Karnataka High Court
State By Deputy vs Sri S T Basvaraju on 9 September, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.849/2014
BETWEEN:
STATE BY DEPUTY SUPERINTENDENT
OF POLICE, BANGALORE SUB DIVISION,
BANGALORE-560021.
... APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE
PUBLIC PROSECUTOR)
AND:
SRI S. T. BASAVARAJU,
S/O S.B. YEMMANNAPPA
@ CHIKKA THAMMANNA,
AGED ABOUT 3 YEARS,
R/AT 321/B, J.P.R., LAYOUT,
NAGARAJAPPA BUILDING,
HALE CHANDAPURA-560081.
... RESPONDENT
(BY SRI P.V.JAINAPUR, ADVOCATE)
*****
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE,
1973, PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED
07.10.2013 IN S.C. No.121/12 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, SIT AT ANEKAL
ACQUITTING THE RESPONDENT /ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498A, 304B
OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The State filed the present Criminal Appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, against the judgment and Order of acquittal dated 07.10.2013 made in S.C. No.121 of 2012 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, sit at Anekal, acquitting the accused for the offences punishable under Sections 498A and 304 B of the Indian Penal Code.
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I. FACTS OF THE CASE
2. It is the case of the prosecution that the marriage of the accused and the deceased-Suchitra was performed on 27.02.2009 in Meera Mahal Kalyana Mantapa, Railway Station Road, Hosur Town. At the time of marriage, the parents of Suchitra gave dowry of `1 lakh and 50 gms of gold in the form of two gold rings, chain, as demanded by the accused. After the marriage, the accused and the deceased started residing as tenants in the house of C.W.10/P.W.2-Anitha, at Old Chandapura, GPR Layout, Anekal. They lived happily for 1½ years. Thereafter, the accused started demanding a site and `5 lakhs from the parents of Suchitra and started to ill treat and harass her, physically and mentally. On account of the same, on 03.01.2012 at about 7.30 pm, Suchitra committed suicide by hanging herself to the fan by a saree. The accused returned home from work and on seeing the dead body, informed the relatives of the deceased. The 4 parents and relatives of the deceased Suchitra came to the house of the accused and found the dead body of their daughter. P.W.1/C.W.1-Choodappa-father of the deceased lodged complaint with the jurisdictional police, who registered FIR against the accused in Crime No.9/2012 for the offence punishable under Section 304B of the Indian Penal Code. After investigation, the jurisdictional police filed charge sheet against the accused for the offences punishable under Sections 498A and 304B of the Indian Penal Code. After taking cognizance of the offences, the Additional Civil Judge, JMFC, Anekal, committed the matter to the Court of the District and Sessions Judge, Bengaluru Rural District, Bengaluru.
3. The learned Sessions Judge, framed the charges for the above said offences, the accused pleaded not guilty and claimed to be tried. Hence, the case was posted for recording prosecution evidence. 5
4. In order to prove its case, the prosecution examined P.Ws.1 to 9, marked the documents Exs.P.1 to P.13 and marked the Material Objects M.Os.1 to 3. After completion of the evidence of prosecution witnesses, the learned Sessions Judge recorded the statement of the accused under Section 313 of the Code of Criminal Procedure. The accused entered defence, denied all the incriminating evidences adduced by the prosecution witnesses against him, examined himself as D.W.1 and marked the attendance register extract as Ex.D.1.
5. After considering both oral and documentary evidence, the learned Sessions Judge, recorded a finding that, the prosecution failed to prove that the accused being the husband of the deceased Suchitra, has taken dowry of `1 lakh and 50 gms gold ornaments by demand and while residing in a rented house at Old Chandapura, GPR Layout, demanded `5 lakhs and a 6 site and gave mental and physical harassment to Suchitra, attracting the offence punishable under Section 498A of the Indian Penal Code. The learned Sessions Judge further recorded a finding that the prosecution has failed to prove that the accused demanded `5 lakh and a site from the parents of deceased Suchitra and gave mental and physical cruelty to her and being unable to tolerate the mental and physical cruelty, Suchitra committed suicide by hanging herself with a saree to the fan in her house, on 03.01.2012, within seven years of her marriage attracting offence punishable under Section 304B of the Indian Penal Code. Accordingly, the learned Sessions Judge, by the impugned judgment and order of acquittal dated 07.10.2013, acquitted the accused for the aforesaid offences. Hence, the State has preferred the present Criminal Appeal.
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6. We have heard the learned counsel for the parties to the lis.
II. ARGUMENTS ADVANCED BY THE LEARNED ADDL.SPP
7. Sri Vijayakumar Majage, learned Additional State Public Prosecutor, contended with vehemence that the impugned judgment and order of acquittal passed by the learned Sessions Judge is without any basis, erroneous and contrary to the material on record and is liable to be set-aside. He contended that the evidence of P.Ws.1, 4 and 5 clearly indicates the demand for additional dowry of `5 lakhs and a site by the accused and the harassment to the deceased. The deceased- Suchitra, wife of the accused died by hanging herself, after 2 years 10 months and within seven years from the date of marriage. The learned Sessions Judge has not properly appreciated the evidence of P.W.3- younger uncle of the deceased and P.W.4- who is the relative of the deceased and prosecution witnesses, and P.Ws.6 8 and 7 panchas to the inquest mahazar and spot mahazar.
8. He further contended that the learned Sessions Judge failed to appreciate the evidence of P.W.8 and 9- investigating officers which clearly depicts that the prosecution has proved the offences punishable under Sections 498A and 304B of the Indian Penal Code against the accused, beyond reasonable doubt. Therefore, he sought to allow the Criminal Appeal.
III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE RESPONDENT-ACCUSED
9. Per contra, Sri P.V.Jainapur, learned counsel for the respondent-accused sought to justify the impugned judgment and order of acquittal. He contended that the accused and the deceased were married 2 years 10 months prior to the date of the incident and in the complaint, it is specifically stated that the couple were leading happy married life and were cordial for 1½ years 9 and thereafter, the accused started harassing the deceased, as alleged by the prosecution witnesses. The version in the complaint is entirely different from the evidence of prosecution witnesses. They have improved their version in the evidence which is contrary to the complaint. It is specifically stated in the complaint that fifteen days prior to the incident, the deceased had informed about the demand for `5 lakhs with her sister Pavithra. Admittedly, said Pavithra has not been examined. Therefore, the learned Sessions Judge is justified in acquitting the accused.
10. He further contended that the accused has specifically stated on oath that, out of frustration, his wife-Suchitra committed suicide, as she was removed from her job and that there is no material before the Court to establish that Suchitra died due to harassment and cruelty by the accused, soon before her death. He further contended that, the evidence of P.W.2 and 10 D.W.1 clearly indicates that the deceased and the accused were leading happy married life and admittedly, the prosecution has not cross-examined P.W.2-owner of the building where the deceased and accused were residing. Therefore, he sought to dismiss the Criminal Appeal preferred by the State.
IV. THE POINT FOR DETERMINATION
11. In view of the aforesaid contentions urged by the learned counsel for the parties, the only point that arises for our consideration is:
"Whether the Prosecution has made out any case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting the accused for the offences punishable under Sections 498A and 304B of the Indian Penal Code, in the facts and circumstances of the present case?"
12. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the 11 parties and perused the entire material, including the original records, carefully.
13. The substance of the prosecution case is that though the accused and the deceased were married on 27.02.2009, according to the complaint, they were cordial only for about 1½ years and thereafter, the accused started harassing the deceased by demanding a site and cash of `5 lakhs. The deceased, being unable to tolerate the physical and mental torture given by the accused, hanged herself on 03.01.2012. It is the specific case of the accused who adduced evidence before the Court that he was very much cordial with his wife and he never harassed her in any manner. He has further stated that, prior to the alleged incident, the deceased was removed from her job. Infact, he had consoled her. The deceased used to leave her child in the house of her parents and used to go for work in Jai 12 Bharathi English School and he has not at all harassed his wife.
V. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
14. In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and documents relied upon: P.W.1-father of the deceased Suchitra has reiterated the averments made in the complaint and stated that the marriage of the deceased with accused was performed on 27.02.2009 and `1 lakh and 50 grams gold ornaments were given as dowry. The accused and deceased were cordial for about 1½ years and thereafter, the accused started harassing the deceased by demanding a site and cash of `5 lakhs. He has further stated that, after the marriage, about two times the accused assaulted the deceased. But he consoled his daughter and sent her back to the matrimonial home, and also stated that, panchayaths 13 were held to resolve the dispute. He has further stated that his daughter died due to the harassment given by the accused. Accordingly, he lodged the complaint as per Ex.P.1.
15. P.W.2-Anitha who is the owner of the house where the deceased and the accused were residing as tenants has stated that, the couple were residing in the house for the last three years and were paying rent of `2,500/- per month and they were very cordial and there was no quarrel between the couple. In the cross examination, she has specifically stated that there was no quarrel between the accused and the deceased.
16. P.W.3-Marichennappa, uncle of the deceased has turned hostile. P.W.4-Marudappa, paternal grand father of the deceased has reiterated the averments made by the P.W.1 that at the time of the marriage, dowry was given and after the marriage, the accused started demanding `5 lakhs and a site. P.W.5-Sudha, 14 mother of the deceased and wife of P.W.1, reiterated the averments made by the P.W.1 in his evidence.
17. P.W.6-Nagamma turned hostile. P.W.7- Manjunath, panch witness to inquest mahazar supported the prosecution case. P.W.8-Nalinakshi/ women police constable stated that she brought the clothes of the deceased and handed over to the parents of the deceased. P.W.9-Kumaraswamy, investigating officer conducted the investigation and filed the charge sheet.
VI. WITNESS EXAMINED ON BEHALF OF THE ACCUSED
18. D.W.1-accused has stated that, after the marriage, he was residing with the deceased in GPR Layout for about 3 years, cordially. She was working in a School as a teacher and she was removed from job about two days prior to the incident and he consoled her on the day of the incident. After returning from work at 7.30 15 pm on 03.01.2012 since the door was not opened, when he rang the bell, he opened it using another key and came to know that his wife had hanged herself and thereafter, he informed the relatives of the deceased and specifically stated that they were very cordial and he never demanded dowry.
VII. FINDINGS OF THE LEARNED SESSIONS JUDGE
19. Based on the aforesaid oral and documentary evidence, the learned Sessions Judge has recorded a finding that on going through the evidence of P.W.1 coupled with the evidence of D.W.1 clearly indicates that there is no dispute in respect of marriage of the deceased with the accused on 27.02.2009 at Moti Mahal Kalyana Mantapa. The documentary evidence Ex.P.9 and Ex.P.12 clearly shows that the marriage of accused was performed with deceased Suchitra. From the oral evidence coupled with Ex.P.5 and Ex.P.7, it clearly shows that there was unnatural death of deceased 16 Suchitra on 03.01.2012 at about 7.30 pm within seven years from the date of marriage. The evidence of P.Ws.1, 4 and 5 are contradictory to each other and creates doubt about the dowry harassment and from the date of marriage till the date of complaint, P.W.1 or either parents of the deceased never raised their voice with regard to harassment or demand for dowry. Accordingly, the learned Sessions Judge acquitted the accused for the offences punishable under Sections 498A and 304B of the Indian Penal Code.
VIII. CONSIDERATION
20. A meticulous reading of the evidence of prosecution witnesses and D.W.1 clearly indicates that the complaint discloses about the marriage of the accused with the deceased and the demand made by the accused in the marriage talks. The evidence of P.Ws.1, 4 and 5 are contradictory to Ex.P.1-complaint. The evidence of P.Ws.1, 4 and 5 discloses the vague 17 allegations against the accused. If there was only marriage talk, the complainant would have mentioned the same in the complaint. P.W.3 being the brother of P.W.1 has turned hostile. P.W.6 -an independent witness also turned hostile. Absolutely there is no evidence corroborating with the evidence of P.Ws.1, 4 and 5 with regard to harassment and demand for dowry. The evidence of P.Ws.1, 4 and 5 are not trust worthy. It is specifically stated in the complaint that, for about 1½ years the accused and the deceased were cordial. The accused started harassing by demanding a site and cash only after 1½ years. According to the complaint, 15 days prior to the incident, the deceased had informed her sister-Pavithra about the harassment and mental cruelty. Admittedly, said Pavithra has not been examined by the prosecution. It is also not in dispute that the accused and the deceased were residing at Chandapura. P.W.2-owner of the house has stated that the accused and the deceased had cordial 18 relationship and there was no quarrel between them at any point of time. P.W.2 was not treated as hostile by the prosecution and not cross-examined. A careful perusal of the evidence adduced by the prosecution witnesses is contrary to the complaint. The evidence is nothing but improved version.
21. P.W.1, in his evidence has admitted certain omissions and denied certain admissions. The evidence of P.W.1 is contrary to the averments made in the complaint-Ex.P.1. P.W.3 being the brother of P.W.1 has denied the suggestion that he has deposed before the police regarding the demand of `5 lakhs and a site by the accused. It clearly indicates that there is no consistency in the evidence of P.Ws.1, 3, 4 and 5.
22. P.Ws.1, 4 and 5 have admitted that everyday, the accused used to go to work at 9.00 am and returned at 7.30 pm. Though the evidence of P.Ws.1, 4 and 5 clearly indicates that they have conducted panchayath 19 with regard to the quarrel between the accused and deceased in respect to demand for dowry, admittedly, the prosecution has not examined any panchayathdars. The evidence also clearly depicts that the accused was in possession of site and landed property near Bengaluru. When accused was possessing site property, question of demand for site would not arise. There is no material produced by the prosecution about specific demand made by the accused soon before the death of Suchitra.
23. In order to attract the provisions of Section 304B of the Indian Penal Code, a presumption can be raised only on the proof of the following five essentials:
a) Death of a woman took place within seven years of her marriage;
b) Such death took place not under normal circumstances;
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c) The woman was subjected to cruelty and
harassment by her husband or his
relatives;
d) Such cruelty or harassment was for, or in
connection with, any demand for dowry; and
e) Such cruelty or harassment was soon before her death.
24. The expression 'soon before her death' used in the substantive Sections 304B IPC and 113B of the Evidence Act was considered by the Hon'ble Supreme Court in the case of Hira Lal -vs- State (Government of NCT of Delhi) reported in (2003)8 SCC 80, wherein at paragraph-8 it is held as under:
"8. Section 304B IPC which deals with dowry death, reads as follows:
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 21 seven years of her marriage and it is 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, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."22
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.23
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.24
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Penal Code, 1860."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death"
subjected to cruelty or harassment "for or in 25 connection with the demand of dowry".
Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death."
IX. CONCLUSION
25. The evidence of P.Ws.1, 4 and 5 depicts that initially the deceased was working in Hero Honda show room. Later, after delivery of the child, she joined a school and started to work as a teacher and used to leave the child in her parents' house. Few days prior to the incident, she was removed from her job. The evidence of the accused also indicates that due to removal of the deceased from job by the school authorities, she became dull. It is defence of the accused that because of the said removal she was depressed and hanged herself. The evidence of D.W.1 coupled with the evidence P.Ws.1 and 5 and taking into consideration the defence set up by accused and 26 considering the entire material on record, the learned Sessions Judge rightly acquitted the accused for the offences punishable under Sections 498A and 304B of the Indian Penal Code and the same is in accordance with law and State has not made out any ground to interfere with the impugned judgment and order of acquittal exercising powers under Section 378 (1) and (3) of the Code of Criminal Procedure.
X. ORDER
26. Accordingly, the Criminal Appeal is dismissed as devoid of merit.
Sd/-
JUDGE Sd/-
JUDGE kcm