Karnataka High Court
Satish @ Satish Kumar S/O Late Mariyappa vs State By Udayagiri Police on 31 July, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1019/2010
C/W
CRIMINAL APPEAL No.1322/2010
IN CRIMINAL APPEAL No.1019/2010
BETWEEN:
Satish @ Satish Kumar
20 years
S/o Late Mariyappa
No.2733, Temple Road
V V Mohalla
Mysore. .. APPELLANT
(By Sri T K Nagesh Kumar,Adv. For
M/s. T K Nagesh Kumar and Associates)
AND:
State by Udayagiri Police
Mysore. .. RESPONDENT
(By Sri K R Keshavamurthy, SPP-2)
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This criminal appeal is filed under Section 374(2)
CR.P.C praying to set aside the order dated 26.08.2010
passed by the V Addl. District and Sessions Judge, Mysore
in S.C.NO.235/2006 - convicting the appellant/accused for
the offence punishable under Section 498-A of IPC.
IN CRIMINAL APPEAL No.1322/2010
BETWEEN:
Kavitha Shetty
W/o Ranjan Shetty
Aged about 46 years
R/at D.No. 4B
Near Canara Bank
Brindavan Extension
Mysore. .. APPELLANT
(By Sri Veerabhadraswamy, Adv.)
AND:
1. State by Udayagiri Police
Represented by Public Prosecutor
State of Karnataka
High Court Building
Bangalore.
2. Sathisha @ Sathish Kumar
S/o Late Mariyappa
Aged about 24 years
No.2733, Temple Road
V.V. Mohalla, Mysore.
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3. Devaraja
S/o Mallesh
Aged about 23 years
No.76, Paravathinilaya
Hinkal, Mysore.
4. Lokesh @ Kunta
S/o Venkatesh
Aged about 23 years
No.21, 1st Cross
Adhipampa Road
V V Mohalla
Mysore.
5. Jayaprakash @ J.P.
S/o Mahadevaiah
Aged about 23 years
No.853, S.R.S. Colony
Hootagally
Mysore.
6. Ramesh
S/o Puttamadaiah
Aged about 35 years
1st Cross, Siddapajji Road
Gandhinagar, Mysore.
7. Kiran @ Daggi
S/o Manjunath
Aged about 25 years
'A' Block
Vijayanagar 3rd Stage
Mysore. .. RESPONDENTS
(By Sri K R Keshavamurthy, SPP-2 for R1
Sri T K Nagesh Kumar, Adv. For R2-R4, R6 and R7
By Sri Vagesh Hiremath, Amicus Curiae For R5)
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This criminal appeal is filed under Section 372
CR.P.C praying to set aside the judgment dated
26.08.2010 passed by the V Addl. District and Sessions
Judge, Mysore in S.C.NO.235/2006 - acquitting the
respondents/accused for the offences punishable under
Sections 498-A and 306 of IPC and etc.
These appeals having been reserved and being listed
for pronouncement today, Budihal R.B., J., delivered the
following:
JUDGMENT
In these two appeals, the judgment and order dated 26.08.2010 passed by the V Additional District and Sessions Judge, Mysuru, in S.C. No.235/2006 has been challenged. By the said judgment and order, accused No.1 has been convicted for the offence punishable under Section 498-A of IPC and accused Nos.1, 3, 4 and 6 to 11 have been acquitted for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act, Section 304B of IPC and Section 5(b) and (d) of the Immoral Traffic (Prevention) Act, 1956 and accused Nos.3, 4 and 6 to 11 5 have also been acquitted for the offences punishable under Section 498A of IPC.
2. Crl.A. No.1019/2010 is preferred by appellant- accused No.1 and Crl. A. No.1322/2010 is preferred by the mother of the deceased-victim against the respondents State and other accused.
3. Case of the prosecution as per the complaint by one Sri. T. Bheema, addressed to Police Inspector, Udayagiri Police Station, Mysuru under Ex.P.29 is that, he has informed about the suicide by hanging by one Reshma aged 20 years, in house No.40 of Lidkar colony. In the said intimation, it is mentioned that since 15 days, one Reshma, aged about 20 years was staying along with one boy. On 1.1.2006 at 3.45 p.m. when he came in front of house No.40 at Lidkar colony, the women folk gathered there and told him that from the morning, the door of the said house has not opened and the woman inside the 6 house has not at all come out. Then, he peeped through the window of the said house and came to know that the said woman latched the door from inside and committed suicide in the kitchen with the help of the saree and her dead body was hanging. Immediately, he informed the same to the control room. He does not know as to which village the woman belongs to, so also he does not know who are the relatives of the said deceased and why she has committed by the suicide by hanging. Hence, he requested to take appropriate action in the matter. On the basis of the said information, a case was registered in UDR No.1/2006 under Section 174 of Cr.P.C. as per Ex.P.30.
4. On the basis of the inquest mahazar proceedings conducted by the Taluka Executive Magistrate as per Ex.P.7 so also on the basis of Exs.P.9 and P.10, a case was registered in Udayagiri Police Station crime No.1/2006 for the offences punishable under Section 498-A IPC, Sections 3 and 4 of Dowry Prohibition Act, Section 304B of IPC read 7 with Section 5(b) and (d) of the Immoral Traffic (Prevention) Act, 1956 read with Section 34 of IPC and Section 306 of IPC. FIR was issued as per Ex.P.25.
5. After completing the investigation, Investigating Officer has filed the charge sheet against the accused for the offences punishable under Sections 498A, 304B, read with Section 34 of IPC, Sections 3 and 4 of Dowry Prohibition Act and also Section 5(b and d) of Immoral Traffic (Prevention) Act, 1956. During the course of trial, prosecution has examined in all 31 witnesses as PWs-1 to 31, and got marked the documents as per Exs.P-1 to P-44 and the material object M.O.1 has got marked in the case. And on the side of the defence, documents Exs.D-1 to D-4 were got marked;.
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6. After considering the oral and documentary evidence and the merits of the case, ultimately, the Trial Court acquitted accused Nos.1, 3, 4 and 6 to 11 for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act, Section 304-B of IPC and Section 5(b and
d) of Immoral Traffic (Prevention) Act, 1956, and accused Nos.3, 4, 6 to 11 are acquitted for the offence punishable under Section 498A of IPC and accused No.1 has been convicted for the offence punishable under Section 498A of IPC.
7. Being aggrieved by the said judgment and order of conviction, accused No.1 has preferred the appeal in Crl.A.1019/2010 and being aggrieved by the acquittal of the accused persons, PW-6, who is the mother of the deceased, has preferred the appeal in Crl.A.1322/2010, on the grounds as mentioned in the respective appeal memorandums.
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8. We have heard the arguments of the learned counsel appearing for appellant-accused No.1 so also Sri Veerabhadraswamy, learned counsel on behalf of appellant-P.W.6, the mother of the deceased and Sri Vageesh Hiremath, learned amicus curiae on behalf of respondent No.5 in Crl.A.1322/2010 and also heard the learned SPP-2 in the matter.
9. Learned counsel appearing on behalf of appellant- accused No.1 has submitted that there is no acceptable and satisfactory material on record to convict appellant- accused No.1 for the offence punishable under Section 498A of IPC. He submitted that the other accused persons have been acquitted for the said offence. It is the case of the prosecution that all the accused persons used to give ill-treatment and harassment to the deceased and when on the very evidence itself the other accused persons were acquitted, the order of conviction as against accused No.1 for the said offence is not sustainable in law. He submitted 10 that looking to the entire materials i.e., both oral and documentary, there is no consistency in the evidence of prosecution witnesses, even then, the learned trial Judge has wrongly read the evidence and wrongly came to the conclusion to convict appellant-accused No.1 for the offence punishable under Section 498A of IPC. Hence, he submitted that the appeal be allowed and the judgment and order of conviction and sentence imposed by the Trial Court as against accused No.1 may be set-aside by acquitting accused No.1.
10. Sri Veerabhadraswamy, learned counsel while arguing on behalf of appellant-complainant (PW-6), the mother of the deceased, during the course of his arguments submitted that there is satisfactory material on record even as against other accused persons also, but even then the Trial Court acquitted the other accused persons for all the charges leveled against them, which is not a correct view. He has submitted that when it is the 11 case of the prosecution that all other accused persons were helping accused No.1 in taking away the deceased from her house and even from the house of her relative at Kodagu-Madikere by falsely representing her that accused No.1 is admitted to hospital and on the very evidence of prosecution witnesses when accused No.1 has been convicted for the offence punishable under Section 498A of IPC, the Trial Court ought to have convicted the other accused persons also. He has also submitted that the acquittal of accused No.1 for the offence punishable under Section 304B read with Section 34 of IPC, and for the offence under the provisions of Dowry Prohibition Act and Immoral Traffic (Prevention) Act, is also not in accordance with the material placed on record and all the accused persons ought to have been convicted for the offences for which the charges were leveled against them. Hence, he has submitted to allow the appeal and to set-aside the judgment and order of acquittal of the accused persons 12 and convict all the accused for the offences for which they have been charged.
11. The learned Amicus Curiae appearing for respondent No.5 in Crl.A.No.1322/2010 has submitted that the Trial Court has properly assessed the materials and rightly came to the conclusion in acquitting respondent No.5-Accused No.6. Hence, he has submitted that no interference is called for so as to reverse the findings of the Trial Court.
12. Sri Keshava Murthy, learned SPP-II, has submitted that looking to the materials placed on record and when the Trial Court came to the conclusion that there is an ill-treatment and harassment to the deceased by accused No.1, at least the Trial Court ought to have convicted the appellant-accused No.1 for the offence punishable under Section 306 of IPC though not for the offence punishable under Section 304B of IPC. Hence, he 13 has submitted that the judgment and order of the Trial Court in acquitting the appellant-accused No.1 for the offence punishable under Section 304B of IPC is not correct and the appeal preferred by the mother of the deceased be allowed at least as against accused No.1 and accused No.1 be convicted for the offence punishable under Section 306 of IPC also. But so far as other accused persons are concerned, he has fairly submitted that the material on record is not consistent and satisfactory, hence, he left the matter to the Court.
13. We have perused the oral as well as the documentary evidence placed by the prosecution defence during the course of the trial.
14. P.W.1 Mahesh, who is the neighbour to the house where the incident has taken place, is the panch 14 witness to the Mahazar Ex.P.1-the scene of occurrence and he has turned hostile.
P.W.2 Smt. Jayalakshmi is the Secretary of the Women Organization. She speaks about the documents Exs.P.2 to P.5 written by the deceased Reshma.
P.W.3 Pavithra is the aunt of the deceased Reshma i.e., deceased's mother's sister. She speaks about the ill treatment given to the deceased by accused No.1 Satish @ Satish Kumar and the other accused persons. She also speaks that Exs.P.4 and 5 are in the hand writing of Reshma. She is the signatory to the inquest conducted as per Ex.P.7 P.W.4 Manukumar is the auto driver at Madikeri. He speaks that four persons were talking with Reshma when she had been to tuition class. He has partly supported the case of the prosecution.
P.W.5 Anthony speaks that the four accused persons were talking with Reshma at Madikeri when she had been to the tuition class.
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P.W.6 Kavitha Shetty is the mother of deceased Reshma. She has deposed that she went to the scene of occurrence and on the next day, she had gone to the hospital along with the other family members and seen the dead body of Reshma. She has spoken about the ill treatment give by the accused No.1 and the other accused persons and abetting the deceased to commit suicide.
P.W.7 Ranjan Shetty, who is the foster father of the deceased, speaks about the ill treatment by accused No.1 and the other accused persons to the deceased Reshma.
P.W.8 Krishna Murthy H.K. is the Taluka Executive Magistrate, who conducted inquest mahazar proceedings as per Ex.P.7 on the date of the incident i.e. 1.1.2006 in the evening in the house bearing No.40 at Lidkar colony. He conducted the mahazar on the next day in the mortuary at JSS College and recorded the statement of P.W.6 Kavitha Shetty. He also speaks about the chits on the body of Reshma as per Exs.P.9 and 10. He sent the chits to the concerned police with covering letter Ex.P.21. 16
P.W.9 Raju is the neighbour in the Lidkar colony and he is the signatory to Ex.P.1 spot mahazar.
P.W.10 Viju Appanna is the brother of the mother of the deceased Reshma and P.W.3 Pavithra. He speaks about accused No.1 and the other accused coming to Madikeri and on one day, the accused persons took deceased Reshma stating that accused No.1 Satish Kumar was not feeling well and hospitalized. He also speaks about the deceased Reshma telling before him the ill treatment given by accused No.1 and the other accused persons.
P.W.11 Jagadish T.G. is the signatory to the inquest mahazar Ex.P.7.
P.W.12 Satish Gupta is the ACP. He seized two note books and three papers under Ex.P.16 mahazar. The note books and the papers are as per Exs.P.17 to 19.
P.W.13 Thimmegowda is the native of Hootagalli. He turned hostile to the case of prosecution. He has deposed 17 that he has not seen accused No.1 and the other accused persons.
P.W.14 Beeraiah has deposed that accused No.1 Satish Kumar was residing in his house for 20 days, but he has not seen his wife. He has further deposed that as mother of the lady, who was staying in the said house came there, accused No.1 Satish Kumar went away from that house.
P.W.15 Channaji who is the resident of Lidkar colony turned hostile and not supported the case of the prosecution.
P.W.16 Sushma is the sister of the deceased. She speaks about the ill treatment given by the accused to deceased Reshma.
P.W.17 Ganesha is the Police Constable. He carried FIR ExP.25 to the concerned Court.
P.W.18 K.P. Parvathi is the WPC. She deposed that after PM examination, she gave the dead body of Reshma to her relatives.
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P.W.19 M. Raju is the ASI. He speaks about apprehending accused No.9 Prashanth @ Harish. He has given report as per Ex.P.26.
P.W.20 Dr Nithin has conducted PM examination on the dead body of the deceased Reshma. He has issued the PM report as per Ex.P.27 and in his opinion, the death was due to asphyxia as a result of hanging.
P.W.21 Somashekara Sharma is the priest in the Ganesh temple at Paduvarahalli. He has deposed in his evidence that the accused and deceased Reshma came to the temple and requested him to perform their marriage. But when he refused, accused No.1 Satish and deceased Reshma exchanged the garlands in the presence of his friends, who were present at the place and after that, they all went away.
P.W.22 Basamma is the resident of Lidkar colony. She turned hostile and not supported the case of prosecution.
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P.W.23 S. Parashivamurthy is the Police Inspector CCRB Mysuru. He has deposed that on 1.1.2006, he received the complaint Ex.P.29 from one Bheema and registered the case in UDR No.1/2006 and then went to the spot, drawn the spot mahazar as per Ex.P.1 and on the bed, one paper was lying and he seized the paper Ex.P.9 wherein it is mentioned by the deceased Reshma that accused No.1 Satish and his friends Ramesh, Jayaprakash and others are responsible for her death.
P.W.24 B. Basavaraj is the ASI. He speaks that he brought two pieces of veil and three chits written by the deceased Reshma from the Tahasildar office and produced before the Police Inspector. The Police Inspector seized them under the mahazar Ex.P.31. The two pieces of veil together marked as per M.O.1 and the three chits are marked as per Exs.P.9 to 11.
P.W.25 Rathnamma is the WPC. She carried the dead body of Reshma from house No.40 to Mortuary of JSS College and she brought the FSL report Ex.P.32. 20
P.W.26 S.G. Vijayakumar, APC, has deposed that he received report Ex.P.33 for producing the veil and three chits, which are seized under Ex.P.31 in the presence of panchas and registered the case in crime No.1/2006 and issued FIR as per Ex.P.25. He has also deposed that on 4.1.2006, he arrested accused No.1 Satish Kumar and others.
P.W.27 Shivanna is the resident of Gootahalli. He turned hostile to the case of prosecution by deposing that he does not know the accused persons.
P.W.28 Paramesha also turned hostile to the case of prosecution.
P.W.29 Syed Asgar Imam is the Scientific Officer from FSL. He speaks about the questioned writings with that of the admitted writings of the deceased Reshma. He has given his opinion as per Ex.P.32 stating that both the writings are of the same person.
P.W.30 M. Abdul Hameed, a retired PSI, has deposed about registering the complaint of Smt. Kavitha Shetty as 21 per Ex.P.36 which was registered in SCR 6/2005 and issued the acknowledgement as per Ex.P.37. He has also spoken about another complaint dated 28.8.2004 of Kavitha Shetty P.W.6 as per Ex.P.40 and it was registered by the ASI in NCR No.58/2004 and issued the endorsement as per Ex.P.41.
P.W.31 C. Krishnappa has deposed in his evidence that on 8.1.2006, he took further investigation of the case registered in Udayagiri P.S. crime No.1/2006 from P.W.26 Vijayakumar, Police Inspector. He has further deposed that Kavitha Shetty produced the note books and he seized the said note books as per Exs.P.17 and 18 and also the papers as per Ex.P.19 under the seizure mahazar Ex.P.16.
15. Perusing the case of prosecution, it goes to show that while the deceased Reshma was still minor and studying in Mahajan College in PU, at that time, accused No.1 Satish Kumar was loving her and in that connection, he used to come before the house of P.W.6, the mother of 22 the deceased, with the motor cycle along with his friends. He was driving the said vehicle by making the loud horn of the vehicle only with an intention to give indication to Reshma that he has come. It is also spoken by P.W.6 and her husband Ranjan Shetty that accused No.1 along with the other accused persons when used to come in front of their house, they were throwing the chits to Reshma and giving trouble to the family members. On one occasion, when accused No.1 along with his friends took away the minor girl Reshma, in that connection, P.W.6 lodged the complaint before the V.V. Puram police station against the accused. The materials further go to show that accused No.1 took the deceased Reshma to her genitive father i.e., first husband of P.W.6 Kavitha Shetty, and left Reshma along with her father Sirajuddin. There afterwards, when P.W.6 and the other family members came to know about the same, the said Sirajuddin asked P.W.6 Kavitha Shetty to come to his house to take back Reshma. But when P.W.6 did not go to him, Sirajuddin himself brought 23 Reshma to Jayalakshmipuram Police Station and then P.W.6 brought Reshma to her house. It is no doubt true that looking to the cross examination of P.W.6 (the mother of the deceased Reshma) and P.W.16 (Sushma-the sister of the deceased Reshma), they go to show that when Reshma alleged to have been kidnapped by accused No.1, a complaint was given against accused No.1 and his friends (the other accused). In that connection, the deceased Reshma gave her statement before the police that she herself voluntarily went along with the accused Satish and she had also complained about the ill treatment and harassment given by her mother Kavitha Shetty and the father Ranjan Shetty. The materials on record would show that one day prior to the deceased Reshma attaining the age of 18 years, P.W.6 (the mother of the deceased Reshma) took her to the market and purchased the ornaments for Reshma worth Rs.13,000/--14,000/- and after making the purchase, P.W.6 went to the telephone booth in the street of the said place to call somebody over 24 the phone, at that time, the deceased Reshma disappeared. It is the case of prosecution that again, Reshma was taken away by accused No.1 Satish and his friends and then, accused No.1 Satish got married her. In that connection also, when P.W.6 lodged the complaint before the police station, P.W.30 Abdul Hameed, retired PSI told P.W.6 that, on the next day, Reshma will attain majority and accused No.1 Satish will marry Reshma. Therefore, it is the contention of P.W.6 that even P.W.30 also knew about the future plan of accused No.1 and the other accused persons. It is the further case of prosecution that accused No.1 married Reshma in Sri Vinayaka Temple at Paduvarahalli in the presence of the other accused (friends of accused No.1). In this regard, the prosecution has examined the priest of the said temple Sri Somashekar Sharma as P.W.21, who has deposed in his evidence that he is working as Archaka in Vidya Ganapathi temple at Vinayaka Nagar which is also called as Paduvarahalli. On 15.2.2006, he was called by the ACP 25 and enquired about the case and he stated before the ACP that two years earlier to that date, Satish and Reshma came to the temple and requested him to perform their marriage. P.W.21 told that as there is no consent from Reshma, he cannot perform their marriage. Thereafter, the friends who accompanied accused No.1 Satish and Reshma, brought the garlands. Satish and Reshma exchanged the garlands and Satish tied the mangalya to the neck of Reshma. He identified accused No.1 Satish before the Court during the course of trial as it is noted in deposition. He has further stated that he cannot tell the names of the other accused but he identified accused Nos.2 to 9 who accompanied Satish to the temple on that day. Looking to the cross examination of P.W.21 except making the suggestion that the accused had not at all come to the said temple nor requested him to perform the marriage nor he has seen the exchange of garlands by Satish and Reshma in the presence of the other accused, which suggestions have been denied by the witness, 26 nothing has been elicited from his mouth to disbelieve the case of the prosecution.
16. The other evidence on record that P.W.3 Pavithra, who is the aunt of the deceased Reshma, who was residing at Madikeri, has also deposed in her evidence that for a period of five months in the year 2005, the deceased Reshma came to stay with her as she was mentally disturbed. The deceased Reshma used to go to the computer class at Madikeri and used to leave the house in the morning and coming back to the house in the evening at about 6.00 - 6.30. Her evidence goes to show that accused No.1 Satish Kumar was calling the deceased Reshma over phone, number of times and he was abusing P.W.3 as to why she kept Reshma with her and asked to send the deceased from her house. When she told accused No.1 that if he repeats the calls over the phone again, she will give the complaint before the police, then he stopped calling over the phone.
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17. It is also the case of prosecution that accused No.1 and his friends even went to Madikeri. They used to talk to Reshma when she used to go to the classes. On one such occasion, four friends of accused No.1 Satish Kumar told Reshma that accused No.1 Satish Kumar has been hospitalized and if she did not come, he will not survive. By making such false representation to her, they took her to accused No.1. In this connection, the prosecution has examined P.W.4 Manukumar, who has deposed in his evidence that since five years, he is running the auto rickshaw at Madikeri and he knows P.W.3 Pavithra and her parents so also he knows Reshma. He has deposed that he had also seen four accused persons who were present before the Court. But at once, he could not identify them. He has deposed that those four accused persons were talking with Reshma in front of the computer centre at Madikeri, when she had been to the computer class. When he enquired with Reshma, she told before him 28 that she had married one Satish and the said Satish is not feeling well and hence four accused had come to call her. When he saw the accused, it might be around 4.30 p.m. In the cross examination, P.W.4 has denied the suggestion that at the instance of Viju Appanna and Pavithra, he is giving false evidence that he has seen Reshma talking with those four accused persons on the said date.
18. Another witness P.W.5 Anthony, the resident of Madikeri has also deposed that about two years back, in front of Ganesh Coffee Works, he had seen 4-5 persons talking to Reshma. Those four persons might be among the accused, who were present before the Court. But, because of the long lapse of time, he could not identify those persons. In the cross examination, he has deposed that as those 4-5 persons were not having the in shirt and on that basis, he is telling that they are not the residents of Madikeri. He has further deposed that when he was speaking to Reshma, her maternal uncle Viju Appanna was 29 present and when he asked them about those boys, Viju Appanna told that they are from Mysuru. It was in the month of November that he has seen Reshma talking to those four boys, but, he cannot say the day and date.
19. PW-10 Viju Appanna has deposed in his evidence that he is doing Computer Business in Madikere. PW-3 Pavitra Shetty is his younger sister and PW-6 Kavitha Shetty is his elder sister. He has seen all the accused persons present before the Court. Reshma told before him that accused No.1 Satish is her husband. When Reshma was studying in PUC at Mysuru, accused No.1 Satish stating that he is loving her, took her and married her. One month thereafter, Reshma came to their house and she told that she will not go with accused No.1 as he was giving ill-treatment to her and he was not having any work, and insisting her to bring Rs.6 Lakhs. Because of that reason she was fed-up and came to his house at 30 Madikeri and she was going to computer training and tuition classes. He has also deposed that out of the accused persons present before the Court, except accused No.1, the other accused persons came and informed Reshma, when she had been to computer class, that Satish is not feeling well and took her with them. When Reshma was with him at Madikeri she was telling about the ill- treatment given by accused No.1 that he burnt her with the cigarette on her back and he was insisting her to bring Rs.6 Lakhs. So also he was assaulting her and as she was fair looking, he was insisting her to bring the money by doing prostitution.
During the course of cross-examination, P.W.10 has deposed that his sister PW-3 Pavitra Shetty was serving as a Teacher in English School at Bengaluru and staying with his elder sister at Bengaluru. Whenever there was holiday and in emergency she used to come to Madikeri. Satish was giving threat over the phone, but he has not given complaint in that regard; he admitted as true that, first 31 time when Reshma went with Satish, his elder sister and his brother-in-law filed a kidnap case against Satish. Then Reshma came back to the house at Mysuru and after attaining 18 years, on the next day itself again she went out of the house. He came to know that Reshma is missing from Madikeri at 5.30 p.m on that day, but he has not given complaint before the Police, as Reshma went along with the accused, hence, there was no question of he giving the complaint. He has denied the suggestion that at the first time when Reshma went out of the house and came back, his elder sister and brother-in-law giving her physical and mental cruelty and for that reason she used to leave the house often. He has also denied the suggestion that because of that reason Reshma was disappointed, and addicted to bad habits and hence, she committed suicide by hanging.
20. PW-7 Ranjana Shetty, who is the foster father of deceased Reshma has deposed in his evidence that 32 Reshma is his foster daughter and PW-6 Kavitha is his wife. He has also identified the accused before the Court. He deposed that, as all these accused were moving around his house, he know them. His house is at Gokulam, Mysuru. Himself, his wife and daughters Sushma are staying in the said house. From 1990 till Reshma left the house he looked after Reshma. Accused No.1 was loving Reshma; he was having tattoo mark to show his love towards her and made her to leave the house and to go with him. At that time Reshma was minor and accused No.1 left Reshma with her genitive father. When Reshma went with accused No.1, she took ornaments worth Rs.12,000/- to 13,000/- and cash of Rs.2000/- to 3000/- and went along with accused No.1. Earlier to that, accused Nos.3 and 4 i.e., Devaraj and Lokesh, respectively, used to come nearby his house, they were throwing the chits and when Reshma was moving on her vehicle they used to give chit to her and made her to leave the house. He also deposed that when he had been to Police Station to give 33 the complaint one Abdul Hameed was the Police Inspector, who told that Reshma had attained majority, hence, he cannot lodge the complaint. The accused persons informed him over phone that Reshma's marriage was performed in the temple. From the said phone message he came to know that her marriage was performed in the Paduvarahalli Vinayaka Temple. He has further deposed that till six months Reshma was not available to them. From Bengaluru Reshma phoned to his wife and informed that Satish is giving ill-treatment to her and telling her to earn the money by prostitution and burnt her with the cigarette even the friends of Satish were also burnt her. Then he told his wife to bring Reshma to the house, thereafter, his wife gave the complaint to the Women Commission at Bengaluru and then took his daughter to the house. He further deposed that after coming to Mysuru Reshma told that she went with Satish by loving him, but she was suffering ill-treatment from him. Satish has not provided even meals to her, insisting her to earn the money by 34 prostitution and he has also insisted her to bring Rs.2 Lakhs for his business and because of all these ill- treatments Reshma committed suicide.
In the cross-examination, P.W.7 deposed that at the first time when Reshma went out of the house, his wife gave the complaint and same has appeared in the news paper. After seeing the same, Reshma appeared before VV Puram Police on 12.05.2004 and gave the statement that she voluntarily left the house. It is true, at that time Reshma was sent to remand room and himself and his wife gave the undertaking bond that they will look after Reshma properly. But he denied the suggestion that after taking Reshma to the house they put restrictions on her. When they took Reshma to their house and after attaining 18 years Reshma went out of their house. But he denied the suggestion that he is deposing falsely that, at that time she took jewelleries worth Rs.12,000 to 13,000/- and cash of Rs.2,000/- to 3,000/-, so also he denied the suggestion that he is deposing falsely that the friends of accused No.1 35 were moving around his house, throwing the chits to her and when she was moving on her vehicle, they used to give chits to her.
21. PW-8 The Taluka Executive Magistrate has deposed in his evidence about he conducting the inquest mahazar on 01.01.2006 in the house, where Reshma committed suicide by hanging. He went to the said house i.e., house No.40 at Lidkar colony at 8.00 p.m., conducted the inquest mahazar proceedings and then sent the dead body to JSS Medical College Mortuary. On the next day at 11.00 a.m. he recorded the statement of P.W.-6-the mother of Reshma in the presence of three panch witnesses and prepared the inquest mahazar as per Ex.P-
7. While conducting the inquest mahzar proceedings he found one chit with the dead body and he handed over the same to the Police, along with the said chit there was another chit having the address; he put his signature on both the chits, they are Exs.P-9 and P-10. He gave those 36 chits to the Udaygiri Police along with covering letter Ex.P-
21. In the cross-examination he has deposed that the inquest mahazar Ex.P-7 was written in front of the Mortuary of the JSS Medical College. Exs.P-9 and 10 were found before writing Ex.P-7-inquest mahazar. He denied the suggestion that Exs.P-9 and 10 chits were not at all found at the time of writing Ex.P-7 and the same were created at the instance of the mother of the deceased. He denied the further suggestion that in Ex.P-12 covering letter he mentioned the names of 7 persons at the instance of mother of the deceased. He has also denied the suggestion that on 1.1.2006 at 8.00p.m he had not been to house No.40 at Lidkar colony and not verified the dead body of Reshma and he is deposing falsely.
22. PW-2 Jayalakshmi is serving as the Secretary and Counselor in the Family Court, has deposed that she know Kavitha Shetty and her daughter Reshma. Kavitha 37 Shetty contacted their counseling centre. On 29.04.2004 Kavitha Shetty addressed a letter to her as per Ex.P-2 and she received it. Thereafter she addressed a letter to the President, Women Commission, on 04.12.2004 as per Ex.P-3. Reshma gave one letter on 27.09.2004 as per Ex.P-4, which is in her handwriting and she has also signed as per Ex.P-4(a). In the said letter Ex.P-4 Reshma mentioned that, henceforth she will stay with her parents and continue her study. She has also seen another letter Ex.P-5 addressed by Reshma to the Police Commissioner and through Kavitha Shetty she received the said letter on 23.09.2004. When counseling was done with Reshma, she stated before her that she loved one Satish and went away inspite of opposition by her parents and at that time she was not having even the meals for three days and she has lost all her ornaments. She also came to know that by selling the said ornaments the couples were having the meals and thereafter, they have nothing even for meals and accordingly, she gave the statement before the Police. 38
In the cross-examination, she denied the suggestion that Ex.P-5 is not written by Reshma and it is created by PW-6 Kavitha Shetty. She denied the suggestion that even before taking the decision in the sub-committee, Ex.P-3 letter was addressed. She denied further suggestion that Reshma has not given the letter as per Ex.P-4 and at the instance of Kavitha Shety Exs.P-2 to P-5 were created.
23. PW-12 Satish Gupta has deposed in his evidence that on 8.1.2006 one ACP of Devaraj Division called him and in his presence PW-6 Kavitha Shetty produced before the Police two note books and three papers having in English as "Om Namaha Chamundeshwari Namaha" and same were seized under seizure mahazar Ex.P-16 and same were marked as Exs.P-17, 18 and 19.
In the cross-examination, he has deposed that he is doing the work of preparing the ornaments, on that day he went to Lushkar Police Station for his work. Ex.P-16 was written from 11.00 o'clock to 11.30 o'clock . He denied the 39 suggestion that in his presence Kavitha Shetty has not produced Exs.P-17 to 19 and at the instance of ACP, he signed Ex.P-16.
24. The materials also show that the writings said to have been made by the deceased Reshma were referred to handwriting expert P.W.29-Syed Asgar Imam, who deposed in his evidence in the examination in chief that since 1981 he is working in the FSL as hand writing and (dastaweju) expert. He has also deposed that on 16.1.2006, in connection with Udayagiri Police Station Crime No.1/2006 he received the documents as mentioned at Sl.Nos.1 to 5 in his deposition. He verified and examined scientifically the admitted writings and questioned writings, and issued his report with certificate, which is marked as per Ex.P-32. He has annexed his report of four pages to Ex.P-32, which is marked as per Ex.P-32(b). He has also deposed that according to his opinion (as mentioned in Ex.P-32) the person, who wrote S-1 to S-20, S-5(a), S- 40 9(a) and S-20(a) has also written Q-1 to Q-4, the questioned writings (except the writings in Kannada).
During the course of cross-examination, he denied the suggestion that there is a difference in the signature on Q-1 and signature on Q-4. He admitted as true that in the hand writing at Q-4, it has written in different pens. He denied the suggestion that a person, who was dying, and at that time if he made the writings, there will be difference in the handwritings. He denied the suggestion that he is giving false evidence that the admitted signature and questioned signature are of the same person.
25. Looking to these materials on record, both oral and documentary, we are of the clear opinion that the appellant accused No.1 (Satish Kumar) was loving the deceased Reshma and he got married her and there afterwards, he started giving ill treatment to her and thereby, he committed an offence punishable under 41 Section 498A of IPC. In this regard, the trial Court has also discussed in detail while recording the affirmative finding on point No.4 framed by it and we agree with the said finding of the trial Court so far as it relates to the appellant accused No.1 (Satish Kumar).
26. Perusing the materials on record, as there is no consistency in the evidence of the prosecution witnesses about the involvement of the other accused persons in committing the alleged offences, we also agree with the finding of the trial Court in acquitting the other accused persons for all the offences levelled against them and the said finding does not call for interference by this Court.
27. The trial Court acquitted the appellant accused No.1 (Satish Kumar) for the offence punishable under Section 304B read with Section 34 of IPC. It is no doubt true that though there is a material placed on record that there used to be ill treatment to the deceased Reshma by 42 accused No.1 and because of the said ill treatment, she committed suicide by hanging in the house, where both accused No.1 Satish Kumar and deceased Reshma were staying, but, perusing the evidence of the prosecution witnesses, there is no material placed on record that the appellant accused No.1 (Satish Kumar) was demanding the dowry amount from the deceased Reshma. In that view of the matter, the trial Court has rightly discussed the matter and came to the conclusion that as there was no demand for dowry amount, the offence under Section 304B cannot be said to be proved by the prosecution. However, the evidence of the prosecution witnesses, more particularly, the family members of the deceased Reshma, clearly goes to show that the appellant accused No.1 (Satish Kumar) was ill treating the deceased insisting her to bring Rs.2.00 lakh from her parental place for the purpose of business. This has been established with satisfactory materials by the prosecution. We have already made reference to the writings left by the 43 deceased Reshma in the note books Exs. P.17 and P.18 so also the writings in the form of the chits marked at Exs.P.9 to 11. While conducting the inquest mahazar proceedings by the Taluka Executive Magistrate, the writings in Exs.P.9 to 11 were marked by the hand writing expert as Q.1 to Q.4 and the admitted writings of deceased Reshma in the note books Exs. P.17 and P.18 were marked as S1 to S20. We have also referred to the oral evidence of the hand writing expert wherein he has clearly deposed and gave his report stating that the hand writing in the questioned documents and the hand writing in the admitted writings are made by one and the same person. This clearly goes to show that the deceased Reshma also left the dying declaration in the form of the said writings under Exs.P.9 to P.11 wherein it is clearly mentioned that it is because of the ill treatment and the harassment given by accused No.1 Satish Kumar and his friends, she is going to the commit suicide. Therefore, looking to these materials and as it is also established by the prosecution that at the time 44 of her death, it is the deceased Reshma and her husband (accused No.1 Satish Kumar) were residing in the rented house, hence, so far as accused No.1 Satish Kumar is concerned, it is clear that he is responsible for the death of the deceased Reshma and it is he, who abetted the commission of suicide by the deceased Reshma. This aspect has not been properly appreciated or considered by the trial Court. The trial Court has simply acquitted even accused No.1 Satish Kumar also for the alleged offence punishable under Section 304B IPC.
28. When the incident has taken place in the rented house wherein deceased Reshma and accused No.1 were residing, the accused has to explain as to how the incident has taken place. When accused No.1 Satish Kumar was examined under Section 313 of Cr.P.C. and when asked as per Question No.36 that whether he wanted to say anything more in the matter, he answered "No" and as per 45 Question No.37 that whether he has to examine any witness on his behalf, for that also he answered "No". This shows that accused No.1 Satish has failed to explain as to how the incident has taken place, which aspect has also not been taken into consideration by the Trial Court.
29. Considering the entire materials on record i.e., both oral and documentary, it shows that as accused No.1 Satish was loving the deceased Reshma and after having married her, he started to give ill-treatment and harassment to her and for the said harassment Reshma committed suicide. It is true that there was no charge framed by the Trial Court so far as the offence punishable under Section 306 of IPC against accused No.1, even though when the material on record shows that such an offence has been committed by accused No.1. This Court can take that aspect into consideration and pass appropriate orders. In this regard we are referring to Section 221 of Cr.P.C which reads as under: 46
221. Where it is doubtful what offence has been committed.- (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
We are also referring to the decision of the Hon'ble Apex Court reported in AIR 2003 SC 11 in the case of K.Prema S.Rao and another Vs. Yadla Srinivasa Rao and 47 others, wherein at head note (C) Their Lordships laid down the proposition as under:
(C) Penal Code (45 of 1860), Ss. 306, 498-A -
Abetment of suicide - Accused, husband forcing deceased to part with her land, received by her in marriage as 'stridhana' - For said purpose concealed her postal mail - Cruel conduct of husband driven her to commit suicide - Accused convicted under S.498-A for offence of 'cruelty' - On same evidence he can be convicted for abetment of suicide under S.306 with aid of S.221, Cr.P.C. - And presumption under S.113- A, Evidence Act can be raised against him - Fact that specific charge under S.306 was not framed against accused - Would not preclude Court from convicting accused for offence found proved.
30. In view of said legal position, we are of the opinion that the Trial Court when convicted accused No.1 Satish for the offence punishable under Section 498- A of IPC, ought to have convicted him for the offence punishable under Section 306 of IPC also. Hence, to that 48 extent the judgment and order passed by the Trial Court is not justified. Accordingly, we pass the following :
ORDER i. Crl.A.1019/2010 preferred by appellant-
accused No.1 Satish Kumar is dismissed.
The impugned judgment and order of
conviction in respect of accused No.1
(Satish @ Satish Kumar) for the offence
punishable under Section 498-A of IPC
stands confirmed.
ii. Crl.A.1322/2010 is partly allowed and
respondent No.2-accused No.1 (Satish @ Satish Kumar) is convicted for the offence punishable under Section 306 of IPC and he is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- and in default of payment of fine amount, he has to further undergo simple imprisonment for two years.
iii. In case, if the fine amount is realized, Rs.45,000/- be paid to PW-6 Kavitha Shetty, the mother of the deceased, by way of compensation as per Section 357 of 49 Cr.P.C and the remaining amount of Rs.5,000/- be remitted to the State. iv. Acquittal of accused No.1 (Satish @ Satish Kumar) in respect of the remaining offences stands confirmed.
v. The appeal in respect of respondents-
accused Nos.3, 4, 6, 9 and 10 is dismissed in respect of all offences and the judgment and order of their acquittal passed by the Trial Court stands confirmed.
vi. The judgment and order of conviction passed by the Trial Court is modified to that extent.
We place on record the valuable service rendered by Sri Vagesh Hiremath, learned Amicus curiae. We direct the Registry to pay a sum of Rs.5,000/- as honorarium to the learned Amicus Curiae.
Sd/-
JUDGE Sd/-
JUDGE Cs/BSR/-