Karnataka High Court
Shivakumar S/O Nataraja Shetty vs State Of Karnataka on 19 August, 2014
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19th DAY OF AUGUST 2014
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO.800/2007
C/W
CRIMINAL APPEAL NO.163/2008
CRIMINAL APPEAL NO.800/2007
BETWEEN:
Shivakumar
S/o Nataraja Shetty
Aged about 31 years
Residing at Kelluru Village
Periyapatna Taluk
Mysore District .. Appellant
(By Sri Tomy Sebastian, Adv., for
M/s Tomy Sebastian Associates, Adv.,)
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AND :
State of Karnataka
By Periyapatna Police
Bangalore .. Respondent
(By Sri B.Visweswaraiah, HCGP.,)
This Criminal Appeal is filed under Section 374 Cr.P.C
by the advocate for the appellant against the Judgment
dated 30.04.2007/5.5.2007 passed by the Presiding Officer,
Fast Track Court-V, Mysore holding concurrent charge of
Fast Track Court-II, in S.C.No.226/2005 convicting the
appellant/accused No.1 for the offence punishable under
Section 304 Part II of Indian Penal Code and sentencing
him to undergo R.I. for 5 years for the said offence.
CRIMINAL APPEAL NO.163/2008
BETWEEN:
State of Karnataka
By Periyapatna Police Station
Mysore District.
..Appellant
(By Sri B.Visweswaraiah, HCGP.,)
AND :
1. Shivakumar
S/o Nataraja Shetty
Aged about 31 years
Kelluru Village
Periyapatna Taluk
Mysore District.
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2. Nataraja Shetty
S/o Danagoor Shetty
Aged about 60 years
Kellur Village
Periyapatna Taluk
Mysore District
3. Mahadevamma
W/o Nataraja Shetty
Aged about 55 years
Kellur Village
Periyapatna Taluk
Mysore District
..Respondents
(By Sri Tomy Sebastian, Adv., for
M/s Tomy Sebastian Associates, Adv.,)
This Criminal Appeal is filed under Section 378 (1) &
(3) Cr.P.C praying to grant leave to file an appeal against
the Judgment dated 30.04.2007/5.5.2007 passed by the
presiding Officer, Fast Track Court - V, Mysore holding
concurrent charge of FTC-II, in S.C.No.226/2005 acquitting
the respondent/accused for the offence punishable under
Section 498-A R/w Section 34 of Indian Penal Code and to
set aside the aforesaid judgment and order of acquittal and
to convict and sentence the respondents/accused for the
offences with which they have been Charged.
These Criminal Appeals coming on for hearing, this
day, MOHAN .M. SHANTANAGOUDAR, J., delivered the
following:-
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JUDGMENT
The Judgment and Order dated 30.4.2007/5.5.2007 in S.C. No.276/2005 passed by the Presiding Officer, Fast Track Court-V, Mysore holding concurrent charge of Fast Track Court-II, Mysore is questioned in these appeals. By the impugned judgment, the trial Court acquitted Accused Nos.2 and 3 of all the charges levelled against them; However Accused No.1 is convicted for the offence under Section 304 Part II of IPC and is acquitted for the offences under Sections 498-A and 302 of IPC and Sections 3 and 4 of the Dowry Prohibition Act ('D.P. Act' for short).
2. Criminal Appeal No.800/2007 is filed by the convicted Accused No.1 questioning the Judgment and Order of conviction passed against him for the offence under Section 304 Part II of IPC.
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Criminal Appeal No.163/2008 is filed by the State questioning the acquittal of Accused No.1 for the offences under Sections 498-A and 302 of IPC and Sections 3 and 4 of the D.P. Act and acquittal of Accused Nos.2 and 3 for the offence under Section 498-A of IPC and Sections 3 and 4 of the D.P. Act.
Since both the appeals arise out of the very Judgment and Order passed in S.C. No.226/2005, the appeals are clubbed, heard and decided by this Judgment.
3. Case of the prosecution in brief is that Accused No.1 is the husband of deceased Jyothi @ Shylaja and father of minor child by name Sachin (aged about 1 ½ years at the time of the incident); at the time of the incident, Jyothi @ Shylaja was eight months pregnant; Accused Nos.2 and 3 are father and mother of Accused No.1 respectively; the marriage of Jyothi @ Shylaja with Accused No.1 was performed about five years prior to the 6 incident in question; deceased Sachin was born out of the wedlock; the couple lived happily for about three years from the date of the marriage; absolutely no allegations are forthcoming against the accused during the said period of three years; of late, the accused started torturing the deceased Jyothi to bring additional amount of dowry from her parents house; Accused Nos.2 and 3 were repeatedly instigating Accused No.1 to pressurize deceased Jyothi to bring additional amount of dowry; deceased Jyothi used to tell about the harassment meted out to her by the accused, to her parents; her parents used to pacify and send her back to matrimonial house; about 4 to 5 months prior to the incident in question, the parents of the deceased Jyothi had paid Rs.10,000/- and Rs.15,000/- to the accused on two occasions; few months prior to the incident, the father of the deceased Jyothi got money to the tune of Rs.20,000/- from his LIC bond and the same was paid to the accused to satisfy the demand; despite the same, the 7 accused did not stop torturing the deceased Jyothi. It is also mentioned in the first information - Ex.P20 filed by PW.12, the father of the deceased Jyothi that Accused No.1 used to assault the deceased Jyothi whenever she was found talking with the 3rd person by suspecting her fidelity.
It is also the case of the prosecution that at the time of marriage of the deceased, the accused demanded dowry of Rs.1,50,000/- and the gold ornaments of about 200 grams; however during marriage talks, it was settled that the parents of the deceased Jyothi should pay cash of Rs.1,00,000/- and 150 grams of gold to the deceased Jyothi and Accused NO.1 and accordingly, the said amount as well as gold ornaments were given by the parents of the deceased Jyothi to Accused No.1; At about 7.30 p.m. on 12.9.2005 Accused No.1 took deceased Jyothi and the child Sachin on TVS moped owned by him in order to get medical treatment for Jyothi as well as Sachin at Hunsur Hospital; 8 the deceased and accused were living at Kellur village of Periyapatna taluk and has to go to Hunsur for getting medical treatment; deceased Jyothi and the child Sachin were treated by doctors PWs.6 and 7 at about 7.30 p.m. on 12.9.2005 at Hunsur; while returning back to Kellur village, the accused allegedly took the TVS moped into nala; he saved his life by jumping from TVS moped; however he left both the deceased on the motorcycle which fell on the nala and consequently both Jyothi and Sachin lost their lives instantaneously; on the next day i.e. 13.9.2005 at about 12.30 p.m., one Mr. Nandish came and informed the father of the deceased Jyothi that he has seen the dead bodies of Jyothi and Sachin at Harangi nala; Immediately thereafter all the family members of the deceased including PWs.12 and 13 came to the spot and saw the dead bodies of Jyothi and Sachin; the villagers of Kellur village searched for Accused No.1; ultimately they were able to find Accused No.1 in the school at 5.30 p.m. and was brought back to 9 the village; the first information was lodged by PW.12 before the Sub-Inspector of Periyapatna Police Station as per Ex.P20; PW.24, the PSI received the said first information and registered Crime No.185/2005 and sent the first information report to the jurisdictional Magistrate as per Ex.P24. After completion of investigation, the jurisdictional Dy.SP (PW.22) laid the charge sheet against all the three accused.
4. Accused No.1 was charged for the offences under Sections 498-A and 302 of IPC and Sections 3 and 4 of the D.P. Act, whereas Accused Nos.2 and 3 were charged for the offence under Section 498-A of IPC and Sections 3 and 4 of the D.P. Act.
5. In order to prove its case, the prosecution in all examined 24 witnesses and got marked 48 documents and 20 Material Objects. On behalf of the defence, 9 Exhibits 10 were got marked. The trial Court on evaluation of the material on record, acquitted Accused Nos.2 and 3 for the offences with which they were charged. The trial Court also acquitted Accused No.1 for the offence under Section 302 of IPC, however convicted for the offence under Section 304 Part II of IPC.
6. Sri Tomy Sebastian, learned senior advocate appearing on behalf of convicted Accused No.1 fairly submits that the trial Court is justified in convicting Accused No.1 for the offence under Section 304 Part II of IPC and therefore he does not have anything to say for conviction of Accused No.1 for the offence under Section 304 Part II of IPC. He supports the judgment of the Court below by arguing that the trial Court is justified in acquitting Accused No.1 for the offence under Section 302 of IPC inasmuch as there was no intention on the part of Accused No.1 to commit the murder of the deceased.
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Per contra, Sri Visweswaraiah, learned Government Advocate by taking us through the material on record submits that the trial Court is not justified in acquitting the Accused No.1 for the offence under Section 302 of IPC; the circumstances which are proved by the prosecution would conclusively go to show that it was Accused No.1 alone who committed the murder of the deceased and therefore Accused No.1 is liable to be convicted for the offence under Section 302 of IPC. He further submits that the trial Court is not justified in acquitting all the accused for the offence under Section 498-A of IPC and Sections 3 and 4 of the D.P. Act.
7. PWs.1,2 and 3 are the pawn brokers with whom Accused No.1 has pledged Mos.1 to 5, the gold ornaments and had obtained loan; Ex.P1 to P4 are the mahazars relating to seizure of the pledged gold ornaments Mos.1 to
5. All of them have supported the case of the prosecution. 12
PWs.4 and 5 who were supposed to depose about the last seen circumstance, have turned hostile.
PW.6 - Dr. Shivanna treated Jyothi at about 7.30 p.m. on 12.9.2005 at Hunsur Hospital. He is a gynecologist. He has identified Ex.P7, the note book which contains the details of the treatment given to the deceased Jyothi. PW.7 is another doctor who treated the child - Sachin on the very day i.e., 12.9.2005 at about 7.30 p.m. He has issued a letter as per Ex.P10 to the Police confirming that he had treated the child - Sachin at that relevant point of time on 12.9.2005. Ex.P11 is the out-patient register produced by the doctor (PW.7). Both these doctors (PWs.6 and 7) have deposed that at the time of treatment i.e., at 7.30 p.m. on 12.9.2005 Accused No.1 was present alongwith the deceased Jyothi and the child at Hunsur.
PW.8 is the doctor who conducted postmortem examination over the dead bodies of deceased Jyothi and 13 Child - Sachin; Ex.P12 and Ex.P13 are the post-mortem reports.
PW.9 is the Assistant Executive Engineer. He has drawn the sketch of the scene of incident as per Ex.P14; Ex.P15 is the covering letter.
PW.10 is the Taluka Executive Magistrate. He conducted the inquest mahazar as per Ex.P16 and Ex.P17.
PW.11 is another witness for seizure of Mo.5 and he has turned hostile.
PW.12 is the first informant; He is the father of the deceased; The first information is at Ex.P20; Based on the same, crime came to be registered by PW.24. PW.12 has deposed about the demand and acceptance of the dowry and subsequent harassment by the accused to the deceased.
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PW.13 is the mother of the deceased and her evidence is on par with the evidence of PW.12 in respect of demand and acceptance of dowry and subsequent harassment by the accused.
PW.14 who was supposed to depose about extra judicial confession said to have been made by Accused No.1 has turned hostile.
PWs.15 and 16 are uncles of the deceased Jyothi. They have supported the case of the prosecution by deposing about the demand and acceptance of the dowry and harassment by the accused.
PW.17 who was supposed to depose about extra judicial confession has turned hostile.
PW.18 is the Mediator for the marriage. He has deposed about the marriage talks wherein accused demanded dowry. He has also deposed about payment of 15 dowry by the parents of the deceased Jyothi to the accused. He has also deposed about extra judicial confession said to have been made by Accused No.1; However, he has turned hostile on that aspect of the matter.
PW.19 is the Police Constable who carried First Information Report to the jurisdictional Magistrate.
PW.20 is the doctor who examined the accused after his arrest. Ex.P25 is the Wound Certificate issued by him.
PW.21 is a witness who has deposed about the last seen circumstance. He has seen both the deceased with Accused No.1 on TVS moped when they were going to the hospital on 12.9.2005 at about 6 p.m. PW.22 is the Investigating Officer. After completion of investigation, he laid the charge sheet against all the three accused.
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PW.23 is none other than PW.19. We are at loss to understand as to why he was again examined as PW.23. As aforementioned, he is the Police Constable who carried the First Information Report to the jurisdictional Magistrate.
PW.24 is the Sub Inspector of Periyapatna Police Station. He has registered Crime No.185/2005 based on the first information lodged by PW.12. He has also participated during the course of investigation.
8. The prosecution in order to prove its case for the offences under Sections 302 and 498-A of IPC and Sections 3 and 4 of the D.P. Act has examined PWs.12, 13, 15, 16 and 18. It is no doubt true that in their examination-in- chief, all of them have deposed about demand of dowry made by the accused and payment of dowry by the parents of the deceased Jyothi. They have also deposed about the harassment by the accused by demanding additional amount of dowry after three years of the date of marriage. 17 But in the cross-examination, all of them have given contradictory versions.
PW.18 who is the Mediator for the marriage and closely related to PW.12 has deposed that during the marriage talks, nothing was finalized with regard to payment of money and gold jewellery. However he has deposed that a sum of Rs.1,00,000/- was paid in cash to Accused No.1 by PWs.12 and 13 at the time of Padapooja and gold ornaments weighing 150 grams were given to the deceased Jyothi at the time of the marriage. PW.18 has admitted in the cross-examination that the parents of the deceased Jyothi viz., PWs.12 and 13 have told him that they have got prepared the gold ornaments long prior to the marriage only with a view to give such gold ornaments to Jyothi at the time of her marriage out of their love and affection. He has further admitted that as per the customs prevailing in their community, certain sums of money and clothes are given to the bridegroom at the time of 18 Padhapooja. Thus virtually the evidence of PW.18 takes away the case of the prosecution about the demand and payment of dowry prior to the marriage. Even in the evidence of PWs.12,13,15 and 16, we find that there are major variations with regard to the aforementioned aspects. According to PW.12, during marriage talks, there was demand by the accused for Rs.2,00,000/- in cash by way of dowry and it was agreed by the parents of the deceased for payment of dowry amount of Rs.1,00,000/-. It is the further version of PW.12 that within 8 to 10 days after the marriage talks, engagement ceremony was held and at the time of engagement ceremony, cash of Rs.1,00,000/- and one gold ring and one gold chain were given to the accused. Whereas the evidence of PW.13, the wife of PW.12 discloses that about one week prior to the marriage, the accused demanded Rs.3,00,000/- in cash and 1 kg of silver and it was agreed that an amount of Rs.1,00,000/- would be given at the time of marriage engagement and accordingly, 19 one gold ring and one gold chain apart from cash of Rs.1,00,000/- was given to Accused No.1 at the time of the engagement ceremony. PW.15, brother of PW.12 has deposed that accused has demanded Rs.1,00,000/- in cash and silver articles; the parents of the bride agreed to pay Rs.1,00,000/- in cash and gold ornaments weighing 150 grams apart from the silver articles to Accused no.1. PW.16, the brother of PW.13 has deposed that during marriage talks, Accused Nos.1 and 2 and some of their relatives demanded Rs.1,50,000/- in cash and 150 grams of gold; However PWs.12 and 13 agreed to pay Rs.1,00,000/- in cash and 150 grams of gold.
Thus it is clear that the evidence of PWs.12, 13,15,16 and 18 is inconsistent with one another. The gold ornaments which were given to the deceased Jyothi at the time of marriage, are as per the custom prevailing in their community. A sum of Rs.1,00,000/- which was said to have been paid by the parents of the deceased to Accused 20 No.1 at the time of padapooja was also as per the customs prevailing in their community. As aforementioned, PW.18 has specifically admitted that nothing was settled in the marriage talks regarding payment of cash as also gold ornaments. However at the time of padapooja ceremony, which is being part of the marriage ceremony, gold ornaments weighing 150 grams were given to Jyothi. The trial Court in its judgment at paragraphs 33 to 40 has in detail considered all the aforementioned aspects and has come to the correct conclusion that the prosecution has not proved its case about the demand of dowry by the accused and payment of dowry by the parents of the deceased Jyothi. Even on reconsideration of the entire material on record, we do not find any ground to disagree with the conclusion reached by the trial Court.
7. So far as the offence under Section 498-A of IPC is concerned, it is the case of the prosecution that the accused 21 especially Accused No.1 was torturing the deceased to bring additional amount of dowry from her parents house; such demand started only after three years of the date of marriage; the accused and the deceased lived amicably and happily for the first three years after the marriage and only thereafter the demand started by the accused. We find that the material on record may not be sufficient to conclude that Accused No.1 or the other accused harassed the deceased Jyothi by demanding additional amount of dowry. There was no demand of dowry at the inception i.e., at the time of marriage and the accused lived amicably for three years after the marriage without there being any complaint whatsoever. Strangely according to the case of the prosecution, the demand started only after three years of the marriage. It is relevant to note that the houses of the parents of the deceased and the accused are in the same lane and they were bifurcated by only two houses in between. No complaint whatsoever is lodged before any 22 authority as per law against the accused in respect of such demand. Admittedly, there was no misunderstanding between the two families for three years. It is the case of the prosecution that PW.12 has paid Rs.10,000/- at one point of time and Rs.15,000/- at another time. There is no material to that effect. It is also the case of the prosecution that PW.12 (father of the deceased) had paid Rs.20,000/- which he got from LIC policy, to Accused No.1. There is nothing on record to show that the LIC policy was matured and the amount was drawn by PW.12 or that he prematurely drew the money in order to satisfy the demand of the accused. No documents are produced to show that the LIC has released Rs.20,000/- to PW.12. Specific suggestions were made to PWs.12 and 16 by the defence about the non-production of the records. Despite the same, the prosecution did not choose to produce any records in support of their case. Having regard to the totality of facts and circumstances, in our considered opinion, the trial 23 Court is justified in acquitting the accused for the offence under Section 498-A of IPC.
10. Since the defence admits that Accused No.1 has committed the offence under Section 304 Part II of IPC, it is for the prosecution to show as to how Accused No.1 is liable to be convicted for the offence under Section 302 of IPC. The circumstances relied upon by the prosecution are:- last seen circumstance as deposed by PWs.6,7 and 21; the unnatural conduct of accused in keeping quite without informing about the death of the deceased to his parents as well as the parents of the deceased Jyothi; non-explanation by the accused as to how the death has occurred; and the accused having sustained injuries.
11. Sri Tomy Sebastian did not seriously dispute the fact, that the prosecution has proved the last seen circumstance relied upon by it. Even otherwise, we find 24 from the records that the evidence of PWs.6,7 and 21 amply reveal that Accused No.1 took both the deceased on the TVS moped from Kellur village to Hunsur for getting treatment to both the deceased from doctors PWs.6 and 7. Both the deceased were examined by the doctors at about 7.30 p.m. on 12.9.2005 and at that point of time, Accused No.1 was very much present. PW.21 has also seen both the deceased with Accused No.1 on TVS moped when they were going to the hospital on 12.9.2005 at about 6 p.m. The versions of these witnesses have remained uncontroverted to major extent. Thus it is clear that Accused No.1 was seen with both the deceased just prior to the incident in question.
12. There cannot be any dispute that Accused No.1 has fled away from the house without informing the incident either to his parents or the parents of the deceased Jyothi. This conduct of Accused No.1 is highly suspicious. 25 This conduct has created grave suspicion in the mind of the Court. However any amount of grave suspicion may not take the place of proof.
13. The doctor PW.20 who examined Accused No.1 has issued the Wound Certificate as per Ex.P25. He has recorded the history as given by Accused No.1. He has deposed that the injuries sustained by Accused No.1 were because of fall from the TVS moped in the evening of 12.9.2005 at 7.30 p.m. Though the accused has tried to give false explanation that he was not present at the time of the incident, the same cannot be believed in view of the history given by Accused No.1 before the doctor. Accused No.1 admits his presence at the scene of offence. He also admits that the injuries suffered by him are due to fall from the TVS moped on the date of the incident. The evidence of PW.13 (mother of the deceased) discloses that road leading to Hunsur from Kellur village was not a 26 motorable road and it is not feasible for anybody to take pregnant woman in that road. In the examination-in- chief itself, PW.13 has deposed that since the road was in a bad condition, she advised her son-in-law i.e., Accused No.1 not to take both the deceased on TVS moped and requested him to take both the deceased by bus. However Accused No.1 took both the deceased on the TVS moped and has reached the hospital and he got the treatment to both the deceased in the hospital and that the incident has taken place while returning back from Hunsur to Kellur village near the nala. The scene of offence panchanama Ex.P21 reveals that the said nala is having a width of 28 feet and 2 ½ feet depth of water was there in the nala. The TVS moped carrying both the deceased has fallen from the height of 18 feet. The ditch was full of boulders and it was a cliff edged way.
The post-mortem reports are at Ex.P12 and Ex.P13. The doctor has opined that the death of Jyothi was due to 27 comato-asphyxia as a result of drowning. The post-mortem report of deceased discloses that she has sustained contusion measuring 5 centimeters x 4 centimeters over the right temporal parietal region. The death of the child Sachin was due to haemorrhagic shock as a result of head injury. Thus it is contended by Sri Tomy Sebastian that the death must have occurred due to fall from the TVS moped and it is not a case of intentional causing of the deaths. Accused No.1 has also sustained certain injuries though simple in nature and he must have saved himself.
14. Having regard to the totality of facts and circumstances and as Accused No.1 has got the treatment for both the deceased from the doctor by taking them to Hunsur on the TVS moped and that the incident has taken place while returning near the nala, the trial Court is justified in concluding that Accused No.1 did not have intention to commit murder. But however Accused No.1 has got knowledge that such fall would result in death. Had 28 the deceased got the intention to commit the murder, he could have taken them in nala while going to Hunsur itself. The very fact that he took both the deceased to the hospital and got them treated and this unfortunate incident has taken place while returning back gives credence to the version of the defence.
Since two views are possible, the trial Court has taken the view which is beneficial to the accused. The view taken by the trial Court is one of the possible views under the facts and circumstances of the case. In view of the same, we are of the conclusion that this is not a fit case to interfere in the judgment of the trial Court.
Accordingly, both the appeals fail and the same stand dismissed.
Sd/-
JUDGE Sd/-
gss/- JUDGE