Karnataka High Court
Sri Basavaraju @ Puttaswamy vs State By Badanavalu Police Station on 15 December, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.687 OF 2010
BETWEEN:
1. Sri Basavaraju @ Puttaswamy,
S/o Basavaiah,
Aged 26 years,
2. Sri Basavaiah,
S/o Late Siddaiah,
Aged 60 years,
Both are residents of
Eshwaragowdanahalli
Nanjangud Taluk,
Mysuru District. .. Appellants
( By Sri Aruna Shyam M., Advocate
From Panel of the High Court
Legal Services Committee,
Bengaluru )
AND:
State by Badanavalu Police Station,
(COD, Bengaluru). .. Respondent
( By Sri Divakar Maddur, HCGP )
Crl.A.No.687/2010
2
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment of conviction dated
17/21.6.2010, passed by the V Addl.District & Sessions
Judge, Mysuru, in S.C.No.215/2007, convicting the
appellants/accused for the offences punishable under Section
498-A, 304-B read with Section 34 of IPC and Sections 3 and
4 of Dowry Prohibition Act and sentenced them to undergo
rigorous imprisonment of two years for the offence
punishable under Section 498A read with Section 34 of IPC
and to undergo rigorous imprisonment seven years and to
pay a fine of `5,000/- each, in default of payment of fine,
they shall undergo simple imprisonment for two months for
the offence punishable under Section 304-B read with
Section 34 of IPC and to undergo rigorous imprisonment for
five years for the offence punishable under Section 3 of
D.P.Act, and to undergo rigorous imprisonment for six
months for the offence punishable under Section 4 of
D.P.Act, and all substantial sentences shall run concurrently.
This Criminal Appeal coming on for Final Hearing this
day, the Court delivered the following :
JUDGMENT
The appellants who were accused Nos.1 and 2 in the Court of V Addl.District & Sessions Judge, Mysuru, (hereinafter for brevity referred to as `trial Court'), in S.C.No.215/2007, have challenged the judgment of conviction passed by the trial Court on 17.6.2010, convicting them for the offences punishable under Crl.A.No.687/2010 3 Sections 498-A, 304-B read with Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 (hereinafter for brevity referred to as `D.P.Act') and sentencing them to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 498-A read with Section 34 of IPC, to undergo rigorous imprisonment for a period of seven years and to pay a fine of `5,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of two months for the offence punishable under Section 304-B read with Section 34 of IPC, to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 3 of D.P.Act, and to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 4 of D.P.Act, and all substantial sentences to run concurrently. Crl.A.No.687/2010 4
2. The summary of the case of the prosecution as could be gathered from the charge sheet material is that one Smt.Maheshwari (deceased) who is the niece of the complainant (PW-1/CW-1) - Huchaiah, was given in marriage to accused No.1 - Basavaraj, on 6.6.2002. Prior to the marriage, the accused had demanded dowry in the form of a cash of `20,000/-, gold jewellery and a watch. The complainant had agreed to give a cash of `20,000/- and a gold chain weighing 15 gms. and a watch to the bridegroom (accused No.1) as dowry. However, at the time of marriage, the complainant's family could only give a sum of `10,000/- in cash and a gold chain weighing 15 gms. and a watch, retaining a balance of a sum of `10,000/- as due amount. Some time after the marriage, the deceased Maheshwari has been subjected to cruelty by the accused in her matrimonial home. The accused also was demanding for the dowry in the parental house of the deceased. It is in Crl.A.No.687/2010 5 this connection, the deceased Maheshwari consumed insecticide and died. Column No.7 of the charge sheet says that the deceased had some intimacy with one Narayanaswamy, an autorickshaw driver, who was residing in a house opposite to that of the accused and that the deceased and she had been to his house on the night between 11.00 a.m. to 12.00 on 30.8.2004. Since her chastity was suspected from the accused, she consumed pesticide.
3. Based on the charge sheet allegations, the trial Court framed the charges against both the accused, who are the present appellants herein for the offences punishable under Sections 3 and 4 of D.P. Act and Section 498-A and 304-B read with Section 34 of IPC.
Since the accused pleaded not guilty, the trial was held. In order to prove the guilt of the accused, the prosecution has examined PW-1 to PW-16 and got Crl.A.No.687/2010 6 marked documents from Exs.P-1 to Ex.P-20 and material objects at MO-1 to MO-11 were marked. From the accused side, no witnesses were examined, however, documents from Exs.D-1 to D-3(a) were marked in the cross-examination of PW-4 and PW-5.
4. Among the sixteen witnesses examined by the prosecution, PW-1 to PW-3 are the family members of the deceased, who are said to have supported the case of the prosecution. PW-4 and PW-5 who are said to be an independent witnesses also shown to have supported the case of the prosecution.
5. PW-1 Huchchaiah, who is also the complainant in this case, in his examination-in-chief has stated that the deceased Maheshwari who was her niece, was given to accused No.1 in marriage about eights years prior to the date of his evidence. Prior to the marriage, the accused had gone to their house to see the bride, at Crl.A.No.687/2010 7 which time, they demanded 15 grams of gold, cash of `20,000/- and a watch. CW-4 - H.D.Kumar, Puttamadu, Puttananjaiah and few more persons from the village of the accused were all present at that time. During the marriage, a cash of `10,000/-, a gold chain weighing 15 grams, clothes and a watch were given to the accused. The said marriage was performed two years prior to the death of the deceased.
The witness has further stated that one year after the marriage of Maheshwari, the accused were subjected her to cruelty demanding the dowry of balance of `10,000/- to be brought by her from her parental house. In that connection, thrice the deceased had been to her parental home and communicated them the demand made by the accused. She has also stated that in case she does not take the dowry amount and give it to them, she would be killed by the accused. However, he Crl.A.No.687/2010 8 (PW-1) consoling her and promising that he would clear the remaining balance of dowry, had sent her back to matrimonial house.
That being the case, three days after return of Maheshwari, he (PW-1) received a telephone call from one Sri Revanna, resident of the place where the accused reside, who intimated them that Maheshwari was no more. Hearing the news, joined by other family members and some of the villagers, the witness rushed to Eshwaragowdanahalli, the place where the accused and deceased were residing, only to see that the dead body of Maheshwari was laid in the veranda of the house. None of the accused were present in the place and by putting a lock to their house, they had left the place. The witness has further stated that the villagers did not give them drinking water. They had put off the electricity connection to the whole street. After Crl.A.No.687/2010 9 spending night in the same place, on the next day morning, he lodged a police complaint, which complaint, the witness has identified as Ex.P-1. The witness has also identified the dress materials said to have been worn by the deceased at the time of her death, including ornaments in the form of toe ring and silver ring, which were marked from MO-1 to MO-10.
The witness was subjected to a detailed cross- examination, wherein he adhered to his original version.
6. PW-2 - Nanajamani, the mother of the deceased and PW-3 - Rangaswamy, the younger brother of the deceased, also have given their evidence on the lines of evidence of PW-1. They too have stated that the accused had demanded the dowry at the time of fixing the marriage and had received substantial part of it at the time of marriage. Demanding for the balance amount of a sum of `10,000/- in the agreed dowry Crl.A.No.687/2010 10 amount, the accused were subjecting the deceased to cruelty. Both these witnesses have uniformly stated that the fact of cruelty meted to the deceased was told to them by none else than the deceased herself when she had been to their home one month prior to her death.
Though these witnesses were subjected to a detailed cross-examination, they have not compromised with the statements made by them in their examination- in-chief.
7. PW-4 - H.B.Kumar and PW-5 - H.M.Puttamadu, both claiming to be the residents of Eshwaragowdanahalli, in their evidence, have stated that they know the family of the complainant and the deceased. They were present when the marriage negotiations took place, wherein the accused demanded for a dowry in the form of a cash of a sum of `20,000/- Crl.A.No.687/2010 11 and gold chain weighing 15 grams, a wrist watch and clothes. However, at the time of marriage, retaining a balance of `10,000/-, all other valuables demanded as dowry were given to the accused. These two witnesses have also stated that for the six to eight months after the marriage, accused started demanding for the balance of dowry amount of `10,000/-. The said fact was told to them by none else than the deceased herself when she had been to her parental house. Apart from that, even PW-1 - uncle of the deceased Maheshwari also had told them that the accused were demanding for the balance amount of dowry. Both the witnesses have also stated that they had advised the complainant (PW-1) that once it was agreed to pay the dowry, he cannot overcome it, as such, he has to clear his liability.
Further the witnesses have stated that after hearing that from the village of the accused, Crl.A.No.687/2010 12 complainant had received a telephone call informing him that Maheshwari was dead, all of them, including themselves (PW-4 and PW-5), went to the place only to see the dead body of the deceased Maheshwari lying in front of the house. These two witnesses also have stated that none of the accused were there in that place. However, both these witnesses have stated that by their enquiry, they came to know that deceased had consumed pesticide and committed suicide.
Even in their cross-examination from the accused side, both the witnesses have adhered to their original version.
8. PW-6 - Doreswamy, has stated that the marriage invitation card at Ex.P-4 was seized by the Investigation Officer in his presence by drawing a seizure panchanama as per Ex.P-3.
Crl.A.No.687/201013
9. PW-7 - Mahadevaiah has stated that inquest panchanama as per Ex.P-2 was drawn in his presence and that he was a pancha to the said panchanama.
10. PW-8 - Madan Mohan, who is an Engineer in the Public Works Department has stated that at the request of the Investigation Officer, after visiting the scene of occurrence of the offence, he had drawn a sketch of scene of offence panchanama as per Ex.P-5 and given to the Investigation Officer.
11. PW-9 - R.Gogindaraju has stated that while working as Police Sub-Inspector in the complainant police station, he has received the complaint from PW-1 on 2.9.2004, at 11.00 a.m., as per Ex.P-1 and submitted the FIR to the Court as per Ex.P-6. Thereafter, he requested the Taluka Executive Magistrate to conduct the inquest panchanama on the Crl.A.No.687/2010 14 deceased and handed over further investigation to his superior in the spot.
12. PW-10 - K.S.Raju, the Police Constable has stated that he carried the dead body for its post mortem examination to Government Hospital at T.Narasipura and collected the dress and articles found on the deceased after post mortem examination from the doctor and produced it before the Investigation Officer, who is said to have seized them by drawing seizure panachanama as per Ex.P-7 in the presence of panchas. The witness has identified those material objects at MO- 1 to MO-9.
13. PW-11 - Dr.Krishnakumar V., has stated that while working as a Medical Officer at Government Hospital at T.Narasipura, on 2.9.2004, he has examined an out-patient by name Narayana, who was complaining Crl.A.No.687/2010 15 of vomitting. The witness has identified a medical record in that aspect at Ex.P-11.
14. PW-12 - Rudreshwaraiah, then Taluka Executive Magistrate has stated that the inquest panchanama on the dead body of the deceased Maheshwari was drawn by him on 2.9.2004 in the presence of panchas and as per Ex.P-2. He has also stated that as per the statement given before him by the mother of the deceased, he came to know that the accused were subjecting the deceased to cruelty, demanding dowry to be brought by her, in which connection, the deceased committed suicide by consuming pesticide.
15. PW-13 - D.P.Shivanna has spoken about the Investigation Officer seizing a letter at Ex.P-13 by drawing a seizure panchanama as per Ex.P-12. Crl.A.No.687/2010 16
16. PW-14 - Dr.H.R.Sujatha, has stated that while working as Lady Medical Officer at Government Hospital, T.Narasipura, she has conducted the post mortem examination on the dead body of Maheshwari on 2.9.2004 at 5.30 p.m. She has given the details of the observations said to have been observed by her on the body of the deceased. The witness has stated that she has noticed the following external injuries on the dead body :
1. A Semicircular abrasion over right forearm 3" above wrist.
2. An infected abrasion over right ear lobule measuring 1 X 1 cm with puss like discharge.
The witness has also stated that she collected the viscera from the dead body and sent it for its chemical examination to the Forensic Science Laboratory. After Crl.A.No.687/2010 17 receiving the report as per Ex.P-8 from the Forensic Science Laboratory, she gave her opinion as to the cause of the death opining that death was due to respiratory failure as a result of consumption of substance containing carbamate insecticide. The witness has identified the post mortem report issued by her and also the opinion as to the cause of death given by her at Ex.P-14 and P-15 respectively.
17. PW-15 - Prabhakar Rao Shinde, the second Investigation Officer has given an account of investigation said to have been conducted by him, which includes he visiting the place of offence and drawing the sketch of place of offence at Ex.P-17. He also stated that the inquest panchanama of the dead body done through the Taluka Executive Magistrate. Though he attempted to apprehend the accused, since they were absconded, he could not. He has also stated Crl.A.No.687/2010 18 that after the doctor doing autopsy on the dead body, he also seized the articles found on the dead body by drawing panchanama as per Ex.P-7. He has identified those articles seized therein at MO-1 to MO-10.
18. PW-16 - N.Chandrappa has stated that as a Police Inspector of Dowry Prohibition Cell at COD, he took up the further investigation in this matter and after recording the statement of various witnesses, he also seized the insecticide which was purchased by the accused from the shop prior to the incident. He has also drawn seizure panchanama as per Ex.P-19. The witness has also stated that during the course of his investigation, he also enquired CW-23 Narayanaswamy and seized a hand-written letter produced by him and collected his specimen handwriting. Later, he sent the specimen handwriting along with the letter seized, which is at Ex.P-13, to the hand-writing expert at Crl.A.No.687/2010 19 Forensic Science Laboratory. After completing the investigation, he has filed charge sheet against the accused.
Denial suggestions made to all these witnesses in their cross-examinations from the accused side were not admitted as true by these witnesses.
19. In this matter, though the appellants have engaged the services of a counsel to prosecute the appeal, but, observing the fact that the said counsel remained absent from appearing in this matter on few occasions and the appeal was of the year 2010, this Court appointed learned counsel Sri Aruna Shyam, from the panel of High Court Legal Services Committee, Bengaluru, to represent the appellants.
The said learned counsel from the panel of High Court Legal Services Committee, Bengaluru, for the Crl.A.No.687/2010 20 appellants in his arguments vehemently contended that there is a blatant irregularity in framing of the charge. A false accusation has been made in framing the charge particularly while accusing the accused for the offence punishable under Section 304-B of IPC, as such, for the faulty charge, the accused does not deserve to be convicted for the alleged offences.
Learned counsel further submitted that though he does not dispute the death of the deceased as suicide, still, the prosecution has failed to establish that the said death was under a suspicious circumstance or due to any alleged cruelty in connection with the dowry. Submitting that throughout in the case, there is defective investigation, which has culminated into the innocent accused being convicted for the alleged offences, learned counsel for the appellants prayed for Crl.A.No.687/2010 21 setting aside the judgment of conviction and acquitting the accused of the alleged offences.
20. Learned High Court Government Pleader in his arguments submitted that the marital relationship between accused No.1 and the deceased and the relationship of accused Nos.1 and 2 and the date of marriage between the deceased and accused No.1 i.e., on 6.6.2002, so also, the date of death of the deceased, which on 1.9.2004, are not in dispute. It is also not in dispute that the death of the deceased was under
suspicious circumstances. The material witnesses, more particularly, PW-1 to PW-5, have duly supported the case of the prosecution and demonstrated and established that the deceased was subjected to cruelty Crl.A.No.687/2010 22 soon prior to her death and that after the marriage, till her death, she was subjected to cruelty by the accused in connection with dowry. As such, all the offences alleged against the accused have stood proved.
Stating that the alleged error in framing of the charge would not vitiate the trial conducted and also would not exonerate the accused, learned High Court Government Pleader in his support relied upon the judgment of Hon'ble Apex Court in Abdul Sayeed -vs- State of Madhya Pradesh, reported in {(2010) 10 SCC 259}.
21. The relationship of the deceased with the accused is not in dispute, so also, the fact that the deceased was given in marriage to accused No.1 on 6.6.2002 and that the deceased died on 1.9.2004. PWs.1 to 3, are admittedly the family members of the deceased. PW-1 is the paternal uncle, PW-2 is the mother and PW-3 is the younger brother of the Crl.A.No.687/2010 23 deceased. As observed above, all these three witnesses and also two independent witnesses i.e., PW-4 and PW-5 have uniformly stated that prior to the marriage, the accused demanded for dowry by placing their specific demand of a cash of `20,000/-, a gold chain weighing 15 grams, a wrist watch and clothes. The said demand was agreed to be met by PW-1/complainant. Accordingly, at the time of the marriage, a cash of `10,000/-, a gold chain weighing 15 grams, a wrist watch and clothes were given to the accused. All these witnesses have also stated that a balance of `10,000/- was withheld by the complainant since he could not make arrangement for the same.
The said evidence of PW-1 to PW-5 though attempted to be shaken in their cross-examination, it had remained as an attempt, since the said attempt to weaken the said evidence was only in the form of denial suggestions made to those witnesses, since those Crl.A.No.687/2010 24 witnesses have not admitted the denial suggestions put to them in their cross-examination. As per the statements made by all these witnesses with respect to the demand for dowry and acceptance of dowry by the accused in connection with the marriage of the deceased with accused No.1, stands established.
PWs.1 to 3 even in their cross-examination have given further details as to in which place and in the presence of whom, the marriage negotiations had taken place and what were the agreed terms of the marriage. The reference about the presence of PW-4 and PW-5 at the time of negotiation of marriage of the deceased with accused No.1 and also at the time of giving the dowry to the accused, has come in the evidence of PWs.1 to 3. As such, the evidence of PW-4 and PW-5, who are independent witnesses, further corroborates and shows that, being the villagers of the village of the Crl.A.No.687/2010 25 complainant, they were present at the time of negotiation and also at the time of marriage.
The evidence of PWs.1 to 5 further goes to show that PWs.4 and 5 were also present when the accused received the dowry that was given at their demand in the marriage of the deceased with accused No.1. The description of the valuables that were admitted to be given and given subsequent to the marriage have been uniformly described by all these five witnesses.
PWs.4 and 5 have withstood a detailed and searching cross-examination conducted from the accused side.
Thus, the evidence of PWs.1 to 5 clearly proves that the accused have demanded and received the dowry, which is an offence punishable under Sections 3 and 4 of D.P.Act.
Crl.A.No.687/201026
22. PW-1, as uncle, PW-2, as mother and PW-3, as younger brother of the deceased, have uniformly stated that the deceased was subjected to constant cruelty by the accused in connection with dowry. All these three witnesses have stated in their evidence the details about the cruelty that was meted to the deceased by the accused which was given to them by none else than the deceased herself when she had been to her parents' house on three occasions after her marriage and prior to her death.
23. PW-1 has stated that the deceased, apart from stating that the accused were constantly pestering her and demanding her to get the balance of `10,000/- as dowry amount, has also stated that they were subjecting her to cruelty continuously. She has also shown to have stated before her uncle (PW-1) that, in case her uncle does not meet their demand, she would be killed by the accused. A similar statement has also Crl.A.No.687/2010 27 been made by PW-2, who is none else than the mother of the deceased.
24. The evidence of PW-3, the younger brother of the deceased, is in no way different from that of PWs.1 and 2 on this point.
In their cross-examination, regarding the alleged cruelty meted to the deceased, though an attempt has been made to shaken these statements made by PWs.1 to 3, but, it could not succeed. As such, the evidence given by PWs.1 to 3 that the deceased was subjected to cruelty by the accused and that the details of the cruelty were given to them by none else than the deceased herself, inspire confidence in believing it.
Further, being the daughter of the said house, she visiting her parental house on three times in a period of two years also is a possible circumstance and situation. It is at that time, the deceased is said to have revealed Crl.A.No.687/2010 28 about the cruelty meted to her. It is interesting to note that in the cross-examination of none of these witnesses, it was attempted to show that the deceased had not visited her parental house in the said duration of two years after her marriage. That also further strengthens the evidence of PWs.1 to 3 on the point.
26. The evidence of PWs.4 and 5 is also in consonance with that of PWs.1 to 3 on the point of alleged cruelty said to have been meted upon the deceased by the accused. Both these witnesses have stated that the deceased herself has stated before them that she was being pestered by her husband and his family members who were demanding from her to get a balance dowry of `10,000/-. Apart from the very deceased herself revealing the same to them, even PW-1, the uncle of the deceased, also had told them that the deceased was subjected to cruelty by the Crl.A.No.687/2010 29 accused and that they were not allowing her to live peacefully.
Further the evidence of these two witnesses is that, in that regard, they had advised PW-1, the uncle of the deceased that since he had ensured to give the dowry, he has to honour his commitment, also goes to show that the evidence of these two witnesses have come in a natural and normal way and they were present and aware about the incident of demand and payment of dowry, as contended by them.
Further the act of these two witnesses of accompanying the family members of the complainant to go to the village of the accused after hearing about the suicide of the deceased, also go to show that PWs.4 and 5 were sharing the good and bad of the family of the complainant and were aware of the details of the deceased and her life in the matrimonial home. As such, the evidence of PWs.1 to 3, who are the family Crl.A.No.687/2010 30 members, though to be considered and to be scrutinised carefully as they are interested witnesses, is corroborated by the evidence of PWs.4 and 5, who are independent witnesses and go to show that the deceased was subjected to cruelty by the accused.
27. The nature of the death of the deceased is not in dispute since the prosecution has projected her death as a suicide, which is not denied or disputed from the accused side. So also, the date of her death, which is 1.9.2004. The evidence of PW-7 shows that an inquest panchanama has been drawn in connection with the death of the deceased as per Ex.P-2. The evidence of Taluka Executive Magistrate as PW-12 also go to show that he has drawn the inquest panchanama in the presence of panchas as per Ex.P-2 and also has recorded the statement of near relatives, including the mother of the deceased at that time.
Crl.A.No.687/201031
According to the said witness, even the mother of the deceased by name Smt.Nanjamani is shown to have stated that the death of her daughter was suicide by consumption of insecticide. As such, at the first instance, the panchas have opined in the inquest panchanama that the death of the deceased was suicide.
28. The evidence of the doctor (PW-14), who conducted the autopsy, which is at Ex.P-14, shows that, except an abrasion on the right palm, she did not notice any noticeable injury on the body of the deceased. The said witness has collected the viscera and sent it for its chemical examination to Forensic Science Laboratory. The report of the Forensic Science Laboratory, which is at Ex.P-8, also go to show that the chemical examination has detected the presence of carbamate insecticide. Based upon her observation by conducting the autopsy and the Forensic Science Laboratory report, Crl.A.No.687/2010 32 the doctor has opined that the cause of death was due to consumption of carbamate insecticide by the deceased. Thus, the medical report also corroborates with the death of the deceased was by consumption of insecticide.
29. A point of interest to be noticed at this stage is that, none of the material and important witnesses, including PWs.1 to 3, any where have stated about the nature of death of the deceased, except stating that they have seen the dead body of the deceased. On the other hand, a reading of their evidence in its entirety goes to show that they have taken the death of the deceased as a suicide. In that regard, the evidence of Taluka Executive Magistrate (PW-12) that mother of the deceased has stated before him that the deceased has consumed insecticide and committed suicide, also corroborates. Even the doctor who conducted the autopsy also has opined in her report at Ex.P-14 that Crl.A.No.687/2010 33 death was due to the consumption of carbamate insecticide.
Thus, by the evidence of PWs.1 to 4, 10 and the Investigating Officers, it cannot be taken that there was any provocation for committing suicide by any one, rather, it is consumption of insecticide by the deceased herself. As such, it is a case of suicide. However, the fact remains that it is an unnatural death of the deceased within seven years of her marriage with accused No.1.
30. When the death of the deceased was not under any normal circumstances and it was within a period of seven years, now to constitute the said death as a dowry death, the prosecution is required to establish that soon before her death, she was subjected to cruelty or harassment by the accused for or in connection with any demand for dowry. It is in that Crl.A.No.687/2010 34 connection, when the charge sheet materials are considered, it cannot escape the notice of the Court that the Investigating Officer has filed the charge sheet stating that the deceased committed suicide with a fear that her alleged intimacy or illicit relationship with a neighbour by name Narayanaswamy, has come to the knowledge of the accused and that they would question on the next day. It is in that connection, she has consumed poison.
Simultaneously, the charge framed by the trial Court is also purely based upon the said summary given in the charge sheet. Relying upon which, the trial Court in its charge against the accused for the offence punishable under Section 304-B of IPC, has stated that the act of the deceased committing suicide on 1.9.2004 was after knowing that her illicit relationship with her distant relative Narayanaswamy came to the knowledge of the accused and that they would question her, the Crl.A.No.687/2010 35 same would also go to show that the trial Court at the time of framing the charge itself has erred and no where in its charge has stated that the alleged demand of dowry by the accused was the cause for the death of the deceased, rather, in the charge, it is stated that the disclosure of alleged illicit relationship of the deceased with one Narayanaswamy, is the cause for her death.
31. Learned High Court Government Pleader though fairly conceded that there is some error in framing of the charge, but, by relying upon Abdul Sayeed's case (supra), contended that a faulty charge or some error in the charge did not vitiate the trial.
In Abdul Sayeed's case (supra), Hon'ble Apex Court though observed that there was failure to frame proper charge in the case before it, but it was pleased to hold that, unless the accused was able to establish that defect(s) in framing charge(s) has caused real Crl.A.No.687/2010 36 prejudice to him, that he was not informed as to what was the real case against him or that he could not defend himself properly, no interference is required on mere technicalities.
Per contra, the learned counsel for the appellants/accused relied upon the judgment of Hon'ble Apex Court in Main Pal -vs- State of Haryana, reported in {(2010) 10 SCC 130}, wherein the Hon'ble Apex Court noticing that there was some error or omission in the charge or finding against Y, but the conviction for offence was against X, was pleased to hold that the prejudice was caused to the accused occasioning failure of justice, as such, it ordered for new trial.
Relying upon the said judgment, the learned counsel for the appellants/accused has primarily canvassed his arguments stating that the prosecution Crl.A.No.687/2010 37 has failed to prove the guilt against the accused punishable under Section 304-B of IPC.
As an alternate, submitted that for the error in framing the charge, the matter requires to be remanded for conducting a fresh trial.
32. In the light of two judgments of the Hon'ble Apex Court referred to above, when the present case on hand is perused, what can be noticed is that even though the trial Court while framing the charge has given its explanation that the deceased committed suicide being apprehending of any enquiry by the accused about her illicit relationship with Narayanaswamy, but, admittedly the accused were charged for the offence punishable under Section 304-B of IPC. The entire process of the evidence that has been taken place in the matter before the trial Court has been proceeded and continued on the basis that Crl.A.No.687/2010 38 accused have been charged inter alia for the offence punishable under Section 304-B of IPC. The cross-examination of all the witnesses conducted from the accused side, including that of the Investigating Officer, also makes it very clear that the accused has read, understood and considered the charge, particularly the one under Section 304-B of IPC, as a charge framed against them for the offence punishable under Section 304-B of IPC and the necessary ingredients of the said offence. As such, it cannot be held that an error in framing of the charge by the trial Court has in any way led the trial in a wrong direction or it has caused any prejudice to the interest of the accused.
33. Admittedly, the death of the deceased was within seven years of her marriage and that she had complained to her uncle, mother and brother, who are Crl.A.No.687/2010 39 PWs.1, 2 and 3 respectively and also before PWs.4 and 5 that she was subjected to cruelty by the accused. No doubt, all these important material witnesses also have stated in their evidence that the deceased was subjected to cruelty by the accused, however, as already observed above, except PW-5, none of the material and very important witnesses, including the mother, brother and uncle of the deceased, any where in their evidence have stated that it is the alleged cruelty meted to the deceased by the accused that has led to she committing suicide. PWs.1, 2 and 3 though have stated about they hearing about cruelty from none else than the deceased and seeing the dead body of the deceased in the veranda of the house of the accused and also stated about the accused after not found in their house when these people went to that place, by that itself it cannot be concluded that the death of the deceased was due to cruelty meted to her Crl.A.No.687/2010 40 by the accused for dowry. Had really the death of the deceased was due to the cruelty meted to her by the accused, then, nothing had prevented PWs.1, 2 and 3, who are respectively the uncle, mother and younger brother of the deceased, at any part of their evidence to state that it was because of the cruelty, the deceased consumed insecticide and put an end to her life. There is no whisper in their evidence in that regard.
34. The evidence of PW-4 is also not an exception to the same. However, it is only PW-5 who in his evidence has stated that they came to know that probably the death of the deceased was due to dowry harassment. Even the said statement of PW-5, if taken on its face value, does not amount as an assertive statement of the witness about the nature of the death of the deceased. It is only an assumption which is bereft of any basis for it.
Crl.A.No.687/201041
35. In addition to the above, the conducting of the investigation and the evidence of the Investigating Officer also contributes to arrive at the same conclusion. It is for the reason that, as already observed above, the Investigating Officer, who is none else than an Officer not below the rank of Deputy Superintendent of Police, in the charge sheet filed by him, in Column No.7, has clearly and specifically stated that deceased consumed insecticide and committed suicide being scared of disclosure of her alleged illicit relationship with her distant relative-cum-neighbour one Narayanaswamy.
Thus, when the Investigating Officer has filed the charge sheet after thorough investigation and has come to a conclusion that the death of the deceased was not a dowry death, but, it was a suicide by the deceased for other personal reason, merely because he mentions Crl.A.No.687/2010 42 Section 304-B of IPC in the charge sheet, the trial Court has erroneously proceeded to frame the charge against the accused for the said offence without ascertaining as to the existence of any material to frame charge against the accused for the alleged offence punishable under Section 304-B of IPC.
36. Ironically, the very same Investigating Officer, who has filed the charge sheet, when examined as PW-16, in his evidence has given totally a different picture of the same and has in his cross-examination, denied a suggestion that at the time of investigation, it had come to his knowledge that the deceased committed suicide being scared by the disclosure of her alleged illicit relationship with said Narayanaswamy. The said stand of the Investigating Officer is really questionable.
Crl.A.No.687/201043
37. As observed above, in the charge sheet filed by him, he has stated that the death was due to the alleged disclosure of illicit relationship of the deceased with another person, whereas, in his examination-in- chief, being an Investigating Officer, he has not even whispered anything about the cause for the death of the deceased. However, to eradicate any possibility of existence of doubt, when a suggestion was made to him from the accused side in his cross-examination about the disclosure of the alleged illicit relationship of the deceased as the cause for the death, the Investigating Officer has denied the same.
Thus, the faulty investigation of the Investigating Officer has made the trial Court to frame a charge without examining the material placed before it before framing the charge against the accused for the offence punishable under Section 304-B of IPC. However, as Crl.A.No.687/2010 44 observed above, even though the full-fledged trial has been held in this matter, including for the offence punishable under Section 304-B of IPC, since the prosecution has not been able to establish the guilt of the accused for the offence punishable under Section 304-B of IPC beyond reasonable doubt, merely by an error in the framing of the charge, no prejudice has been caused to the accused. However, the trial Court without analysing the evidence of the witnesses in its proper perspective and looking at the charge sheet materials, as well the evidence of the Investigating Officers and also the evidence of material witnesses, merely because the deceased is said to have been subjected to cruelty at some point of time prior to her death, has jumped to a conclusion and held that since the guilt against the accused for the offences punishable under Section 498-A of IPC and Sections 3 & 4 of D.P.Act, has been established, the guilt for the Crl.A.No.687/2010 45 offence punishable under Section 304-B of IPC also has been established. The said conclusion of the trial Court holding the accused guilty of the offence punishable under Section 304-B of IPC since proved to be an erroneous one and deserves to be set aside, the appeal filed by the accused deserves to be allowed-in-part.
Accordingly, the Appeal is allowed-in-part. The judgment of conviction and order on sentence passed by the learned V Addl.District & Sessions Judge, Mysuru, in S.C.No.215/2007, dated 17.6.2010, holding the accused guilty of the offence punishable under Section 304-B of IPC, is set aside and both the accused are acquitted from the offence punishable under Section 304-B of IPC.
However, the remaining part of the judgment of conviction and order on sentence passed by the trial Court holding the accused guilty of the offences Crl.A.No.687/2010 46 punishable under Section 498-A of IPC and Sections 3 and 4 of D.P.Act, is confirmed.
Considering the facts and circumstances of the case and also after hearing the learned counsel for the appellants on the sentence part, I am of the view that the sentence imposed by the trial Court with respect to proven guilt for the offences punishable under Section 498-A of IPC and Sections 3 and 4 of D.P.Act, since been proportionate to the guilt committed by the accused, the order on sentence also does not warrant any interference by this Court.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith along with lower Court records, to enable it to proceed further in the matter for issuance of warrant of conviction if necessary and proceed further in accordance with law. Crl.A.No.687/2010 47
An entire copy of this judgment also be delivered to the appellants/accused immediately free of cost.
Considering the assistance rendered by the learned counsel for the appellants from the panel of High Court Legal Services Committee, Bengaluru, the Court is of the opinion that the High Court Legal Services Committee to consider the honorarium payable to the learned counsel for the appellants at a sum not less than a sum of `10,000/-.
Sd/-
JUDGE bk/