Karnataka High Court
State Of Karnataka By vs Veerabhadrappa S/O Erappa on 7 August, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF AUGUST, 2012
PRESENT
THE HON'BLE MR.JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE B V PINTO
CRIMINAL APPEAL No.1355 of 2007
BETWEEN:
STATE OF KARNATAKA BY
THE SUB INSPECTOR OF POLICE
HARAPANAHALLI
POLICE STATION
DAVANAGERE DISTRICT
... APPELLANT
[BY SRI.N.S.SAMPANGI RAMAIAH,HCGP.]
AND:
1. VEERABHADRAPPA
S/O ERAPPA
AGED ABOUT 21 YEARS
AUTO DRIVER
SANDOORAGERI
HARAPANAHALLI
2. RENUKAVVA
W/O ERAPPA
AGED ABOUT 40 YEARS
COOLIE WORK
R/O SANDOORAGERI
HARAPANAHALLI
3. ERAPPA
S/O LATE CHANNAPPA
AGED ABOUT 45 YEARS
COOLIE WORK,
2
R/O. HARAPANAHALLI
DAVANAGERE DISTRICT
... RESPONDENTS
[BY SRI MOHD.RIZWAN AHMED, ADV
FOR M/s.N.Y.GURUPRAKASH ASSTS.]
THIS CRL.A IS FILED U/S 378(1) & (3) CR.P.C BY THE STATE
P.P. FOR THE STATE PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT DT.24.4.2007 PASSED BY THE ADDL.SJ., FTC-I,
DAVANGERE, IN S.C.NO.111/06 - ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S.498(A), 302,
304(B) R/W.SEC.34 IPC AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, B.V.PINTO J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State challenging the judgment dated 24.04.2007, passed by the Additional Sessions Judge, Fast Track Court - 1, Davanagere in S.C.No.111/2006 acquitting the respondents of the offences punishable under Sections 498A, 302, 304B of IPC r/w. Section 34 of IPC. and Section 4 of Dowry Prohibition Act r/w. Section 34 of IPC.
2. The case of the prosecution is that the deceased Netravathi was married to accused No.1 on 30.05.2005 and after the marriage, when she was living in the house of the 3 accused, the accused meted her with cruelty and harassment - physical and mental - thereby, they are alleged to have committed offence punishable under Section 498A IPC r/w. Section 34 of IPC. It is further case of the prosecution that on 24.07.2006, when the deceased Netravathi was in the house of the accused, the first accused quarreled with the deceased and with an intention to commit her murder, he has assaulted her on her cheek and caused her death, thereby, all the accused are alleged to have committed offence punishable under Section 302 of IPC r/w. Section 34 of IPC. It is further case of prosecution that the deceased having married to the first accused on 30.05.2005, the deceased died even before seven years from the date of her marriage and the said death being an unnatural one, the accused have committed offence under Section 304B of IPC r/w. Section 34 of IPC. It is also further charged against the accused that on 30.05.2005 or prior to the said date, the accused Nos.1 to 3 with common intention, demanded dowry in the form of one acre of land and got it written from the parents of deceased Netravathi, in consideration of the 4 marriage and thereafter, they demanded for the sale of said one acre of land in order to get the sale proceeds there from, as dowry, thereby they are alleged to have committed offence punishable under Section 4 of the Dowry Prohibition Act r/w. Section 34 of IPC.
3. On production of the accused before the Court, all three accused pleaded not guilty to the charges framed against them for the aforesaid offences and claimed to be tried.
4. The prosecution in order to prove the case has examined in all 29 witnesses, PWs.1 to 29 and got marked documents Exs.P.1 to P.31 and produced MOs. 1 & 2.
5. The defence of the accused was one of the total denial. However, after hearing the prosecution and the defence and after appreciating the materials on record, the learned Sessions Judge held that the prosecution has not proved the case beyond reasonable doubt and acquitted the accused of the offences charged against them. Being 5 aggrieved by the said order of acquittal, the State has filed this appeal.
6. Heard Sri Sampangiramaiah, learned HCGP for the appellant - State and Sri Mohammed Rizwan Ahmed, learned Counsel for the respondents.
7. Learned High Court Government Pleader for the appellant - State submits that though the majority of the witnesses have turned hostile to the case of the prosecution, the evidence of witnesses namely PWs.5 to 7 who are the relatives of the deceased coupled with the evidence of witness - PW.4 Dr.Renukaradhya and evidence of the police officials - PWs.25, 28 and 29, the prosecution has established that at the time of marriage, there was a demand for dowry. He submits that the fact of marriage is not disputed, so also the living of the deceased and the accused together in the house of the accused is not disputed by the defence. It is further submitted by him that the evidence of PWs.5 and 6 - the mother and the father of the deceased coupled with Ex.P.8 - the agreement entered into by PW.6 6 allotting one acre of land in the name of the deceased and accused No.1, clearly indicates that there was a demand for one acre of land prior to the date of the marriage and further, the evidence establishes that the said land was demanded by the accused. It is also evident that the accused were demanding that the said land be sold and sale proceeds be given to them in consideration of the marriage. Under the circumstances, it is submitted by the learned HCGP that the ingredients of demand of dowry soon before death is established and therefore, the prosecution has established a case under Section 304B of IPC. It is further submitted by him that though the accused and deceased were living together and the death is taken place in the house of the accused, they have not offered any explanation as to how the deceased has died. The fact of death of the deceased is within the exclusive knowledge of the accused and either in Section 313 Cr.P.C statement or evidence before the Court the accused have not given any explanation as to how the deceased has died of unnatural death in his house. Therefore, he submits that by presumption available 7 under Section 113 of Evidence Act, the accused is liable to be convicted for the offence under Section 304B of IPC. It is further submitted by him that the evidence of PWs.5 to 7 clearly establishes that the deceased was subjected to physical and mental cruelty, while she was living in the house of the accused and hence, an offence under Section 498A of IPC is made out and under the circumstances, he submits that the accused are liable to be convicted and prays that appeal may be allowed.
8. Sri Mohammed Rizwan Ahmed, learned Counsel for the respondents submits that there is absolutely no evidence to show that there was any demand for dowry and that PW.6 has clearly stated that in order to avoid the claim of share in the property by Hanumanthappa, who was his brother in the property - Ex.P.8 was brought into existence and not as a result of demand by the accused. Though the complaint indicates that there was an earlier complaint regarding the harassment to the deceased and several names are cited in the complaint itself, no witnesses have come forward to 8 speak regarding the mental and physical cruelty allegedly meted out to the deceased and therefore, the accused cannot be held guilty for the offence of causing harassment to the deceased, while she was in her matrimonial house. It is also further submitted that PWs.5 and 6 are parents of the deceased and PW.7 is the sister of PW.5, all of whom were not residing near the house of the accused to state regarding the living of the deceased with the accused. On the other hand, the witnesses PWs.8 to 17, who are the neighbours of the accused have totally turned hostile to the case of the prosecution though all of whom ought to have spoken regarding the ill-treatment and harassment meted out to the deceased, while she was living in the house of the accused. The aforesaid evidence on record clearly shows that the accused have not committed any offences and the learned Sessions Judge rightly appreciated the evidence on record and passed the order of acquittal. It is further submitted by him that in an appeal against an order of acquittal, unless the order of acquittal is either perverse or against the settled principles of law or is not based on evidence on record, the 9 Appellate Court would not interfere with the order of acquittal passed by the trial Court. In this case, no material is pointed out by the prosecution to prove that the accused is guilty and the learned Sessions Judge has passed the well considered order of acquittal and hence, he submits that the appeal may be dismissed.
9. The prosecution case has commenced with the complaint given by Smt.Gangamma, who is the mother of the deceased, to the Sub-Inspector of the Police, Harapanahalli Police Station. In the said complaint, she has stated that her second daughter by name Netravathi was given in marriage to Veerabhadrappa, son of Erappa, about 14 months prior to the date of the complaint, in a mass marriage conducted in a temple. After the marriage her daughter Netravathi had gone to live with her husband and about few days thereafter, her daughter started complaining that her husband is ill-treating and assaulting her. This fact was informed by her daughter when she came to maternal house at Haluvagalu village. She also informed that her 10 husband was demanding for the land, which was promised earlier and in this connection, he was assaulting her. It is in the complaint that the complainant had given complaint to Harapanahalli Police Station and the police had summoned all of them and at the instance of PW.11 and others, the matter was compromised and it was agreed that the share of PW.6 namely half the property which would come to the share of PW.6 would be given to the deceased and her husband - accused No.1 and on such agreement, compromise was effected. In spite of such compromise her daughter was complaining about the ill-treatment and also the accused pestered her daughter to bring money from her parents house. It is also stated in the complaint that two months prior to the complaint, she came to know that her daughter was pregnant for six months. The complainant has stated that on the date of the complaint i.e., on 24.07.2006 at about 3.30 p.m., she was informed by one Suresh that her daughter is not well and therefore, she went along with others to the house of her son-in-law namely accused No.1 and reached at 6 p.m. At that time, she 11 observed that her daughter Netravathi had lost her breath. On observing the dead body she suspected that her daughter was done to death by the accused persons. She went to the police station and gave complaint to Harapanahalli Police, which was received at 7.30 p.m., on the same day and the same was registered in crime No.143/2006 for the offences punishable under Sections 498A, 304B of IPC r/w. Section 34 of IPC and the police commenced investigation.
10. Out of 29 witnesses examined by the prosecution, PWs.2, 3, 8 to 17, 21, 24, 26 and 27 have turned hostile to the case of the prosecution. PW.4 - Dr.Renukaradhya has stated that on 25.07.2006, he has conducted the post mortem examination on the dead body of the deceased Netravathi and has given Post Mortem Examination certificate as per Ex.P.6. According to him the death is due to asphyxia and also due to smothering. PW.5 is the mother of the deceased who has spoken as per the averments made in the complaint. In the cross-examination, it is elicited that her husband's brother was claiming share 12 in the property of her mother-in-law and when they were preparing to give one share to Netravathi, the brother-in-law had raised some dispute and in order to avoid the dispute of Hanumanthappa, Ex.P.8 was brought into existence. It is further elicited in the cross-examination that no money was spent in the marriage of the deceased with the accused No.1 since it was a mass marriage and the marriage was celebrated at the consent of herself and her husband. The accused Nos.2 and 3 are working as stone breakers. It is suggested that they had given some medicine to the deceased in order that she will beget a beautiful child and as a result of which, she sustained abortion and said suggestion is denied by PW.5. PW.6 - Guddappa is the father of the deceased. He has also stated as per the complaint and also as per the version of PW.5 - his wife. It is suggested to him that one Lingaraju who is an advocate has advised to give a complaint after seeing the dead body of the deceased Netravathi and accordingly, they have given the complaint. It is also elicited that if it is not advised to give complaint they would not have given any complaint. 13 However, to a suggestion that a false case has been filed against the accused, PW.6 has denied the same. PW.7 Shanthamma - the sister of PW.5 in the chief-examination, she has stated that she has no personal knowledge as to how Netravathi was taken care of in her matrimonial house and stated that her information is from PW.5. It is her statement that when she visited the house of the deceased, she saw that the dead body was bloated and hence, she suspected the murder of the deceased. PW.25 - Sri Nagireddy was the Deputy Superintendent of Police of Harapanahalli, during the relevant time. He has visited the scene of occurrence at 7.40 a.m., on 25.07.2006 and taken up investigation. After preparing the panchanama of scene of occurrence, he has also seized the clothes of the deceased as per Ex.P.4 and subjected the same to examination by the Forensic Science Laboratory and recorded the statements of the neighbours and also seized the relevant documents and thereafter, he has handed over the documents to COD Police for further investigation to PW.29. Sub-Inspector of Police has stated that on receipt of the complaint of Gangamma, he 14 has registered the case in Crime No.143/2006 of his police station, for offences as aforesaid. PW.29 Sri Ramadurgaiah, Police Inspector, COD, has further conducted the investigation after taking it over from PW.27 and completed the investigation after receiving post mortem and forensic science report and he has filed charge sheet in this case.
11. It is from the evidence of these witnesses, the learned Sessions Judge has found that the prosecution has not proved the guilt of the accused and hold that the accused are not responsible for the death of the deceased. More particularly, there are no eyewitnesses to the incident and the witnesses who are supposed to speak about the circumstantial evidence, have turned hostile to the case of the prosecution.
12. We have carefully gone through the evidence on record and also the reasoning given by the learned Sessions Judge. Despite the fact that majority of the witnesses have turned hostile to the case of the prosecution, we have scrutinised the evidence of PWs.5 to 7 to find out as to 15 whether there is any material to support the allegation of that the accused have harassed the deceased prior to her death and we find that there is absolutely no material to prove the alleged offences made out in the complaint and therefore, we are of the opinion that the learned Sessions Judge has rightly come to the conclusion that the prosecution has not established the offence against the accused and there is no material to interfere with the well founded order of the acquittal passed by the learned Sessions Judge. Therefore, the judgment does not call for any interference and therefore, we dismiss this appeal as devoid of merits.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE nvj