Karnataka High Court
Smt Hulluramma W/O Late Rangappa vs The State Of Karnataka on 23 July, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL NO. 2345/2005 (C)
C/W CRIMINAL APPEAL NO. 260/2006(C)
IN CRIMINAL APPEAL NO. 2345/2005(C)
BETWEEN:
Smt. Hulluramma,
Wife of late Rangappa,
Aged about 75 years,
Residing at Kerepalya Village,
Sompura Hobli,
Nelamanagala
(now in Judicial custody) ... Appellant
[By Sri P.M. Siddamallappa for Mylaraiah Assts.,
Advocate]
AND :
The State of Karnataka by
Dabaspet Police Station,
Nelamangala Taluk,
Bangalore Rural District. ... Respondent
[By Sri G.M. Srinivasa Reddy, HCGP]
This Criminal Appeal is filed under section 374(2)
Cr.P.C. against the Judgment dated 25.11.2005 passed
by the P.O., F.T.C - II Bangalore Rural District,
Bangalore in S.C. No. 156/2005. Convicting the
Appellant/ Accused No.2 for the offence P/U/S. 498-A
and 304-B of IPC and Sections 3, 4 & 6 of D.P. Act and
sentencing him for the aforesaid offences etc.,
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IN CRIMINAL APPEAL NO. 260/2006
BETWEEN:
Sri. Venkataramanaiah
Wife of Late Rangappa,
Aged about 29 years,
Residing at Kerepalya Village,
Sompura Hobli,
Nelamangala
(now in Judicial custody) ... Appellant
[By Sri P.M. Siddamallappa for Mylaraiah Assts.,
Advocate]
AND :
The State of Karnataka by
Dabaspet Police Station,
Nelamangala Taluk,
Bangalore Rural District. ... Respondent
[By Sri G.M. Srinivasa Reddy, HCGP]
This Criminal Appeal is filed under section 374(2)
Cr.P.C. against the Judgment dated 26.11.2005 passed
by the P.O., F.T.C-II Bangalore Rural District, Bangalore
in S.C. No. 156/2005. Convicting the
Appellant/Accused No.1 for the offence P/U/S. 498-A
and 304-B of IPC and under Sections 3, 4 & 6 of
D.P. Act and sentencing him for the aforesaid offences
etc.,
These Criminal Appeals coming on for hearing this
day, the court delivered the following: -
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JUDGMENT
These appeals are by the two accused persons in S.C.No.156/06 before the Fast Track Court-II, Bangalore and they are directed against the judgment of conviction and order of sentence dated 25.11.2005 convicting them for the offences punishable under Sections 498-A, 304-B IPC and Sections 3, 4 & 6 of the Dowry Prohibition Act and sentencing them to undergo imprisonment for various period, the maximum being for 7 years and also to pay fine for the aforesaid offences.
2. The appellant in Crl.A.No.2345/2005 Smt.Hulluramma was accused No. 2 while the appellant Venkataramanaiah in Crl.A.No.260/2006 was accused No.1. They are mother and son. The deceased in this case is Smt.Alamelamma, daughter of PW.1-Rajanna and PW.3-Nanjamma. During the course of the judgment, I shall refer the parties herein with reference to their rankings in the trial Court.
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3. The case of the prosecution in brief is as under: -
The marriage of deceased with accused No.1 was solemnized on 7.3.2001. Before and at the time of marriage, the accused had demanded and accepted dowry of Rs.1 lakh in cash and other gold ornaments. After the marriage, the deceased started living with accused Nos.1 and 2 in the matrimonial home at Korepalya village in Nelmangala Taluk. For about one year after the marriage, the couple lived happily and in the meanwhile, she became pregnant and came to her parental home for confinement. After the delivery of the first child she went back to her matrimonial home. Thereafter the accused started coercing the deceased to bring money for the purpose of doing some business as accused No.1 could not do any work. PW.1-father of the deceased paid a sum of Rs.50,000/- and after receipt of the same, for about one year the couple lived happily and in the meanwhile, the deceased became pregnant for the second time and at that time, accused No. 1 :5: started demanding the deceased to get further sum to start the business stating that the money already paid was not sufficient for starting the business. Since his demand was not met, he refused to send her to the parental home. Ultimately, she was taken to the parental home for second delivery and after the birth of the second child, the accused neither visited the deceased nor made any attempts to bring her back to the matrimonial home as a result the deceased stayed in the parental home almost for about 8 to 9 months after the birth of the second child and at that time, the deceased and her parents received some information about the attempt made by the accused No.2 to perform the second marriage of accused No.1. On receiving the said information, the deceased filed a report before the jurisdictional police pursuant to which the police secured the presence of accused and on persuasion, accused No.1 agreed to take the deceased back to the matrimonial fold along with the children and to that effect both of them executed mutual undertakings. :6: Thereafter, the deceased joined her husband in the matrimonial home some time during the last week of December 2004. About 18 days prior to 4.2.2005, PW.3-mother of the deceased and PW.8-Nagarathna a friend of the deceased have been to the matrimonial home of the deceased and at that time PW.3 gave Rs.50,000/- to accused No.1 as demanded by him and at that time the deceased was crying for the whole night and the following day also. However PWs.3 and 8 consoled her and left the matrimonial home of the deceased. On 4.2.2005, the parents of the deceased received a shocking information about their daughter having been taken to the Hospital. Immediately they came to the Hospital where they did not see their daughter and thereafter when they came to the house of the accused, they saw their loving daughter lying dead. On seeing his daughter lying dead, PW.1 lodged a report to the jurisdictional police as per Ex.P.1 based on which case came to be registered and investigation was taken up. PW.31-Taluk Executive Magistrate conducted :7: inquest over the dead body and submitted a report as per Ex.P.22. Thereafter PW.13-Doctor conducted post- mortem examination on the dead body and submitted a report as per Ex.P.13. During post-mortem examination, the Doctor preserved the viscera and sent the same for chemical examination. On receipt of the chemical examination report, the Doctor opined that the cause of death of the deceased was due to Organochloro insecticide poison. During the investigation, the Investigating Officer recorded the statements of the witnesses, collected all the necessary documents, apprehended the accused persons and after completing the investigation laid the charge sheet against accused Nos.1 and 2 for the offence punishable under Section 498-A and 304-B and Sections 3, 4 & 6 of the D.P. Act.
4. On committal of the case to the Court of Sessions, the accused appeared before the Court and pleaded not guilty for the charges levelled against them and claimed to be tried. During the trial, the prosecution examined PWs.1 to 32 and relied on :8: documentary evidence Exs.P.1 to 37 and also the material objects marked as per M.Os.1 to 11. During their examination under Section 313 Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them in the evidence of prosecution witnesses. However they did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication. According to them, at no point of time they had made any demand for dowry nor accepted any dowry either in cash or in kind.
5. It was their further defence that at no point of time they subjected the deceased to cruelty or harassment either in relation to demand for dowry or otherwise. According to them, the deceased had a love affair with one Prasanna Kumar, a Bus Conductor and since her parents did not agree for her marriage with the said Prasanna Kumar, her marriage with accused No.1 was not to her liking and even after the marriage, the deceased had failed to perform and fulfill her marital :9: obligations, since she was frequently visiting her parental home and was staying there for several months continuously and ultimately when her former lover committed suicide, disgusted in her life she also committed suicide. Thus, the defence of the accused was that the deceased committed suicide in the background of her former lover committing suicide.
6. After hearing both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal, convicted both the accused persons for the offences for which they were charged, holding that the prosecution has proved the guilt of the accused persons for all the charges levelled against them. The learned Sessions Judge after hearing the counsel for the accused, sentenced the accused persons for imprisonment and also to pay fine. Aggrieved by the said judgment of conviction and order of sentence, accused Nos.1 and 2 are in appeal before this Court.
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7. I have heard Shri P.M.Siddamalappa, learned counsel appearing for the appellants in both the appeals and Shri Sreenivasa Reddy, learned Government Pleader appearing for the respondent - State. I have perused the records secured from the Trial Court.
8. The learned counsel for the appellants contended that the judgment under appeal is highly perverse and illegal in as much as the learned Sessions Judge has gone beyond the purview of the complaint - Ex.P-1. It is his submission that though in Ex.P-1 there was no allegation of demand of dowry or its payment and acceptance and though there was no allegation of the accused coercing the deceased for getting money as further dowry, the learned Sessions Judge has proceeded to accept the evidence of the parents and other relatives of the deceased with regard to the alleged demand and acceptance of dowry which are clearly improvements made by the witnesses during the course of the trial. Therefore, the learned counsel contended : 11 : that in view of this inconsistency, the Trial Court ought not to have believed the oral testimony of the close relatives of the deceased to hold the appellants guilty of the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. He further contended that the death of the deceased as dowry death cannot be presumed and the prosecution has to prove the same by acceptable evidence. It is his further submission that even if the evidence of the material witnesses who are close relatives of the deceased with regard to the alleged demand for money is accepted, it would not in anyway indicate that the said demand was as further dowry. It is his further submission that the evidence regarding demand for further dowry and its acceptance are also clear improvement made by the witnesses and there is no acceptable evidence to establish that any of the accused had demanded any money as further dowry and that the accused persons had subjected the deceased to any kind of cruelty or harassment in connection with the demand of dowry. Therefore, the : 12 : Court below is not justified in holding that the death of the deceased was dowry death. The learned counsel further contended that though the death of the deceased had occurred within seven years from the date of marriage and that her death was otherwise than under normal circumstances, in the absence of any acceptable evidence placed by the prosecution to show that the deceased had been subjected to any kind of cruelty or harassment in connection with demand for dowry, the presumption under Section 113B of the Indian Evidence Act cannot be drawn, as such the prosecution has failed to prove the death of the deceased as dowry death within the meaning of Section 304-B of the Indian Penal Code. In this regard, the learned counsel drew the attention of this Court to the evidence of paternal grandmother of the deceased namely P.W.4 - Jayamma, whose evidence according to the learned counsel, completely demolishes the case of the prosecution regarding the demand of dowry by accused and counsel, this part of the evidence has not : 13 : been considered by the Trial Court. It is his further submission that the Trial Court has committed serious error in accepting the evidence of P.W.1 and P.Ws.3 to 7, with regard to the payment of dowry prior to and at the time of the marriage and also payment of money, subsequently though the prosecution has not placed any acceptable evidence as to the financial sources for P.W.1 to pay such a huge substantial amount. He contended that the Trial Court having held that the document such as promissory note and the evidence regarding borrowal of money by P.W.1 from P.Ws.9 and 10 cannot be believed, has committed serious error in holding that the evidence of P.Ws.1 and 3 with regard to payment of money to the accused is acceptable. He further contended that the contents of complaint lodged by the deceased about two months prior to her commission of suicide as per Ex.P-11 and that of the undertaking by the deceased as per Ex.P-13, does not support the evidence regarding the alleged demand of dowry as nothing in this regard has been stated in those : 14 : documents. He further contended that if the evidence placed by the prosecution is read as a whole, it clearly indicate that for major portion of the time after the marriage, the deceased lived in the parental home and only for a short period she had lived in the matrimonial home and this indicates reluctance on the part of the deceased in performing her matrimonial obligations and therefore, she was not interested in continuing her matrimonial relations with the accused No.1, therefore, the Court below is not justified in holding that the deceased had been subjected to cruelty by the accused, as defined under Section 498-A of the Indian Penal Code. As such, the judgment of conviction recorded by the Trial Court is highly perverse and it is liable to be set aside. Alternatively, he contended that if for any reason, the Court were to hold that the deceased had committed suicide in the background of cruelty, the evidence does not indicate any role played by the accused No.2 - mother-in-law of the deceased. : 15 : Therefore, accused No.2 is entitled for an order of acquittal.
9. On the other hand, the learned Government Pleader sought to justify the judgment under appeal and contended that the death of the deceased being suicidal in the matrimonial home not being in dispute, regard being had to the evidence placed on record, the Court below is justified in holding the appellants - accused guilty of the charges levelled against them. He contended that the judgment under appeal does not suffer from any perversity or illegality as the Court below, on proper appreciation of oral and documentary evidence, has recorded finding of guilt against the accused and therefore, there are no justifiable reasons to interfere with the well reasoned judgment of the Trial Court. He contended that Ex.P-1 - complaint, lodged by P.W.1 at the earliest point of time, indicates the cruelty and harassment meted out to the deceased by the accused persons in the matrimonial home and therefore, the Court below is justified in holding the : 16 : appellants guilty of the offences alleged. He contended that the complaint Ex.P-1 cannot be expected to be an encyclopedia, containing all the minute details. Therefore, in the light of the contents of Ex.P-1, the evidence of material witnesses regarding demand of dowry prior to and subsequent to the marriage cannot be discarded. Therefore, the Trial Court is justified in holding the appellants - accused guilty of the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. He further contended that regard being had to the evidence on record, the Trial Court is justified in drawing the presumption under Section 113B of the Indian Evidence Act and since accused have not placed any acceptable evidence nor have brought out any circumstance to rebut the said presumption, the Trial Court is justified in holding that the death of the deceased was dowry death within the meaning of Section 304-B of the Indian Penal Code. Therefore, the learned Government Pleader contended that there are : 17 : no merits in these appeals and are liable to be dismissed.
10. In the facts and circumstances of the case and in the light of the submissions on both the sides, the points that arise for my consideration are: -
"1. Whether the judgment under appeal suffer from any perversity or illegality warranting interference by this Court?
2. Whether the learned Sessions Judge is justified in holding the appellants guilty of the offences for which they were charged?"
11. There is no dispute with regard to the marriage of the deceased with accused No.1 on 07.03.2001 and the deceased committing suicide on 04.02.2005 by consuming some insecticide in the matrimonial home. At the time of her death, the deceased had two children, a son aged about three years and a girl aged about one year.
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12. As noticed supra, the accused persons were charged with the offences punishable under Sections 498-A and 304-B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act. In respect of the commission of the suicide by the deceased, the criminal law was set on motion through the complaint lodged by P.W.1 as per Ex.P-1, which was lodged at about 10:00 p.m. on 04.02.2005. The allegations made in Ex.P-1 in brief are as under: -
The marriage was performed sometime during March 2001 in Manchaklkuppe. The complainant had met all the marriage expenses. At the time of the marriage, a neck chain, finger ring and cash of Rs.5,000/- towards cloths had been given to the bridegroom while a two row gold chain, a mangalya chain, a gold ring hangings etc., had been given to the bride. After the marriage, the couple lived cordially for about one year. About one year after the birth of the first child, the accused No.1 started telling the deceased that she is not in a position to do any work and : 19 : therefore, some side business will have to be commenced. Therefore, he asked her to bring money from her father and when this was told to the complainant, he gave Rs.50,000/- to his daughter and for about one year thereafter, the couple lived happily and in the meanwhile, the deceased became pregnant for the second time. When the deceased was running third or fourth month pregnancy, accused No.1 started telling that Rs.50,000/- already paid was insufficient for doing any business and therefore, asked the deceased to bring at least Rs.1,00,000/- from her father. When this was informed to the complainant by the deceased, the complainant expressing his inability to meet the said demand at that time, gave them a colour television and promised to arrange for the money after about six months. After sometime, he heard through someone about the accused subjecting the deceased to mental and physical cruelty for her not bringing money as demanded by him. Thereafter, he went to the village of the accused and held a Panchayath and thereafter, : 20 : brought his daughter to the parental home since she was pregnant. Though six months lapsed, none of the accused came to bring the deceased back to the matrimonial home and thereafter she was brought back to the matrimonial home. After couple of days, the complainant went to the house of the accused requesting them to send the deceased to the parental home for delivery and confinement. Though the accused initially refused to send the deceased to the parental home, later at the intervention of the villagers, the deceased was sent to the parental home. Thereafter, the deceased delivered a female child and even after about eight months of the birth of the second child, the accused did not visit her and during that time, the complainant and the deceased learnt about the attempt on the part of the accused No.1 to marry for the second time. In that background, the complainant along with some villagers went to the home of the accused and asked them to bring the deceased to the matrimonial home with the child. At that juncture, the accused : 21 : demanded the complainant to leave her in the matrimonial home by executing an undertaking. Thereafter, when the complainant brought his daughter and grandchild to the house of the accused, the accused persons did not allow her to enter the matrimonial home, unless she executes an undertaking. Therefore, at that juncture, however, with the intervention of the Police, she was allowed to enter the matrimonial home. Thereafter, on 04.02.2005, the complainant received a telephonic message about his daughter having been admitted to the hospital. Immediately he along with his relatives came to the hospital, since he did not find his daughter, he came to the house of the accused and there he saw his loving daughter lying dead. He has further stated that about 15 days prior to the death of the deceased, he had sent Rs.1,00,000/- through his wife and though the accused received the said money and he was not satisfied with that money and insisted for some more money and in that background, subjected the deceased to cruelty and harassment. : 22 : Therefore, he expressed suspicion about the death of his daughter and wanted the Police to investigate the matter.
13. As could be seen from the judgment under appeal, the Trial Court has held that the prosecution has proved the charges levelled under Sections 3, 4 and 6 of the Dowry Prohibition Act. For this purpose the Trial Court has placed strong reliance on P.Ws.1, 3 and other witness who are close relatives of the deceased. P.W.1 in his oral evidence has stated that about one month prior to the marriage, talks were held which was attended by both the accused and other 15 persons who had come on their behalf. It is his further say that during the pre-marriage talks, the accused demanded Rs.1,00,000/- as dowry and though he initially offered to pay Rs.50,000/-, later he agreed to the demand of the accused to pay Rs.1,00,000/- in cash as dowry and also the gold ornaments. He has further stated that about a month prior to the marriage, he gave Rs.50,000/- in cash to the accused and balance amount of Rs.50,000/- : 23 : was paid about 15 days prior to the marriage. According to him, he paid Rs.5,000/- towards cloths to the bridegroom and at the time of the marriage, he gave a gold finger ring, a gold neck chain to the bridegroom, a mangalya chain, two row gold chain, gold ear hangings etc., to the bride and he met all the marriage expenses. In the examination-in-chief, P.W.1 has come out with explanation with regard to non-mentioning of the demand of dowry of Rs.1,00,000/- and its acceptance by the accused, in the complaint - Ex.P-1. According to him, since he was in great sorrow on account of death of his daughter, he could not mention the same in the complaint. In the cross-examination, it is elicited from P.W.1 that he is a government employee and except his salary, he does not have any other sources of income. It is further elicited from him that he maintains a Bank Account, but he has not utilised the amount in the Bank Account for the marriage expenses of his daughter. He has further stated that to meet the marriage expenses of his daughter, he has : 24 : taken loan of Rs.80,000/- from the Department, but he has not produced any documents to the Police in this regard. It is further elicited in the cross-examination, pre-marriage talks were held on three occasions, once in the house of the bridegroom and twice in his house and the last talks were held about a month prior to the marriage. He has admitted that on the date of the talks, no amount was paid to the accused. He has admitted further suggestion that on the date of the marriage talks, it was made clear by the bridegroom side, that the bridegroom to continue his profession as an agriculturist and that the parents of the bride were happy with the financial condition of the bridegroom. Thus, from the evidence of P.W.1, it is clear that the fact of pre-marriage talks and the alleged demand of dowry for a sum of Rs.1,00,000/- by cash and other ornaments by the accused and its payment in two installments prior to the marriage, are not mentioned in the complaint - Ex.P-1 and those facts have been disclosed by him for the first time before the Court : 25 : during his evidence. Of course, he has stated that since he was in great sorrow at the time of the lodging the complaint, he has not mentioned all these details in the complaint. No doubt, as rightly contended by the learned Government Pleader, the First Information Report is not expected to be an encyclopedia. Therefore, it is not necessary to mention all the minute details in the First Information Report. Nevertheless, the basic facts constituting the cognizable offences have to be necessarily mentioned in the complaint. The basic facts constituting the offences under Sections 3 and 4 of the Dowry Prohibition Act, is the demand of dowry and its acceptance. As noticed supra, the reading of the complaint clearly indicates that there was no allegation of the accused demanding dowry either in cash or in kind, prior to or at the time of the marriage nor any allegation with regard to the parents of the deceased meeting to the said demand. In the complaint, several allegations have been made with regard to the demand said to have been made by the accused subsequent to : 26 : the marriage for money to start a business and its payment by the complainant. Thus, it is not as if the complainant has not disclosed any details in the complaint. Reading of the complaint - Ex.P-1 indicates that it is not as if the complainant was not in a position to give any details because of deep sorrow and grief in which he had been placed on account of the death of his daughter. When he was in a position to furnish the details about the alleged demand of money, subsequently made by the accused and its fulfillment, there was no reason for the complainant to omit to mention the alleged demand of dowry during the pre- marriage talks and its compliance by him. Therefore, the explanation offered by P.W.1 for his omission to mention in the compliant - Ex.P-1 about the alleged demand of dowry by the accused cannot be accepted. Therefore, the evidence of P.W.1 in this regard, is clear improvement made by him during the evidence before the Court. The omission in this part in the complaint is material one and the improvement made during the : 27 : evidence is certainly a contradiction, which goes to the very root of the case of prosecution. Of course, the evidence of P.W.1 with regard to the alleged demand for dowry gains corroboration from the evidence of his brother P.W.2 - Ramaiah, his wife P.W.3 - Nanjamma, P.W.5 - Venkatesh, brother of the deceased, P.W.6 - Sreenivas, the maternal uncle of the deceased as well as from the evidence of P.W.7 - Narayanappa, who is the husband of sister of P.W.1. However, having regard to the fact that the complaint lodged at the earliest point of time is silent as to the alleged demand and acceptance of dowry prior to and at the time of marriage, it is highly difficult to accept this part of the evidence of these witness. The circumstances brought out in the cross- examination of P.W.1 would further falsifies the evidence of these witnesses with regard to the payment of Rs.1,00,000/- in cash as dowry. As noticed supra, in the cross-examination, P.W.1 has admitted that the salary drawn by him was his only source of living and he had no other source of living. Though he has stated : 28 : that to meet the marriage expenses, he borrowed a sum of Rs.80,000/- from his Department, no documentary evidence is produced to probablise the said statement. He has admitted that he did not draw any amount from his Bank Account to meet the marriage expenses of his daughter. He has also not produced any document to show as to what was his financial condition. In the first sentence of the examination-in-chief, he has stated that he was working as an attender in Government Hospital at Tumkur. Regard being had to the salary drawn by an attender, working in a Government Hospital during the years prior to 2001, it cannot be said that he could have saved huge money of Rs.1,00,000/- to pay dowry. It is not the say of P.W.1 that he had borrowed money from any private individuals to meet the marriage expenses. Though he has stated that he had taken loan on his G.P.F. Account, no documentary evidence is produced. In the absence of any evidence to probablise the say of P.W.1 that he had taken loan on G.P.F. account or any other loan from the Department and in the absence of : 29 : any evidence with regard to his financial condition, it is highly difficult to believe that P.W.1 was in a position to pay Rs.1,00,000/- as dowry in cash and spend substantial amount for purchase of gold ornaments, as stated by him and also meet other expenses. Therefore, the evidence regarding the payment of dowry of Rs.1,00,000/- in cash and gold ornaments, is highly unreliable. Of course, even a mere demand of dowry is an offence. However, in the absence of any allegation in the complaint - Ex.P-1 lodged at the earliest point of time, I am of the considered opinion that the evidence of witnesses in this regard before the Court was a clear improvement as an after thought and therefore, it is highly unsafe to place reliance on the evidence of these witnesses with regard to the alleged demand of dowry. The learned Sessions Judge without considering the glaring omission on the part of P.W.1, to mention these factors in Ex.P-1, has proceeded to accept the evidence of P.Ws.1 to 3 and P.Ws.5 to 7 with regard to the alleged demand and acceptance of dowry by the accused. In : 30 : this regard, it is useful to note the evidence of P.W.4 - Jayamma, paternal grand mother of the deceased. P.W.4 in her examination-in-chief, though has stated that prior to the marriage, dowry of Rs.1,00,000/- had been given to the accused, in the cross-examination, she has stated that the accused did not demand any dowry. P.W.4 - being the paternal grandmother of the deceased had no reason to depose contrary to the evidence of her own son P.W.1.
14. Having regard to the discussions made above, I am of the considered opinion that the evidence on record with regard to the alleged demand of dowry and its acceptance prior to or at the time of the marriage does not inspire the confidence of the Court and therefore, the finding recorded by the Trial Court in this regard, is highly perverse and cannot be sustained. In my opinion, the evidence on record does not satisfactorily establish that any pre-marriage talks were held and that the accused made any demand for dowry either in cash or in kind nor it has established the : 31 : payment of dowry in cash or in kind by P.W.1 to the accused. Therefore, the prosecution, in my opinion, has failed to prove the charges for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, as such, the conviction recorded by the Trial Court for these offences cannot be sustained and accordingly is liable to be set aside.
15. The next question to be considered is: -
"Whether the death of the deceased was dowry death within the meaning of Section 304-B of the Indian Penal Code?"
16. To prove the offence under Section 304-B of the Indian Penal Code, the prosecution will have to establish that the death of the married woman occurred within seven years from the date of marriage, her death was either due to burns or otherwise than under normal circumstances and that soon before her death, she had been subjected to cruelty or harassment in connection with the demand for dowry by her husband or relatives : 32 : of the husband. No doubt, in the case on hand, the death of the deceased has occurred within seven years from the date of the marriage and her death was otherwise than under normal circumstances since according to the opinion of the doctor, the cause of death was due to organochloro insecticide poisoning. It is nobodies' case that the deceased was forcibly administered poison.
17. On the other hand, it is the case of the prosecution that the deceased committed suicide by consuming insecticide. Accused have also not disputed the fact that the deceased committed suicide by consuming poison. The crucial ingredient to prove the death as dowry death is that soon before her death, the deceased had been subjected to cruelty or harassment in connection with demand for dowry. No doubt, under Section 113B of the Indian Evidence Act, there is a presumption as to dowry death. According to this Section, when the question is whether a person has committed the dowry death of a woman and it is shown : 33 : 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 crucial presume that such person has caused the dowry death. According to the explanation to this Section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code. Now it is fairly well settled that even to attract the presumption under Section 113B of the Indian Evidence Act, the prosecution will have to discharge its initial burden by showing that soon before her death, the deceased married woman had been subjected to cruelty or harassment in relation to or in connection with demand for dowry. In the case on hand, the learned Sessions Judge accepting the evidence of P.Ws.1 to 3 and P.Ws.5 to 8 has proceeded to hold that subsequent to the marriage, the accused coerced the deceased to bring further money as dowry and in that regard she had been subjected to cruelty and harassment. The grievance of the appellants - accused is that the learned : 34 : Sessions Judge has not properly evaluated the evidence in this regard.
18. As noticed supra, in the complaint - Ex.P-1, it has been stated that for about one year after the marriage, the couple lived happily and since by that time she became pregnant, she was brought to parental home for delivery and confinement and when the first child was about one year, she came back to the matrimonial home and thereafter accused No.1 started telling the deceased that she is not in a position to do any work and therefore, some side business is required to be commenced and for that purpose he demanded her to get money from her parents. In his evidence P.W.1 has reiterated these facts. Thus, from the contents of Ex.P-1 as also the evidence of P.W.1, it is clear that for about two years after the marriage, there was absolutely no complaint of the accused making any demand for money as dowry or otherwise. The alleged demand for money was stated to have been made about a year after the birth of the first child. The alleged : 35 : demand was to start a side business by the deceased, as she was not in a position to do any work. According to the contents of Ex.P-1, the said demand was complied with by the complainant. It is further stated in Ex.P-1 that when the deceased was running third or fourth month pregnancy for the second time, the accused demanded Rs.1,00,000/- on the ground that the amount of Rs.50,000/- already paid was insufficient to start the business and the said demand was said to have been complied with about 18 days prior to the deceased committing suicide. Now the question would be as to whether this demand of Rs.50,000/- or Rs.1,00,000/- was a demand for dowry?
19. As noticed supra, from the contents of Ex.P- 1, it is clear that the said demand was not as a dowry but it was only to start a side business by the deceased. Even in the evidence of P.W.1 he has stated that this further demand was for starting a business. As noticed supra, P.W.1 was working as an Attender in a Government Hospital. Therefore, he was not in a : 36 : financial position to pay Rs.1,00,000/- or Rs.50,000/-. According to P.W.1, for payment of this amount, he borrowed money from one Devaraj and Ramanna, who have been examined as P.Ws.9 and 10 respectively. According to P.W.1, he borrowed the money from P.Ws.9 and 10 by executing promissory notes. The Trial Court referring to the evidence of P.Ws.1, 9 and 10 has come to the conclusion that this part of the say of P.W.1 cannot be believed. It has also recorded a finding that the promissory note produced in the case is a created document for the purpose of this case. Nevertheless, the Trial Court has proceeded to accept the evidence of P.W.1 with regard to payment of Rs.1,00,000/- to accused on two occasions in a sum of Rs.50,000/- each. According to P.W.9, on 02.04.2002, P.W.1 requested a loan of Rs.50,000/- and accordingly he gave loan of Rs.50,000/- to P.W.1 on P.W.1 executing a promissory note. According to P.W.9, P.W.1 has repaid the loan and therefore, he had returned the promissory note. Whereas, according to the evidence of P.W.1, he has not : 37 : repaid the said loan amount borrowed from P.Ws.9 and
10. Thus, from the evidence of P.W.9, it is noticed that the alleged loan advanced by him in a sum of Rs.50,000/- was on 02.04.2002 i.e., within about a year after the marriage of the deceased with accused No.1. It is not the say of P.W.1 that some time during March or April 2002, the accused made any demand for money. According to the contents of the complaint and also the evidence of the witnesses, for one year after the marriage, the couple lived happily and since in the meanwhile, she became pregnant, she came back to the parental home and stayed there for about one year after the delivery. Thus, for nearly about two years after the marriage, there was absolutely no demand by the accused. Therefore, even if sum of Rs.50,000/- had been borrowed by P.W.1 from P.W.9 on 02.04.2002, the same cannot be connected to the alleged payment of Rs.50,000/- by P.W.1 to the accused No.1. In any case, in the light of the finding recorded by the Trial Court that this part of the evidence of P.W.1 is unreliable and : 38 : the documents are created for the purpose of the case, the Trial Court in my opinion is not justified in accepting the case of the prosecution with regard to the demand for further money.
20. According to P.W.10, on 25.01.2005, P.W.1 came to him and sought a loan of Rs.50,000/- and accordingly he lent a sum of Rs.50,000/- to P.W.1 for which P.W.1 executed a promissory note. The alleged promissory note said to have been executed by P.W.1 in favour of P.W.10, has not produced before the Court. No acceptable documentary evidence has not been produced to show that P.W.10 had lent a sum of Rs.50,000/- to P.W.1 on 25.01.2005. Therefore, the Trial Court has held that the evidence of P.W.10 with regard to lending of Rs.50,000/- to P.W.1 is not worthy of acceptance. In the light of the same, the Trial Court could not have proceeded to accept the evidence of P.W.1 and other witnesses with regard to payment of Rs.50,000/- about 18 days prior to the deceased committing suicide. P.Ws.3 and 8 are definite in stating : 39 : that about 18 days prior to the deceased committing suicide, they went to the house of the accused and at that time P.W.3 handed over Rs.50,000/- to accused No.1. 18 days prior to 04.02.2005 takes us to sometime, 15th or 16th of January 2005. Therefore, even if the say of P.W.10 that on 25.01.2005, he lent sum of Rs.50,000/- to P.W.1 is accepted, the said amount could not have been utilised for the alleged payment of Rs.50,000/- to accused No.1, about 18 days prior to 04.02.2005. In the absence of any acceptable evidence regarding financial resources of P.W.1, it is highly difficult to believe that there was payment of Rs.1,00,000/- by P.W.1 to accused No.1, in installments of Rs.50,000/- on two occasions. There is no serious dispute that on 27.12.2004, the deceased had lodged a report before the Police as per Ex.P-11, wherein she sought for intervention of the Police to see that she was taken back to the matrimonial fold by her husband and mother-in-law and in that regard, she had made a statement, marked as Ex.P-13. Of course, in Ex.P-11 : 40 : and Ex.P-13, there is absolutely no allegation regarding any of the accused subjecting the deceased to cruelty or harassment, either for non-fulfillment of their demand for money as dowry or for any other reasons. The Trial Court has considered this aspect and has held that the silence in this regard in Ex.P-11 and Ex.P-13 cannot be viewed seriously for the reason that the concern of deceased at that time was only to see that she is taken back to the matrimonial fold and not to create any hindrance for the same and therefore, it is possible that the deceased has not made any allegation in that regard, as, such allegations, if had been made, would have come in the way of her smooth return to the matrimonial home.
21. Having regard to the facts and circumstances of the case, in my considered opinion, the Trial Court is justified in making such observation. Therefore, non-mentioning of these facts in Ex.P-11 and Ex.P-13 certainly cannot be viewed seriously. Nevertheless, having regard to the finding recorded by : 41 : the Trial Court that the evidence regarding payment of Rs.50,000/- on two occasions by P.W.1 to the accused No.1 is not reliable, the Trial Court is not justified in holding that the prosecution has proved that the accused had made further demand for dowry and the cruelty meted out to the deceased was in relation to or in connection with the demand for dowry. Reading of the evidence as a whole, in my opinion, does not establish that there was any demand by the accused for further dowry. The alleged demand for money, on the other hand, as stated by the witnesses consistently, was for doing some side business by the deceased. Therefore, the important ingredient to constitute the death of the deceased as dowry death has not been satisfactorily established. Therefore, the presumption under Section 113B of the Indian Evidence Act cannot be drawn. In this view of the matter, I am of the considered opinion that the Trial Court is not justified in holding the appellants - accused guilty of the : 42 : offences punishable under Sections 304-B of the Indian Penal Code.
22. The next question required to be considered is: -
"Whether the deceased had been
subjected to cruelty or harassment
within the meaning of Section 498-A of
the Indian Penal Code?"
23. The Trial Court relying on the evidence of the parents and other relatives of the deceased has come to the conclusion that the deceased had been subjected to cruelty or harassment within the meaning of Section 498-A of the Indian Penal Code. Explanation to Section 498-A, for the purpose of Section 498-A, explains cruelty to mean: -
Clause (a) any willful 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 : 43 : Clause (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.
24. In the case on hand, reading the evidence of P.Ws.1 to 8 would indicate that the deceased was being coerced to bring money for starting a side business and in that background, she was being subjected to mental and physical cruelty. Of course, reading of the evidence of P.Ws.1 and 3 indicate that major portion of her marital life, was spent by her in the parental home and she lived in the matrimonial home for a short period. The cruelty or harassment to a married woman takes place within the four walls of the matrimonial home. Therefore, natural witness for such kind of act would be the victim and the perpetrators themselves. Of course, perpetrators would be arraigned as accused, then what remains is only the victim. If the victim is no more, it cannot be said that the act committed by perpetrator : 44 : should go unpunished. Therefore, it is open to the prosecution to establish the said act by circumstantial evidence. It is quite natural that the victim, a married woman would disclose such facts to her kith and kin who are her blood relatives. Therefore, it is quite natural that the blood relatives would come to know about the cruelty or harassment, if any, meted out to the victim. Therefore, their evidence in this regard, would be relevant. P.Ws.1 to 3 and P.Ws.5 to 7, in their evidence have consistently stated about the deceased being subjected to cruelty and harassment by coercing her to bring money. In the complaint - Ex.P-1, there has been allegation of the accused No.1 demanding money for carrying on some side business by the deceased. The evidence of P.W.3 - the mother and P.W.8 - a friend of the deceased, would clearly establish that about 18 days prior to the deceased committing suicide, they had visited the house of the accused and at that time the deceased was crying and weeping throughout the day and night and on the following day : 45 : also, while she walked along with P.Ws.3 and 8 to bid them goodbye also she was crying and had disclosed that she is being subjected to mental and physical cruelty and her husband is pestering for money. Though these witnesses have been cross-examined at length, in my opinion they have stood the test of cross- examination. Their evidence with regard to the deceased having been subjected to cruelty and harassment, on account of her failure to comply with the demand for money, is cogent and consistent and has been rightly accepted by the Trial Court. There are no reasons for these witnesses to depose falsehood.
25. As noticed supra, the deceased has committed suicide by leaving her two kids, the son aged about 3 years and the daughter aged about one year. Of course, the accused took a specific defence that the deceased had love affair with one Prasanna Kumar, a Bus Conductor before her marriage with accused No.1 and in the background of her former lover committing suicide, she also committed suicide. However, this : 46 : defence of the accused has not been accepted by the Trial Court, rightly in my opinion. Except some suggestions to the prosecution witnesses, the accused have not placed any evidence even to probablise this defence theory. Mere suggestions are not substantive pieces of evidence. It is for the accused to probablise the defence theory. In the absence of any evidence, the Trial Court is justified in holding that the defence theory is not even probablised. Therefore, there was no other reason for the deceased to take drastic step of ending her life leaving her two loved kids in lurch and at the mercy of her husband. But for the untold misery to which she was pushed, there was no other reason for her to commit suicide. Therefore, in my opinion, the evidence on record clearly establishes that the deceased had been subjected to cruelty and harassment within the meaning of Section 498-A of the Indian Penal Code. Therefore, the conviction recorded by the Trial Court for the said offence is just and proper. The finding recorded by the Trial Court in this regard is sound and : 47 : reasonable. However, the evidence is not definite as to whether the accused No.2 - being the mother-in-law joined the hands of accused No.1 in making such demand. As could be seen from the evidence, it was only accused No.1 who was pestering the deceased for money. Therefore, it as rightly contended by the learned counsel for the appellants, the evidence on record does not establish any role played by accused No.2 - the mother-in-law of the deceased. Therefore, accused No.2 cannot be held guilty for any of the offences. Hence, the finding recorded by the Trial Court with regard to the charge under Section 498-A of the Indian Penal Code is concerned, is sound and reasonable as against accused No.1 and it does not call for interference by this Court.
26. Admittedly, the deceased has committed suicide by consuming poison. This act of suicide by the deceased was in the background of cruelty and harassment meted out to her by her husband. It is on account of the willful act committed by the accused : 48 : No.1, the deceased has committed suicide and thereby he has abetted the crime of suicide by the deceased. As per Section 113A of the Indian Evidence Act, presumption can be drawn that the suicide by a married woman had been abetted by her husband or any relative of her husband if it is shown that soon before her death she had been subjected to cruelty or harassment within the meaning of Section 498-A of the Indian Penal Code.
27. Having regard to the discussions made above, I am of the considered opinion that the evidence on record has clearly established that the accused No.1 had subjected the deceased to cruelty and harassment, since she had failed to comply with his unlawful demand for money to start side business and it is in that background she committed suicide by consuming poison. The accused persons have not placed any evidence to rebut the said presumption nor any circumstance is brought out in the cross-examination of material prosecution witnesses to falsify the case of the : 49 : prosecution in this regard. Therefore, in my opinion, the commission of the suicide by the deceased has been abetted by accused No.1, through his willful conduct of making unlawful demand for money and subjecting her to cruelty on account of her failure to comply with the said demand.
28. In this view of the matter, the act committed by the accused No.1 would fall within the offence punishable under Section 306 of the Indian Penal Code. Having regard to the fact that the accused persons have been charged for the offences punishable under Section 304-B of the Indian Penal Code, even without a charge having been framed for the offence punishable under Section 306 of the Indian Penal Code, he can be convicted and found guilty for the offence punishable under Section 306 of the Indian Penal Code. Therefore, I am of the considered opinion that the accused No.1 is guilty of the offences punishable under Section 498-A and 306 of the Indian Penal Code, while accused No.2 is entitled for an order of acquittal.
: 50 :
29. In view of the above, the Criminal Appeal No.2345/2005 filed by accused No.2 - Hulluramma is allowed. The judgment of conviction and order of sentence passed by the Trial Court convicting her for the offence punishable under Sections 498-A and 304-B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act is hereby set aside. She is acquitted of all the charges levelled against her.
30. The bail bond and surety bond executed by her are ordered to be discharged. The fine amount, if any paid by her is ordered to be refunded.
31. Criminal Appeal No.260/2006 filed by accused No.1 is allowed-in-part. The judgment of conviction and order of sentence convicting the appellant - accused No.1 for the offence punishable under Section 304-B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, is hereby set aside. Accused No.1 is acquitted of those charges.
: 51 :
32. However, in modification of the judgment of conviction, the appellant - accused No.1 is convicted for the offences punishable under Sections 498-A and 306 of the Indian Penal Code. The appellant - accused No.1 is sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs.5,000/-, in default to pay fine to undergo rigorous imprisonment for six months for the offence punishable under Section 498-A of the Indian Penal Code. He is further sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.20,000/-, in default, to undergo simple imprisonment for one year for the offence punishable under Section 306 of the Indian Penal Code.
33. The sentences of imprisonment shall run concurrently. The appellant - accused No.1 shall surrender himself before the Trial Court forthwith and upon such surrender, the Trial Court shall commit him to prison to serve the sentence. If the appellant - accused No.1 fails to surrender himself before the Trial : 52 : Court, the Trial Court shall take necessary steps to secure his presence and to commit him to prison.
Sd/-
JUDGE Rsh