Karnataka High Court
Mahadevappa S/O Late Mallappa vs State Of Karnataka on 15 November, 2011
Author: Subhash B.Adi
Bench: Subhash B.Adi
">, REPRESE THE STA INTHE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 15 DAY OF NOVEMBER 2011 BEFORE THE HON'BLE MR.JUSTICE SUBHASH B.ADI CRIMINAL APPEAL NO.2270 OF 2905 BETWEEN : MAHADEVAPPA ; S/O LATE MALLAPPA 45 YEARS a RESIDENT OF RECHAMBALLT 0. VILLAGE, CHAMARAJANAGAR TQ.0- CHAMARAJANACAR DISTRICT. ... APPELLANT (BY SRLA,H-BRAGAVAN, ADV). - AND: . STATE OF. KARNATAKA. ">. BY EAST POLICE | ~ CHAMARAJANAGAR NTED BY PUBLIC PROSECUTOR HIGH COURT BUILDINGS "BAN GALGR Be . RESPONDENT (BY SRL SRI NIVASA REDDY, HCGP) _ fis Criminal Appeal ie filed under Section 374(2) of OrPeC. against the judgement dt.6.09.2005 passed by the POW PUNC.. Chamarajanayar in SC. No. LG3/2004 [old aC No. 2866/2000) convicting the appelant/accused No.1 for undergo Rl. for 6 months for the offence P/U, (S. 498(A) of IPC and sentencing him to underg go RI. for 5 years and to pay fine of Rs. 5000/- LD. to underg gO one year for ~ the olfence P/U/S.306 of IPC. : This appeal coming on for hearing this. day. the Court made the folowing: 4 me JUDGMENT 7 This appeal is by tlie accused, No: 1 against the judgment of conviction in Bone en 10.183 /2 2004. dated 6.9.2005 on the file of the Fast Track he C ourt. Chamarajanagar Accused No.l is convic led for. the otlerice punishable under Sections 498A and SOS of IPC. : ae of the prosecution is that the accused No.1 married | LG deceased La Oia in the year 1992. For four years, acewised 'No. i . aud deceased Latha lived a happy married life. Thereatter, aveused No.1 husband, accused No.3 mother-in- law' and weeiiee -d No.4 brother-in-law started harassing the a deceased and tnereafter, accused No.i married to accused No.2 even though the marriage between the deceased Latha and accused No.1] was subsisted. Since { and 4 were harassing the deceased, she h: accused No.] and gone to the house of PW-16 her maternal uncle and from there, she had gone to her parents" rouse. In regard to the harassment, twice panc hay ath was "convened and in the panchayath, the accused were. advised not. ta, harass the deceased and also to. give proper food. "After the panchavath, the deceased went to the house of the accused and after six months of the panchayath, PWes-1 | and 17 father and mother of the deceased ; weie informed that the deceased had committed suletde by hanging, --PWs-1 and 17 went to the house of: the "ace used at. Wl 45. a.m, on 31.5.2000 and saw that their daiaghtae hadl committed suicide by hanging. PW-1 went to the rural police station Chamarajanagar and filed a complaint as per Ex Pe at 11.45 a.m. on 31.5.2000. PW-14 _ regi Stere "d4 the samé as UDR No. 13/2000 under Section 174 of : : © PPC 7 / ee during the course of investigation PW-14 received Exs.P i to PS through PW-16, which are the letters writter 1 by the deceased to PW-16, PW-1 and brother of PW- : 16, Ww herein she had alleged about the harassment meted out a ts her by her husband and in-laws. PW-14 also recor ded the statement of witnesses. Based on the investigation. he registered a case for the offence punishable under Sections 498A and GO6 of IPC in Crime No.G5/2000. Me tvestigation was continued by PW-28 and thereafter, pyuas. co miple ted the investigation and filed charge sheet for the offance punishabte under Sections 498A and 306 of I PC ; read with Sect ions 3, 4 and 6 of Dowry Prohibition Act. 3. During the course of the jnnvestigation, only accused No.1] was arrested "and. as such, "the trial was initially commencea | against agen geeNo, 1 in exe .NO.133/2004. After arrest of the' remaining Accused Nos.2 to 4, the trial was commence ed. in S. C. No. 172 /2004. Both the S.Cs. were tried together 'and by a 'comme m judgment, the Trial Court, though ac quitted ac wcised Nos.2 to 4 irom ali the charges, however . acoused No. lowas acquitted for the offence punishable under Sections 3, 4 and 6 of D.P.Act, but coriwicted him for the offence "punishable under Sections 496A and 306 of IPC by SS sentencing for a period of two years rigorous - imprisonment with a fine of ©.2,000/- for the offence punishable under section 498A of IPC. in default te undergo six months RI. and for the offence punishable under Section 306 of IPC, convicted the accused with five years RL. with: a fine of *.5,000/-. in default to u ndergo one year Ril: AS agairist this Judgment of conviction for the evoftence pu shable indie. Sections 498A and 306 of IPC, ACOUE ed No. 1 is tn appeal, 4. orLA.H. Bhagwan, leariied ; counsel appearing for the accused No] submitied : tha 7 > the venture case of the prosecution is based ¢ on 'the ev idence of PWe-] and 17 parents of the deceased, PW. 16 "maternal uncle, PW-20 grandfather and PWs- 8y 9, 48, ond. 21 >the witnesses have spoken of harassme: at. "Rey he d on "the complaint Ex.P6 filed by PW-1. According to ihe com piaint Ex.P6, father of the deceased PW- has noi made any. allegation as to the demand of dowry or - . receipt of dowry by the accused. He has also not made any allegation as ¥ regard to the harassment except Stating that his daughter, had mot conceived and as such, she was harassed "and she committed suicide. PW-14 who registered the case - on the basis of the complaint, also found that the complaint does mot disclose any offence and accordinsly, it was registered as UDR No.13/2000. He relied on the evidence of PW-1 complainant and submitted that PW-1 has stated in the evidence that there was a demand of dowry of @10,00G/- and in the marriage, PW-1 had givern-a wrist watch, gold chain: gold ring and %.10,000/-. But, in ihe crdss-examination, he nas admitted that he had give ha complaint as per Ex.P6 and further the police had. come to the house ofthe accused at 3 pm. He was present in tie house: of the accused till the s0lice came. .He-knew what-had. trarispired in the house of the accused 'pelore giving complaint and has stated the details of the incident in the complaint. He also admits that he has not been examined . by police after the inquest. Relying on this evidence, learned cousnel submitted that PW-1 father oof the deceased WAS aware as to what had transpired in the . House of th S | accused and he also admits that he had given complaint as per Ex.P-6 and also admits that he had given "the details before the police and further admitted that he had "net given any Statement after the inquest re port was regarding dowry harassment nor there is any allegation which constitute an offence punishable under Section 498A of IPC, Further, as far as the dowry is concerned, nothing has been mentioned in the complaint. Though PW-1. alleges that panchayath was convened twice. anc the warmés 'of the. yanchayath is referred only .with regard to "the. first I > 5 & Oe panchayath and as far as second panchavath is concerned, nothing has been mentioned> ~~ 5. According to. Pw. Le he came fo the house of the accused at 11.48 am. and admits that police came at 3 p.m put it is not explained by Pw. 14 or PW-1 as to why the complaint in UDR No. 13/ 2000 was registered at 11.45 p.m. i.e. after more t han 12 hou rs and how the police came at 3 pm, and why the first information was registered after the police cameto the spot. PW-1, in his evidence has alleged . that: there. was a panchayath and after the panchayath, deceased went to the house of accused and after six months, os, the incident nad occurred and between the panchayath and the date of the incident. the deceased had not come back to her parents' house. Cs ae rs 6. He also relied on the evidence of PW-1G - the maternal uncie of the deceased i.e. brother of PW. P7>owho, in his evidence has stated that there was a marriage négoiliation and in the marriage negotiatiory, accused bad demanded. ¥.50,000/- by way of dowry. However, PW-1. agreed io give %.10,000/-. But, he was persuaded to agree for %.25,000/-. He has produced Exs 1 to PS, the letters stated to have been written, by the deceased. Bas P i and P2 were addressed to PW-16, PS and, PA viere aildressed 16 his brother Madappa and in Ex.PS for whieh there is AG postal cover except the letter 'stated to have been / addressed to PW-1. Learned counsel submitted that PW has not stated anything about the demand or =. 50.0007. by the accused or negotiation for ~~ 8,.25,0G0/-) However, PW-16 alleges that there was a demand "OF 2.50,000/. and %.25,000/- was agreed. In the cross- examination, PW-16 admits that in Ex.P3, there is no seal of "taluk panchayath and there is no postal cover for Ex.P4, Learned counsel relying on Exs.P4 and PS submitted that -.even if they have been alleged to have been written by the deceased and addressed ta PW-] 6. PW-1 and brother of Pw- 16, they do not show any evidence either demand lof dowry or payment to attract provisions of Section 3 and eof DP Act. He submitted that all the letters are much rior ¥s thes all eged panchayath and as the last letter Ex.P4 s dated 2.5. 1996. whereas the incident had ocourred on 31.5.2000. and according to the evidence of bw- | ; parichayath "Was held six months prior to the date. of ifieident. The letters do no constitute any harassment aor they: constitute any other offence. in the . cross-exa rmination . Pw 16 has also admitted that accused No: fand dlevrased used to come to his house but they jiever u used to stay and both used to return on the same day. He. alco siimitted that for four years, accused and deceased lived happily. - Fe. He fi Mher relicd on the cross-examination of PW-16 and' pointe ad out thal accor ding to him, he got the information ~ of the: death of the deceased at 9 a.m. and he reached the ~ place. of incident at 12.30 p.m. and the body of the deceased -- was lying supportir ig to the wall. After he reached the house wud of accused, PWs-1 and 17 came and thereafter PW- i gave the 16 complaint. In the cross-examination, he states that he came to know about the incident at 9 am. He came: . to the said vilage at |i a.m. and enquired and therea fer he ie nto the place of Incident. the police came-and he wrote the complaint. for PW-1 and he had written about the. harassment, and panchayath in the complaint: However, PW 14 'the police office who registered: the casi, has. not | produiced any other complaint other than | Ex.PS which ~ does not contain the harassment, oe 8. He relied:.on the evidence of PW-17 the mother of the deceased. PW-17 has made further improvement by alleging that the accused used to assault the deceased and the . decéased had earlier sustained injuries. Further, she also o admits that. for, four years, accused No.1 and deceased lived happily. In the cross-examination, PW-17 admits that » accused No.! used to bring the deceased to their house and "dec 'ased had stomach pain after the Marriage and after the - panchayath, the deceased was living with the aecused and thereafter, she had not come. He also relied on the evidence Ll of PW-18 who is a relative of the complainant, who as stated in the cross-examination that he came to know abou t the incident at 10 a.m. He reached the placé: at j 1 ata. and within 1OQ minutes, the police came to the | spat, Referring to, this evidence and evidence of Pw. i 4, learned. counsel submitted that the material, produced by the prosecution to prove the charges viz: Exs.PT to PS and the-evidence of PWs- I, 16, 17, 18 and 21, the withdeses who have supported the case of the prosecution 'regarding hatassment, it is not clear with regard to the 'tine of 'neident and neither PW-14 Investigating Officer who revistered the case has not stated as to when the incident had cccurred nor PW-1 has stated as to the time ofthe jneident 'and there is a material contradiction oe in' thiesst atement of PWs-1, 16, 17 and 18 as regard to the : : fine of incid dent and also as regard to the police visiting the spot. ABSreine to PW-is, the police came within ten * minutes' aiter he reached the spot. According to PW-1, the S police came at 3 p.m. and PW-16 states that PWs-1] and 17 -..€ame after he reached at 12.30 p.m. Ne explanation is offered by PW-14 or any other witnesses as to why even after the LZ police reaching the spot neither the Investigating Officer nor the police have not registered the case and in fark, PW 14 in his evidence has stated that on 31.5.2000 at 11.a8'p nh when he was in the police station, PW-1- personally appe ared before, him and gave complaint as per. EX. ps. "He 'sent "the p pole é constable to the place of Sccburense to keep a waich on the dead body and this is corroborated: by the evidence of PW-25 who was assigned to guard, the dead 'body over the night. According to PW: 16, the compiaint was given when the police visited the" spot "which is: contradicted by PW-14 the police officer who. segisiered, the 'ease stating that PW-1 himself appeared before imi and . gave a complaint. Even Exs.Pi to PS are not within tne 'proximity of the incident and also do a not prove the offetice punishable under Section 498A and 306 . : of IPC. He submitted thal, neither in the complaint nor in the eviden nee, the prosecution was able to Show that there was a , abetm exit and om account of the abetment, the deceased 'committed stiicide, even then the Trial Court, relving more oni Eys.Pl to PS and the evidence of PWs-1, 16, 17, 18 and 21, has held that the prosecution has proved the offence ee EE Be uN 13 punishable under Section 498A. He further submitted that the entire evidence of the prosecution even if itis taken into consideration, if will not prove any of the. offetice alleged against the accused, much less for the offenes for which he is convicted. 9, On the other hand, earned Government Pleader submitted that, though initieliy, "the "case was registered as UDR, PW-14. during the course of investigation, collected the evidence a nd based en the investigation, the charge sheet was fled for the.olience puinishable under Sections 498A and 306 of IPC read with Sections 3, 4 and G6 of the D.P. Act. The prosecution has ied the-evidence of PWs-1 and 17 parents of the deceased, pay iG maternal uncle of the deceased who has . produ ced 'Exe.P 1 to P38 and PS which are inland letters and PA is the ietter which came through postal cover. Exs.P1 to P3 and PS show the postal seal and the date and there is no SS reason to disbelieve these documents. Apart trom these documeriis, in the evidence of PW-21 the neighbour of the accused, it is stated that the deceased used to tell about the SA TRIN Eonar a teen ee oe Ses RE 14 harassment meied out to her and this is supported by the evidence of panchayath who attended the panchayath about six months prior to the date of incident. This evidence prove that the deceased was harassed and or.acceunt of the harassment, she committed suicide. The evidence led by the prosecution perfectly prove the charge of offence. punishable under Section 498A and 306-0f IPC. 10. In the light "or | the submissions made by both the counsel, the point that arise for consideration in this appeal is: | | | "as: to whether the judgment of conviction of accused No. be for: the offence punishable under Sections 4984 and S06 of IPC call tor .. interference?" i L To prove the charge for the offence punishable under Section 498A of IPC, no doubt Ex.P6 complaint given by the father of the deceased does not categorically state as to the dowry harassment or refers to the instances of the harassment, but inturn allege that his daughter committed is suicide on account of the harassment by the accused for the deceased not conceiving. On referring to Ex.P6. though it does not show the specific allegations as regard to the offence punishable under Section 498A. of IPC. "but "there. isan allegation of harassment meted-out to thie 1c dece saved Pw and PW-1i7 the parents of the: deceased wine: allege d that the deceased was harassed, she was rot given foo. and she was badly treated by the accused N No, 1 cand this is supported by the evidence of PW- (6 maternal, ancl of the deceased who has stater! that the deceased, had written letters to him, his brother M ad appa and. al also jo PW-1 which are Exs.P1 to PS. No doubt, PW-16 has produced these letters after three days of the incident, but there 'is no serious challenge as to the ss leiters stated to have been written by the deceased. PW-16 . : who has produced these letters, has admitted that he has not produced any other evidence for comparison. The inland o letters, vi. Exs.P1 to P3 and P5 bear the postal seal. A bare ss, pe eo 'isal of the hand writing in Exs.P1 to P3 and PS appears to be the same and in all these letters, the deceased has stated about the harassment, particularly that she was nol properly L ze .
PSs 20, 24 and 27 partly turned hostile, but they have stated that 16 feeded and she wanted to have a separate residence. This is corroborated by the evidence of independent watness | PW -21 who is the neighbour of the accused and in-her € é ~viderice, she has stated that the deceased. used ; to "tell "about the harassment. However, in the cross- examination: she has admitted that she has not gone to the house of the accused No.i anytime after the marriage of the deve: ased with accused No.1 till her death and deceased had also had not gone to the house of PW-2I. . But, 'she had specifically stated that there used to be quarrel between the accused No.1] and deceased. PW- 1s has. also sial ed that thie 'aocused used to harass and assault. the 'decedoeth, and -dec eased was kept in a separate cell. No doubi, it is "not 'corroborated with any other evidence, however, to the extent that harassment is concerned, the me same is consistently stated, even the panchayath viz. PWs-2.
8.9, 20.2 20, 24 and 27 have been examined. No doubt, PWs-
.panchayath was held. No doubt there is discrepancy as regard to the period during which the panchayath was held, according to PW-1. if was 6 months prior to the incident, oe
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according to PW-12, it was 11 months prior to the incident and according to PW-16, it was about one year prior to the incident. However, the evidence of these v witnesses cand Exs.P1l to PS do show that the deceased was harassed by the accused No.l. in her letters Exs. Pa to PS. she has alleged that she has been harassed. s She was not given fresh food. It was given only twice a day. | The accused used to abuse her in filthy language. He bas not given. . ony, other things except food. No doukt, | the accused have also led evidence as DWs-1 | and 2, the suggestions "to "these witnesses in the cross-- examination also shows that "the deceased had no children and as such, she has committed suicide and she was not co- operating with her husband. But, as far as the harassment is oS concerned, 7 'the "prosecution has led the | evidence of . % indep pendent witnesses and also the relatives. 'The evidence of ; independer at witnesses: corroborates with the evidence of the ;
6 of th the deceased. 7 the. harassment meted out to : --
dece vased would drive her to commit suicide c or cause se inju c oo : attract the} provisions of Section 498A oft IPC is also clear from : : the averment: i the letters" wherein, the "deceased Je Ss.
18mentioned that if this harassment continues and if it is not resolved, she will die. To this extent, in my "opinion, the prosecution evidence supports the charge of an ~affence punishable under Section 498A efIPC.
12. However, the evblence led by thé prosecution does not disclose as to what time "the. incident. occurred and it creates serious doubt-as te whether, the police came to the spot and thereafter, the complaint was registered and as to why PW-i fled a complaint as per Ex.P6 at 11.45 p.m. Even if the evidence és, considered. as it is, PW-1 refers to the incident prior to the panvhayath and PW-17 admits that the deceased had ; not returned to their house after the Lo panchayath, . Accoraing to PW-1, panchayath was held 6 . . 'months prior io the incident, according to PW-17, 10 months prior to the icident and according to PW-16, a year prior to » the incident. PW-21, the neighbour of the accused has only ~atated that there was harassment and the deceased was not siven ood anc she was assaulted bui in the proximity of the incident , tfere is no eviden ce to show that the ac cused fo ;
a "spot only after the incident had occurred. Th ey have no io abetted the deceased to commit suicide to attract provisions OF Section S06 of IPC. Section 107 of IPO. requires an evidence of instigation by the accused to.the deceased to commit suicide.
13. The very fact is that: the evidence. of. prosecution is doubtful as to time of the meidents, Accordirig to PW-1, he came to the house of the aceused a 4145 a.m., but though PW-16 states that he came at 12.39 pain, bul states that PWs- Land 17 Game. thereafter. There is serious contradiction as to the: evitiense of PWeei and 16. PW-18 states that at 1] a.ML., he. reached the spotand police came within 10 minutes.
Even otherwise also, neither PWs- 16, 17, 18 and 21, who are stated ro be the direct witnesses have not stated as regard to "the. payinent,.PWs-1 and 17 parents of the deceased, as they were not- residents of the same village and they went to the kniowiedge of the cruel treatment given to the deceased. PW-
» LY had stated that the deceased had not come back from her husband's house. There is hardly any evidence for an offence 20 punishable under Section 306 of IPC. When iene of the witnesses has stated about the accused abetting the deceased fo commit Suicide, more so, proximity, the Trial Court, relying on the letters of the deceased, was not justified in convicting © the accused for the offence punishable under Section 366 of PPC.
i4. In my opinion, the j udement of the Trial Court in convicting the .accused for the -offence punishable under Section 306 of IPC js perverse, net based on any evidence and lable to bé sét asidé:
LD. Accordingly. 1 nds the following | ORDER . . 7 Appeai is partly allowed. Accused is acquitted for the offence punishable under Section 306 of IPC. The conviction of accused for the offence punishable under Section 498A of "IPC is confirmed. The accused had undergone pre-trial : detention and post conviction judicial custody for a period of "more than one year ten months, The Trial Court has convicted the accused for the offence purushablie under eee ay ai Section 498A of IPC with sentence of two years B.L in 2005. in my opinion, considering the circu mstances and also considering that accused had substantia ly coinple eted the sentence imposed by the Trial Court by undergoing pr pre- "trial detention and post conviction judicial ens for a 8 riod dof one year ten months, | find re ae used c oul be & conv icted for the offence punishable un der séecisin 498A 9 with the sentence for which the accused had unide -fgone tat tent ion during trial and post conviction, judicial wistoaynona if accused had already paid the fine: amount, "there is no need to pay the same, otherwise, : adcusadht to pay a 1 fine of €.2,000/- as ordered by the Trial "Court, fo default the accused shall undergo three months simple imprisonment.
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