Karnataka High Court
State Of Karnataka vs Ningegowda @ Thammaiah on 28 August, 2013
Bench: N.K.Patil, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF AUGUST, 2013,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.431 OF 2008
BETWEEN:
State of Karnataka by
the Sub Inspector
of Police, Mandya
Rural Police Station.
... Appellant
(By Shri. P.M.Nawaz, Additional S.P.P)
AND:
1. Ningegowda @ Thammaiah,
Aged about 74 years,
2. Ningamma,
W/o Ningegowda @ Thammaiah,
Aged about 62 years.
3. Vijaya @ Vijayalakshmi K
D/o. Ningegowda @ Thammaiah,
Aged about 24 years.
4. Devegowda,
S/o Ningegowda @ Thammaiah,
Aged about 26 years.
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All are residents of
Bhoothanahosur Village,
Kothathi Hobli,
Mandya Taluk.
... Respondents
(By Shri. Somashekhar Kashimath, Advocate for R2 to R4.)
*****
This Criminal Appeal is filed U/s. 378 (1) & (3) Cr.P.C
by the State P.P. for the State praying to grant leave to file an
appeal against the judgment and order of Acquittal dated
12/12/2007 in S.C.No.70/2000 passed by the Princiapl
Sessions Judge and Concurrent charge of Fast Track Court -
IV, Mandya. Acquitting the respondents/accused for the
offence Punishable under Sections 498(A), 304-B, 306 R/W
Sec.34 of IPC and U/S 3, 4 and 6 of D.P. Act.
This Criminal Appeal coming on for Hearing, this day,
H.S.Kempanna J., delivered the following:
JUDGMENT
State has preferred this appeal, challenging the judgment and order of acquittal of the respondents/ accused of the charges for the offences punishable under Sections 498-A, 304-B, 306 R/W 34 of IPC and 3 under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.
2. Respondents/accused Nos.2 to 5 along with another accused No.1 were tried by the learned Trial Judge on the charges for the offences punishable under Sections 498-A, 304-B, 306 R/W 34 of IPC and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.
3. It is the case of the prosecution, Accused No.1, Accused No.5 and Accused No.4 are the sons and daughter of Accused Nos.2 and 3. Deceased Jyothi is the daughter of PW2 and sister of PWs 1 and 3.
4. The Accused hail from Bhoothanahosur Village. The deceased, PWs 1, 2 and 3 hail from Indavalu Village and the said villages are neighboring villages and are located within the distance of about 5 Kmts. from Mandya town.
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5. It is the case of the prosecution, the deceased had been given in marriage to Accused No.1 on 30/08/1988. At the time of marriage, accused had demanded and accepted one Hero Honda Motor Cycle, watch, golden ornaments, namely a ring, three rows of gold chain, ear stud, jumki and four bangles as dowry. After the marriage, the deceased lived in the matrimonial home of the accused at Bhoothanahosur Village. About 4 days after the marriage, accused No.3, the mother-in-law started subjecting the deceased to cruelty and harassment, stating that she has not brought silver plate and silver chombu. The deceased after such demand came and reported the same to her parents and brother at her native place, Indavalu Village. She was pacified by them and sent back, stating that the same would be met in due course of time. Again, after about four days later, the deceased was sent back to her native place by the accused after subjecting her to cruelty and harassment by assaulting 5 her to bring the said silver plate and silver Chombu. In response to the same, PW1 and his parents made arrangements to get the said silver plate and silver Chombu and gave the same to the accused. It is further the case of the prosecution, thereafter about a month later, again, the accused subjected the deceased to cruelty and harassment on the ground of demand for a sum of `20,000/- in cash to buy a land. This was reported by the deceased to her parents. In this connection, when PW2 and her family members requested the accused to send their daughter to Deepavali Festival, they refused to send. Thereupon, at the intervention of PW4 and others, PW4 and the father of deceased had brought the deceased to Deepavali festival and after performance of the festival, she was sent back to the matrimonial home.
6. Prior to that, when the deceased had come down for Gowri festival, the parents of the deceased had 6 given a gold chain to her and a neck chain to the accused No.1. Thereafter, PW2 had brought her daughter to her place for celebration of a religious function in their house in the village. At that time, the deceased reported to the parents and her brothers about the ill-treatment meted out to her by the accused in respect of the demand for money which had been made by them earlier.
7. It is further the case of the prosecution that the family members of the deceased had promised the accused to meet such demand, despite the same, the deceased was being subjected to cruelty and harassment by the accused in their house, both mentally and physically. In the meantime, the deceased had conceived.
8. Such being the state of affairs, the deceased had been sent back to her native place, Indavalu village on the ground of demand for dowry. On 11-12-1999, 7 PW3, the elder brother of the deceased took the deceased to the house of the accused at Bhootanahosur village and at that point of time, he noticed accused subjecting the deceased to cruelty and harassment and accused No.3 assaulting the deceased on her cheeks, saying as to why she has not brought the money demanded by them. Thereafter, PW3 returned to the village.
9. It is further the case of the prosecution, thereafter in between 4:00 P.M. and 4:45 P.M., on the said date, i.e. on 11-12-1999, the deceased committed suicide by jumping into a well situate in the land of one Kalegowda at Bhootanahosur village. The same was informed to PW2 and also PW1. Immediately PW2 accompanied by the other villagers came to Bhootanahosur village. PW1 who was carrying on his business at Mandya came to Bhootanahosur village on learning about the death of his sister at about 7:15 P.M. By the time they came to the village of the accused 8 namely Bhootanahosur, they noticed the body of the deceased having been kept in front of the house of the accused and the accused being not present in their house. They made enquiries as to how the deceased died. They were not able to get any information from the villagers.
10. Thereafter, it is the prosecution case, PW1 proceeded to Mandya Rural Police Station and there he filed his complaint Ex.P1 before PW10, PSI at about 10:45 P.M . PW10, on the basis of Ex.P1, registered a case in Crime No.299/1999 for the offences punishable under Section 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961 against Accused Nos.1 to 4 and issued FIR to the jurisdictional Magistrate. Thereafter, he proceeded to Bhootanahosur village along with the staff and there, he kept his staff to keep watch over the body of the deceased. He also drew up the scene of offence, Panchanama as per Ex.P8. After completing Ex.P8, he forwarded the body to Mandya 9 Government Hospital along with his staff. In the meantime, he also sent a requisition to the Taluka Executive Magistrate to hold inquest over the body of the deceased, in pursuance of which, PW7, the Taluka Executive Magistrate held inquest over the body of the deceased and drew up the inquest panchanama as per Ex.P5 in the presence of the panch, PW5. At the time of inquest, PW7 recorded the statements of the blood relatives of the deceased. After completion of the inquest, the body was got subjected to Post Mortem examination by issuing a requisition in response to which, PW8 conducted autopsy over the body of the deceased and issued the post mortem report, Ex.P6. Thereafter, PW10 handed over the further investigation of the case to PW9, Dy. Superintendent of Police, who on taking over the investigation, proceeded to Bhootanahosur village and drew up the panchanama as per Ex.P7, near the well, where the deceased had committed suicide. Thereafter, PW9 handed over the 10 investigation of the case to PW11, the Investigating Officer. PW11, on taking over the investigation on 05- 01-2000, recorded the further statement of PW1 and other witnesses, namely PWs 2, 3, 4, 5 and others who are cited in the charge sheet. She also seized the marriage invitation of the deceased and Accused No.1 and also the photos. PW11, continuing the investigation, seized the motor cycle, MO1 and also two letters which are at Exs.P2 and P3. She also received the relevant documents namely Post Mortem report, inquest report from the concerned authorities. All the Investigating Officers who were in-charge of the investigation had made efforts to trace the accused. But they were not successful. It is on record that Accused Nos.2 and 3 surrendered before the jurisdictional Magistrate on 17-12-1999 and Accused No.4 surrendered on 18-12-1999. Thereafter, they were released on bail pursuant to the orders passed by the Hon'ble High Court. Accused No.5, who was at large, 11 obtained anticipatory bail and in pursuance of the same, he was also released on bail. As the investigation had been completed as Accused No.1 could not be traced, PW11, submitted the final report against the accused showing Accused No.1 as 'absconding' before the jurisdictional Magistrate. The learned Magistrate, after splitting up the case of Accused No.1, since his presence could not be secured, committed the case of the accused Nos.2 to 5, namely who are respondent Nos.1 to 4 in this appeal to the Court of Sessions, which on receipt of the records secured the presence of the Accused Nos.2 to 5, framed charges against them as aforesaid to which they pleaded not guilty, but claimed to be tried.
11. The prosecution, in support of its case, in all examined PWs 1 to 11 and got marked Exs.P1 to P12 and MOs 1 to 11. The accused in the course of examination of the prosecution witnesses, got marked Ex.D1.
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12. After the closure of the prosecution evidence, the accused denied all the incriminating circumstances put to them under Section 313 of Cr.P.C. They also submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
13. The learned Trial Judge, on a consideration of the oral and documentary evidence on record, came to the conclusion that the prosecution has failed to establish the charge leveled against the accused/ respondents and accordingly by the impugned judgment and order, acquitted them.
The State being aggrieved by the judgment and order of acquittal is in appeal before this Court.
14. Learned Additional State Public Prosecutor, assailing the impugned judgment and order contended, the evidence on record, particularly PWs 1, 2 and 3 coupled with the evidence of PWs 4 and 5, clinchingly establishes that the deceased has been subjected to 13 cruelty and harassment both mentally and physically on the ground for demand of dowry. Their version with regard to demand for dowry has been consistently spoken to by them. He further submitted, the evidence of PW3 discloses that soon before the death of the deceased on the date of occurrence, the deceased had been subjected to cruelty and harassment which is fortified from the evidence of PWs 1 and 2. He further submitted, the complaint, Ex.P1 has been filed by PW1 within no lapse of time which clearly depicts the act of accused in demanding dowry through the deceased. He further submitted, the evidence on record reveals the demand for dowry made by the accused though had been met by PWs 1 and 2 and husband of PW2, the accused in their greediness for further demand for dowry have subjected her to cruelty and harassment which has driven her to commit suicide. The accused have not come up with proper explanation as to the reason why the deceased has committed suicide and in 14 the absence of the same, in view of the testimonies of PWs 1 to 4, which is further fortified from the evidence of PW5 would clearly go to show that the deceased has been driven to commit suicide on account of cruelty and harassment meted out by the accused to the deceased, both mentally and physically on the ground of demand for dowry. Despite this clinching evidence on record, the learned Trial Judge, without appreciating the same in its right perspective, has committed an error in coming to the conclusion that prosecution has failed to establish the charge which is contrary to the evidence on record. The same cannot be sustained, hence, a case for interference is made out.
15. Per contra, the learned counsel appearing for the respondents/accused supported the impugned judgment and order of acquittal of the Trial Court.
16. In view of the aforementioned facts, evidence and the documents on record, the point that arises for our consideration is:-
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Whether the impugned judgment and order of acquittal of the Trial Court calls for any interference?
17. The deceased Jyothi having been given in marriage to accused No.1 and their marriage having been performed on 30-08-1998 is not disputed before us. The deceased having committed suicide by either jumping into the well or falling into the well is also not disputed before us. The deceased having committed suicide is amply established from the evidence of PW8, the Medical Officer who has conducted autopsy and has issued Post Mortem report as per Ex.P6, wherein she has opined that the death of the deceased is due to asphyxia as a result of drowning.
18. It is the case of the prosecution that the deceased committed suicide on account of she being subjected to cruelty and harassment both mentally and physically on the ground for demand for dowry. 16 According to the prosecution, at the time of marriage, the accused had been given a motor cycle, cash of `15,000/- and 8 tolas of gold. After the marriage, about four days later, when the deceased was living in the house of the accused, she was subjected to cruelty and harassment on the ground that she has not brought silver plate and silver Chombu. The deceased reported the same to her parents and brothers. They pacified that they would give the same and sent her back. Again, four days later, the accused assaulted her and sent her back to her place, Indavalu village on the ground that she has not brought silver plate and silver Chombu. At that point of time, according to PW2, the mother, the deceased had sustained injuries on her person that was also noticed by PW5 who is the friend of the deceased. Thereafter, PW1 and his parents made arrangements to give the said silver plate and silver Chombu and sent the deceased to the marital home. About a month later, accused started subjecting her to 17 cruelty and harassment on the ground of demand of cash in a sum of ` 20,000/- to buy a land. This was informed again by the deceased to her parents and brothers. In this connection, when the deceased was invited to Deepavali festival, the accused had refused to send her. But at the intervention of PW4 and father of the deceased, she was brought to Deepavali festival and after completion of the festival, she was sent back with the amount of ` 20,000/-. But, despite the same, the accused continued their act of subjecting the deceased to cruelty and harassment. The prosecution in order to connect the accused with the alleged cruelty meted out by the accused both mentally and physically have relied upon the testimonies of PWs1 , 2, 3, 4, and 5. Among them, PWs 1 and 3 are brothers of the deceased, PW2 is the mother of the deceased, PW4 is the resident of the village of PWs 1 to 3 and PW5 is the friend of the deceased and a distant relative. PW1, in his evidence in chief has testified with regard to the alleged demand for 18 dowry and the cruelty meted out by the accused to the deceased. The evidence on record reveals, PW1 on 11-12-1999, while he was carrying on his business in his shop at Mandya, he received the information about the death of his sister through one of his brothers on phone. Thereafter, he came to Bhootanahosur village by about 7:15 P.M. At that time, PWs 2, 3 and others of his village had come down to Bhootanahosur village and there, they saw the body of the deceased having been kept in front of the house of the accused and the accused being not present in their house. He further claims thereafter, they made enquires as to how the deceased died, but they did not get any information and later, he proceeded to Mandya Rural Police Station and filed his complaint as per Ex.P1 before PW10, PSI. In the first place in his complaint Ex.P1, he has not taken out the name of accused No.5. Though he claims that he filed the complaint before the Police at 10:45 P.M, the evidence on record reveals the Police were at 19 Bhootanahosur village by the time PW2 and others came to the village on the date of occurrence. If according to PW2 who is none other than the mother of the deceased, the Police were in Bhootanahosur village and they had made enquiries, as per her version, Ex.P1 having come into existence at a later point of time, would go to show that much water must have flown under the bridge to implicate the accused which is further fortified in the absence of mentioning the name of Accused No.5 also in the complaint. The evidence of PW1 reveals which is also the evidence of PW2 that, within four days after the marriage, the accused subjected the deceased to cruelty and harassment and they pacified the deceased and sent back to her matrimonial home and again within about four days thereafter, the deceased was sent back to her native place, directing her to bring silver plate and silver Chombu. At that juncture, she had been assaulted and injuries had been caused on her person. That was 20 noticed by PW2 and PW5, but the evidence of PW2 does not reveal that she had informed the same to her sons, PWs 1 & 3. The evidence of PWs 1 & 3 does not reveal that when the deceased had come down to their place, she had sustained any injuries on her person. The evidence of these witnesses discloses, the alleged demand for silver plate and silver Chombu was within a week after the marriage. But Ex.P1 which has been filed on the very day of the occurrence discloses that it was a month after the marriage the accused had subjected the deceased to cruelty and harassment on the ground for demand for the silver plate and silver Chombu. This goes to show that the alleged demand made by the accused goes a long way. Apart from this, according to the prosecution, accused No.1 had been given MO1, motor cycle at the time of marriage as dowry. The evidence on record reveals the motor cycle had been purchased prior to the marriage and it stood in the name of PW1. The same has been seized under 21 Ex.P2 from one Shivakumar and has been handed over to PW1, who in turn, has executed a receipt for having received the said motor cycle. There is no evidence on record to show that the motor cycle had been bought in the name of Accused No.1 for being given to him. The material on record reveals that PW1 had sold it in favour of one Shivakumar and from him it has been seized and returned to PW1. Therefore it is difficult to accept the case of the prosecution as projected through these witnesses that the motor cycle, MO1 had been given as dowry at the time of marriage. Further, it is also the prosecution case that MOs 2 to 5, the gold jewellery and silver plate and silver Chombu had been given as dowry. There is no clinching evidence on record to show that these Material Objects, MOs. 2 to 5 had been seized either in the house of the accused or at their instance from any place. On the other hand, we have the receipt, Ex.P3, which discloses that PW1 has received MOs 2 to 5 in the presence of the panchas at 22 the Police Station. However, from where these MOs 2 to 5 were seized by the Police, there is no evidence on record. In the absence of this, it is difficult to believe the testimony of all these witnesses that the motor cycle, gold jewellery, silver plate and silver Chombu had been given as dowry to the accused. Insofar as the amount of `20,000/- is concerned, it is only the testimony of PWs 1 and 2. PW2 claims that after the accused made the demand for the cash of `20,000/-, the same was collected from her grandmother and was paid to the accused. But, we do not have any clinching material to establish the same. Further PW1 in his evidence has stated that when deceased was coming to the shop at Mandya, PW1 was giving money to her. At that time, she has not complained about any ill- treatment.
19. In that view of the matter, we find it very difficult to accept the case of the prosecution as 23 projected through these witnesses that the accused had demanded and accepted the dowry and in that connection, they had subjected the deceased to cruelty and harassment. Reiterating again, the version of PW1 does not inspire confidence because the evidence of PW2 discloses that the Police were in the village by the time PW1 came to the village as claimed by him, on the other hand, we have the evidence on record namely that of PW2 to show that this PW1 came to Bhootanahosur village after learning about the death of the deceased in a Tempo along with PW2 and other villagers and thereafter, he returned to his village in the same Tempo. As the evidence of PW2 reveals that the Police were present in the village and they also made enquiries about the death of the deceased and that information which was earlier in point of time has been suppressed, the complaint, Ex.P1 having been filed at about 10:45 P.M before PW10, would go to show that it has seen the light of the day after much water has flown under the 24 bridge. Apart from this, the other relevant material is, all these witnesses who have been examined by the prosecution to show that the accused had subjected the deceased to cruelty and harassment both physically and mentally, have come out with their version before PW11, the Investigating Officer after she has taken over the investigation on 05-01-2000 nearly about 24 days after the occurrence.
20. In the light of what we have adverted to above, namely the enquiry that was made by the Police at Bhootanahosur village before filing of the complaint and as the alleged demand for dowry is also not proved through clinching and reliable evidence, having regard to the delay in these witnesses coming out with the alleged demand for dowry, we find it difficult to accept the testimony of these witnesses. The learned Trial Judge, on an appreciation of the entire material on record, in our view, has come to the right conclusion in 25 holding that the prosecution has failed to establish the charges. The said finding having been based on evidence, in our view does not suffer from any infirmity calling for interference in this appeal. Accordingly, we find no merit in the appeal and it is dismissed.
SD/-
JUDGE SD/-
JUDGE BMV*/RA