Karnataka High Court
State Of Karnataka vs Balaji (A.1) on 16 July, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 16th day of July, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE B V PINTO
Criminal Appeal No 55 of 2007 (DB-A)
BETWEEN:
STATE OF KARNATAKA
BY CHANDRA POLICE STATION
BANGALORE ... APPELLANT
[By P M Nawaz, Addl. SPP]
AND:
BALAJI (A.1)
S/O GOPALAKRISHNA
AGED ABOUT 27 YEARS
C/O MUDALAPPA
NEAR SOLLAPURADAMMA TEMPLE
NAYANDAHALLI, MYSORE ROAD
BANGALORE ... RESPONDENT
[By Sri B R Vishwanath, Adv.]
THIS CRIMINAL APPEAL FILED UNDER SECTIONS 378[1] & (3)
OF CODE OF CRIMINAL PROCEDURE, AGAINST THE JUDGMENT
DATED 24.08.2006, PASSED BY THE SESSIONS JUDGE, FAST
TRACK COURT-VII, BANGALORE IN SC NO 853 OF 2005,
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 304(B), 306 AND 498(A) OF IPC
AND UNDER SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT
AND ETC.,
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THIS APPEAL COMING ON FOR HEARING, THIS DAY, B.V.
PINTO, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the state under Section 378(1) and (3) of Code of Criminal Procedure [CrPC], challenging the judgment and order dated 24-8-2006, passed by the Sessions Judge and Fast Track Court-VII, Bangalore city in SC No 853 of 2005, acquitting the respondent-accused of the offences punishable under Sections 304-B, 306 and 498-A IPC and Sections 3, 4 and 6 of Dowry Prohibition Act, 1961 [for short, DP Act].
2. Originally six persons including the respondent herein, who was first accused, were prosecuted for these offences. The prosecution case is that the respondent-first accused is the husband of deceased Manjula and their marriage had taken place about 6½ years prior to the date of incident. After the marriage, accused was meting out harassment and cruelty to the deceased and thereby he is alleged to have committed offence punishable under 3 Section 498-A of IPC. It is the further case of the prosecution that at the time of marriage of the deceased with the first accused-respondent on 25-5-1998, accused No 1 demanded and accepted a sum of Rs 40,000/- and Rs 60,000/- and gold ornaments, but failed to return the same to Manjula and thereby the accused are alleged to have committed an offence punishable under Sections 3, 4 and 6 of DP Act. It is the further case of the prosecution that on 22-3-2005, Manjula set herself on fire due to the cruelty meted out at her by the accused by harassing her to bring more dowry and thereby the accused are alleged to have committed offence of dowry death punishable under Section 304-B IPC. It is also the charge agaisnt the accused that the respondent-accused himself had driven Manjula on 22-3-2005 to commit suicide and thereby he is alleged to have abetted the commission of suicide by the deceased and therefore he is liable for punishment under Section 306 IPC.
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3. In order to prove its case, the prosecution has examined in all 16 witnesses and got marked 12 documents and produced 7 material objects. The defence of the accused was one of total denial. However, by the impugned judgment, the learned sessions judge found all the accused not guilty and acquitted them of the offences. The state has preferred this appeal against the respondent, who was the first accused in the sessions case.
4. Heard Sri P M Nawaz, learned Addl. SPP, appearing on behalf of the appellant-state and Sri B R Vishwanath, learned counsel for the respondent.
5. Learned Addl. SPP submits that the prosecution case is based on the dying declaration recorded by the PW11 - PSI - and attested by PW16 - doctor in the Victoria hospital. It is submitted by the learned Addl SPP that the dying declaration said to have been recorded from the mouth of the deceased Manjula clearly indicates that the deceased was subjected to cruelty in terms of harassment for the 5 purpose of bringing money from her parents' house and that respondent-accused was pinpricking the victim, as mentioned in the dying declaration itself.
6. While learned Addl SPP fairly conceded that there is no evidence for conviction of the respondent-accused for the offences punishable under Sections 304-B and 306 IPC, he restricts the submissions only for the offence punishable under Section 498-A of IPC. He has invited our attention to evidence of PW5 - Loknath - father of deceased, PW8 - Rajeswhari - mother of the deceased and PW10 - Rajagopal
- uncle of the deceased and so also evidence of PW13 - Moodalappa - owner of the house in which the deceased was separately staying with the respondent-accused. It is submitted by him that the deceased had suffered only 70% burn injuries and that PW16 doctor had certified that she was in a position to give statement and that she was conscious at that time when PW11 E R Ranganath - PSI - came for recording her statement. Under the 6 circumstances, it is submitted by the learned Addl. SPP that the prosecution has clearly made out a case for offence punishable under Section 498-A IPC against the respondent-accused and submits that the appeal may be allowed to that extent.
7. Sri B R Vishwanath, learned counsel for the respondent-accused, on the other hand, submits that PW16 has categorically admitted that he was not present while recording the statement of the deceased by PW11 and that itself indicates that the statement as recorded by PW11 cannot be the sole basis for convicting the respondent-accused. It is submitted that there were extensive burn injuries on the body of deceased at the time she was admitted to Victoria hospital and therefore the statement recorded by PW11 cannot be accepted as gospel truth. He further submitted that there is no other corroborative evidence to the version of PW11, who has recorded the dying declaration of the deceased and that 7 under the circumstances, it may not be safe to rely on the dying declaration alone to convict the accused in the absence of any other circumstantial and corroborating evidence and therefore he submits that the appeal may be dismissed.
8. The incident has taken place on 22-3-2005 and the deceased Manjula was taken to Victoria hospital at about 6.15 pm. PW11 - PSI of Chandra Layout police station - has recorded the statement of deceased. In her statement, deceased has stated that she was living with her husband for the last four years and that she has been working as a housemaid; that they have got two children - one male and one female and their marriage had taken place about six years prior to that date of statement, in a marriage hall situated in front of V V Puram college at Bangalore; that for about 2 to 3 years herself and the accused were living separately and thereafter they started to live together at the present address for the past two years; that her husband 8 was doing electric works and they were living in a rented house. It is further stated by the deceased in her dying declaration that her husband was ill-treating her and was quarrelling with her and was also assaulting her for one reason or the other; that he was not going to work regularly and was not giving proper food and if questioned, he would assault her and also used to come to home drinking and quarrel with her; that on the day of incident at about 2.00 pm, her husband came to the house and quarrelled with her and assaulted her; that due to this, she poured kerosene herself on her body and set fire and she sustained injuries on her person; that her husband came to extinguish the fire and at that time he also sustained burn injury on his hand; that thereafter her husband and one Moodalappa took her to Victoria hospital for treatment and she was admitted to hospital.
9. Based on the aforesaid statement, police registered a case in Crime No 66 of 2005 for the offences punishable 9 under Sections 498-A and 309 IPC and investigation commenced. The deceased succumbed to the injuries thereafter and due to this the case was registered for offence punishable under Section 304-B IPC also and on further investigation, charge sheet was filed by adding Sections 3, 4 and 6 of DP Act in addition to the aforesaid offences.
10. Accused pleaded not guilty of the charges framed against them.
11. During the trial, out of 16 witnesses examined, PW5 and 8 - parents of the deceased - have categorically spoken regarding the ill-treatment given by the accused to the deceased after the marriage. PW5 has categorically stated before the court that his daughter was asking for money on the ground that her husband - accused - was interested in setting up a shop and for that purpose he required a sum of Rs 5,000/- and the said amount was given. This witness further deposed that, the accused has not set up 10 any shop and thereafter also, he assisted the accused by giving money and also meeting the expenses for the livelihood of deceased. He has secured a house for rent and this witness was paying the rent for the said house. He has stated that his brother's name is Rajagopal, whose house was secured for his daughter and son-in-law. However, the accused was not looking after his daughter well and he was pestering her to go to her parents' house for securing money. This witness further deposed that out of the Rs 5,000/- given as advance to the house, the owner has returned only Rs 2,000/- and thereafter he had paid a sum of Rs 25,000/- and secured another house on mortgage basis. He also gave the said amount. It is also in the evidence of PW5 that the accused always was assaulting the deceased and was giving ill-treatment to her. He has further stated that he was advising the accused often, but the accused continued the act of ill-treatment. 11
12. As against this evidence of PW5, learned defence counsel cross-examined this witness, suggesting that the deceased was not interested to marry the accused and that the marriage was a forcible one. However, said suggestion has been denied by PW5. It was also suggested that quarrel took place because of his daughter i.e. the deceased being not interested in leading matrimonial life with the accused and therefore in this connection, the deceased was picking up quarrel with the accused and not vice versa. However, this suggestion was also denied by PW5.
13. PW8 is the mother of the deceased. She has also reiterated the version deposed by her husband PW5 regarding the harassment meted out to the deceased by the accused and also demand for money after the marriage and the consequence of the ill-treatment by the accused to the deceased. It is also come in the evidence of PW8 that often money was given to the family of the deceased and accused for their livelihood since the accused was not looking after 12 the family properly and was quarrelling with the deceased always.
14. It was also suggested to PW8 that the deceased was not interested to marry the accused and therefore there was quarrel between them. However, the said suggestion has been denied.
15. PW13 - Moodalappa - is the owner of the house in which the accused and the deceased were residing independently. In the evidence of PW13 also, who is an independent witness, it is stated that the accused was coming drunk to the house and was quarrelling with the deceased and that he was not bringing anything for food, but was ill-treating the deceased. He further stated that he questioned the accused as to why he was coming in drunken condition daily and harassing the deceased. However, the accused did not stop harassment of deceased. 13
16. In the cross-examination of PW13, it was suggested that he was deposing falsely, but there is no effective cross- examination of this witness to shake his evidence regarding ill-treatment and harassment meted out to the deceased.
17. From the evidence of all these three witnesses, it is clear that the accused was coming drunk to the house and was ill-treating his wife-deceased and was also not bringing proper food by working. This fact is also found in the dying declaration of the deceased. Therefore, in our opinion, the version found in the dying declaration of the deceased is corroborated by the evidence of PWs 5 and 8, who are parents and also the independent witness PW13. The fact that the deceased sustained burn injuries is not in dispute. Nor the death of deceased due to sustaining of burn injuries is in dispute.
18. We are conscious of the fact that in an appeal against acquittal, the yardstick to be applied is that it is only in rare cases, an order of acquittal has to be converted into 14 one of conviction. If there are two views possible, no interference should be made by the appellate court in so far as the acquittal is concerned. However, in this case, having regard to the clear and cogent evidence of PWs5, 8, 10, 11 and 13, corroborated by the dying declaration of the deceased, we are of the opinion that the prosecution has made out a case for the offence punishable under clause-(a) of Section 498-A IPC in respect of ill-treatment or meting out harassment to the deceased so as to drive her to commit suicide. However, the finding of the trial court in so far as acquittal for the offences punishable under Section 304-B and 306 IPC and so also the offences punishable under Sections 3, 4 and 6 of DP Act does not deserve to be reversed in this appeal.
19. In so far as the sentence is concerned, it is brought to our notice that the accused was in custody for about two months from the date of his arrest and that he has got two children and they were being looked after by PW5 - their 15 grandfather. No useful purpose would be served in sending the accused to jail after lapse of seven years from the date of incident. However, the accused is duty bound to look after his children and therefore he should compensate for the act committed by him. Hence, we pass the following:
ORDER Appeal filed by the state is hereby allowed in part. The order of acquittal passed by the trial court for the offence punishable under Section 498-A IPC is hereby set aside and the accused is convicted for the said offence and he is directed to undergo imprisonment for the period for which he was in custody as an under-trial prisoner and also to pay a fine of Rs 20,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of six months. The entire amount of Rs 20,000/- shall be deposited in the names of two children in equal ratio and shall remain so till they attain majority and PW5 is permitted to receive interest thereon and spend it for the 16 betterment of the children. The order of acquittal passed against the accused for the offences punishable under Sections 304-B, 306 IPC and Sections 3, 4 and 6 of DP Act is hereby confirmed.
The accused shall deposit the fine amount before the trial court within two months from today, failing which, the trial court is directed to execute the default sentence as directed above.
Sd/-
JUDGE Sd/-
JUDGE *pjk