Karnataka High Court
Bhoja @ Bhojaraja vs State By Saligrama Police Station on 18 November, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO. 1088 OF 2013
BETWEEN:
BHOJA @ BHOJARAJA
S/O. THIMMAPPA SHETTY
AGED ABOUT 30 YEARS
SUBBEGOWDANA KOPPALU
K.R. NAGAR TALUK
MYSORE DISTRICT. ... APPELLANT
(BY SHRI. ANANDA G.M., ADV.)
AND:
STATE BY SALIGRAMA POLICE STATION
K.R. NAGAR TALUK
MYSORE DISTRICT. ... RESPONDENT
(BY SHRI K. NAGESHWARAPPA, HCGP)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 19.12.2012 AND 21.12.2012 PASSED BY THE V
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ADDL.S.J., MYSORE IN S.C.NO.72/2011 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498 A AND
304B OF IPC AND U/S 3 AND 4 OF D.P. ACT AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I.
FOR 2 YEARS AND PAY FINE OF RS.3,000/- FOR THE
OFFENCE P/U/S 498A OF IPC AND IN DEFAULT OF
PAYMENT OF FINE, HE IS DIRECTED TO UNDERGO S.I. FOR
2 MONTHS. AND THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO R.I. FOR 10 YEARS FOR THE OFFENCE P/U/S
304B OF IPC. AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND TO PAY
FINE OF RS.15,000/- FOR THE OFFENCE P/U/S/ 3 OF D.P.
ACT AND IN DEFAULT OF PAYMENT OF FINE, HE IS
DIRECTED TO UNDERGO S.I. FOR 3 MONTHS AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I.
FOR ONE YEAR AND TO PAY FINE OF RS.1,000/- FOR THE
OFFENCE P/U/S/ 4 OF D.P. ACT AND IN DEFAULT OF
PAYMENT OF FINE, HE IS DIRECTED TO UNDERGO S.I. FOR
ONE MONTH. ALL THE SENTENCES SHALL RUND
CONCURRENTLY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is directed against the judgment dated 19.12.2012 passed by the V Addl. Sessions Judge, at Mysore in S.C.NO.72/2011.
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2. By the impugned judgment the appellant/sole accused is convicted for the offence under Sections 498A & 304B of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 (for short 'the DP Act') and is sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 304B of IPC; 5 years rigorous imprisonment and fine of Rs.15,000/- for the offence under Section 3 of DP Act; 2 years simple imprisonment and fine of Rs.3,000/- for the offence under Section 498A of IPC and simple imprisonment for one year and fine of Rs.1,000/- for the offence under Section 4 of DP Act with the default sentence.
3. The case of the prosecution is that the accused married the deceased on 22.02.2007. They were residing at Seegevalu Village of K R Nagar Taluk. On 11.12.2009 the accused is stated to have sent his wife/the deceased to her parents house asking her to bring Rs.50,000/- for 4 repair of the house and for purchase of a pair of oxen. The deceased is said to have returned home with only Rs.20,000/-. Enraged by this, the accused is stated to have threatened to kill the deceased and accordingly in the intervening nights of 12/13.12.2009 at about 2.00 a.m. the accused is stated to have poured kerosene on the deceased and set her on fire.
4. The father of the deceased (PW.1) lodged a report before the Kodigehalli Police Station. Based on the said report, Crime No.179/2009 was registered against the accused under Sections 498A and 302 of IPC and Sections 3 and 4 of DP Act. Investigation was taken up and charge sheet was filed against the accused alleging commission of the above offences.
5. At trial, the prosecution examined 23 witnesses and produced in evidence 38 documents marked as Exs.P1 to 5 P38 and material objects as MOs.1 to 8. In the course of cross-examination of the prosecution witnesses Exs.D1 to D3 also came to be marked on behalf of the accused. During his examination under Section 313 of Cr.P.C. the accused denied the incriminating circumstances and took up a plea that the deceased herself set her on fire on the intervening nights of 12/13.12.2009. He tried to extinguish the fire and in the process he sustained burn injuries on his hands and legs and other parts of the body. He was taken to Community Health Centre and thereafter he was treated in K.R. Hospital.
6. On considering the material produced by the prosecution and upon hearing the parties, the trial Court by the impugned judgment acquitted the accused of the offence under Section 302 of IPC, but recorded his conviction for the offence under Sections 498A and 304B 6 of IPC and Sections 3 and 4 of DP Act, and sentenced him as above.
7. I have heard Sri Ananda G.M., learned counsel for the appellant and Sri K. Nageshwarappa, learned HCGP.
8. The learned counsel submits that the conviction recorded by the trial Court is illegal and perverse. The material on record does not make out the offence under Section 304B of IPC. There is no clear evidence that the deceased was subjected to cruelty or harassment in connection with any demand for dowry. Therefore, conviction under Section 304B of IPC is unsustainable in law. The witnesses examined by the prosecution in proof of the charges under the provisions of DP Act are close relatives of the deceased and are interested witnesses, 7 therefore, the trial Court ought not to have relied upon their testimony. Further, he submits that the trial Court has not taken into consideration the injuries sustained by the accused during the occurrence, which go to show that the deceased poured kerosene on herself and accused sustained burn injuries in the process of extinguishing the fire. The trial Court has failed to appreciate this plea, resulting in miscarriage of justice and hence he pleads for acquittal of the accused.
9. Sri Nageshwarappa, learned HCGP, however, has argued in support of the impugned judgment. He submits that the presence of the accused at the spot is not in dispute. The evidence of prosecution witness with regard to the cruelty and harassment meted out to the deceased immediately preceding the incident makes it evident that the deceased was intentionally done to death by setting her on fire. Therefore, the impugned judgment does not 8 suffer from any error or infirmity and does not warrant interference by this Court.
10. I have considered the submissions made by the parties and have examined the records.
PW.1 is the father of the deceased and complainant. According to him at the time of marriage a sum of Rs.50,000/- and 50 grams of gold and a watch was given to the accused by way of dowry. For about 1 ½ years the accused and the deceased were living cordially. Thereafter the accused started demanding dowry from the deceased asking her to bring money from her parents for repair of the house and for purchasing a pair of oxen. The accused demanded Rs.50,000/- on the previous day of the incident. PW.1 gave Rs.20,000/- in the hands of the deceased and sent her to the matrimonial home, but in the evening the deceased informed him that the accused 9 threatened to kill her for not bringing Rs.50,000/- demanded by him. On the next day morning he received information about the death of the deceased.
PW.2 is the brother-in-law of PW.1. This witness has deposed in line with the statement of PW.1 stating that a sum of Rs.50,000/-, 50 grams gold and a watch was given as dowry to the accused at the time of marriage. This witness has also corroborated the statement of PW.1, that the accused demanded a sum of Rs.50,000/- and since the said amount was not paid to him, he committed murder of the deceased. According to this witness, at about 1.45 and 2.00 a.m. he received a call from PW.8 informing the incident and immediately he informed the matter to PW.1 and on the next day morning he saw the burnt body of the deceased.
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PW.3 is the neighbour, who has been examined to speak about the marriage negotiations and this witness has supported the prosecution.
PW.4 is the younger brother of PW.1, but he has stated that he was not present at the time of marriage talks.
PW.5 is another brother-in-law of PW.1. This witness has deposed in line with PW.1 regarding dowry paid to the accused, at the time of marriage, and the subsequent demand made by him for Rs.50,000/-.
PW.6 is the uncle of the accused. He has partly supported the prosecution with regard to the harassment and cruelty meted out to the deceased in the matrimonial home.
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PW.7 is the panch witness to spot mahazar Ex.P1 whereunder kerosene can and burnt ashes were recovered.
PW.8 - Sundar was examined as panch witness to the inquest mahazar Ex.P9. Though PW.2 had stated that the incident was reported to him by PW.8, in his evidence PW.8 has not whispered anything in this regard. In his evidence he has only stated that he was a panch witness for the inquest mahazar.
PW.9 was examined to speak about marriage talks, but he has turned hostile to the prosecution.
PW.10 has also deposed about the dowry paid to the accused, at the time of marriage.
PWs.11 and 12 are the neighbours. Both these witnesses have turned hostile to the prosecution case. 12
PW.13 is the Medical Officer, who conducted post mortem examination. According to this witness the post mortem was conducted behind the house of the accused. He has specifically stated that the deceased had sustained 90 to 95% burns and at the time of post mortem examination, he could smell kerosene on the body of the deceased. The post mortem report is marked as Ex.P.16. In the cross-examination he has denied the suggestion that if a person is suffering from epilepsy, such person gets fits and at that time, he/she will not try to put out the fire.
PW.14 is the Secretary of Grama Panchayat who has produced the extract relating to the house occupied by the deceased.
PWs.15 and 16 are the panchas to the seizure mahazar. Both these witnesses have turned hostile. 13
PW.17 is the head constable of Saligrama Police Station, who carried the complaint and FIR to the Court.
PW.18 is the Investigation Officer, who laid the charge sheet against the accused.
PW.19 is the Investigation Officer, who conducted part of the investigation.
PW.20 is the owner of Vardhamana Pawn Brokers. Through this witness the prosecution has marked the receipt Ex.P.20 relating to the pledge of gold by the accused.
PW.21 is the brother of the accused and PW.22 is the Medical Officer of Community Health Centre, who examined and treated the accused on the date of the incident. According to this witness on 13.12.2009 at 3.20 a.m. the accused was brought to the Community Health 14 Centre by the public with history of burn injuries. During examination he noticed burns on both the hands, face, left leg and soles and that the accused had sustained 20 to 25% injuries. After giving first aid, he referred the accused for further treatment to K.R. Hospital. Through this witness the prosecution has marked the wound certificate Ex.P.21 relating to the accused.
PW.23 is the Station House Officer, who registered the FIR against the accused.
11. Based on the above evidence, the trial Court was of the view, that the prosecution has established the ingredients of the offence under Sections 3 and 4 of the DP Act. Even on reconsideration of the evidence of the father of the deceased (PW.1) and her other relatives viz., PWs.2 and 5, I do find any reason to differ with the view taken by the trial Court on this issue. PWs.1 to 5 have specifically deposed that all of them were parties to the 15 marriage negotiations and pursuant to the demand made by the accused a sum of Rs.50,000/-, 50 grams of gold and a watch was given to the accused by way of dowry. In view of this consistent evidence, the findings recorded by the trial Court on this charge cannot be held to be perverse, warranting interference. Hence the conviction of the accused for the said offence is confirmed.
12. Coming to the charge under Section 302 of IPC is concerned, the trial Court has recorded a finding that the material on record is not sufficient to prove the ingredients of Section 302 of IPC. The State has not challenged this finding. Therefore, the only question that survives for consideration in this appeal is whether the conviction of the accused under Section 304B of IPC is sustainable on the facts and circumstances of the case ? 16
13. The trial Court has framed a specific and distinct charge under Section 304B of IPC. Needless to say that in order to attract the provisions of Section 304B of IPC, the death of the deceased should have been caused by any burns or bodily injury or occured otherwise than under normal circumstances within seven years of her marriage and it should be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.
14. In the instant case undisputedly the death has taken place within seven years from the date of marriage. It is also not in dispute that the incident has taken place in the matrimonial home of the deceased. But the evidence on record in my view, is not sufficient to record a finding that the deceased was subjected to cruelty and harassment by 17 the accused or his relatives, in connection with any demand for dowry immediately preceding the occurrence.
15. The evidence of PWs.1 to 5 goes to show that after the marriage for about 1 ½ years the accused and deceased were living cordially. There is absolutely no evidence to show that there was any discord between them for about 1 ½ years after the marriage. There is nothing in the evidence of PW.1 to PW.5 to indicate that after the marriage, the accused placed any demand for dowry either in cash or in kind. The implication of the evidence of PWs.1 to 5 is that 1 ½ years after the marriage, the accused demanded the deceased to bring Rs.50,000/- from her parents for repair of the house and for purchase of a pair of oxen. This demand cannot be construed as a "dowry demand" or a "demand in connection with marriage" or aftermath thereto. Even to invoke the presumption, under Section 113B of the Evidence Act, the 18 prosecution was required to establish the basic fact viz., the cruelty and harassment for or in connection with any demand for dowry. Such an evidence is conspicuously absent in this case. In the absence of any such evidence in my view, even the presumption under Section 113 B of the Evidence Act cannot be drawn in favour of the prosecution. Therefore, it cannot be held that accused has committed "dowry death" within the meaning of Section 304B of IPC. Since the charge under Section 302 is held to be not proved and the circumstances established in the evidence go to show that there was no demand for dowry immediately preceding the death of the deceased, in my view, the conviction of the accused under Section 304B of IPC cannot be sustained. Consequently he is entitled to be acquitted of the said charge. Hence, the following :-
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ORDER
16. Criminal Appeal No.1088 of 2013 is partly allowed. The conviction and sentence of the accused/appellant - Bhoja @ Bhojaraja for the offence under Section 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 is confirmed.
17. The conviction and sentence of the appellant/accused for the offence under Section 304B of IPC is set aside and the appellant/accused is acquitted of the said charge.
18. The records reveal that the accused was arrested on 16.8.2010 and since then he is in custody. As the appellant/accused has already served the substantive sentence of imprisonment including the default sentence, the appellant / accused - Bhoja @ Bhojaraja shall be 20 released forthwith. The State is at liberty to recover the fine as per law.
19. Registry is directed to communicate this order to the Superintendent of Police, Central Prison, Mysore, where the accused is lodged.
Sd/-
JUDGE NG*