Karnataka High Court
Suresha Naik vs State Of Karnataka on 23 June, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 23RD DAY OF JUNE, 2017
BEFORE
THE HON'BLE Mr. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.304 OF 2012
C/W
CRIMINAL APPEAL NO.308 OF 2012
IN CRIMINAL APPEAL NO.304 OF 2012
BETWEEN:
SURESHA NAIK
S/O LACCHA NAIK,
25 YEARS,
AGRICULTURIST
R/O MARENADU PALYA, HULIAR HOBLI,
TQ: CHIKKANAYANAKANAHALLI,
DISTRICT-TUMAKUR. ... APPELLANT
(BY SRI : C.V. SHEELAVANT- ADVOCATE)
AND:
STATE OF KARNATAKA
BY HULIAR POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU. ... RESPONDENT
2
(By Sri: VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT AND ORDER DT:13.12.2011
PASSED BY THE FAST TRACT COURT, TIPTUR IN
S.C.NO.167 OF 2010-CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498-A AND 302 OF IPC., AND U/S 3, 4
AND 6 OF THE DOWRY PROHIBITION ACT Etc.
IN CRIMINAL APPEAL NO.308 OF 2012
BETWEEN:
STATE OF KARNATAKA,
BY HULIYAR POLICE. ... APPELLANT
(BY Sri VIJAYAKUMAR MAJAGE, ADDL.SPP)
AND:
SURESHA NAIK,
S/O. LACCHA NAIK,
AGED ABOUT 27 YEARS,
AGRICULTURIST,
R/O.MARENADU PALYA,
HULIYAR HOBLI,
CHIKKANAYAKANAHALLI TALUK. ... RESPONDENT
(BY Sri C.V.SHEELAVANT, ADVOCATE).
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
377 CR.P.C. PRAYING TO ENHANCE THE SENTENCE
IMPOSED ON 13-12-2011 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT, TIPTUR IN S.C.NO.167 OF
3
2010 ON THE RESPONDENT-ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 3 OF D.P. ACT.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, JOHN MICHAEL CUNHA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Crl.A.No.304 of 2012 is directed against the judgment of conviction rendered by the Fast Track Court at Puttur, in S.C.No.167 of 2010 dated 13.12.2011 whereby the appellant-accused is found guilty of the offences punishable under sections 498-A and 302 of Indian Penal Code and sections 3, 4 and 6 of the Dowry Prohibition Act. and is sentenced to rigorous imprisonment for two years and fine of Rs.5000/- for the offence punishable under section 498A of IPC; life imprisonment and fine of Rs.20,000/- for the offence punishable under section 302 of IPC; simple imprisonment for one year and fine of Rs.5000/- for the offence punishable under section 3 of the Dowry Prohibition Act; rigorous imprisonment for six months and fine of Rs.3,000/- for the offence 4 punishable under section 4 of the Dowry Prohibition Act; and rigorous imprisonment for three months and fine of Rs.2,000/- for the offence punishable under section 6 of the Dowry Prohibition Act and all the sentences are ordered to run concurrently.
2. Crl.A.No.308 of 2012 is preferred by the State, seeking enhancement of sentence for the offence under section 3 of Dowry Prohibition Act.
3. The prosecution case as unfolded during trial is that on 1.05.2010, a complaint was lodged by the father of the deceased alleging that his elder daughter by name Geetha Bai was given in marriage to the accused and at the time of marriage, a sum of Rs.12,000/- in cash and one gold finger ring and earrings were given to the accused as dowry, but three months after the marriage, the accused started pestering the deceased asking her to bring more money from her parents and in this regard number of panchayaths were conducted. On 01.05.2010 at about 12 noon, the complainant was informed that his 5 daughter died by hanging. Immediately he along with his relatives rushed to the house of the accused and found the dead body of his daughter in the hut belonging to the accused.
4. The FIR having been registered, inquest was conducted and dead body was sent for Post Mortem examination. The Post Mortem report revealed that it was a case of strangulation with a plastic wire. Having collected necessary incriminating material, the Investigating Agency laid the charge sheet against the accused alleging offences punishable under sections 498A, 304B and 302 of IPC and sections 3, 4, and 6 of the Dowry Prohibition Act. After completing the required formalities, the accused was committed for trial before the Fast Track Court. On hearing the accused, the learned Sessions Judge framed charges under sections 498A and 302 of Indian Penal Code as well as an alternative charge under section 304B of the Indian Penal Code. The accused was 6 also charged for the offences punishable under sections 3, 4 and 6 of the Dowry Prohibition Act.
5. In order to bring home the guilt of the accused, prosecution has examined in all 13 witnesses. Amongst them, PW.1 is the father of the deceased and the complainant who deposed about the dowry paid to the accused at the time of the marriage and also about the subsequent demand made by the accused. This witness specifically stated that on account of the persistent demands made by accused, three times panchayath was convened.
6. PW.2 is the mother of the deceased who has deposed in conformity with the evidence of PW.1 with regard to the ill treatment meted out to the deceased in the matrimonial home in connection with the dowry demand.
7. PW.3 is an Assistant Engineer, who prepared the sketch of the spot of occurrence.
7
8. PW.4 is an Assistant working in the Grama Panchayath who deposed about the information divulged by him about the death of the deceased.
9. PW.5 is the inquest panch who has also stood by the case of the prosecution with regard to the contents noted in the inquest mahazar.
10. PW.6, PW.7 and PW.8 are the panchayatdars who participated in the panchayath to resolve the family dispute between the family of the accused and the deceased. These witnesses have stated that on account of the persistent demand made by the accused demanding dowry from the family of the deceased, at the instance of the father of the deceased they had advised the accused not to ill-treat the deceased.
11. PW.9 is the father of the accused. Even this witness has deposed that at the time of marriage, the sum noted in the complaint was received by the accused as part of dowry.
8
12. PW.10 conducted the inquest as per Ex.P7.
13. PW.11 is the doctor who conducted the autopsy on the dead body and issued the post mortem report as per Ex.P10. It is relevant to note that this witness has specifically stated that the deceased died due to asphyxia as a result of strangulation. The testimony of PW.11 regarding the cause of death has not been discredited in the course of the cross-examination.
14. PW.12 is the Investigating Officer, viz., Deputy Superintendent of Police who conducted the investigation and laid the charge sheet.
15. PW.13 is the PSI of Huliyoordurga Police Station who received the complaint and registered the FIR as per Ex.P13.
16. The Trial Court analyzed the oral and documentary evidence produced by the prosecution and taking into consideration the answers given by the accused 9 during his examination under Section 313 Cr.P.C. found the accused guilty of the above offences and sentenced him as above.
17. Heard the learned counsel for the appellant and the learned Addl. SPP and perused the records.
18. The appellant has challenged the impugned judgment and conviction, inter alia contending that the finding recorded by the Trial Court are not based on legal evidence and that the evidence produced by the prosecution does not make out ingredients of the offences charged against the accused beyond reasonable doubt.
19. Learned Addl. S.P.P., has supported the impugned judgment and would submit that in the light of the evidence produced by the prosecution, no other view than the one held by the trial court is permissible and therefore, there is absolutely no reason to interfere with the impugned judgment. However, with regard to the sentence, the learned Addl. SPP submits that section 3 of D.P. Act prescribes a minimum sentence of imprisonment for five years with fine whereas the Trial Court has 10 awarded imprisonment for one year and a fine of Rs.5,000/- contrary to the prescription contained in section and therefore, to this extent the impugned sentence be modified and the appeal filed by the State be allowed.
20. In the light of the contentions urged by the parties, the points that arise for consideration are:
(1) Whether the evidence on record establishes the guilt of the accused beyond reasonable doubt making out the offences punishable under sections 498A and 302 of Indian Penal Code and sections 3, 4 and 6 of the Dowry Prohibition Act?
(2) Whether the State has made out a case for enhancement of the sentence for the offence under section 3 of D.P. Act?
21. With regard to the cruelty meted out to the deceased in the matrimonial home and the demand and receipt of dowry is concerned, there is abundant evidence on record which has been extensively discussed by the court below and has held that the said evidence satisfies the ingredients of section 498A of Indian Penal Code and sections 3, 4 and 6 of Dowry Prohibition Act. In this context, it is relevant to refer to the evidence of PW.1 and PW.2 - the parents of the deceased who have 11 unequivocally stated before the Court that at the time of marriage, PW.1 was prepared to pay Rs.10,000/- in cash and a gold ring as dowry, but the accused demanded Rs.12,000/- which was agreed to by PW.1. It is further stated that on the date of engagement, cash of Rs.4,000/- was paid to the accused and eight days thereafter, another Rs.8,000/- was paid to the father of the accused. The receipt of Rs.12,000/- in cash and a gold finger ring and earrings at the time of marriage has been admitted by PW.9 who is the father of the accused.
22. Apart from the above evidence, the prosecution has let in independent evidence by examining PWs.6, 7 and 8 - the neighbours and relative of the deceased who have stated on oath that on account of the persistent cruelty meted out to the deceased in the matrimonial home, they had participated in three panchayaths and had tried to resolve the differences between the deceased and the accused. These witnesses have stated that during every such panchayath, they reprimanded the accused and advised the accused to treat 12 the deceased cordially without ill-treating her. The testimony of these witnesses has not been discredited in the cross-examination and no circumstances are brought out to suggest that these witnesses have given false evidence before the court or that they were in any way interested to secure the conviction of the accused. These witnesses are proved to be independent witnesses and have given a truthful account of the role played by them in bringing about rapprochement between the accused and the deceased. The fact that there were three such mediations has been admitted by the father of the accused namely PW.9 who has admitted that on three occasions there were panchayaths in the native place of the deceased and on those occasions, amounts were paid to the accused by the parents of the deceased. In the light of this evidence, the Trial Court was justified in holding the accused guilty of the offence under section 498A of Indian Penal Code and sections 3, 4 and 5 of the Dowry Prohibition Act. The facts and circumstances discussed above clearly establish the ingredients of the above 13 offences. Therefore, we do not find any reason to differ with the view taken by the Trial Court in holding the accused guilty of the above offences.
23. Coming to the charge under section 302 of Indian Penal Code is concerned, it is relevant to note that an alternative charge under section 304B of Indian Penal Code was also framed apparently for the reason that the deceased had met with an unnatural death within seven years from the date of her marriage and there were direct accusations that the deceased was subjected to cruelty in the matrimonial home in connection with the payment of dowry.
24. There is no dispute that the marriage of the deceased and the accused was performed on 08.08.2008 and the deceased died on 01.05.2010. There are no eyewitnesses to the incident. The prosecution has rested its case solely on circumstantial evidence. According to the prosecution, the accused murdered the deceased by strangulating her with a plastic rope. The records reveal 14 that the F.I.R. was initially registered under section 304B and section 498A of Indian Penal Code based on the complaint lodged by the father of the deceased. In this complaint -Ex.P1 the father of the deceased (PW1) alleged that he was informed that the deceased had committed suicide by hanging in the hut wherein she was residing and on rushing to the spot, he found the dead body of his daughter in the hut and the father of the accused informed him that at about 10.00 a.m., when he came home for drinking water, he found the deceased hanging and expecting her to be alive, he brought down the body but by then the deceased had died. But after the autopsy, it transpired that deceased died as a result of strangulation.
25. The Doctor - PW11 who conducted the post mortem examination has narrated the injuries noted by him on the body of the deceased and has stated that when he conducted the post mortem examination between 5.00 p.m. and 6.30 p.m. on 01.05.2010 along with Dr.Manjunath, they noticed a ligature mark about 0.3 to 15 0.4 c.m., extending from 2 c.m., above adam's apple encircling the neck completely, travelling downwards, ends above 4 c.m. from 7th cervical vertebrae and abrasion over left side of mandible below and front of left parotid glands measuring 2 x 1 c.m. The Doctor has also noted this injury in the post mortem report issued by him at Ex.P10. It is also noted that the stomach and intestine of the deceased were empty. Based on these findings, PW.11 has given an opinion that the cause of death is due to asphyxia as a result of strangulation. During his examination, he has stood by this version and has totally denied the suggestion of the defence that the deceased committed suicide. To support his opinion, in the cross- examination, he has stated that the ligature mark on the neck of the deceased were found encircling the neck completely whereas in the case of hanging such ligature mark would not encircle the entire neck and would not face downwards as found in the case of the deceased. This opinion in our view deserves acceptance. 16
26. Dr.Subrahmanyam's Medical Jurisprudence & Toxicology defines "hanging" as a violent mechanical asphyxial death due to constriction force applied over neck by ligature due to suspension where suspending force is generally the weight of the body and sometimes only the head. In case of typical hanging, pressure on the neck is caused by weight of the body where ligature runs from the midline above the cartilage of thyroid symmetrically upwards on both sides of neck to the occipital region, which presses the tongue upwards and backwards against the posterial wall of pharynx causing occlusion of air passages.
27. Modi's Medical Jurisprudence and Toxicology defines "strangulation" as "violent form of death which results from constricting the neck by means of a ligature or by any other means without suspending the body." With regard to the symptoms of strangulation, the author observes that, "if the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual 17 is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede death."
28. The facts noted in the spot mahazar-Ex.P9 and in the inquest mahazar-Ex.P7 also lead to the conclusion that it was a case of homicide which was made to appear like suicide. In Ex.P9 it is mentioned that the dead body was found in the hut situated in the land belonging to the father of the accused. It was a thatched roof shed having a thatched door on the eastern side. The walls were made of mud. The hut consisted of a hall measuring 20 x 10 ft. and a kitchen measuring 8 ft. length. The flooring was smeared with cow dung. In the inquest mahazar it is noted that a plastic wire was hanging from the rafter from a height of 8 ft. from the floor. The said plastic wire or rope was measuring 6½ ft. in length. PW.10 - the Tahsildar who conducted the inquest mahazar at the spot 18 of occurrence has reiterated the above facts in his evidence and has specifically stated that during the inquest, he seized the plastic wire/rope MO.12. In the cross-examination of this witness it is elicited that the dead body was kept on a mat and the plastic wire was hanging from the rafter at a height of about 7 ft. It is important to note that this witness has specifically stated that the said rope did not have any nose but it had knots at the two ends. If this evidence is analyzed in the backdrop of the opinion given by PW.11 - the Doctor who conducted the autopsy and examined MO.12, it undoubtedly establishes that the deceased died of strangulation.
29. There is no serious challenge as to the fact that the incident had taken place in the hut where the deceased and the accused were residing together. The evidence of PW.9 goes to show that when they proceeded to attend their agricultural work, accused and deceased were in the house. According to PW.9 when he came 19 home to drink water at 11.00 a.m., he found the deceased dead. Here itself it is relevant to note that the story set up by PW.9 that the deceased committed suicide by hanging has been admitted by the accused in his examination under section 313 of Cr.P.C. which implies that the death of the deceased was known to the accused. Then naturally the burden shifts to the accused to explain the circumstances in which the death has taken place. When the offence is proved to have been committed in secrecy within the four walls of the house, as held by the Hon'ble Supreme Court in TRIMUKH MAROTI KIRKAN vs. STATE OF MAHARASHTRA in 2006 AIR SCW 5300, the nature and amount of evidence to establish the charge cannot be of the same degree as required in other cases of circumstantial evidence. In view of Section 106 of Evidence Act, there will be a corresponding burden on the inmates of the house for giving a cogent explanation. In the instant case, instead of offering any justifiable explanation, the accused has set up a false plea which only reinforces the guilt of the accused. In any case, the 20 circumstances proved in evidence clinchingly establish that the deceased was done to death by strangulation in the matrimonial house. It is proved in evidence that the incident has taken place in the morning of 1.5.2010 when the deceased and the accused were together in the house. This evidence coupled with the abscondence of the accused and motive proved by the prosecution convincingly establish the guilt of the accused in committing the murder of the deceased. Therefore, we do not find any justifiable reason to interfere with the conviction recorded against the appellant for the offence punishable under section 302 of Indian Penal Code. Even on re-appreciation of the entire material on record, we do not find any good reason to differ with the view taken by the Trial Court in holding the accused guilty of the above offences. Hence, the conviction of the appellant for the offences punishable under sections 302, 498A of Indian Penal Code and sections 3, 4 and 6 of Dowry Prohibition Act is hereby confirmed.
21
30. Insofar as the sentence imposed by the Trial Court, the State has preferred an appeal in Crl.A.No.308 of 2012 seeking enhancement of sentence only in respect of the offence under section 3 of Dowry Prohibition Act on the ground that the Section prescribes a minimum sentence of imprisonment for five years and a fine of Rs.15,000/- or the amount of the value of such dowry whichever is more. But in the instant case, the Trial Court has awarded a sentence of simple imprisonment of one year and a fine of Rs.5,000/- contrary to section 3 of Dowry Prohibition Act. Since the sentence imposed by the Trial Court for the offence under section 3 of Dowry Prohibition Act is not in accordance with the punishment prescribed therein, we find it necessary to enhance the sentence by awarding the minimum sentence prescribed under section 3 of the Dowry Prohibition Act. As a result, the appeal filed by the State deserves to be allowed.
31. For the foregoing reasons, the Crl.A.No.304 of 2012 is dismissed. The order dated 13.12.2011 in 22 S.C.No.167 of 2010 convicting the appellant for the offences under section 498A, 302 of Indian Penal Code and for the offences under sections 3, 4 and 6 of Dowry Prohibition Act is confirmed. The sentence imposed upon the appellant (accused) by the court below for the offences punishable under sections 498A and 302 of Indian Penal Code and for the offences punishable under sections 4 and 6 of the Dowry Prohibition Act are hereby confirmed.
32. The appeal filed by the State in Crl.A.No.308 of 2012 is allowed. The sentence awarded by the court below for the offence under section 3 of the Dowry Prohibition Act is modified and the respondent (accused) in Crl.A.No.308 of 2012 is hereby sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs.15,000/- for the offence under section 3 of the Dowry Prohibition Act. In default, the accused shall serve rigorous imprisonment for a further period for one year. 23
The substantive sentences of imprisonment shall run concurrently. The appellant-accused is entitled for set off in terms of section 428 of Cr.P.C.
Sd/- Sd/-
JUDGE JUDGE
Psg*/RSK/BSS