Karnataka High Court
State Of Karnataka vs Pundalik And Ors. on 24 July, 1999
Equivalent citations: 1999CRILJ4751
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT M.F. Saldanha, J.
1. We have heard the learned Additional State Public Prosecutor at considerable length with regard to the merits of the case, because this issue is closely interlinked with the aspect of condonation of delay. We have considered the grounds in support of LA. No. 1 and the delay is condoned. LA. No. I is allowed.
2. The learned Additional State Public Prosecutor submitted that this is one more of the dowry death cases and that this Court should take a very serious view of the matter. In principle, the submission is well founded, but it is necessary to look to the facts and to the law in each individual criminal case. In this incident, six years have elapsed between the year 1985 when the marriage took place and 1991 when the suicide occurred. The question is, as to whether the accused drove the deceased to commit suicide and whether the incriminating factors are such as would come within the frame work of Section 498-A, IPC. There is a good deal of evidence that has been brought on record and most of this evidence has stood the test of credibility, but after considering all of it, we still find that the one head of material evidence that was necessary is unavailable.
3. We are constrained to observe that it is very necessary while presenting the prosecution case before the trial Court to first analyse the legal requirements of the charges, more importantly, the ingredients that must be established in law for purposes of bringing home those charges. While considering a case under Section 304-B, IPC, the prosecution must always bear in mind the crucial legal aspect viz. that this is dowry related and cruelty based offence and that is why the charge invariably is accompanied by one under Section 498-A, IPC. The latest case law on the point clearly postulates that the prosecution must first bring home the fact that cruelty or torture or provocation within the definition as contemplated under Section 498-A, IPC must first be established and where this is linked to dowry demand or property demand traceable to the aspect of dowry, that the evidence must clearly establish the interconnection. Having regard to the member of these cases wherein the prosecutions arc failing, we have laid down these guidelines so that the error that have been occurring repeatedly should not be repeated.
4. As and by way of illustration, in the present case, the deceased had committed suicide six years after (he marriage and the prosecution has concentrated on the evidence with regard to what was demanded and what was exchanged at the time of the marriage and there was no charge framed under the Dowry Prohibition Act and furthermore, no satisfactory evidence with regard to whether the demands which are dowry related persisted for as long a period as six years. The evidence of the father seems to suggest that everything was fine in the first year of the marriage and that thereafter, his daughter was ill-treated. Again, he is very vague and very inconsistent with regard to the nature of his allegations. The most important evidence and the only crucial evidence which the prosecution has not placed before the Court is that of the Panchayaldars, who being independent persons would have indicated what precisely the nature of the problem or disputes were. Had that evidence been on regard, the Court would have been able to definitely rule on the question as to whether the accused has ill-treated the deceased and if so, for what reason. There are instances when domestic and matrimonial problems arise due to several other factors which may have nothing to do with dowry claims and Courts come across instances where the problems or difficulties are created by the wife and not by the husband. Therefore, it is of utmost importance that where a criminal charge is sought to be established that the evidence must clearly and conclusively establish the charge by producing the evidence that will sustain all the ingredients of the charge. That precisely is the area where the prosecution has fallen short in the present case. In that view of the matter, a conviction would be impossible on this record.
5. Dowry death cases, unlike other atrocities against women invariably come to the notice of the law enforcement authorities as of necessity because irrespective of whether it is a homicide or a suicide, since there are medico Segal implications, the case comes to the notice of the police and the hospital. That the State of Karnataka has the highest number of recorded dowry death cases consistently for the last three years as compared to the rest of the States in India and that Bangalore city heads the list of State capitals in relation to dowry deaths is not only a matter of embarassment but is an unpardonable shame. That nothing has been done to check this social scourge is a very sad reflection on the authorities and once again, it is left to the High Court to devise a formula for purposes of ensuring deterrent action in respect of this atrocity. This Court has had occasion to analyse the causes for the failure of prosecutions and it has been found that the most important reason is that the investigation is tainted. It is not only a question of incompetence on the part of the investigating officer but reading between the lines, this Court finds a clear pattern of sabotage which can only be put down to corruption. In many of the cases we have noticed a lot of ingenuity in the manner in which the investigation leaves deliberates lacunae in the case and provides for well defined escape and we are sorry to have to record that there is no doubt about the fact that this has been done under legal advice. The learned S.P.P. submitted that drastic corrective action is essential because we have now reached an unfortunate situation whereby persons who involve themselves in this most heinous of crimes are confident that rate of acquittals in this class of cases being 96.7%, it ensures them of an almost absolute certainty that they can get away with an offence that has rightly been described in jurists circles as being an aggravated form of murder.
6. This Court does not propose to permit this situation to continue any longer and the following directions are therefore being issued:-
a) That a separate record shall be maintained by the police department of all dowry death cases and the department shall ensure that the investigation of every such case is entrusted to a police officer of not less than seven years seniority in the department, who shall report directly to the S.P. or D.C.P. concerned. The superior authority shall supervise the investigation right from the very beginning and shall also ensure that the Senior Public Prosecutor is consulted whenever and wherever necessary.
b) The Investigating Officer shall ensure that all incriminating evidence such as the clothes of the deceased, the weapons or implements used, the stove in burning cases along with all related evidence is seized at the earliest point of time and that all these items are taken charge of in the presence of persons of sufficient social status. It has been noticed that the police are in the habit of using the closest available anti social elements as panchas who either disappear or turn hostile, which practice will have to be discontinued.
c) That wherever there is necessity for chemical analysis or forensic evidence in respect of medical samples or specimens, these shall be properly preserved and forwarded to the concerned authorities without any loss of time. Necessary follow-up action shall be taken by the Investigating Officer to obtain the exhibits back along with the report and these shall be submitted/produced before the Court in each and every case.
d) As far as the dying declarations are concerned, steps shall be taken to ensure that every dying declaration is recorded in the manner as prescribed by a Magistrate or other quasi judicial authority and furthermore that the doctor treating the patient shall certify on the dying declaration that the patient was conscious and in a fit condition to make a statement. A true copy of the dying declaration shall be forthwith filed with the Magistrate and a record of the acknowledgment shall be maintained in the case papers.
e) The Investigating Officer shall also ensure that the hospital case papers are duly preserved and xerox copies of the same duly certified by the authorities shall be maintained in the case papers in order to avoid tampering.
f) Steps shall be taken to ensure that the witnesses and all material evidence are kept ready and produced before the Court and the Director of Public Prosecutions shall ensure that this class of cases are only entrusted to a Senior Public Prosecutor of proven integrity and ability.
g) The Director General of Police for the State shall bring it to the notice of the investigating police officers that stringent disciplinary action will be taken against any of the police officers if any lapses that contribute to the failure of the prosecution are committed by them.
h) Similarly, the Director of Prosecutions shall call for a report in every case where the prosecution has failed from the Public Prosecutor concerned and if it is found that the prosecution has failed due to incompetent or inept handling or due to the deliberate non production of evidence or if the record indicates collusion with the accused or the defence, stringent action shall be taken against the prosecutor concerned, including removal from the panel.
7. Normally, it would have been unnecessary for this Court to have to lay down these guidelines which only postulate the level of professionalism that is required in the handling of these cases but in view of the dismal state of affairs prevalent in this State as far as this field of prosecutions are concerned and considering the fact that the rate of acquittals in the last three years has been steadily going up we are pained to observe that at the rate at which it has been climbing, it will touch 100% before the start of the next millennium; we consider it absolutely essential to issue these directions. The present case is one that need not have failed but for the type of investigation and more importantly, absolutely cavalier and unprofessional manner in which it was presented before the Court.
8. The learned S.P.P. shall forward a copy of this order to the Director General of Police, State of Karnataka and to the Director of Public Prosecutions with instructions to take note of the directions and to report back to this Court within a period of four weeks that corrective action has been ordered.
9. For the reasons earlier indicated by us, the appeal fails and stands dismissed on merits.