Karnataka High Court
K M Prakash vs State Of Karnataka on 16 December, 2016
Equivalent citations: 2017 (1) AKR 556
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.1156 OF 2005
BETWEEN:
1. K.M.Prakash,
Son of Muddanaika,
Aged about 26 years,
2. Muddanaika,
Son of Late Kullanaika,
Aged about 50 years,
3. Sharadamma,
Wife of Muddanaika,
Aged about 50 years,
4. Vasanthakumar,
Son of Muddanaika,
Aged about 24 years,
The appellants 1 to 4 are
Residents of Berya Village,
K.R.Nagar Taluk,
Mysore District.
2
...APPELLANTS
(By Shri M.S.Rajendra Prasad, Senior Advocate for
Smt. Navya L., Advocate)
AND:
State of Karnataka by
Saligrama Police.
...RESPONDENT
(By Shri K.R.Keshav Murthy, State Public Prosecutor-II)
This Criminal Appeal filed under Section 374 of the code
of Criminal Procedure, 1973, by the advocate for the appellants
against the judgment dated 13.6.2005 passed by the III
Additional Sessions Judge, Mysore in S.C.No.21/2000,
convicting the appellants/accused Nos.1 to 4 for the offences
punishable under Sections 498-A, 304-B of IPC and Sections 3
and 6 of the Dowry Prohibition Act and sentencing them to
undergo Rigorous Imprisonment for 7 years for the offence
punishable under Section 304-B (2) IPC and sentencing them to
undergo R.I. for 2 years and to pay fine of Rs.5000/- each I.D.,
to undergo R.I. for one month for the offence punishable under
Section 498-A of IPC and sentencing them to undergo R.I. for 5
years and fine of Rs.15,000/- each I.D., to undergo R.I. for 3
months for the offence punishable under Section 3 of D.P.Act
and sentencing them to undergo R.I. for 1year and to pay fine
of Rs.5000/- each I.D., to undergo R.I. for one month for the
offence punishable under Section 6 of D.P.Act. Substantive
sentence for all offences shall run concurrently and sentence in
default of fine for each offence shall run separately.
This Criminal Appeal having been heard and reserved on
21.11.2016 and coming on for pronouncement of Orders this
day, the Court delivered the following:-
3
JUDGMENT
Heard the learned Counsel for the appellants and the learned State Public Prosecutor.
2. The material facts of the prosecution discloses that :
Vishalakshi (the deceased), was married to accused No.1, Prakash, about 10 months prior to the incident. Accused No.2 is the father-in-law, accused no.3 is the mother-in-law and accused no.4 is the brother-in-law of the deceased. PW.10 and PW.15 proposed the marriage of accused no. 1 with Vishalakshi and a month prior to the wedding PW.10, PW.14 and PW.15 met accused no. 1 along with his family. Prakash's family demanded dowry of Rs. 2 lakh, a motor cycle, 200 grams of gold for the bride, in addition to a gold ring, gold chain and wedding clothes. It was finally agreed that Rs. 50,000/- along with a motor bike and 175 grams of gold would be given as dowry and the same was claimed to have been given on the day of engagement. After the marriage the deceased lived in her 4 matrimonial house with her husband, mother-in-law and father- in-law. It was alleged that her days of a happy marriage were short lived and lasted only for a period of 3 to 4 months after marriage.
The deceased was then subjected to cruelty and mental harassment by her mother-in-law, father-in-law and brother-in- law as she did not bring more dowry and thus she was not treated well. Her husband however took good care of her and even told her he would take her to a new home and look after her. The husband and wife would visit her mother's house on occasions and spend a few days, but this again was short-lived. The deceased suffered a miscarriage and the same was informed to the deceased's family only on the day she was in the hospital for treatment for the same. The family of the deceased was asked not to telephone the house of the accused as they did not want to maintain any familiarity. 5
Ten months after the marriage, unable to bear the verbal abuses and mental harassment of her mother-in-law, the deceased is said to have poured kerosene on herself and set herself ablaze at around 11a.m. It was alleged that the mother- in-law, father-in-law, brother-in-law and husband of the deceased were all present in the house at this time and on hearing her screams, Prakash is said to have sought to provide aid with a blanket wrapped around her in an attempt to put out the fire and save her. She was then said to have been rushed to K.R. Nagar Hospital, where she received primary first aid for first and second degree burns and then she was shifted to B.M. Hospital in Mysore.
On the first day of admission to the hospital (i.e. 1/4/99) the police took an oral complaint between 2:45 and 3:15 recorded as Ex.P36 and registered a case against Sharadamma and Vasanthkumar, accused no. 3 and 4, respectively, for an offence punishable under section 498-A of the Indian Penal Code,1860 (Hereinafter referred to as "the IPC"). The next day 6 (i.e. 2/4/1999) the Tahsildar visited the deceased in the hospital and took the dying declaration after getting clearance from the duty doctor that she was fit to make such statements and is recorded as Ex.P6 along with the statements of the Doctor as PW.21 stating that he was present and she was fit to give such statements.
The deceased had stated that she had set herself ablaze due to the verbal abuses and mental harassment she was subjected to by her mother-in-law and brother-in-law for more dowry.
She had succumbed to her injuries on the third day (3.4.1999). On receipt of information of the death, the assistant Sub-Inspector, Saligrama Police Station is said to have registered a separate case against accuse nos.2 to 4 for offences punishable under Section 498-A and 304-B read with Section 34 of the IPC. After further investigation and other proceedings, a charge sheet was filed against Prakash, accused no.1, 7 Muddanaika and Sharadamma, accused no. 2 and 3, his parents, Vasanthkumar and K.M.Savithri, accused nos.4 and 5, his brother and sister and Bommanayanaika, accused no.6, his brother-in-law, for offences punishable under Sections 498-A, 302, 304-B, read with Section 34 of the IPC and Sections 3,4 and 6 of the Dowry Prohibition Act, 1961.
The accused has pleaded not guilty and claimed to be tried. They stood trial and accused nos.1 to 4 were convicted and sentenced to rigorous imprisonment for seven years for the offence punishable under Section 304-B of the IPC and were also convicted under Section 498-A of the IPC as well as for the offences punishable under Sections 3 and 6 of the Dowry Prohibition Act for lesser periods of sentence. The sentences were to run concurrently.
In an appeal to this Court accused no.1, accused no. 2 and accused no. 4 were acquitted and only accused no.3 has been held guilty under S. 498-A of the IPC and was sentenced 8 to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.50,000/-. The matter was taken in appeal to the Supreme Court where it was held that the judgement of this Court was cryptic in nature and did not disclose proper reasoning nor did it take into consideration the evidence on record and thus the Apex Court has remanded the matter. This Court is required to reconsider the case only in respect of accused no.3 Sharadamma, the mother-in-law of the deceased.
3. There are two main questions that arise before this court and that is :
a) Whether the prosecution has proved beyond reasonable doubt that accused no.3 is the cause of the deceased committing self immolation ?
b) Whether the mental harassment and torture as stated by the deceased and others amounts to cruelty under Section 498-A of the IPC ?9
4. To answer the first question this Court has taken notice of the Dying Declaration of the deceased as seen in Ex.P6. There was a statement taken by the police constable on the day the deceased was admitted to the hospital (Ex.P36), which is the oral complaint where she stated that she burnt herself due to the unbearable circumstances of verbal abuse by her mother-in-law. The next day in her dying declaration to the Tahsildar she clearly states that she was mentally harassed and only her husband took care of her and was nice to her. She states that at times she has even gone without food.
A dying declaration is a statement made by a person who is dead; as to cause of his or her death or as to any circumstances of transaction which resulted in his death, in case in which his death comes into question, such statements are relevant under Section 32 of the Indian Evidence Act, whether the person who made them was or was not, at the time when they were made under expectation of death and whatever may 10 be the nature of proceeding in which the cause of his death comes into question.
The Apex Court in Uka Ram v. State of Rajasthan, AIR 1988 SC 1850, pointed out the basic ground why generally a dying declaration is true; because of "NEMO MORITURUS PROESMITUR MENSIRE" i.e. a man will not meet his maker with a lie in his mouth. Why should he deceive the world by telling a lie when he cannot reap the benefits of his lies. Thus the dying declarations are admitted on the general principle that they are made in the extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to speak falsehood is silence, and the mind is induced by the most powerful consideration to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a court of justice. 11
5. The question now arises as to who can take a dying declaration and who can approve of the fit state of mind of the deceased and how many dying declarations can be made?
With respect to these questions the Supreme Court in the case of Khushal Rao vs. State of Bombay, AIR 1958 SC 22, laid down certain guidelines for the reliability of a dying declaration. In May 2013 in another judgement of State of M.P. vs. Dal Singh (2013) 14 SCC 159, the Supreme Court held that one need not be a police officer or a doctor or a magistrate to take a dying declaration and this has been found to be true in law. The bench held that the only caveat is that the person recording the dying declaration must be sure that the one making the statement was in a proper mental condition to do so.
The court also held that "the person who records a dying declaration must be satisfied that the maker is in a fair state of mind and is capable of making such a statement and this is left to the discretion of the individual recording the statement and a doctor's certificate about the dying man's mental condition was 12 not necessary to make the dying declaration acceptable as evidence.
In this case there were two dying declarations; the one given to the Magistrate will take precedence. The Court also finds that there are no contradictions in the two dying declarations, both state that the mother-in-law has harassed the deceased and tortured her as she did not bring more dowry and therefore she was forced to end her life by setting herself ablaze. Therefore the argument that there was no certificate to ascertain the fit state of mind of the deceased will not be of significance. Thus the dying declaration is unimpeachable evidence against the mother-in-law as was seen in the case of Smt. Kamala v. State of Punjab, AIR 1993 SC 374, where the apex Court held that:
"It is well settled that the dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests vide Kushal Rao v. State of Bombay, 1958 SCR 552".13
The prosecution has also relied on the statements of PW.1 and PW.5 which fortify the fact that Prakash had requested the deceased not to blame his family and irrespective of how she looks he will take care of her, when they were taking Vishalakshi from K.R.Nagar Hospital to B.M. Hospital. In addition to this the deceased in Ex.P10, which is the wound certificate of the deceased, has again stated that it was she who poured kerosene on herself and set herself on fire due to the verbal abuse by the mother-in-law. The prosecution has thus proven that the mother-in-law of the deceased had mentally harassed and tortured her and was the reason behind the deceased setting herself ablaze.
With respect to the statement made by the deceased that the mother-in-law did not come to her rescue when she set herself ablaze, it is seen that the appellants have stated that the dying declaration must not be relied upon since the wound certificate of accused no. 3 in Ex.P14 states that she says she 14 had received burns while trying to rescue her daughter-in-law. Since there is no other evidence of this and the dying declaration of the deceased is considered to be credible by this Court, this argument is of no avail.
The statements of PW.10 and PW.15, that the father of accused no.1 did not ask for any gold or money and that it was enough if the marriage functions were taken care of and they further circumstance that they pleaded ignorance whether any gold ring and wedding clothes were given as per PW.10 and PW.15, is contrary to the evidence of seem to be contradictory to that stated by PW.1, PW.3, PW.4, PW.5 and PW.14. The material evidence of the purchase of the motor cycle and the evidence of PW.14 is acceptable. Hence the evidence of PW.10 and PW.15 are not reliable.
The evidence of PW.16 (a neighbour) to the effect that she never saw the deceased upset and had never heard or seen any fights between the deceased and her in-laws. However, in 15 this situation again it is the word of the deceased against the word of the neighbour. In the case of Surinder Singh vs. State of Haryana, (2014) 4 SCC 129, the Court held that it is hard to find a witness as to intimate family inter- actions, as the only witnesses are the inmates of the house and may be the relatives of the family who cause the cruelty. Therefore the statement of the neighbour even if true, cannot be assumed that nothing happened within the four walls of the house of the deceased and that she was not ill-treated.
In addition to this, it is the evidence of Nagrathna, a sister of the deceased that on 1.4.1999 when she had telephoned the deceased, she is said to have received the call and within a few seconds she could hear the voice of accused no.3 and accused no.4 abusing the deceased and when asked what the matter was, she is said to have stated that she would not say anything and to find out for herself and then the call was said to have been abruptly disconnected.
16
All these factors with the most importance being given to the dying declaration would indicate and prove beyond reasonable doubt that it was the mother-in-law who was responsible for the deceased having taken the extreme step of killing herself.
6. With regard to the second question, this Court has looked at what are the acts of the mother-in-law that could constitute an offence under Section 498A of the IPC.
Section 498-A reads as follows :
"Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. - For the purpose of this section, "cruelty" means -
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 17
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
It is evident through the statements of PW.1, PW.3 to 5 and PW.14 that there was a demand for dowry and that this was negotiated and finally handed over to the A1's family. After this it is seen that the deceased was harassed for more dowry by accused no.3 and this is evident through the evidence of PW.1 and the deceased that she was harassed and beaten for not fetching more dowry.
In the dying declaration as well as in the wound certificate the deceased has stated that she committed such an act due to the mental harassment, torture and verbal abuse she was subject to by accused no.3. In the dying declaration the deceased has not specifically mentioned what exactly was the 18 harassment and torture that she was subjected to. But it is well settled in a catena of cases that the degree of cruelty can vary and what may seem as cruelty to one person may not appear as cruelty to another. However, in this case with respect to Explanation (a) and (b) to Section 498-A of the IPC and the evidence that she was constantly asked for money and for not complying with the same that she was harassed, would certainly amount to cruelty by accused no. 3.
PW.4 in her evidence has stated that when she had telephoned the house of A1 to know if the deceased had returned from the house of A5 and A6, Vishalakshi had received the call and within few seconds she could hear accused no. 3 and accused no. 4 abusing her and the call was disconnected. The question now arises as to whether verbally abusing a person can amount to cruelty. The reason for accused no. 3 and accused no. 4 abusing the deceased is not known and the question here is whether mere yelling can be considered as cruelty or not? This brings into question the statement made by 19 the deceased in her wound certificate in which she states that the verbal abuse by accused no.3 is what led her to set herself ablaze.
Further, PW.1 has clearly stated that when her daughter had come to visit her she stated that she was being troubled by everyone in her matrimonial house and they demanded one lakh rupees or gold jewellery. PW.1 also has stated that her daughter said that they would use small issues to pick up fights with her everyday and beat her. In the case of Surinder Singh vs. State of Haryana, (2014) 4 SCC 129, the Apex Court held that it is hard to get witnesses as the only ones are the inmates of the house who cause the cruelty. Servants being under their obligation will not depose against them and so who else will depose except the parents or relatives of the deceased.
Based on the above lines this Court takes the words of PW.1 as reliable and holds that there has been an illegal demand for dowry even after the marriage and non-compliance 20 with this has led to the deceased being a victim of harassment by accused no.3. Thus this Court is of the opinion that there has been a demand for dowry based on which the deceased has been harassed.
Since it has been proven that there was a demand for more money by accused no. 3 and this is clearly reiterated in the statement of the deceased in her dying declaration (Ex.P6) it can be said that she was subject to cruelty by her mother-in-law, accused no. 3.
With respect to the case judgement of Bhagirathi vs. State of Madhya Pradesh, (1976) 1 SCC 20, as produced by the appellants, the Apex Court held that:
"15. It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis."21
In this case the prosecution has shown through the evidence of the family of the deceased and through the dying declaration, the oral complaint as well as the wound certificate that there has been a demand for dowry by accused no. 3 and due to non compliance by the deceased she was subject to harassment that amounts to cruelty under S. 498-A of the IPC. Further in the case of Bhagirath vs. State of Madhya Pradesh, (1976) 1 SCC 20, the Apex Court held that :
"18. When the substratum of the evidence given by the eyewitnesses examined by the prosecution was found to be false, the only prudent course, in the prosecution case in its entirety against all the accused."
In the facts of the case in the above judgement since, the evidence of the prosecution witnesses had not proved the charges and was found to be false and misleading, the Court had taken the above view.
22
7. In light of above reasons, this Court finds that accused no. 3 is guilty of the offence of cruelty under Section 498-A of the IPC. However, since the degree of cruelty or harassment, has not been proved to be of such a degree of depravity as would warrant the maximum punishment, accused no.3 is sentenced to undergo rigorous imprisonment for a period of 3 months and to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for a period of one month.
This appeal is allowed in part.
Sd/-
JUDGE