Karnataka High Court
Mallappa Shivappa Kamble vs The State Of Karnataka on 31 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2533/2012 C/W
CRL.APPEAL NO.2821/2012
CRL.A NO 2533 OF 2012
BETWEEN
1. MALLAPPA SHIVAPPA KAMBLE
AGE: 57 YEARS, OCC: RETIRED,
R/O. EWS NO. 346, ASHOK NAGAR,
DIST: BELGAUM.
2. SUSHEELA MALLAPPA KAMBLE.
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. EWS NO. 346, ASHOK NAGAR,
BEGLAUM.
3. PRAVEEN MALLAPPA KAMBLE
AGE: 30 YEARS, OCC: COOLIE
R/O. EWS NO. 346, ASHOK NAGAR,
BEGLAUM. ... APPELLANTS
(BY SRI SHRIKANT R. SATTIGERI, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH MALAMARUTI POLICE STATION,
NOW REPTED. BY SSP.
... RESPONDENT
2
(By SRI. VINAYAK KULKARNI, AGA)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF
CR.P.C SEEKING TO CALL FOR RECORDS IN S.C
NO.130/2010 AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED
07.01.2012/09.01.2012 PASSED BY THE VI ADDL.
SESSIONS JUDGE, BELGAUM, IN S.C NO.130/2010 FOR
THE OFFENCE P/U/S 498-A, 304(B) R/W SEC 34 OF IPC
AND U/SS 3, 4 OF DOWRY PROHIBITION ACT, AND
ACQUIT THE APPELLANTS.
CRL.A NO 2821 OF 2012
BETWEEN
KUMAR S/O MALLAPPA KAMBLE
AGE: 25 YEARS, OCC: PRIVATE SERVICE,
R/O.EWS NO.346, ASHOK NAGAR,
BELGAUM-590016
... APPELLANT
(BY SHRIKANT R SATTIGERI, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH MAL MARUTI POLICE STATION,
BELGAUM
NOW REPRESENTED BY SPP.
... RESPONDENT
(By SRI. VINAYAK KULKARNI, AGA)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF
CONVICTION AND SENTENCE DATED
07.01.2012/09.01.2012 PASSED BY THE VI-ADDL.
3
SESSIONS JUDGE, BELGAUM, IN S.C.NO.130/2010 FOR
THE OFFENCES P/U/S 498-A, 304(B) R/W 34 OF IPC AND
U/S 3 & 4 OF DP ACT, AND TO ACQUIT THE APPELLANT.
THESE APPEALS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:
JUDGMENT
Appellants-accused Nos.2 to 4 have preferred Criminal Appeal No.2533/2102 and accused No.1 preferred Crl.A.2821/2012 aggrieved by the impugned judgment of conviction and order of sentence dated 7.01.2012 passed in S.C.No.130/2010 on the file of the learned VI Additional Sessions Judge, Belgaum, (for short referred to as 'the trial Court'), convicting them for the offences punishable under Sections 498A, 304B r/w 34 of Indian Penal Code, (for short referred to as 'the IPC) and under Sections 3 and 4 of Dowry Prohibition Act (for short referred to as 'the DP Act').
2. Heard the learned counsel Sri. Srikant B.Sattigeri for the appellants and the learned AGA- 4 Sri.Vinayak Kulkarni for respondent-State in both the cases.
3. Brief facts of the case as made out by the prosecution is that deceased Shruti is the wife of accused No.1. Accused Nos.2 and 3 are her in laws and accused No.4 is her brother-in-law. The marriage of the deceased with accused No.1 was performed on 5/6/2009 and the accused were demanding dowry even before and after her marriage. They were ill-treating the deceased and caused the dowry death and thereby, committed the offences punishable under Sections 498A, 304B r/w 34 of IPC and under Sections 3 and 4 of DP Act.
4. The father of the deceased examined as PW1 had filed the first information against accused Nos.1 to 4 and on the basis of the said information, the investigation was held and charge sheet was filed. The jurisdictional Magistrate took cognizance of the offence 5 and committed the matter to the learned Principal Sessions Judge, Belgaum who inturn made over the matter to the trial Court. The trial Court secured the presence of accused Nos.1 to 4 and the charges for the above said offence were framed. Accused have pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its contention, got examined PWs.1 to 18, got marked Exs.P1 to P23 and identified MOs.1 to 11 in support of its contention. The accused have denied all the incriminating materials available on record in the statement recorded under Section 313 of Cr.P.C., and examined DWs.1 to 3 in support of their defence. The trial Court after taking into consideration all the materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused for the above said offences and convicted and 6 sentenced them with imprisonment and fine with default sentence.
6. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused No.1 has preferred Crl.A.No.2821/2012 accused No.2 to 4 have preferred Crl.A.No.2533/2012 on various grounds. During pendencey of the appeal accused No.2 who is the appellant No.1 in Crl.A.2533/2012 died and the appeal preferred by him is abated.
7. Learned counsel for the appellants in both the appeals contended that the impugned judgment of conviction and order of sentence passed by the trial Court is illegal, perverse and same is liable to be set aside. He contended that the trial Court has not taken into consideration the facts and circumstances of the case in the light of the settled preposition of law and proceeded to convict the accused without any basis, which has resulted in miscarriage of justice. Learned 7 counsel submitted that except the version of PWs.1, 6 and 7, there are absolutely no material to connect the accused to the offences in question. These witnesses being the parents and brother of the deceased, naturally spoken in support of the case of the prosecution. Even though it is contended that the accused have demanded dowry, in the first information there are no details of such demands. Only when PW1 stepped into witness box, the prosecution improved its version by saying that the accused were demanding 1 tola of gold as dowry. Therefore, it is nothing but an after thought to improve the case of the prosecution. Even though the prosecution is relying on Ex.P2 to prove the demand and payment of dowry, it do not help the prosecution to prove that accused have demanded 1 tola of gold as dowry. The neighbours of the accused were examined by the prosecution as PWs.11 and 12. They have spoken to regarding the cause for the death of the deceased which clearly goes against the case of the 8 prosecution. The case of the prosecution as made out speaks that accused No.1 alone was in the house when the deceased hanged herself by latching the door from inside. Admittedly, accused Nos.2 to 4 were not in the house at the relevant point of time. It is also the case of the prosecution that accused No.1 immediately after knowing about the attempt to commit suicide, forcibly opened the door and immediately took her to PW8 who is a private Doctor requesting to save the life of his wife. The conduct of accused No.1 goes a long way in disproving the case of the prosecution.
8. Learned counsel submitted that it is the contention of the prosecution that the deceased was complaining with PWs.1 and 6 about the ill-treatment by the accused, but they have not taken any steps either to warn the accused or to complain against them. The conduct of PWs.1, 6 and 7 in this regard also shows that there was no such demand or cruelty meted to the 9 deceased. The accused got examined DW3-who is the signatory to Ex.P2. There is absolutely no reason as to why his evidence is to be disbelieved. If all these materials on record are taken into consideration, they clearly demonstrate that the deceased was not complacent about her married life had committed suicide and accused are not responsible for the same. The learned counsel relied on the following decisions in support of his contentions:-
1. Ranganatha S/o Thimmabovi Vs. State of Karnataka1
2. Mahesh Kumar Vs. State of Haryana2
3. Sri. Ningachari S/o late Veerachari Vs. The State by K.R.Pete Police3
9. Per contra, Sri.Vinayak Kulkarni, the learned AGA supporting the impugned judgment of conviction and order of sentence submitted that the trial Court has taken into consideration the oral and documentary evidence placed before it in proper 1 2018 3 AIR(Kar)(R) 737 2 (2019) 8 SCC 128 3 2018 0 Supreme(Kar) 656 10 perspective and there is absolutely no reason to interfere with the same. PWs.1, 6 and 7 being the close relatives of the deceased, were in know of things, spoke about the commission of the offence by the accused. Immediately after the death of Shruti, in an unnatural circumstance, within 7 months of her marriage, PW1 being the father has lodged the first information setting out the reasons, which has driven his daughter to commit suicide. They have fully corroborated the case made out by the prosecution. When the prosecution is successful in proving that the accused treated the deceased with cruelty, the presumption under Section 113B of the Evidence Act, operates and commission of the offence under Section 304B of IPC is made out by the prosecution. The materials placed before the Court disclose the offence was committed by the accused as contended by the prosecution and the trial Court properly appreciating the materials on record, rightly convicted them. There are no reasons to interfere with 11 the said judgment of conviction and order of sentence. Therefore, he prays for dismissal of the appeal as devoid of merits.
10. I have perused the materials including the trial Court records.
11. The prosecution in order to prove its contention, that the accused have committed offences punishable under Sections 498A, 304B r/w 34 of IPC, and under Sections 3 and 4 of DP Act, examined PW1 who is the father of the deceased and the first informant. This witness deposed before the trial Court that his daughter Shruti was given in marriage to accused No.1 and at the time of marriage, it was aggrieved that 1 tola of gold is to be given to the accused. Since he could not arrange for 1 tola gold, he had not paid the same, but promised to give it in due course. 15 days after the marriage, his daughter went to matrimonial house. Witness stated that on 12 9/1/2010, he had been to the house of his daughter and she complained that all the four accused are abusing and ill-treating her by demanding the said 1 tola gold which was agreed to be given. Witness stated that by promising his daughter to come within one or two days, he had returned to his house. Accused No.1 had informed him that within one or two days, she can be taken away permanently. But however, he consoled his daughter and had come back. On the date of incident, he received the information and went to the house of the accused with his family members. He found the dead body of the deceased on a cot. Post mortem examination was conducted. Therefore, he lodged the first information as per Ex.P1 against the accused. Witness also spoke about the spot mahazar and seizure of MOs.1 to 11.
12. During cross examination, witness stated that he is having two daughters and he had married his 13 younger daughter earlier to the marriage of deceased Shruti. Witness stated that when he went to the house of the accused, after knowing about the incident, the accused were in the house. Immediately, he had not lodged the complaint. The complaint was lodged about 8.30 p.m. or 9.00 p.m. The police have got written the first information as per his say. Witness stated that even after marriage, the deceased had continued her education. Even though she had taken an examination, she had not passed it. But denied the suggestion that as she failed in the examination, she had committed suicide. He also denied the suggestion that since the younger sister of the deceased was got married earlier, the deceased committed suicide.
13. PW2 is the relative of the deceased, who is the mahazar witness to Ex.P4, which was drawn in the police station when the gold ear studs, which is as per MO.6 was produced by accused No.1 and seized under 14 the mahazar. Witness stated that MOs.3, 4 and 10 were also produced by accused No.1. Since the witness has not fully supported the case of the prosecution, he was treated partially hostile and during cross examination by the learned Public Prosecutor, witness admitted that MOs.7 to 11 were also produced and seized under the seizure mahazar Ex.P5.
14. PW3 is the inquest mahazar pancha, the inquest mahazar is as per Ex.P6. PW4 is the mahazar pancha to Ex.P7, but he has not supported the case of the prosecution. PWs.4 and 5 are the mahazar witnesses to Ex.P7, but they have not supported the case of the prosecution.
15. PW6 is the mother of the deceased and she corroborated the say of PW1 regarding the demand for 1 tola of gold and they agreeing to give the same. Witness stated that after about two months of the marriage, deceased had came to her house and complained that 15 the accused are treating her with cruelly, demanding 1 tola of gold. Witness stated that the deceased had informed her that accused No.1 by consuming liquor used to assault her. Few months thereafter, once again the deceased came to the parental house and again complained about the ill-treatment by the accused. Witness stated that PW1 had promised to give 1 tola gold during January. But in the meantime, she received the information about the death of her daughter and stated that since 1 tola of gold was not given, the accused abated committing of suicide. During cross examination witness stated that even though her daughter complained cruelty and ill-treatment by the accused, no complaint was lodged against them nor any panchayat was convened. Witness denied the suggestion that since the deceased was not happy with the conduct of PWs.1 and 6 in arranging the marriage of the younger daughter before arranging the marriage of 16 the deceased, she had committed suicide and false complaint was came to be lodged.
16. PW7-the brother of the deceased also gave similar evidence alleging cruelty and harassment to the deceased by the accused, but denied the suggestion during the cross examination that the deceased was not met with any such cruelty by her husband.
17. PW8 is the Doctor practicing in Belgaum. Witness stated that on 11/1/2010 at 10.00a.m., a person had come in an auto rickshaw with the dead body of a woman. He informed that the deceased was his wife and died due to hanging. Therefore, he directed him to go to Civil Hospital at Belguam.
18. PW9 is an elder in the village stated that he mediated the talks during the marriage of the deceased with accused No.1. As per the list Ex.P2, it was agreed that 1 tola gold was to be given to the accused. During 17 cross examination, witness denied the suggestion that no such agreement was arrived at between the parties.
19. PWs.10 to 12 are the neighbours of the deceased. But they have not supported the case of the prosecution. During cross examination by the learned Public Prosecutor witnesses denied the suggestions that they are deposing falsely in order to help the accused who are their neighbours. During cross examination by the learned counsel for the accused, PWs.11 and 12 stated that the deceased was not happy with her father as marriage was arranged against her will. She was also upset since the marriage of her younger sister was performed earlier to her marriage. They also stated that since she had not passed in the examination, she had committed suicide. Learned Public Prosecutor again cross examined the witnesses and suggested the case of the prosecution and all those suggestions were denied. 18
20. PW13 is the doctor who conducted postmortem examination and issued postmortem report as per Ex.P11. As per Ex.P11, the death of the deceased was due to asphyxia as a result of hanging.
21. PW14 is the Assistant Executive Engineer, who drawn the spot sketch as per Ex.P14. PW15 is the police constable who carried the FIR and submitted to the Jurisdictional Magistrate. PW16 is Tahsildar who conducted inquest panchanama as per Ex.P6. Witness stated that he had not noticed any external injury except the ligature mark. PW17 is the investigating officer who laid charge sheet against the accused after investigation. PW18 is the PSI who registered the first information as per Ex.P15.
22. Accused No.2 examined himself as DW1 and stated regarding the defence that the deceased was not happy as the marriage of her younger sister was arranged earlier to her marriage and denied that they 19 had demanded 1 tola of gold at the time of marriage. Witness stated that Ex.P2 was written at the time of marriage. But the same was not acted upon. Witness stated that when PWs.1 6 and 7 had came to see the dead body of the deceased, they demanded Rs.2,00,000/- to settle the issue and when the said demand was not met, a false complaint was came to be lodged. During cross examination by the learned Public Prosecutor witness denied the suggestion that they were ill-treating the deceased by demanding 1 tola of gold as dowry.
23. Accused No.1 examined himself as DW2 and reiterated the say of DW1. DW3 is the mediator who participated in the marriage talks before the marriage. Witness stated that as per the talks, a list was prepared as per Ex.P2 and he had signed the same. Witness stated that Ex.P2 was not acted upon and it was only prepared as per the custom. He also stated that since 20 the deceased was not happy as her younger sister was married earlier to her marriage and therefore, she committed suicide. He also stated that the parents of the deceased demanded Rs.2,00,000/- after her death and when the said demand was not met, a false complaint was lodged.
24. If all these materials are taken into consideration, the prosecution is relying on the list as per Ex.P2 to substantiate its contention that PW1 had agreed to give 1 tola of gold as dowry. On perusal of this document Ex.P2, there is no mention regarding this 1 tola of gold agreed to be given to accused No.1. On the other hand, a mangalasutra, 5 sarees, a gold flower and chala was agreed to be given to accused No.1. On the other hand, the accused were agreed to give gold, clothes and a watch. Even in Ex.P1-the first information lodged immediately after the death of the deceased, there is no specific mention about the 21 demand for 1 tola of gold by the accused. As rightly contended by the learned counsel for the accused, for the first time PW1 during his evidence stated about the demand for 1 tola of gold. When the prosecution is relying on Ex.P2 in support of its contention and when the document is silent about the said demand, it cannot be said that the prosecution is successful in proving its contention. Moreover, DW3, who is a signatory to Ex.P2 deposed before the Court that no such promise was made to give 1 tola of gold to the accused. Under such circumstances, the contention of the prosecution about demand for dowry falls to the ground.
25. The conduct of PWs.1, 6 and 7 also matters much in the facts and circumstances of the case. These witnesses categorically stated that the deceased repeatedly was informing them regarding the ill- treatment and cruelty by the accused by demanding dowry. But no action was taken by any of these 22 witnesses to set right the life of the deceased. Not even a panchayat was convened, to bring to the notice of elders in the village about the conduct of the accused, nor they thought it fit to bring back the deceased to the parental house till the situation is calm down. PWs.1 and 2 specifically states that on 9/1/2010, PW1 had been to the house of accused and she had requested him to take her back to the parental house. But he came back without taking the deceased with him and promised to come back after few days. This conduct of PW1 being the father of the deceased do not inspire confidence as a conduct of a prudent father of a married girl.
26. As per the case made out by the prosecution, accused No.1 alone was in the house when the incident had taken place. It is stated that the deceased committed suicide in the ground floor, by closing the door from inside. Whereas accused No.1 was in the first 23 floor and after coming to know about the incident, he rushed to the room where the incident had taken place, released her and immediately taken her in an auto rickshaw to PW8. If at all the accused were demanding dowry and were ill-treating the deceased for meeting their demands, accused No.1 would not have released the body of the deceased and definitely would not have taken the body in the auto rickshaw to a Doctor i.e. PW8, requesting to save her. The natural conduct of a person under such circumstances would be either to keep quite pretending that the fact of committing suicide was not known to him or silently leaving the place without informing anybody. But the conduct of accused No.1 appears to be natural conduct of a husband when his wife commits suicide and the said conduct do not suggest either the demand for the dowry or treating the deceased with cruelty and abating her to commit suicide.
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27. To attract Section 113 of the Evidence Act, the prosecution has to initially prove that the deceased had been subjected to cruelty or harassment soon before her death in connection with any demand for dowry. Unless these basic requirements of the Section are not proved by the prosecution, the presumption cannot be raised in favour of the prosecution and against the accused. Similarly, to attract Section 304B of IPC, the prosecution is required to prove similar fact and circumstances that the deceased was subjected to cruelty or harassment soon before her death by the husband or relatives in connection with any demand for dowry. Unless these requirements of law are proved by the prosecution, the presumption under Section 113B of the Evidence Act or Section 304B of IPC can be attracted.
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28. This Court in Ranganatha S/o Thimmabovi Vs. State of Karnataka (supra) held in para 15 and 16 as under:-
"15. Before we reappraise the evidence with regard to harassment of the deceased for additional dowry after the marriage, we think it necessary to analyze the scope of Section 498A and Section 304B IPC. Section 498A IPC postulates that if a woman is subjected to cruelty either by her husband or relative of a husband, the husband or such relative shall be punished with imprisonment extending upto three years and fine. There are two explanations for the term 'cruelty'. What amounts to cruelty according to explanation (a) is wilful conduct of the husband of a woman or his relative driving a woman to commit suicide, or causing grave injury or danger to her life, limb or health, either physical or mental. Explanation (b) is related to harassing a woman with a view to coercing her or any person related to her in connection with unlawful demand for any property or valuable security, or her failure to meet such a demand. Demand for dowry is unlawful and therefore explanation
(b) is related to Section 304B IPC; they go together or Section 498A merges with Section 304B, if harassment is in connection with demand for dowry. At times, explanation (b) of Section 498A does not merge with Section 304B of IPC, if harassment is not in connection with demand for dowry and if demand can be related to some other purpose. Presumption available 26 under Section 113B can be raised only if it is a dowry death as defined under sub-section (1) of Section 304B IPC, but presumption as to dowry death cannot be attached unless there is proof with regard to cruelty. In Sections 304B IPC and Section 113B of Indian Evidence Act, the expression employed is "it is shown that soon before her death". It is therefore clear that proof as regards cruelty is essential. Division bench of this court in State of Karnataka Vs. Dr. H.A. Ramaswamy (ILR 1996 Kar.1107) has held as below:
"Cruelty for or in connection with dowry soon before her death will have to be established as a fact. In a case where death is shown to be of the type referred to in Section 304-B then there would not be any need to have recourse to the presumption, as cruelty of the type referred to in that Section will have to be proved even to attract that presumption. Another point to be noted is cruelty for or in connection with dowry must be shown soon before the death. It is not sufficient if cruelty of the type referred to in the Section at some point of time much prior to the death is proved."
16. Now in the instant case, no doubt the death of the wife of accused took place within seven years of their marriage and it was not natural. The first two requirements of Section 304 B IPC are present, but there is no evidence as regards subjecting the deceased to cruelty for the purpose of dowry."
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29. Again this Court in Ningachari S/o late Veerachari Vs. The State by K.R.Pete Police (supra) reiterated the settled proposition of law and held that even when the death of the deceased was an unnatural death within 7 years of the marriage, the presumption under Section 113B of the Evidence Act cannot be invoked unless there is evidence to show that that the deceased was subjected to cruelty in connection with demand for dowry.
30. This settled proposition of law was once again reiterated by the Hon'ble Supreme Court in Mahesh Kumar Vs. State of Haryana (surpa) and again referred its decision in Hira Lal and Others Vs. State (Government of NCT), Delhi4 and held that unless the prosecution proves demand for dowry and cruelty to the deceased soon before the death in connection with such demand for dowry, the essential ingredients of the offence under Section 304B of IPC are 4 (2003) 8 SC 80 28 not proved and it is also held that when the prosecution has failed to prove the initial ingredients to invoke Section 113B of the Evidence Act, the said presumption cannot be invoked.
31. In view of the of these catana of decisions, it is clear that the position of law is very well settled and prosecution cannot rely on the presumption under Section 113B of the Evidence Act and seek conviction of the accused for the offence punishable under Section 304B of IPC unless all the ingredients required to be initially proved by the prosecution are proved by it.
32. In the present case, the discussions held above disclose that the prosecution even though placed materials to prove that the deceased died unnatural death within 7 years of her marriage, has not proved the other requirements of law to attract the presumption. When the prosecution is not successful in proving the basic requirements of law as stated in Section 113B 29 Evidence Act and 304B of IPC, the probability or otherwise of the defence taken by the accused cannot be gone into. Therefore, I am of the opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt.
33. I have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. The trial Court has committed an error in raising the presumption under Section 113B of Evidence Act and proceeding to convict the accused for the offence punishable under Section 304B of IPC even though the prosecution has not proved the basic ingredients that are required to be proved. Hence, the same is liable to be set aside.
34. Hence, I proceed to pass the following:
ORDER Both the appeals are allowed.30
The impugned judgment of conviction and order of sentence dated 7/1/2012 passed in SC No.130/2010 by the learned VI Additional Sessions Judge, Belgaum, is set aside. Accused Nos.1, 3 and 4 are acquitted for the offences punishable under Sections 498A, 304B r/w 34 of IPC and under Sections 3 and 4 of DP Act Their bail bonds and that of their sureties stand cancelled.
Fine amount if any deposited is ordered to be refunded to the accused on due identification.
Registry is directed to send back the trial Court records along with copy of the judgment.
Sd/-
JUDGE Vmb