that person. If the alleged imposition of the work proves to be more laborious or beyond the capacity which the person asked could able to do it and such other similar circumstances they can be treated as unreasonable and be considered as whether they amount to cruelty. However, in the instant case, mere asking the wife or daughter-in-law by the accused to attend to the domestic and agricultural work under the circumstances of the case, cannot be taken that it amounts to cruelty. As such, the arguments of the learned HCGP that the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty by the accused cannot be accepted. The finding of the Sessions Court holding that the prosecution has failed to prove the said count beyond all reasonable doubt cannot be found fault with.
12. The other offences for which the accused were charged are punishable under Sections 304-B and 302 read with Section 34 of the IPC. Admittedly, the case of the prosecution on these counts is upon the circumstantial evidence. It is the 16 specific case of the prosecution that accused No.1 was pestering the deceased to give her consent for divorce. It is his further case that when the deceased was found dead it was the accused who was present in the house and as such, he was held to be guilty of committing the murder of the deceased.
13. Regarding the nature of the death of the deceased, the medical evidence given by P.W.19-and the post-mortem report at Ex.P.13 are not specific. Though it is the case of the prosecution that the death of the deceased was due to strangulation, but P.W.19-Dr.Y.C.Rudresh, who conducted autopsy of the dead body has only opined that the death was due to asphyxia consequent to compression of neck. Even in his detailed evidence, the doctor himself could not arrive at a definite opinion about the cause of death. Even according to him, in the post-mortem report, the ligature mark found on the dead body was not continuous. According to the doctor, he has not noticed any resistance mark which generally occurs in the case of strangulation. After seeing the ligature mark in the photographs of the deceased at Ex.P.14(a) to Ex.P.14(e), P.W.19 17 the doctor himself has opined that even in the case of partial hanging, ligature mark appeared in those photographs can occur. It is also necessary that in the case of strangulation there will be no dribbling, whereas it is prominent in the case of hanging. In the case on hand, it is stated that there was no any dribbling. Therefore, as rightly observed by the court below, the evidence of the doctor P.W.19 takes the case, to no specific determination regarding the nature of death as to whether it is a strangulation or hanging.
14. In the medical evidence, it is not clear regarding the nature of the death. The evidence of other witnesses, their evidence is also circumstantial evidence is of no greater help in ascertaining the nature of the death. Though P.W.4 claims he has seen the dead body, but has not stated regarding the nature of death. On the other hand, a portion of Ex.P.3 which is a circumstance of P.W.4 is to the effect that the deceased had hanged herself and that the first accused having noticed the same had freed the deceased from noose. Admittedly, P.W.l5 is also not an eye witness and according to him, the people 18 gathered at the scene of offence were talking that the first accused had killed the deceased. Thus, neither the evidence of witness nor the medical evidence could establish the death of the deceased was homicidal and that it amounts to murder. The only inference that can be drawn from the post-mortem report and the medical evidence was that the death of the deceased - Bhagyamma was an unnatural death and nothing more than that.
15. Even though the death of the deceased -
Bhagyamma can be considered as the one that has occurred otherwise than under normal circumstances within seven years of her marriage, but in view of oscillating and unclear evidence of the prosecution witnesses, it is not possible to hold that her death attracts Section 304B of IPC and that the accused are held to be guilty for the same. In order to establish that accused No.1 is the sole cause for the death of the deceased and that he has caused the murder of the deceased, the prosecution has heavily relied upon the evidence of P.W.1 and 2 who have stated that when they had gone out for their daily work it was the 19 accused who was alone in the house along with the deceased. It is also the case of the prosecution that the neighbours of P.W.1 and 2 also had seen the accused No.1 carrying the dead body of the deceased wife from inside the house to the outside and placing it on pyol. However, no witness has specifically stated that they had seen the accused being present inside the house with the deceased when the incident has occurred. In this regard, the evidence of P.W.6 and P.W.7 is also of no much avail to the prosecution. Thus, considering all these aspects it has to be necessarily held that the death of the deceased -Bhagyamma is proved to be occurred otherwise than in normal circumstances, but the prosecution has failed to prove that it was a dowry death or that it was a murder for which the accused are held to be guilty. The court below after analysing the evidence placed before it has arrived at the same conclusion holding that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. Consequently, it has passed an order of acquittal against the accused. 20
16. Having observed as above that the prosecution has failed to prove that it was a dowry death or that it was a murder for which the accused are held to be guilty for any of the charges, we are of the opinion that the judgment under appeal does not warrant any interference at the hands of this Court.
17. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE Msu