Karnataka High Court
Sri Ningachari vs The State By on 30 May, 2018
Equivalent citations: AIRONLINE 2018 KAR 307
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2018
PRESENT
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1378/2012
BETWEEN:
1. Sri Ningachari
S/o late Veerachari
Aged about 77 years
2. Sri G.N. Jayanna Chari
S/o Lingachari
Aged about 38 years
Both are residing at
R/at Gorvi Village
Santhabachahalli Hobli
K.R. Pete Taluk
Mandya District.
... Appellants
(By Sri N. Surendra Kumar, Advocate)
AND:
1. The State by
K.R. Pete Police
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2. Sri Shivananja Chari
S/o Chandra Chari
Aged about 26 years
R/a Subash Nagar
K.R. Pete Town
3. Smt. Yashodhamma
W/o Chandra Chari
Aged about 50 years
R/a Subash Nagar
Bhookarakere,
K.R. Pete Taluk.
... Respondents
(By Sri Vijayakumar Majage, Addl. SPP for R1;
Sri K.R. Keshava Murthy, Advocate for R2 and R3)
This Criminal Appeal is filed under Section 372 of the
Cr.P.C praying to set aside the order dated 3.8.2012
passed by the Addl. District and Sessions Judge, Mandya
in S.C.No.179/2008 - acquitting the respondents/accused
for the offences punishable under Sections 3 and 4 of
Dowry Prohibition Act and 498-A, 304-B or 306 r/w
Section 34 of Indian Penal Code.
This Criminal Appeal coming on for hearing this day,
B.A. PATIL J. delivered the following:-
JUDGMENT
The present appeal is preferred by the complainant challenging the judgment and order of acquittal dated 3.8.2012 passed by the Additional sessions Judge, Mandya in SC.No.179/2008.
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2. Brief facts of the case of the prosecution are that complainant filed the complaint alleging that his daughter Lakshmidevi was got married to accused No.1 on 4.6.2006. The couple led marital life happily. On 14.3.2007, the complainant received information that his daughter Lakshmidevi committed suicide by hanging in her matrimonial house. Immediately himself and his family members went there and saw the dead body of the deceased. Thereafter at about 9.30 p.m., complainant filed the complaint as per Ex.P8, wherein he stated that his daughter was not happy about her marriage with accused No.1 as it was a second marriage of accused No.1 and out of dejection, she has committed suicide on 14.3.2007 at about 10.30 a.m. in her matrimonial house when there was nobody. On the basis of the complaint at Ex.P8, an UDR case was registered in UDR No.7/2007. Subsequently, Executive Magistrate held the inquest mahazar and at the time of recording the statement of the parents of the deceased, he found -4- that the deceased might have died on account of dowry harassment. In that light, he directed the police for further investigation as per Ex.P2. In that light, a case was registered in Crime No.26/2007 by K.R.Pet Town Police for the offence punishable under Section 304B r/w. Section 34 of IPC. Thereafter, the matter was investigated into by the COD Inspector and after completion of investigation, he filed the charge sheet against the accused. The learned Magistrate took cognizance of the offence and after following the procedure, he committed the case to the Court of Sessions. The Sessions Court took cognizance, secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, framed the charge against the accused for the offence punishable under Sections 3 and 4 of Dowry Prohibition Act and also under Sections 498A, 304B r/w. Section 34 of IPC. Accused pleaded not guilty and as they claimed to be tried, the trial was fixed. -5-
3. In order to prove its case, the prosecution has got examined 18 witnesses as PWs.1 to 18 and got marked the documents at Exs.P1 to P24 with sub- marking and also MO.Nos.1 to 6. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. On behalf of accused, they examined one witness as DW.1 and got marked Exs.D1 to D5. After hearing both parties, the trial Court has passed the judgment and order acquitting the accused of the offences with which they were charged. Assailing the same, the complainant is before this Court in the present appeal.
4. At this juncture, it is relevant to note that as against the impugned judgment and order, the State has not preferred any appeal.
5. We heard the arguments of the learned counsel appearing for the appellant-complainant and the learned -6- Additional SPP for respondent No.1-State as well as the learned counsel appearing for respondents 2 and 3- accused.
6. It is the contention of the learned counsel for the appellant-complainant that there is consistent evidence of the complainant, brothers and sisters of the deceased to show that there was a demand of dowry prior to the marriage and after negotiation, the complainant has agreed to pay cash of Rs.80,000/- and 101 gms. of gold and the same has been paid to the accused persons. After the marriage, accused persons started ill-treating and harassing the deceased for demand of additional dowry and because of the said ill-treatment and harassment, deceased Lakshmidevi committed suicide by hanging in the house of the accused. When the prosecution has proved the said aspect, the trial Court ought to have drawn the presumption and as the said presumption has not been rebutted by the accused, both -7- the accused should have been convicted in accordance with law. It is further contended that the deceased had led happy marital life with accused No.1 about 3 to 4 months and there is no sufficient evidence to show that out of dejection she committed suicide. It is further contended that Ex.P8 has been taken by the police in consonance with the accused and the said complaint is not a conscious statement made by the complainant. Immediately when PW.1 recorded the statement, wherein it is specifically stated about the demand of dowry by the accused persons and there is consistency in the evidence of the prosecution witnesses. The said aspect has not been properly considered and appreciated by the trial Court. It is further contended that payment of Rs.80,000/- by the complainant as demanded by the accused is not in dispute and the same has been admitted by the prosecution witnesses and the same has not been diverged. In that light, the trial Court ought to have convicted the accused. It is further contended that -8- it is the case of the accused that the complainant was not having any financial capacity, but as per the evidence of the brother of the deceased-PW.4, he has specifically stated that they have got six acres of land and they are financially stable and capable and they paid the dowry to the accused persons. This aspect has not been considered and appreciated by the trial Court. It is further contended that there is sufficient material to convict the accused. Hence, the learned counsel for the appellant-complainant prays to allow the appeal by setting aside the impugned judgment and order of acquittal and prays to convict the accused.
7. Per contra, the learned counsel for the respondents-accused vehemently argued that the entire evidence produced by the prosecution clearly goes to show that there was no demand of cash and gold by the accused persons. Even when the complaint came to be filed in the first instance as per Ex.P8, there is no -9- allegation of demand of dowry by the accused persons. Subsequently, at the instance of the ill-wishers the statement of the complainant and the mother of the deceased said to have been recorded and a false case has been registered. He further submitted that all the witnesses have categorically stated that the death of the deceased was due to depression and even there is consistent evidence to show that the marriage of accused No.1 with the deceased was second marriage and deceased was having a knowledge of the said second marriage and as she was not willing for the marriage, the parents and other relatives pressurized her and got her married with accused No.1. After the marriage she was under depressed mood and ultimately she committed suicide. The said true version has been mentioned in Ex.P8. He further contended that the complainant is having 7 siblings and he was not having any sound financial capacity and as such he agreed for the second marriage of accused No.1 with his daughter. The
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witnesses have specifically stated that they have not made any demand as the marriage of accused No.1 was second marriage and there is no question of giving and taking of any dowry. He further submitted that there is no consistency in the evidence of prosecution witnesses. In the first instance, some of the witnesses have stated that there was a demand of Rs.1,00,000/- and subsequently it was settled for Rs.80,000/-, but actual amount which was paid was Rs.25,000/-. He further submitted that as per the statement recorded, the said amount has been paid in the hands of father of accused No.1 who has been cited by the prosecution as CW.35, and he has not been examined by the prosecution, but he has been examined as DW.1 by the accused. If really there was any demand of dowry and acceptance of the same, then CW.35 could have been arrayed as one of the accused rather than as witnesses for the prosecution. The evidence of DW.1 has not been destroyed by the prosecution in the cross-examination. When there is
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ambiguity crystal on the record, then under such circumstances, by giving the benefit of doubt, the trial Court has rightly acquitted the accused. The appellant- complainant has not made out any good grounds to allow the appeal. Hence, there is no merit in the appeal and the same may be dismissed as devoid of merits by confirming the impugned judgment and order of acquittal.
8. The learned Additional SPP appearing for the first respondent-State has fairly submitted that the State has not preferred any appeal as against the impugned judgment and order of acquittal. However, he prays to deal with the case in accordance with law.
9. As aforementioned, in order to prove its case the prosecution got examined 18 witnesses as PWs.1 to 18.
i) PW.1 is the Tahsildar who received the information, went to the house of the deceased and conducted the inquest proceedings by recording the
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statements of the witnesses as per Ex.P1. During the course of cross-examination, he denied the suggestion that at the time of conducting the inquest proceedings, he would get full information from the police. Except that nothing has been suggested to this witness.
ii) PW.2-complainant is the father of the deceased Lakshmidevi, who has deposed that during the marriage talks, accused persons demanded 250 gms. of gold and cash of Rs.1,00,000/-. But mediators settled for Rs.80,000/- and 101 gms. of gold and the same was agreed by the accused persons. 3 to 4 months thereafter, when his wife had been to the house of the deceased, accused persons were quarrelling with the deceased and he was not knowing for which reason they were quarrelling with her. PW.2 has been treated as hostile. During the course of cross-examination of PWs 1, 5, 6 and 12 Exs.D1 to D5 were got marked.
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iii) PW.3 is the brother of the deceased who has deposed that the marriage of his sister was performed with accused No.1. Two months prior to the marriage, there was marriage negotiation and at that time, he was not present. During the marriage, accused Nos.1 and 2 by demanding gold chain and watch were making galata. For few days after the marriage, couple lived happily. When the deceased had come to her parents' place, she informed that accused persons were demanding additional dowry of Rs.25,000/- for establishing a shop to which PW.2 told that he was not having any money. After few days, accused persons killed her by assaulting. During the course of cross-examination nothing has been elicited from this witness.
iv) PW.4 is another brother of the deceased. He has also deposed that at the time of marriage talks parents of the accused demanded cash of Rs.1,00,000/- and 150 grams of gold and ultimately mediators settled for Rs.80,000/- and 100 grams of gold, but they gave
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101 grams of gold to the accused. 2 to 3 months after the marriage, deceased and accused No.1 were living happily and thereafter accused persons started asking that only gold was given to bride and nothing was given to accused No.1 and they were demanding for gold chain and watch. 15 days prior to the marriage, PW.2 went to the place of accused and gave Rs.80,000/- in the hands of father of accused No.1. During the course of cross- examination, nothing has been elicited from the mouth of this witness.
v) PW.5 is the sister of the deceased who has also reiterated the evidence of PW.4.
vi) PW.6 is the mediator for the marriage. He has been treated as hostile.
vii) PW.7 is another person who was present at the time of marriage talks. He has deposed that there was a demand of 150 grams of gold and cash of Rs.80,000/- by the accused. But, the parents of the deceased decided to pay Rs.25,000/- and 101 grams of gold. An amount of
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Rs.1,001/- was paid in advance. This witness has also been treated as hostile. During the course of the cross- examination, nothing has been elicited from this witness to support the case of the prosecution.
viii) PW.8 has given the shop to accused No.1 on rental basis. When accused No.1 asked him to search for a girl for his marriage, he suggested about the daughter of PW.2. He has further deposed that PW.2 has given cash of Rs.25,000/- and 100 grams of gold so also advance amount of Rs.1,001/- to the accused persons. This witness has been treated as hostile.
ix) PWs.9 and 10 is the neighbourers of accused No.1. They have not supported the case of the prosecution and have been treated as hostile.
x) PW.11 is a panch witness to spot mahazar at Ex.P.12.
xi) PW.12 is a witness to whom PW.2 asked for Rs.50,000/- as a loan for the purpose of performing the marriage of the deceased. But PW.2 gave only
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Rs.30,000/-. During the course of his cross-examination, nothing has been elicited.
xii) PW.13 is the panch witness to Ex.P1.
xiii) PW.14 is the doctor who conducted autopsy over the body of the deceased Lakshmidevi and issued PM report at Ex.P15. He has also given his opinion as per Exs.P16 and P17.
xiv) PW.15 is the brother of the deceased who has deposed that he is working as a goldsmith and at the time of marriage of his deceased sister, one necklace, one pair of gold bangles, mangalya chain, one ring and one pair of ear studs were given to the deceased. During the course of his cross-examination, nothing has been elicited so as to discard his evidence.
xv) PW.16 is the PSI, who received the complaint, registered the UDR case and sent the FIR. After receipt of the report from the Tahsildar, he registered the case in Crime No.26/2007, issued the FIR and conducted part of the investigation.
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xvi) PW.17 is also PSI who has partly investigated the case.
xvii) PW.18 is the Police Inspector who further investigated the case and after completion of the investigation, filed the charge sheet as against the accused.
10. DW.1 examined on behalf of the defence is the father of accused No.1 who has deposed that since it was the second marriage of accused No.1 with the deceased, they did not demand any dowry. PW.2 told that they would perform the marriage for which they agreed and they only told that they would give thali, one pair of ear studs and ear maati. During the course of cross- examination, this evidence has not been destroyed by the prosecution.
11. With the aforesaid evidence, let us consider whether the prosecution has proved the guilt of the
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accused beyond all reasonable doubt. In order to prove the case of the prosecution it is necessary that the prosecution has to prove that soon before the death of the deceased, it was an unnatural death and it took place within seven years of the marriage of the deceased and soon before she had been subjected to cruelty or harassment in connection with demand of dowry. If this is proved by the prosecution, then the Court has to presume under Section 113B of the Indian Evidence Act ('Act' for short) that it is a dowry death. It is also necessary for the prosecution to prove that there was a demand for dowry in any form, either directly or directly by the accused persons. Though it is the contention of the learned counsel for the appellant-complainant that there is an evidence of PWs.2 to 5 to show that there was a demand of dowry prior to and subsequent to the marriage and after the marriage the deceased was subjected to cruelty and harassment in connection with such demand of dowry, on careful consideration of the
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evidence of PWs.2 to 5, the examination-in-chief of PW.2 which was being recorded on 7.8.2010, was deferred for the reasons best known to the prosecution. When subsequently PW.2 was examined on 4.1.2012, i.e., after nearly about two years four months, he has deposed that 15 days prior to the marriage of the deceased, he handed over an amount of Rs.80,000/- and also the gold ornaments to accused No.2. He has further deposed that after four months of the marriage, his daughter came to his house and told that the members of the family of the accused were asking money for which he told that they have already paid the same and 15 days thereafter his daughter died. He has further deposed that when Tahsildar and police had come near the dead body of the deceased, they did not ask him anything. PW.3 has deposed that at the time of marriage, they paid 101 grams of gold and cash of Rs.80,000/- to accused No.1. Accused No.2 was demanding a gold chain and a watch. PW.4 has deposed that 15 days prior to the marriage,
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PW.2 went to the village of the accused and handed over an amount of Rs.80,000/- in the hands of father of accused No.1. When we go through the evidence of these witnesses, there is no consistency with regard to demand of dowry even prior to the marriage and even there is no specific averment with regard to actual amount which has been settled for the purpose of dowry. Some of the witnesses have deposed that it was settled for Rs.80,000/- and the said amount was handed over to accused persons and some of the witnesses have deposed that it was settled for 25,000/- and the said amount was paid to the accused. Even there is no specific averment made in the evidence regarding the demand and payment of the dowry.
12. Be that as it may, even when the complaint was given as per Ex.P8 in the first instance, there is no allegation of any demand of dowry prior to the marriage and payment of the same during the marriage and even
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soon before the death of the deceased. In Ex.P8 it has been stated by PW.2 that since it was the second marriage of accused No.1 with the deceased and in that context the deceased was not comfortable and hesitant and was under depression, as such she committed suicide by hanging herself to the fan. The demand of dowry and other things come into picture only when PW.1-Tahsildar recorded the statements of the witnesses while conducting the inquest proceedings. If we peruse the statement of mother of the deceased recorded by the Tahsildar, she has stated that she does not know the negotiation and the only allegation against the deceased was that she was not cooking the food well. However, PW.2 in his statement has stated that there was a demand of Rs.80,000/-. Thereafter accused Nos.1 and 2 started ill-treating and harassing the deceased. But PW.2 has given go-bye to the said allegation also and he has been treated as hostile. PW.2 has deposed that the Tahsildar and police have not asked him anything. There
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is lot of improvement in his evidence and omissions have also been got marked. Even PW.2 has deposed that he handed over the cash of Rs.80,000/- in the hands of CW.35, father of accused No.1 15 days prior to the marriage, whereas evidence disclosed the fact that he was having seven siblings and he has already performed the marriage of six siblings. The records would further disclose the fact that PW.2 had borrowed a small amount of Rs.30,000/- from PW.12.
13. Though the learned counsel for the appellant would submit that PW.4 has stated about financial capacity of PW.2 to pay the dowry amount, no material has been placed on record and there is inconsistency in the evidence about the amount paid at the time of marriage and prior to the marriage. PW.2 has deposed that after her marriage, deceased used to tell that the members of the family of accused No.1 were demanding the money. But, what was the amount demanded by the
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accused persons was not stated by him. PW.3, the brother of the deceased has deposed that accused persons demanded a gold chain and watch. When her deceased sister came to the house of PW.2 she told that accused persons were demanding Rs.25,000/- for the purpose of establishing the shop. PW.4 has further deposed that when he personally went and asked accused No.2, he was told that they want to establish a shop and they were having a loan of Rs.2 lakhs. When he called his sister, she told about the ill-treatment and harassment against her by the accused persons. PW.5 has stated nothing about the subsequent demand of dowry, but she only speaks about the ill-treatment. Even PW.5 has deposed that the deceased and accused No.1 were cordial but the deceased used to be dull, she never used to tell anything and she used to say she is fine. No independent witness has stated anything with regard to subsequent demand of cash and gold by the accused persons.
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14. On going through the entire evidence on record, there is diversion in the evidence of each of the witnesses and they have given inconsistent statements. When there is inconsistency in the evidence of the prosecution, though the death of the deceased is unnatural death within seven years of the marriage, due to lack of evidence to show that she was subjected to cruelty or harassment in connection with demand of dowry when the same has been failed, then under such circumstances, there is no question of raising a presumption under Section 113B of the Act, that too, when the first complaint at Ex.P8 itself clearly indicates that the deceased being not comfortable and hesitant with her marriage as it was a second marriage and was under the depression, has committed suicide on 14.3.2007 at 10.30 a.m. Ex.P8 also shows that there was no ill-treatment and harassment caused to the deceased by the accused persons for demand of dowry.
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Even if we carefully peruse the evidence of PW.2 the complainant, his conduct appears to be different. In his cross-examination, he has deposed that after receiving the information of death of her daughter he goes and attends the funeral ceremony of some other person in his own village and thereafter he comes to the place of her village at about 5.00 p.m. though he received the information in the early morning. If really, there was a demand of dowry as contended by the complainant, definitely he could have mentioned all the aspects in the Ex.P8. Non-mentioning of crucial aspects at the inception also creates a doubt in the case of the prosecution and it appears to be unnatural conduct of PW.2. PW.5 has deposed that the deceased used to be dull and she never used to allege anything against accused persons. On going through the said evidence, it clearly indicates that there is no consistency in the evidence of the prosecution and the deceased has committed suicide being not comfortable and hesitant as
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the marriage was the second marriage and because of the same, she was under depression. Even in this behalf, the defence has brought sufficient material to accept the said contention. even the witnesses have given contrary to the version with regard to dowry demand and purpose for which cash amount was demanded. The defence has also proved that the deceased died as she was under depression. In that light, the contention taken up by the learned counsel for the appellant-complainant is not acceptable and the same is rejected.
15. This appeal being the appeal against the order of acquittal, this Court normally would be slow in interfering with order of acquittal even if a second view is possible. In our considered opinion, the view taken by the trial Court is one of the possible views to be taken under the facts and circumstances of the case.
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Accordingly, we do not find any merit in the appeal. Hence, the appeal is dismissed being devoid of merit.
Sd/-
JUDGE Sd/-
JUDGE *ck/-