Karnataka High Court
Shekhargouda S/O Nigangouda Patil vs The State Of Karnataka on 4 July, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 04TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.482/2008
BETWEEN:
1. Shekhargouda
S/o. Ningangouda Patil
Aged about 31 years
Occ: Working in Railway Department
R/o. Running room NW Railway
Belgaum.
2. Smt.Kashawwa Ningangouda Patil
Aged about 60 years
Occ: Household work
R/o. Running Room NW Railway, Belgaum
3. Smt.Vijayalakshmi Prakash Laddi
W/o. Prakash Laddi
Aged about 35 years
Occ: Teacher and household work
R/o. Harati Taluk & District: Gadag. ...Appellants
(By Sri G.M.Bhat, Advocate)
AND:
The State of Karnataka
By Camp Police Station
Belgaum. ...Respondent
(By Sri A.A.Pathan, Addl. Government Advocate)
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This appeal is filed under section 374(2) Cr.P.C.,
praying to set aside the judgment dated 27.03.2007 passed
in S.C.No.21/2007, on the file of the Presiding Officer, Fast
Track Court-II & Addl. Sessions Judge at Belgaum.
This appeal coming on for final hearing this day, the
court delivered the following:
JUDGMENT
The appellants (hereinafter referred to as accused 1 to
3) were tried for offences punishable under sections 498A, 306, 304B r/w 34 IPC and also for offences punishable under sections 3, 4 & 6 of the Dowry Prohibition Act, 1961 (for short, 'the Act').
2. The learned Sessions Judge has convicted and sentenced accused 1 to 3 of offences punishable under sections 498A & 306 IPC. The learned Sessions Judge has convicted and sentenced accused 1 & 2 of offences punishable under sections 3, 4 & 6 of the Act and acquitted accused 1 to 3 of an offence punishable under section 304B IPC.
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3. I have heard Sri G.M.Bhat, learned counsel for accused 1 to 3 and Sri A.A.Pathan, learned Additional Government Advocate for State.
4. The inter se relationship of accused 1 to 3 and some of the prosecution witnesses and certain facts which are not in dispute are as follows:-
Accused No.1 is the son of accused No.2. Accused No.3 is the daughter of accused No.2 and elder sister of accused No.1. Deceased Irawwa @ Shilpa is the youngest amongst four daughters of PW1-Shekhappa M.Bennur. PW4-Naveen is the younger brother of deceased. PW5-Iramma Sangappa Bennur is the sister-in-law of deceased (the wife of elder brother of deceased), so also PW6-Basamma Mallappa Bennur. PW7-Ishwargouda N.Patil and PW8-Irappa R.Akki are natives of Mallasamudra, Gadag Taluk, which is the native place of PW1. The father of accused No.1 namely Ninganagouda Patil was working in Railway Department. After his death, accused No.1 was given employment in Railway Department at Belgaum. The marriage of accused 4 No.1 with deceased Irawwa @ Shilpa was performed on 20.11.2003. Thereafter, deceased was living in the house of accused 1 & 2 in Railway Quarters provided to accused No.1 at Belgaum. On 30.04.2006, deceased committed suicide by hanging in the house of accused 1 & 2 at Belgaum. PW1 lodged first information, alleging that accused 1 & 2 had demanded and accepted dowry before marriage. They were also subjecting the deceased to cruelty to bring additional dowry. PW1 and others had advised accused 1 & 2, but they did not mend their behaviour. The deceased not being able to bear cruelty meted out to her by accused 1 & 2 committed suicide in the house of accused 1 & 2.
It is the case of prosecution that accused No.3, who is the elder daughter of accused No.2 and elder sister of accused No.1 was frequently visiting the house of accused No.1 and she was also harassing and ill-treating deceased.
5. The post-mortem examination conducted by PW9- Dr.Yogiraj V.Omkarappa confirmed that deceased had committed suicide by hanging.
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6. The prosecution has relied on evidence of the father (PW1), younger brother of deceased (PW4) and sisters-in-law of deceased (PW5 & PW6) to prove aforestated offences. The prosecution has also relied on the evidence of neighbours of PW1 and neighbours of accused 1 & 2. The prosecution has relied on suicide note (Ex.P.2), alleged to have been left by deceased. The learned Sessions Judge having framed points for determination in relation to each of the offences has together taken up all the points to hold accused 1 to 3 guilty of offences punishable under sections 498A, 306 r/w 34 IPC and accused 1 & 2 guilty of offences punishable under sections 3, 4 & 6 of the Act. The approach of learned Sessions Judge in taking all the points for determination simultaneously is not correct, nevertheless this court being the court of first appeal has to re-appreciate entire evidence adduced by prosecution to find out if prosecution has adduced evidence to prove charges framed against accused 1 to 3 beyond reasonable doubt.
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7. As already stated, accused No.3 is the elder sister of accused No.1 and elder daughter of accused No.2. When the marriage of accused No.1 and deceased was performed, accused No.3 was living separately with her husband in Harati Village of Gadag District. The first information of incident was lodged at 1 p.m., on 01.05.2006, though PW1 had reached the place of incident on 30.04.2006. In the first information, there is no reference to accused No.3. Accused No.3 was implicated after suicide note alleged to have been left by deceased was seized at the time of inquest. Above all, PW1, PW4 to 7 have not deposed about presence of accused No.3 during marriage negotiations. There is no evidence on record to show that accused No.3 was present at the time of alleged acceptance of dowry. The learned Sessions Judge, without noticing these basic infirmities in the evidence of prosecution witnesses had framed charges against accused No.3 for offences punishable under sections 3, 4 & 6 of the Act, which clearly betrays lack of application of mind by learned Sessions Judge.
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The first part of prosecution case relates to demand and acceptance of dowry. Therefore, it is necessary to appreciate evidence adduced in proof of demand and acceptance of dowry.
8. PW1-Shekhappa M.Bennur has deposed; at the time of marriage negotiations, cash of Rs.25,000/- and 6 tolas of gold ornaments were given as dowry and marriage expenditure was borne by PW.1. At the time of engagement of marriage of deceased with accused No.1, PW7- Ishwargouda N.Patil and PW8-Irappa R.Akki, CW7-Rajesab Malliksab Siddi were present as elderly persons.
During cross-examination, PW1 has stated that a sum of Rs.25,000/- was given to accused as 'varopachara' and he had given six tolas of gold ornaments to his daughter (deceased). PW1 has admitted that he had given similar amount and gold ornaments when he performed marriage of his other daughters. Above all, PW1 has not deposed that accused had demanded dowry as consideration 8 for marriage of accused No.1 with deceased. The evidence of PW1 regarding payment of Rs.25,000/- to accused No.1 is highly discrepant. PW1 has not deposed the date on which demand was made. PW1 has not deposed the date on which he had paid a sum of Rs.25,000/- and to whom he had paid a sum of Rs.25,000/-.
9. PW4-Naveen is the younger brother of deceased. PW4 has deposed; at the time of marriage of deceased with accused No.1, they had paid cash of Rs.25,000/-, six tolas of gold, clothes, a wrist watch and household articles to accused and marriage was performed at their cost. PW4 has not deposed that they had performed engagement of marriage and at the time of marriage, accused had demanded cash of Rs.25,000/- as consideration for marriage of accused No.1 with deceased. PW4 has deposed; his father had given a sum of Rs.25,000/- to accused before marriage, which is not the version put forth by PW1. PW4 has admitted that he was not present when marriage talks were held. 9
10. PW5-Iramma Sangappa Bennur, who is the sister-in- law of deceased (the wife of elder brother of deceased) has not deposed about demand or acceptance of dowry by accused. PW.5 has deposed; at the time of marriage, cash of Rs.25,000/-, six tolas of gold ornaments were collectively given. PW5 has not deposed that accused had demanded dowry. PW5 has not deposed to which of the accused, aforestated sum of Rs.25,000/- and six tolas of gold ornaments were collectively given.
During cross-examination, PW5 has admitted that personally she was not aware that dowry of Rs.25,000/- was given to accused no.1. PW5 has admitted that six tolas of gold ornaments were given to deceased. Normally, gold ornaments would be given to a bride from her parents during marriage and they were customary presents.
11. PW6-Basamma Mallappa Bennur, sister-in-law of deceased (the wife of elder brother of deceased) has not deposed about demand or acceptance of dowry by accused. 10
12. PW7-Ishwargouda N.Patil has deposed; at the time of marriage negotiations, it was decided to give cash of Rs.25,000/- to accused No.1 and six tolas of gold ornaments to deceased. In the usual course, other articles should also be given. PW7 has not deposed that there was demand from accused No.1 as consideration for his marriage with deceased. PW7 has deposed; in his presence, cash of Rs.25,000/- and six tolas of gold ornaments were given to accused. In the next breath, PW7 has deposed that he does not know when and in what form it was given to accused No.1. PW7 has not deposed about time and place where PW1 paid cash of Rs.25,000/- to accused No.1.
13. PW8-Irappa R.Akki has deposed; marriage was settled on payment of cash of Rs.25,000/- and six tolas of gold ornaments and household articles were given at the time of marriage, as if amount was paid at the time of marriage negotiations. PW8 has not deposed that accused 1 & 2 had 11 demanded cash of Rs.25,000/- as a consideration for marriage of accused No.1 with deceased.
During cross-examination, PW8 has admitted that he had not seen whether PW1 had paid cash of Rs.25,000/-, six tolas of gold ornaments and household articles to accused No.1.
14. Thus, we find prosecution has not adduced satisfactory evidence to prove that accused 1 to 3 had in fact demanded dowry of Rs.25,000/- from PW1 and accepted the same. The evidence on record discloses that six tolas of gold ornaments, which were given to deceased were customary presentations. The learned Sessions Judge without noticing these basic discrepancies in the evidence adduced by prosecution has held accused 1 & 2 guilty of offences punishable under sections 3, 4 & 6 of the Act. Therefore, findings of learned Sessions Judge that accused 1 & 2 are guilty of offences punishable under sections 3, 4 & 6 of the Act cannot be sustained.
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15. It is the case of prosecution that deceased was being subjected to cruelty by accused 1 to 3 in relation to demand for dowry and they were also harassing and taunting deceased that she was not knowing how to cook food.
16. At this juncture, it is relevant to state that accused No.3 was residing with her husband in Harati Village of Gadag District. The inmates of house were accused 1 & 2 and deceased. The version of PW1 that accused No.3 was instigating accused No.1 to ask the deceased to bring additional dowry looks improbable. Therefore, the finding of learned Sessions Judge that accused No.3 was subjecting the deceased to cruelty and she had abetted commission of suicide by deceased cannot be sustained.
17. Now adverting to evidence adduced against accused 1 & 2 to prove offences punishable under section 498A & 306 IPC, it is necessary to state that dowry related cruelty has not been established by prosecution. On the other hand, evidence of close relatives of deceased relates to cruel 13 behaviour of accused No.1 with deceased. PW1, PW4 & PW7 have consistently deposed that before marriage, deceased was studying in I year PUC. Accused No.1 insisted deceased to discontinue education and the deceased discontinued her education. PW4 has deposed that accused No.1 and deceased had attended the marriage of PW4, which was performed after one year from the date of marriage of accused No.1 with deceased. During marriage of PW4, half a tola of gold was given to accused No.1 as a customary presentation. Accused No.1 became wild and demanded two tolas of gold. Accused no.1 consumed alcohol and created a row. Accused No.1 was pacified by the elders. The deceased had told PW1 & PW4 that she was being abused and assaulted by accused No.1. On one or two occasions, she was driven out of house of accused No.1 and the deceased had stayed outside the house. Accused 1 & 2 had taken strong objections against deceased for visiting her parental house.
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The suicide note left by deceased is marked as Ex.P.2. The handwriting found in Ex.P.2 and admitted handwriting of deceased were compared by PW15-M.Shankarappa- Scientific Officer, Forensic Science Laboratory at Bangalore. PW15 has opined that handwritings found in suicide note (Ex.P.2) and admitted handwriting of deceased found in a notebook and letters seized during course of investigation are in handwritings of one and the same person. His opinion is supported by reasons.
During cross-examination of PW15, the accused has failed to demonstrate that PW.15 had given false opinion and he had furnished wrong information. Therefore, it is proved that Ex.P.2 was the suicide note left by deceased.
18. The law is fairly well settled that though suicide note is admissible in evidence, under section 32 of the Evidence Act, it requires corroboration. While considering the contents of suicide note, the court will have to eliminate possibility of statement made out of frustration and vindication. The court 15 should be satisfied that statement is not vindictive or product of imagination. The English translated version of suicide note left by deceased in vernacular language reads thus:-
"My mother-in-law, sister-in-law (elder) and my drunkard husband are responsible for my death. After her death, her jewels shall be given to her niece Kaveri. Her parents and elder sisters-in- law shall excuse the deceased for taking this extreme step and she is not fortunate enough to live with them."
19. The evidence on record does not disclose that accused No.2 had any thing to do with accused No.1 and deceased. The evidence of PW1, PW4 & PW5 would reveal that accused No.1 was constantly abusing the deceased and subjecting her to cruelty. On one or two occasions, accused no.1 had driven away deceased from their house. The deceased was frequently making phone calls to her parental house to inform about the conduct of accused No.1. The contents of suicide note (Ex.P.2) would reveal that her drunkard 16 husband (accused No.1) was constantly harassing her, finds corroboration from evidence of PW4 that accused No.1 in a drunken state had created scene when accused No.1 attended marriage of PW4.
20. Accused No.1 in his examination recorded under section 313 Cr.P.C., has stated that on the date of incident viz 30.04.2006, there was heated exchange of words between accused No.1 and deceased. The deceased was insisting that she should attend the marriage of one Rajashekar (friend of PW.4), whereas accused No.1 was insisting that they should attend marriage of brother of accused. The deceased was upset and there was heated exchange of words between accused No.1 and deceased.
The explanation offered by accused No.1 that this incident had prompted her to commit suicide is not consistent with normal human conduct and does not stand the test of preponderance of probabilities. It appears after marriage, accused No.1 was ill-treating deceased. Accused 17 No.1 had insisted deceased to discontinue her education and deceased had discontinued her education. Accused No.1 was frequently quarrelling with deceased. On one or two occasions, he had driven the deceased away from his house. PW1 and other elders had pacified and advised accused No.1 to mend his behavior. Accused No.1 had not heeded to the advice given by PW1 & PW7.
21. At this juncture, it is relevant to state that PW7 had no grievance against accused no.1. The evidence of PW7 that they had advised accused No.1 to mend his behaviour has not been controverted. Though prosecution has failed to prove that deceased was being subjected to cruelty in relation to dowry demand, yet the evidence on record clearly establishes that accused No.1 was subjecting the deceased to physical and mental cruelty, within the meaning of section 498A(a) IPC. Even as per the explanation offered by accused No.1 immediately before incident, there was heated discussion between accused No.1 and deceased. However, explanation offered by accused No.1 that heated discussion 18 had taken place, as there was disagreement between accused No.1 and deceased regarding marriage which they should attend does not inspire confidence.
22. In the discussion made supra, I have held that this explanation cannot be accepted. Therefore, soon before the incident, deceased had been subjected to cruelty. In the circumstances, learned Sessions Judge was justified in holding accused No.1 guilty of offences punishable under sections 498A & 306 IPC, however evidence on record is hardly sufficient to hold that accused No.2 guilty of offences punishable under sections 498A & 306 IPC. The prosecution witnesses, including the father and younger brother of deceased have not deposed that accused No.2 was ill- treating or subjecting the deceased to cruelty.
23. As already stated, accused No.3 was living with her husband in a different village. In the circumstances, evidence of PW1, PW4 & PW5 that accused No.3 was visiting the house of accused No.1 only to ill-treat the deceased looks highly improbable. It may be, there were differences between 19 accused No.3 and deceased, which normally occur among womenfolk, however such differences are not sufficient to hold accused No.3 guilty of offences punishable under sections 498A & 306 IPC. The learned Sessions Judge, without proper analysis of evidence on record, has recorded an omnibus finding that accused 1 & 2 are guilty of offences punishable under sections 3, 4 & 6 of the Act and accused 1 to 3 guilty of offences punishable under sections 498A & 306 IPC. In my considered opinion, the impugned judgment as it relates to conviction of accused 1 to 3 for offences punishable under sections 3, 4 & 6 of the Act cannot be sustained, so also conviction of accused 2 & 3 of offences punishable under sections 498A & 306 IPC. However, the conviction of accused No.1 of offences punishable under sections 498A & 306 IPC does not call for interference.
24. In the result, I pass the following:-
ORDER The appeal is accepted in part. The impugned judgment is modified. The conviction and sentence passed 20 on accused 1 & 2 of offences punishable under sections 3, 4 & 6 of the Act is set aside. The conviction and sentence passed on accused 2 & 3 for offences punishable under sections 498A & 306 IPC is set aside. The conviction and sentence passed on accused No.1 for offences punishable under sections 498A & 306 IPC is confirmed. The fine amount if any deposited by accused 2 & 3 shall be refunded to them. The bail bonds executed by accused 2 & 3 are cancelled. Accused No.1 shall surrender to serve the remaining term of sentence. The substantive sentences imposed on accused No.1 shall run concurrently. The period of detention undergone by accused No.1 is given set off as provided under section 428 Cr.P.C. The order of learned Sessions Judge regarding disposal of properties is confirmed.
SD/-
JUDGE SNN