Karnataka High Court
Manjunath S/O Gopalappa Chinchali vs The State Of Karnataka on 28 January, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28 T H DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
CRL.A.NO.100008/2016
BETWEEN :
MANJUNATH
S/O GOPALAPPA CHINCHALI,
AGED : 26 YEARS, OCC:
R/O NEAR KOTTUR BASAVESHWAR TEMPLE,
AMARGOL, TQ: HUBBALLI.
(NOW HE IS UNDERGOING SENTENCE
AT CENTRAL JAIL, DHARWAD.)
... APPELLANT
(BY SRI J.BASAVARAJ, ADVOCATE)
AND :
THE STATE OF KARNATAKA,
BY MAHILA POLICE,
HUBLI-DHARWAD,
R/BY S.P.P.
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
... RESPONDENT
(BY SRI V.M.BANAKAR, ADVOCATE)
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THIS APPEAL IS FILED UNDER 374(2) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING THIS
COURT TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 30.11.2015 PASSED IN
S.C.NO.117/2014 BY THE HON'BLE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD,
SITTING AT HUBLI FOR THE OFFENCES UNDER
SECTIONS 498-A, 323, 304B AND 504 OF THE CODE
OF INDIAN PENAL CODE AND OFFENCE UNDER
SECTIONS 3 AND 4 OF THE DOWRY PROHIBITION
ACT AND ACQUIT THE APPELLANT/ACCUSED NO.1 OF
THE OFFENCES WITH WHICH HE HAS BEEN
CONVICTED AND SENTENCED, IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, K.N.PHANEENDRA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred by the accused No.1 against the judgment of conviction and sentence passed against him by the I Additional District and Sessions Judge, Dharwad sitting at Hubli in S.C.No.117/2014, wherein the Trial Court has convicted the appellant for the offences under Sections 304B, 498A, 323 and 504 of the Indian Penal Code ("IPC" for short) :3: and for the offences under Sections 4 of Dowry Prohibition Act.
2. The accused is sentenced to undergo life imprisonment for the offence under Section 304B of IPC, to undergo rigorous imprisonment for a period of three years for the offence under Section 498A of IPC, to undergo six months imprisonment for the offences under Sections 323 and 504 of IPC and rigorous imprisonment for the period of two years for committing the offence under Section 4 of the Dowry Prohibition Act and also sentenced to pay a fine of Rs.10,000/- in all, with default sentence to undergo imprisonment for a period of one year.
3. The brief facts of the case are that, accused Nos.1 to 4 before the Trial Court are the close relatives with each other. Accused No.2 is :4: the mother, accused No.3 is the father, and accused No.4 is the brother of accused No.1.
4. It is not in dispute that, the daughter of PW.7 by name Smt.Saroja was given in marriage to appellant (accused No.1) on 27.02.2009 in a mass marriage taken place in their village. It is alleged that, at the time of the marriage, on demand, the accused was given with an amount of Rs.50,000/- dowry, two tolas of gold and two finger rings with other household articles.
5. It is further case of the prosecution that, for about 2 years the accused persons have looked after the deceased with all love and affection and thereafter they started ill-treating and harassing the said Smt.Saroja in demand of further amount and as well as gold etc. Due to :5: which, she was frustrated and the ill-treatment was continued for a long time. Inspite of that, she gave birth of to a female child. Accused No1 was addicted to alcohol and he was ill-treating and harassing the deceased.
6. In this background, it is alleged that on 25.03.2012 accused No.1 in the early hours on that day at about 4.00 a.m. has started quarreling with his wife, poured kerosene on her and lit fire. Thereafter, the complaint came to be lodged by the PW.14-the mother of the deceased as per Ex.P.14. On which basis, the Police have initially registered a case in Crime No.26/2012 for the offences under Sections 498A, 323, 307 and 504 read with section 34 of IPC and also for the offences under Sections 3 and 4 of the Dowry Prohibition Act.
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7. Subsequently, after death of the deceased, the offence was converted into 304B of IPC. After registration, the police have thoroughly investigated the matter and found that accused Nos.1 to 4 were responsible for death of the deceased and due to ill-treatment and harassment in demand of dowry and gold articles and in furtherance of the same accused No.1 has poured kerosene and lit fire and caused the death of Smt.Saroja.
8. All the accused persons were charge sheeted by the police. Accused No.1 has voluntarily surrendered before the Court on 05.07.2014 and since then he is in judicial custody. Accused Nos.2 to 4 were released on anticipatory bail.
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9. The Trial Court after securing the presence of the accused persons framed the charges against them for the above said alleged offences. As the accused persons denied the case against them and pleaded for Trial, they were put on trial by the Court.
10. The prosecution in order to bring home the guilt of the accused examined as many as 19 witnesses as PWs.1 to P.19 and got marked Exs.P.1 to P.25 and material objects M.Os.1 and
2. Ex.D.1 is the further statement of the complainant, which was marked during the course of cross-examination.
11. After appreciating the oral and documentary evidence on record, the Trial Court has acquitted accused Nos.2 to 4 for the above said offences. However, convicted accused No.1 :8: for the above said offences as noted supra. Being aggrieved by the said judgment of conviction and sentence, the present appeal is preferred.
12. Learned counsel for the appellant (accused No.1) has strenuously contended that there are only two important aspects to be taken note of by this Court i.e. the evidence of close related witnesses PWs.7, 8 and 14 coupled with the evidence of PW.19 - Investigating Officer and also PW.17 - the Taluka Executive Magistrate and second part of the prosecution is that the dying declaration of the deceased recorded by the Taluka Executive Magistrate as per Ex.P19 and also Ex.P25 which is the statement made by the deceased on 25.03.2012 before the Police and also with reference to the statement of the interested related witness as per Ex.P8 which discloses that initially the entire :9: case rested on the statement of the victim who has stated before PWs.7, 8 and 14 that she actually poured kerosene on herself and lit fire due to some quarrel between herself and husband and her husband wanted to rescue her. Therefore, he also sustained injuries. On such statements made by PWs.7 and 14 as per Ex.P8 before the Tahsildar, it is contended by the learned counsel that PW.7 has given his explanation as to why he has given such statement before the Taluka Executive Magistrate. He has given the explanation that because of the village people had adviced him to compromise the matter and to get some incentive from the accused in favour of the grand daughter, so that he can make something for the benefit of the grand daughter. When it appears that it was not materialised, the subsequent : 10 : statements have been got concocted for the purpose of laying a false claim against the accused by creating dying declaration and also the statement of the witnesses.
13. The learned counsel also contended that even accepting the case of the prosecution as it is, there is absolutely no evidence to show that soon before the death of the deceased, there was demand of any gold or any money by accused No.1. Even in the course of the alleged dying declaration as per Ex.P25 and as well as another dying declaration as per Ex.P19, there is absolutely no whisper even by the deceased with reference to any demand of dowry or any gold articles by accused No.1. Therefore, there is absolutely no evidence in order to attract Section 304B of IPC. Therefore, the trial Court has wrongly recorded the judgment of conviction and : 11 : sentence of the accused for the above said offence. Therefore, he contended that the judgment and sentence passed by the trial Court deserves to be set aside.
14. Learned Additional SPP strenuously argued before the Court countering the arguments of the learned counsel for the appellant submitting that though there is some discrepancy with regard to deposition before the Court with regard to demand of dowry but on overall reading of the entire evidence, the prosecution has shown to the Court that there was a demand of dowry of Rs.25,000/- and as well as gold and subsequently, also the ill treatment and harassment to the deceased was continued. Therefore, on overall looking into the entire materials on record, the Court has to draw an inference that there was demand of dowry, : 12 : due to which, the accused has poured kerosene and lit fire on his wife which was the root cause for the death of the deceased. Therefore, he contended that the trial Court has not committed any error in convicting and sentencing the accused. Learned counsel also contends that the dying declaration of the deceased on two occasions under Exs.P25 and P19 clearly discloses that she has consistently stated about the conduct of the accused in pouring kerosene and litting fire. Therefore, the trial Court though ought to have convicted the accused for the offence under Section 302 of IPC but as a rebate to him, convicted him for the offence under Section 304B of IPC. Therefore, such order requires no interference by this Court.
15. From the above said submissions, it is evident that the trial Court though framed : 13 : charges under Section 302 of IPC, but it convicted the accused for the offence under Section 304B of IPC. It virtually amounts to acquittal of the accused for the offence under Section 302 of IPC. The State has not preferred any appeal against the judgment of conviction and sentence passed by the trial Court. Therefore, it becomes incumbent upon this Court to examine the evidence on record to find out whether offence under Section 304B of IPC is attracted or not.
16. The prosecution has examined PWs.1 and 2 who are the spot panch witnesses to Ex.P1. These two witnesses have turned hostile to the prosecution even otherwise there is no dispute with regard to the death of the deceased in the house of the accused. The drawing up of the spot panchanama has no significance in this : 14 : case. PWs.3, 4 and 15 are the inquest panch witnesses. They are the attestors to Ex.P2 and PWs.3 and 4 have turned hostile to the prosecution but PW.15 alone supported the case. This also in our opinion has no significance to accept Ex.P8-the statement made by the father before the Taluka Executive Magistrate for consideration. Here itself, we can say that the death of the deceased due to burn injuries is not at all disputed by the accused. PWs.9 to 13 are the official witnesses. PW.9 is the person who carried out items to the FSL. PW.10 is the Police personnel who carried first information report to the Court. PW.11 has guarded the dead body and shifted the dead body to the hospital for conducting the post mortem examination and thereafter, handed over the dead body to the relatives. PW.12 is the part Investigating Officer : 15 : who conducted the spot mahazar. PW.13 is the Police Photographer who has furnished Ex.P3 to P5, P10 and P11 which are the photographs taken during the course of investigation, which are all not disputed by the other side. PW.16 is the Doctor who conducted the post mortem examination and issued the post mortem report as per Ex.P15. In Ex.P15, it is categorically stated that the death was due to septicaemia consequent upon burn injuries sustained. It is also not disputed that the deceased has sustained 50-56% burn injuries. PW.17 is the Taluka Executive Magistrate who recorded the dying declaration as per Ex.P19. PW.18 is the Doctor who certified the status of the victim as on the date of recording of the dying declaration by PW.17. PW.19 is the Investigating Officer, : 16 : who laid chargesheet against the accused persons.
17. On going through the evidence of PWs.7, 8 and 14 who are the relatives of the deceased, it is worth to refer the evidence of these witnesses in detail. PW.7 is the father of the deceased. He has categorically stated that the deceased Sarojamma was given in marriage to the accused and she went to matrimonial home. For about two years, there was no problem in the matrimonial home, all the accused persons have looked after the deceased with all love and affection but thereafter, the ill treatment and harassment started in demand of an amount of Rs.25,000/- and also some gold articles. Inspite of giving that amount and gold article, ill treatment and harassment continued. In the year 2011, the deceased gave birth to a : 17 : female child and for this also, there was some ill treatment and harassment by the accused persons. The ill treatment and harassment was informed to PWs.7 and 14 by the deceased herself. Therefore, he has categorically stated with reference to ill treatment and harassment in the house of the deceased. It is also stated by PW.7 with regard to the date of incident and he has stated that his daughter has told him that the accused under the influence of alcohol came to the house at about 4.00 a.m. in the early hours of the day and tapped the door. As there was some delay in opening the door, he suspected her and after quarrelling, he poured kerosene on her and lit fire. In the examination- in-chief itself, he has categorically stated that on 01.04.2012 while giving statement before the Tahsildar during the course of inquest, he has : 18 : stated that his deceased daughter told him and PW.14 that as she was suffering from stomach ache, she poured kerosene on herself and lit fire and in fact accused No.1 made all his attempts to extinguish fire. In that context, he also sustained some burn injuries. Thereafter, PWs.7 and 14 have admitted the deceased to the hospital and she died on 31.03.2012 at 6.50 p.m. and it is also admitted that he has stated before the Tahsildar that there are absolutely no grievances against anybody. So far as the particular document is concerned, which is specifically marked at Ex.P8 as the witness has admitted the same, there was no need to prove this particular document Ex.P8. Therefore, in the course of cross-examination, what was transpired between PWs.7 and 14 at the initial stages with the deceased is evident. In the : 19 : course of cross-examination, he has admitted that on 14.11.2011, he met his daughter for the last time and therefore, till the lady was admitted to the hospital, he never met her. Therefore, there was a gap of more than four months from that particular date till the date of the accident. In the meanwhile, there is no allegations made that there was any demand or ill treatment and harassment by the accused persons specifically with reference to any demand of dowry. Further in the cross- examination, he categorically admitted that when the deceased was admitted to the hospital, he himself and PW.14 were there throughout with the deceased even when the Tahsildar came to the spot and the Police came to the hospital and recorded statement of the deceased. It is also elicited that at paragraph-19 that he is one of : 20 : the leader in his village and he knew all the public officers and all the officers, who were virtually listening to the words of this person. Therefore, there is a doubt with regard to the conduct of the deceased herself as per the evidence of PWs.7 and 14, when they have categorically stated that at the initial stages, she told before them that she poured kerosene on herself and lit fire and accused No.1 has actually made attempts to rescue her. Further, in the examination-in-chief, these two witnesses have tried to explain as to why they have given such statement before the Tahsildar. It is stated by PW.7 that the Taluka President by name Channnappa Somappa Raddera has told this witness to compromise with the accused persons and make arrangements to get something in favour of his grand daughter as the deceased : 21 : had already died. Therefore, he has given such statement before the Tahsildar. Perhaps, subsequently nothing was materialised. Therefore, taking advantage of the situation that the Police Officers and other Taluka Officers were all listening to the particular man, he has used his influence for the purpose of changing the case for the offence falling under Section 304B of IPC. Therefore, the evidence of PWs.7, 8 and 14 even if it is seen in the course of cross- examination, the statement given in Ex.P8 is categorically admitted. Therefore, the initial stages of the story of the prosecution is that the deceased herself poured kerosene and lit fire and accused No.1 has made attempts to rescue her. In this background, the dying declarations as recorded under Exs.P25 and P19 have to be examined. Even accepting these two documents : 22 : as it is without referring to anything with regard to the procedure that has been followed by PWs.17 and 19, Ex.P25 is alleged to have been recorded by PSI who was not examined before the Court. This document discloses that on 25.03.2012 in the morning at about 3.30 to 4.00 a.m. when the victim was sleeping in the house, the accused woke her up and started quarreling with her, suspected her conduct and thereafter, poured kerosene on her and lit fire. In this document, there is absolutely no allegation of himsa at any point of time prior to the incident. There was an ill treatment or harassment by the accused persons particularly in demand of dowry. Unfortunately, there is no reasons explained by the Investigating Officer. Though this statement was recorded on 25.03.2012 by the PSI, no case has been registered on the basis of this. Though : 23 : some cognizable offences have been disclosed in the said document, there is absolutely no explanation either by PWs.7, 8 and 14 or 19 in this regard. What is evident is that prior to the statement of the victim being recorded, it is the case of PWs.7 and 14 that the deceased has disclosed before them with reference to pouring kerosene on herself and litting fire and it is evident from Ex.P8. Therefore, perhaps subsequent to Ex.P25, Ex.P14 was lodged by PW.14 in order to convert the case for the offence under Section 304B of IPC. Therefore, at the initial stages, the statement of the deceased does not disclose the attraction of Section 304B of IPC. Ex.P19 is an alleged dying declaration recorded by PW.17 which discloses that at question No.8, the victim has answered that on 25.03.2012 at 3.00 a.m. when her husband came : 24 : to the house, she made some delay in opening the door. Therefore, he suspected her and quarreled with her and poured kerosene and lit fire and earlier to that, he was ill treating her with reference to demand of dowry. Therefore, the above said statement though consistent with regard to quarrelling with the deceased, pouring kerosene and lit fire, but with regard to demand of dowry, there is no consistency between two dying declarations.
18. From reading the entire evidence and re-analysing the same, what emerges is that prior to the death of the deceased, there were two versions of the prosecution as per Ex.P8-the statement of PWs.7 and 14. The case of the prosecution was that the deceased herself poured kerosene and lit fire due to some ill treatment and harassment by the accused : 25 : persons. But subsequently, the same has been changed and the statements of PWs.7, 8 and 14 have been recorded and dying declaration has been recorded which virtually converted the case of the prosecution for the offence under Section 304B of IPC.
19. In order to establish the offence under Section 304B of IPC, there must be three ingredients which are absolutely necessary i.e. the death has occurred within seven years from the date of marriage, that ingredient is established in this particular case. The death of the deceased must be unnatural and there must be ill treatment and harassment with reference to the demand of dowry soon before the death of the deceased. On re-appreciating the evidence on record, PWs.7, 8 and 14 have stated that there was demand of an amount of Rs.25,000/- : 26 : and one thola of gold which was given to the mother of accused No.1 and thereafter, what transpired is not stated meticulously and what was the nature of ill treatment and harassment with reference to the demand of dowry. Of course, the consistent statement of these witnesses even prior to the date of the deceased and even considering the dying declaration as semblance of evidence is placed before the Court. There was some quarrel between husband and wife and the husband was suspecting the fidelity of his wife and in respect of the same, she was frustrated in life perhaps it is a reason that she might have made attempts to commit suicide and she might have poured kerosene on herself and lit fire. Therefore, that may be the reason that in the earlier statement of the deceased under Exs.P25 and P19, there is no : 27 : whisper with regard to the demand of dowry though there was some allegation of ill treatment and harassment. Therefore, in this context, we safely conclude that the death of the deceased occurred in the house of the accused but the question as to why it was happened is not explained by the accused persons. On the other hand, there is some evidence to show that the accused persons were not treating the deceased with all love and affection after the birth of the female child and there was some ill treatment and harassment by them for the reasons best known to them and not for any demand of dowry or gold. As there is no demand of dowry established soon before the death but still the prosecution was able to show some ill treatment and harassment which attract Section 498A of IPC and thus, it is shown that due to some ill : 28 : treatment and harassment, she committed suicide by pouring kerosene on herself according to the earlier version of the prosecution case. Therefore, when there is any doubtful circumstance with regard to demand of dowry and for that reason, there was any ill treatment or harassment, the benefit of such doubt should have been given in favour of the accused by the trial Court, which has not been done.
20. On overall reconsideration of the material on record, this Court can only say that the prosecution was successful in proving Section 498A of IPC as some evidence, is placed to show that the deceased was ill treated and harassed due to suspicion and for the reasons best known to the accused. Accused No.1, who is the person to take care of the wife in the matrimonial home. If he himself does not turn any goodwill towards : 29 : her, naturally, it may frustrate the wife to go to the extent of committing suicide. In this context, there may be a chance of deceased herself committing suicide. Therefore, in this background, we are of the opinion that by means of his conduct in not taking care of his wife, suspecting her conduct, quarrelling with her and on that day also, he was present when she poured kerosene on herself and lit fire. Though he made attempts to rescue her, but still the conduct shows that he has abetted the commission of offence of suicide by her. Therefore, the offence would fall under Section 306 of IPC and not under Section 304B of IPC. As we have stated that the trial Court has not convicted the accused for the offence under Section 302 of IPC, in the absence of any appeal : 30 : by the State, we should not venture into the same.
21. Hence, with all the above reasons, we proceed to pass the following:
(i) The appeal is partly allowed; (ii) The judgment of conviction and sentence
passed by the trial Court for the offences under Sections 304B, 323 and 504 of IPC and also under Section 4 of the Dowry Prohibition Act is hereby set aside;
(iii) However, the accused is convicted for the offences under Sections 306 and 498A of IPC. The accused is sentenced to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 306 of IPC and to pay a fine of Rs.25,000/-, in default, to undergo simple : 31 : imprisonment for a period of four months. The accused is also sentenced to undergo imprisonment for a period of three years for the offence punishable under Section 498A of IPC and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of three months;
(iv) The accused is entitled for set-off under Section 428 of Cr.P.C.;
(v) If any fine amount is already deposited and if the accused has already undergone the period of punishment noted above, he shall be released if he is not required in any other case;
(vi) If fine amount is not deposited, after depositing of the fine amount, the accused : 32 : shall be released forthwith if he is not required in any other case;
(vii) If the fine amount is deposited the said amount shall be paid to PW.14 in order to utilise the said amount for the benefit of daughter of the deceased;
(viii) The sentence passed above shall run concurrently.
Sd/-
JUDGE Sd/-
JUDGE EM/LB