Karnataka High Court
Siddappa S/O Mallappa vs The State Through Babaleshwar on 24 August, 2012
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
DATED THIS THE 24TH DAY OF AUGUST 2012
CRIMINAL APPEAL NO.3641/2011
BETWEEN
Siddappa
S/o Mallappa
Age: 30 years
Occ: Agriculture
R/o Tiganibidri
Now R/o Babalad
Taluk and District: Bijapur
... APPELLANT
(BY SRI. NANDAKISHORE BOOB, ADVOCATE)
AND
The State Through Babaleshwar
Police Station
... RESPONDENT
(BY SMT. ANURADHA DESAI, ADDL SPP
AND SUBHASH MALLAPUR, HCGP)
This Criminal Appeal is filed u/s. 374(2) OF CrPC praying
to call for the records of the Court below and set aside the
judgement and order of conviction and sentence dated
11.8.2011 passed by the FTC I/II at Bijapur in SC No.22/2011
and acquit the appellant; and etc.
2
This appeal coming on for further dictation, this day, the
court delivered the following:
JUDGMENT
The appellant is convicted for the offence under Section 498(A) and 304(B) of IPC.
2. The Fast Track Court, Bijapur in S.C.No.22/2011 dated 11.8.2011 convicted the appellant/accused for the offences and he is punished with sentence to undergo S.I. for two years for the offence punishable under Section 498(A) and with fine of Rs.10,000/- in default six months S.I and for the offence punishable under Section 304(B) of IPC ten years R.I and Rs.10,000/- fine in default one year R.I.
3. The facts leading to the case are as follows:
That on the complaint made by father of the deceased the case has been registered in Crime No.146/2010 of Babaleshwar Police. The complaint is to the effect that the accused has committed an offence of murdering daughter of the complainant, for the offence relating to dowry harassment.
The ground urged on behalf of the appellant is that the trial court ought to have acquitted the appellant by holding that 3 prosecution has failed to prove the charges leveled against him. The prosecution witnesses have not supported the prosecution. The recovery and evidence of panchas and the material objects 1 to 9 do not corroborate the case of the prosecution. The witnesses who have examined though turned hostile their evidence does not carry weight since the prosecution has not examined any independent witnesses. It is further submitted that the complaint made by father of the deceased with an allegation that the accused has committed an offence of murder with dowry related offence. The case has been registered and FIR has been drawn for the offence punishable under Section 498(A) and 302 of IPC. While framing the charge the leaned Judge of the Trial Court narrated the case of offence for the purpose of Section 302 of IPC, but reference is made to Section 304(B) of IPC. The presumptions available under Section 304(B) of IPC R/w 113(B) of Indian Evidence Act is not applicable to the facts and circumstances of this case. Despite all these basic lacunae, the learned Judge has committed an error in convicting the appellant. The prosecution proceeded, as if the appellant has 4 committed the offence under Section 304(B) of IPC. Whereas the entire materials and evidence on record was under Section 302 of IPC. The learned Judge again committed an error in convicting the appellant on the basis of the statement recorded under Section 161 of Code of Criminal Procedure and relied much on the statement made in inquest and also the post mortem report. Hence, the learned counsel for the appellant submitted that when the materials and evidence are insufficient to convict a person. Then, in any event, the court shall not rely on statement made under Section 161 of Code of Criminal Procedure. Under these circumstance appeal to be allowed the order of the trial court is to be set aside.
4. The learned state prosecutor (Government Pleader) submitted that the complaint made by the PW.1 father of the deceased, PW.4 the brother of the deceased supports the case of prosecution in the statement made under Section 161 of CrPC. Circumstantial evidence prevails and considered in rendering conviction, no error could be found from the order of the trial court. Though the complaint and statements of the prosecution 5 were under Section 302, there were plenty of evidence available to convict the accused under Section 304(B) of IPC.
5. I have heard both the sides and I have gone through the LCR. The prosecution has examined 23 witnesses. PW.1 is the father, PW.4 is the brother, PW.8 is the Sister, PW.9 is the mother of the deceased, PW.12 who is scribe of the complaint, PW.16 who registered the complaint and PW.19 is the investigating officer. The prosecution has produced about 23 documents. Ex.P1 is the complaint, Ex.P2, 3 and 4 are the statements of panchanama and seizure of panchanama, Ex.P5 is the statement of PW.4, MOs marked as MO.1 to MO.8.
6. Ex.P14 is the FIR registered in Crime No.146/2010 dated 24.9.2010 for the offence punishable under Section 498(A) and 302 of IPC. The father of the deceased made a complaint on 24.9.2010 that at the time of marriage of his daughter to the accused, he has given the dowry of half tola gold (5 grams) and incurred marriage expenses. On 23.9.2010 the deceased informed her brother over telephone about the fact of assault committed by her husband. Again on 24.9.2010, the deceased 6 called her brother that her husband is making attempt on her life. Immediately he came to the spot and found the dead body in burning position and smoke was oozing. It is alleged that the appellant has committed an offence demanding dowry and he killed by pouring kerosene and lighting fire. The FIR was registered for an offence punishable under Section 498(A) and 302 of IPC. All the formalities have been carried out by the prosecution a chargesheet has been filed after completion of investigation for an offence punishable under Section 498(A) and 304(B) of IPC. The material required to be examined the complaint made by the father of the deceased and statement made by the brother of the deceased. PW.1 and 4 and FIR was registered for the offence punishable under Section 302 of IPC. Whereas in the chargesheet an offence was made under Section 304(B) of IPC. When the prosecution in its entire investigation has made and brought out the offence for section 302 of IPC, very strangely Section 304(B) of IPC was brought for which there is no sufficient material and evidence and statement.
7. The learned Judge has framed the charge on 17.3.2011 and the first charge is that the appellant had 7 committed an offence punishable under Section 498(A) for harassing and causing cruelty on the deceased on account not bringing dowry. Second charge is under Section 304(B) of IPC that he caused cruelty on the deceased and committed the offence of murder on 24.9.2010 by pouring kerosene and lighting fire. Accordingly he is punishable under Section 304(B) of IPC when the context of second charge amounts to the punishment under Section 302 of IPC. However, strangely 304(B) of IPC brought for which there is no explanation found in the second charge. There are two different ingredients which are required for the offence under Section 302 and 304(B) of IPC. Section 302 is punishment for murder which provides that whoever commits murder shall be punished with death or life imprisonment but 304(B) pertains to dowry death which provides that whoever causes death of a women by any burns or bodily injury otherwise than under normal circumstance and marriage taken within a period of seven years, then the offence is to be termed as dowry death and presumption could be drawn that the husband or his family members or any relative of her husband have committed the said offences. This presumption of 8 dowry death is absolutely absent in the prosecution case. The complaint made by the father of the deceased and the statement recorded by the brother of the deceased to the effect that the appellant/accused has committed an offence of murder. There is no scope to draw presumption of dowry death in order to constitute dowry death for the purpose of Section 304(B) which stipulates that there shall be a death of a women in an abnormal circumstance and the death if it is occurred within seven years from the date of marriage, it is to be presumed that she is subjected to cruelty or harassment by the husband or relative of her husband. Then that is termed as deemed dowry death. When a chargesheet is filed against the appellant for the offence punishable under Section 304(B) of IPC, then the ingredient of such Section should be there in the chargesheet. The learned Judge has not given concentration as to whether the offences could be brought under Section 302 or 304(B) of IPC. The statement recorded on behalf of the complainant is proceeded relating to murder. The charge should have been under Section 304(B) and not 302 of IPC. In order to punish under Section 304(B) of IPC, there shall be an evidence and materials for 9 presumption of dowry related death. The learned Judge should have framed the charge in addition to 304(B) and 302 of IPC then it would have been a different scenario. But in the instance case, charge is under Section 304(B) of IPC and context in the charge is 302 of IPC which is impermissible in law.
8. Under Section 228 of Code of Criminal Procedure a specific instance has to be narrated and it should be in descriptive manner understandable to the accused and there shall be a specific offence to be narrated while framing charges. When the case was posted for framing charges there was an occasion for the prosectuion to make submission to frame a charge in respect of relevant and appropriate offence. Prosecution has also failed in discharging its duty. While framing charges, the learned Judge should have considered all the relevant materials, facts, grounds, presumptions, etc. This has not been considered by the learned Judge.
9. Even taking note of Section 304(B) when the prosecution witnesses have been examined the main witness namely the father of the deceased PW.1 has turned hostile. In 10 his chief examination he has deposed that for what reason his daughter died is not aware. He has given go by to the complaint. The complaint is not drafted by him, but it has been scribed by PW.12. PW.12 also turned hostile. In his chief examination he has deposed that Ex.P1 is drafted on the dictation made by the police. The evidence of PW.1 and PW.12 discloses that the allegation made in Ex.P1 and the statement recorded under Section 161 of Code of Criminal Procedure are quite contrary and do not corroborate each other. In the cross examination PW.1 the father of the deceased has denied the fact of offence committed by the accused against his daughter. In one sentence he answered that he is not aware for what reason death of his daughter has occurred. PW.8 is the sister and PW.4 the brother of the deceased who also turned hostile and they denied the suggestions of offence committed by the accused. He has deposed he is not aware as to what was the reason for her death. On the similar way PW.9 who is the mother of the deceased also turned hostile. When all these prosecution witnesses turned hostile absolutely there was no evidence for the prosecution to prove their case. When such being the case 11 there was no occasion for the learned Judge to hold, charges have been proved.
10. The Judgment of the Supreme Court is referred by the learned Judge reported in 2011 Crl.Law Journal 663 (SC). But the learned Judge has forgotten the charge framed as if it was under Section 302 IPC and he proceeded further. In head note 'A' holds that the burden of proof, more serious the crime, stricter proof is required. Circumstantial evidence alone shall not be the sole factor in convicting the accused. The statement recorded under Section 161 of CrPC. Circumstantial evidence, presumptions, all these put together, in addition to the evidence, prove the circumstances without a break. The case of the prosecution proceeded as if it was under Section 304(B) of IPC. Whereas, the instance narrated in charge is under Section 302 IPC. Complaint was made which was registered in respect of Section 302 of IPC. However, the chargesheet is filed under Section 304(B) of IPC. Evidence and suggestions were made as if it was under Section 304(B) of IPC. When these material lacuna is found, it does not prove the guilt. Evidence of PW.18 who is Tahsildar who has conducted the inquest panchanama 12 on 29.5.2010 who recorded the statement of father of the deceased about the murder of his daughter. If that being so, the charge should have been under Section 302 of IPC, gap being large between 302 and 304(B) of IPC.
11. Section 25 of the Indian Evidence Act contemplates that any confession made to the police officer shall be proved as against a person accused of any offence. Another judgment in 1960 AIR (SC) 391 and in 2009 Crl. Law Journal 29, are to the effect that the admissibility of statement recorded under Section 161 of Code of Criminal Procedure is not a substantive piece of evidence. 2006 (1) Crimes 53, 2004 SAR (Crl) 915 holds that prosecution must spell out ingredients that arise under Section 304(B) of IPC and then only presumption arise under Section 113(B) of Evidence Act. Similarly, in (2011)11 SCC 517, the same view has been reiterated. In the light of the above judgments and facts and circumstances. I hold appellant has to succeed.
12. It is to be noted that this case could have been remitted by framing the appropriate charge for reconsideration 13 but it would be futile exercise since all the prosecution witnesses, including the parents, brothers and sister have not supported the case. Under these circumstances I pass the following order.
The appeal is allowed. The order of the Sessions Court is set aside and it is directed to release the appellant forthwith if he is not required in any other case.
Sd/-
JUDGE msr