Karnataka High Court
The State Of Karnataka vs Shivappa S/O Rudramuni Hugar on 24 October, 2017
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF OCTOBER 2017
PRESENT
THE HON'BLE MRS. JUSTICE RATHNAKALA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.3648/2010
Between:
The State of Karnataka
... Appellant
(By Sri Prakash Yeli, Addl. SPP)
And:
1. Shivappa
S/o Rudramuni Hugar
Age: 30 years
Occ: Coolie work
R/o Ambalaga Village
Aland Taluk
2. Shankaramma
W/o Rudramuni Hugar
Age: 55 years
Occ: Coolie work
R/o Ambalaga Village
Aland Taluk
3. Rudramani
S/o Revansiddappa Hugar
2
Age: 65 years
Occ: Coolie work
R/o Ambalaga Village
Aland Taluk
4. Jayakumar
S/o Rudramani Hugar
Age: 28 years
Occ: Coolie work
R/o Ambalaga Village
Aland Taluk
5. Suryakanth
S/o Rudramuni Hugar
Age: 28 years
Occ: Coolie work
R/o Ambalaga Village
Aland Taluk
... Respondents
(By Sri Shivasharana Reddy, Advocate for
Sri Ustad Sadat Hussain, Advocate)
This Criminal Appeal is filed under Section 378(1) and
(3) of Cr.P.C., praying to grant leave to appeal against the
judgment and order of acquittal dated 03.03.2010 passed by
III-Additional District and Sessions Judge at Gulbarga, in
S.C.No.126/2009 acquitting the accused/respondents for
the offences punishable under Sections 498-A, 306, 304-B
r/w Section 34 of IPC and also for the offences punishable
under Sections 3 and 4 of the Dowry Prohibition Act and set
aside the aforesaid judgment by allowing the appeal and
convict and sentence the accused/respondents for the
offences with which they were charged in accordance with
law.
This appeal
coming on for Hearing this day,
N.K.SUDHINDRARAO J., delivered the following:
3
JUDGMENT
This appeal is directed against the judgment and order of acquittal dated 03.03.2010 passed by the III- Additional District and Sessions Judge at Gulbarga, in S.C.No.126/2009 wherein the respondents/accused were acquitted of the offences punishable under Sections 498-A, 306, 304-B r/w Section 34 of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act.
2. The facts unfurled in the case are that the complaint came to be lodged by one Jagannath who is said to be the brother of the deceased-Sathamma. It was stated that the marriage of his sister Sathamma was performed with Shivappa and at the time of marriage, there was a demand for dowry of Rs.25,000/- and two tholas of gold. However, father of the complainant arranged Rs.20,000/- and one thola of gold and that was promptly paid and when Sathamma entered the marital house, there was demand for the 4 balance dowry and thereafter, very often she used to get disturbed because of the attitude of the accused persons. She used to complain about the same to her parents and the complainant. She was subjected to torture and cruelty and several panchayats were convened wherein the family members of the complainant expressed their inability to meet the demand for the balance dowry made by the accused persons. However, as the matter gradually got aggravated, being unable to tolerate with the torture given by the accused persons, Sathamma went to her parents' house. On 22.11.2008 Shivappa and Suryakantha came to the house of the complainant and said that the house is under construction and they need Rs.15,000/-. At the same time, they have also stated that as the construction work of the house was going on, Sathamma is supposed to be there in the circumstances. Further, they placed fresh demand for Rs.15,000/-. Father of the complainant said that it is 5 not possible however, gave five grams of gold. On 25.11.2008 Shrimanth who is the brother of Shankremma (mother-in-law) informed the complainant that Sathamma was done to death by the accused by hanging. Immediately, the complainant and others went to the house of the accused and found the dead body of Sathamma in the room and a rope encircling her neck on the left side and also there was bruise near left eye. In this connection, the complainant claims his sister Sathamma was murdered by the accused persons who inflicted cruelty on her and also demanded balance dowry.
3. On the basis of the complaint, the Police have registered the case in Crime No.151/2008 for the offences punishable under Sections 498-A, 304(B), 302 r/w Section 149 of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act.
6
4. The Investigating agency, after investigation, filed a report under Section 173 of Cr.P.C., for the offences punishable under Sections 498(A), 304(B), 306 r/w Section 34 of IPC and also for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act against Shivappa, Shankaramma, Rudramuni, Jayakumar and Suryakantha. As the accused pleaded not guilty, they were put on trial.
5. The prosecution, in order to bring home the guilt of the accused, examined as many as twenty six witnesses as PW.1 to PW.26 and got marked twenty nine documents as Exs.P-1 to P-29 and produced M.O.s-1 to 7. The defence examined one Basanna as DW.1 on their behalf. During their statement under Section 313 of Cr.P.C., the accused denied the incriminating circumstances appearing in the evidence of PWs. and led the evidence of DW.1 as stated above. 7
6. We have heard the arguments of learned Additional State Public Prosecutor for the appellant- State, so also learned counsel for the respondents- accused.
7. The evidence of PW.10-Dr. N. Renukadevi would indicate that the death was suicidal one and not homicidal. In this connection, layman's calculation of murder by the accused which is spoken by PW.17- Akkanagamma does not stand the test of reasonability let alone reliability. Thus, there is neither independent circumstances nor other witnesses to support the version of the complainant.
8. Out of total number of witnesses examined, one cluster of witnesses are relatives and another of independent witnesses like neighbours. PWs.11, 14, 15, 19, 20 and 21 are the relatives including the complainant. It is only the complainant and his mother who speak about the torture.
8
9. At the same time, it is to be noted that they assert that there was torture, cruelty and demand for dowry by the accused on Sathamma that drove her to commit suicide on 25.11.2008 in the house of the accused.
10. The substance of the version of the members of the complainant's family is that the accused persons were demanding dowry and panchayats were convened and the amount was quantified at Rs.25,000/-. But allegations is omnibus in nature without corroboration from independent witnesses. PWs.1, 3, 4, 5, 6 and 17 are the neighbours. They have gone on saying that they do not know anything about the torture given to the deceased-Sathamma. None of the witnesses deposed about any particular circumstance suggestive of or identifiable or ascertainable to acts amounting to torture or cruelty except stray allegations. 9
11. The learned Additional State Public Prosecutor appearing for the appellant-State would submit that the aggrieved witnesses are the best witnesses since other witnesses will not be having interest in the family affairs or the welfare of the complainant or the deceased thus, he banks on the version of the complainant and his mother.
12. Learned counsel for the respondents-accused would submit that none of the independent witnesses have not supported the case of the prosecution and insofar as the complainant and his mother are concerned, throughout they have made omnibus allegations without any substance therein.
13. However, it is not the analysis between the interested/related witnesses and independent witnesses. But the evidence of witnesses who maintain consistency that is reliable. Mere narration of the complaint or a circumstance does not inspire confidence 10 of the Court at the time of appreciation of evidence. Evidence is always weighed and not counted.
14. Section 498A of IPC deals with the cruelty and ill-treatment meted out to a married lady by her husband and relatives of her husband. Section 498A of IPC reads as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any 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 11
(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."
15. While ill-treatment, cruelty and harassment meted out by the accused persons i.e., husband and relatives of deceased-Sathamma is one limb of the offences, aggravated demand for dowry causing apprehension in the mind of the deceased is the second limb. The prosecution invariably relies on demand for balance and additional dowry. Five grams of gold that was given to accused when Sathamma had gone to the house of the complainant on 22.11.2008 and it was seized from the house of the accused. The police have filed charge sheet for the offence punishable under Section 304B of IPC also. Section 304B of IPC will be attracted on the unnatural death of a married lady (wife) 12 within seven years of her marriage under abnormal circumstance like by burn injuries or related forms preceded by the dowry harassment.
16. The prosecution relies on both Sections 304(B) and 306 of IPC. Once Section 306 of IPC is entered, Section 304B of IPC has no place vis-à-vis abetment to commit suicide within the meaning of Section 306 of IPC. To constitute an offence under Section 306 of IPC 'abetment' as contemplated by Section 107 of IPC i.e., instigating the victim or driving the victim to such an extent that the victim is placed in a situation or platform wherein he or she does not have any alternative except to commit suicide. It presupposes there was no dowry death. Thus, gravity or force should be viewed from an independent angle i.e., neither from the angle of the complainant nor from the angle of the relatives of the victim or from the angle of the accused, as trivial matters may be counted as instigation insofar as the complaint is concerned. From the point of the 13 accused, provocation of high frequency driving out to commit suicide may be the requirement. But when examined from an independent angle, the evidence falls short of requirement of Section 498A of IPC. Nor does the evidence drives the Court to infer that the victim was incited/instigated to commit suicide. As observed by the learned Sessions Judge, money was demanded for construction of the house. As observed the learned Sessions Judge, there was no evidence regarding demanding and acceptance of dowry, thus taking out case from premise offences under the provisions of Dowry Prohibition Act, 1961. The mother and brother of the victim are not direct eyewitnesses to the instances of 'cruelty' on her nor have stated specific instances having heard from the victim. Their evidence to the effect that deceased had divulged with them about the ill-treatment meted on her in her marital home is vague and ambiguous. When the prosecution could not establish their charge under Section 498-A of IPC or 14 under Sections 3, 4 and 6 of the Dowry Prohibition Act, charge under Section 304B of IPC is lost to them.
17. The Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 has referred a portion of the work of Robert J. Kastenbaum in his book 'Death, Society and Human Experience' analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. The following passages are extracted from his book:
"The fact is that some people who commit suicide can be classified as psychotic or severely disturbed.
If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a relevant variable to consider.15
And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness.
Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle like struggle.
The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death.
The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow.
Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress.
People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect."
18. There are instances where a person whether male or female enters a location or atmosphere which he or she may find it very difficult to be adjusted and may also develop thinking that he or she would not be suitable for prevailing situation or the circumstances. More particularly when a person finds that the 16 destination of life is sealed by the destiny against expectations more particularly when even very minor percentage of his or her expectation are not going to get fulfilled. Thus, such person become absolutely mal- adjusted to the given situation and would be compelled for resorting to extreme step.
19. In the circumstances, it is established that there was no physical or mental acts ever pushed Sathamma to commit suicide. As already pointed out, the nexus has to be assessed from independent angle. And on such assessment, it cannot be seen or found that Sathamma was compelled or instigated by the accused for committing suicide.
20. Thus, in the light of non-establishing of offences under Sections 498(A) and 304(B) of IPC, we find that the judgment and order passed by the learned III-Additional Sessions Judge, Gulbarga, in S.C.No.126/2009 does not suffer from any infirmity or 17 irregularity or mistake of law or fact and there are no circumstances which warrants or call for any interference by this Court.
Hence, by dismissing the appeal preferred by the State, we confirm the judgment and order of acquittal dated 03.03.2010 passed by the III-Additional Sessions Judge, Gulbarga, in S.C.No.126/2009.
Sd/-
JUDGE Sd/-
JUDGE NB*