(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the conviction and sentence dated 21.09.2009 passed by the Additional S.J Shimoga in S.c.No.64/2008 convicting the appellants / accused Nos. 1 to 3 for the offence P/U/S 498-A and 306 read with section 34 of IPC and sentencing accused No.1 to undergo imprisonment of six years and pay fine of Rs.10,000/- for the offence. P/U/S 306. of IPC, and further sentenced to accused Nos. 1 to undergo imprisonment of 2 years for having committed offence P/U/S 498-A of IPC and appellants /accused No.2 and 3 to undergo imprisonment of one year for having committed offences P/U/S 498-A and 306 of IPC, the above sentence shall run concurrently.
This Criminal Appeal is filed under Section 377 of Cr.P.C. praying to modify the order of sentence imposed by the Additional Sessions Judge, Shimoga in its judgment dated 21.01.2009 in Sessions Case No.64/2008 convicting the respondent accused for the offence P/U/S 498(A) and 306 read with Section 34 of IPC and sentenced to undergo imprisonment for six years for having committed offence P/U/S 306 of IPC, he is directed to pay fine amount of Rs.10,000/- in case of fine amount is paid, same shall be paid as compensation to PW1 and he isfurther sentenced to undergo imprisonment of 2 years for having committed offence P/U/S 498(A).)
1. These appeals are taken up together and disposed of by this common judgment. The first of these appeals is filed by accused Nos.1 to 3 being convicted and punished. Accused No.1 is sentenced to undergo imprisonment for a period of six years and one year for the offences punishable under Sections 306 and 498A of the Indian Penal Code, 1860, respectively, and accused Nos.2 and 3 are sentenced to undergo imprisonment for a period of one year for the offences punishable under Sections 306 and 498A of the Act, respectively. It is that, which is under challenge in these appeals. The second of these appeals is filed by the State seeking enhancement of sentence imposed on the accused. Therefore, if the first of these appeals is allowed, the question of considering the second of these appeals would not arise. Accordingly, the Counsel for the accused and the Government Pleader are heard at length.
The facts of the case are stated to be as follows:
One Deshikamani - accused No.1 is said to be a close relative of one Susheela @ Kavitha, the deceased. On the promise of marriage, he is said to have developed a physical relationship with her and she was said to be pregnant. When he refused to marry, she is said to have attempted to commit suicide. Her parents had then are said to have forced and persuaded the accused no. 1 to marry Susheela and they were married one year prior to the complaint at a temple. Thereafter, Susheela lived alongwith accused Nos. 1 to 4. Accused No.4 was the sister of accused No. 1. She was unmarried at the time of marriage of accused No.1 and Susheela. It transpires that there was hostility towards Susheela from the very inception from all the accused. She was ill-treated and was not allowed to have any contact with her parents. It transpires that when Susheela became pregnant, she was forced to abort the child, by the accused. This was not brought to the attention of the parents of Susheela and her ordeal continued with the accused and they were harassing her for not having brought any dowry. She was pregnant again for the second time, five months after the marriage. There was again a termination of pregnancy, she was again said to have been forced by the accused. Added to this, when she pleaded that she would like to visit her parents, she was told that if she did go on a visit, she could not come back, if she did not bring Rs.50,000/- as dowry from her parents. In this manner, she was prevented from having any contact with her parents, but she had managed to surreptitiously meet her parents and it transpires that she had revealed to them about the ill-treatment meted out to her. It is in this fashion, Susheela underwent her ordeal and said to have ultimately committed suicide. The appellants-accused are alleged to have not informed her parents that Susheela went missing and it is through others, that they had learnt of Susheela s disappearance from her matrimonial home and on a search being conducted, her body was found floating in a well. It is thereafter, the body was recovered and proceedings were initiated at the instance of the father of Susheela. In the complaint, he had stated that his daughter might have possibly committed suicide on account of cruelty meted out to her by the husband, his parents along with Velliyamma - accused No.4 and it is on the basis of said complaint, the proceedings had been initiated against the appellants and another and the procedural formality such as conducting a postmortem and other steps having been taken, the appellants were charge sheeted along with Velliyamma and after further proceedings, they had pleaded not guilty and claimed to be tried.
It is in that background the Court below has proceeded to frame charges against the accused and the prosecution had tendered evidence of 12 witnesses and marked 13 exhibits, apart from other documents and after recording the statement of accused under Section 313 Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration:
Whether the prosecution proves beyond reasonable doubt that deceased Susheela @ Kavitha met dowry death as defined under Section 304(B) IPC due to cruel acts of accused and that accused have also committed offence punishable under Sections 3, 4 and 6 of Dowry Prohibition Act? "
Whether the prosecution proves beyond reasonable doubt that deceased Susheela @ Kavitha was treated with such cruelty so as to forced her to commit suicide and thus guilty of offences punishable under Section 498A, 306 read with 34 IPC and also accused have committed offences punishable under Sections 3, 4 and 6 of Dowry Prohibition Act?
The Trial Court had ultimately held the same against the accused and consequently, convicted the accused and imposed the punishment aforesaid, while acquitting accused No.4. It is that which is under challenge in the present appeal by the accused, while the State seeks enhancement of punishment in the second of these appeals.
The Learned Counsel for the appellants would contend that the Court below while arriving at a finding to the effect that almost all the witnesses did not support the case of prosecution as regards the demand of dowry or the deceased - Susheela having been treated with cruelty has yet held that the prosecution had brought home the guilt of the accused and therefore, it has resulted in a miscarriage of justice. The cruelty alleged is that the deceased was never allowed to visit her parents' house and when she pleaded before the accused, she was repeatedly told that she could come home only after she brings Rs.50,000/- as dowry and in this way, she was prevented from making any further requests to visit her parents, as her parents were humble labourers and they had no means to provide such dowry.
Secondly, the cruelty that is said to have been meted out to her as was also in the circumstance that on her becoming pregnant, she was forced to abort twice against her wish and without the knowledge of her parents, which according to the Court below was also a circumstance which had prompted Susheela to commit suicide at the instance of accused.
The third point that is sought before the Court below was that there was a constant threat of accused No.1 taking a second wife, if Susheela did not listen their commands the same and if she raised any objection, it would only result in a second marriage of the accused and that she would be thrown out of the house.
It is in these circumstances, the Court below has held that this would amount to cruelty and the cruelty as being of such a degree which had prompted the deceased to commit suicide. Though the Court below has disbelieved that there was any force to abort the pregnancy twice, as well held that, the other circumstances urged were serious enough which had driven Susheela to commit suicide. Thus, the learned Counsel would submit that on settled principles, the above circumstances which are not at all proved could not be treated as being cruelty of such a degree which would have driven a person to commit suicide. It is in these circumstances, the learned Counsel would seek to take this Court through the evidence of the witnesses to demonstrate that the charges that are leveled against the accused are vague, notwithstanding that the evidence of each of the witnesses not being sufficient to support the case of prosecution.
On the other hand, the learned Government Pleader would vehemently contend that the Court below has assigned cogent reasons as regards the material evidence in arriving at its conclusion but has not punished the accused with appropriately and hence seeks enhancement of the sentence.
On consideration of the several grounds urged in the appeals and on the submissions made and on examination of the record, it is seen that the Court below has firstly considered the evidence of several witnesses.
PW-1 was the mother of deceased Susheela. According to the Court below, she has not established the demand of dowry. She has however stated the manner in which the marriage of Susheela had taken place. She has stated that there was a relationship between accused No.1 and Susheela, which had resulted in her pregnancy even before her marriage and when accused No.1 refused to marry her, Susheela had even attempted suicide and that the marriage was forced upon the accused No.1 and ultimately he agreed to marry her and thereafter, she having been forced to abort her pregnancy twice, she and her family had not been informed but they had surreptitiously met on occasion. She was never informed about either Susheela being pregnant or abortion having taken place. It is only after the event, that Susheela had managed to convey the information to her. The witness has also stated that Susheela had informed her that on her request, of being sent home, accused No.1 had threatened her that if she wants to come back home, she could come only if she brings Rs.50,000/-as dowry.
PW-2 was the father of Susheela, who has summarily stated that at the time of marriage, accused No.1 sought for Rs. 10,000/- as dowry and that he had given Rs.10,000/- and also jewelry to his daughter and that she was never sent home to visit them and he had also stated that even when they tried to visit her, they were never allowed to enter the house and they had threatened they would assault them. Therefore, they were never able to meet her openly and it v/as surreptitiously he had met his daughter on occasions and at that time, she had repeatedly revealed the ill-treatment meted out to her. The witness also has spoken about the circumstances of abortion having taken place twice and finally about he being informed by the neighbors of Susheela that she was missing from the matrimonial home and that thereafter, he made a search for her and found her body in a well and identified her and thereafter instituted the proceedings resulting in the prosecution of accused.
PW-3 has spoken about the demand made for dowry in the first instance by the accused and he had also supported the case of prosecution that the accused had received Rs.10,000/- as dowry at the time of marriage and he has also stated that he has seen the accused constantly quarreling with Susheela and also making demands for dowry. He had also spoken about the Susheela holding a piece of paper in her fist when the dead body was found, but the writing was not legible on the piece of paper as the writing had washed away.
PW-4 was the owner of the well when the deceased was found and he had seen the body and he had also stated that Susheela was holding a piece of paper in her hand on which, the writing was not legible.
Apart from these witnesses, the other witnesses have not stated any material circumstances, which would support the case of prosecution.
PW-5 was an onlooker at the spot where the body was found.
PW-6 a neighbor of Susheela, was a witness to the inquest panchanama. This witness has hinted that there was possibility of ill-treatment meted out to Susheela in her matrimonial home.
PW-7 is the Doctor, who had conducted the postmortem on the dead body.
PW-8 was another Medical practitioner, who was said to be running a Nursing home, where Susheela had undergone abortion for the second time.
PW-10 was a family counselor, who had counseled accused No.1 in the first instance, when he had refused to marry Susheela and when Susheela attempted to commit suicide. It is thereafter, through her counseling, accused No.1 agreed to marry Susheela.
PW-11 is a neighbour of Susheela who has also spoken about the abortion that Susheela underwent and she has also hinted that there was possibility of being ill treating Susheela in her matrimonial home by the accused.
PW-12 was the police officer, who had conducted the investigation.
The Trial Court had on the basis of the above evidence has proceeded to assign its reason from paragraph 56 onwards, where it is observed that the deceased was 18 years old woman when she committed suicide and that accused No.1 had ravished her in the first instance and he was forced to marry Susheela. Thereafter, when she became pregnant, she was forced to terminate her pregnancy, twice. So far as the demand for dowry is concerned, the complaint is silent on this. Therefore, on going through the statements made by the witnesses, the Court discarded the evidence of the witnesses as regards the demand of dowry.
In so far as the claim that the accused called upon Susheela to get Rs.50,000/- if she wanted to visit her parents, as claimed by the Counsel not being in the nature of dowry, has been turned down. Further, the Court below held that there is no substance in the allegation made regarding dowry harassment.
In so far as abortion that was carried out on Susheela on the two occasions aforementioned, the Court has disbelieved and has held that there is no material produced nor any satisfactory evidence of abortion being forced on the basis of the evidence of doctor who had performed abortion. The Court below has come to the conclusion that it was not forced, but was a necessary abortion in the circumstances which was carried out.
In so far as the suicide note said to have been found in the fist of the dead body which was recovered, the Court below has stated that as it did not contain any legible writing, it could not be treated as a death note and has negated the same.
In so far as the evidence of cruelty is concerned, it is the circumstance that Susheela was not allowed to meet her parents openly. However, it is spoken to by the parents and other witnesses. The Court has held that this would definitely amount to cruelty. As far as constant ill-treatment is concerned, the Court below has held that the evidence of the neighbours was sufficient to hold that the accused are guilty of the said offence. However, there is no evidence of any witnesses having seen Susheela being assaulted nor in the complaint of her parents, is it stated that she was been constantly assaulted. But the Court below ultimately held that the offence punishable under Section 306 of the Act stood established by virtue of the fact that the circumstances were present to indicate that the cruelty meted out to the deceased was of such a degree that forced her to commit the suicide.
Apparently, this finding is not supported by the evidence on record. This is plain from a reading of the judgment and from a perusal of the record. Since the circumstances, in many decided cases what has been held to be cruelty of such a degree which would drive a person to commit suicide or the circumstances which would be sufficient to hold that the accused were primarily responsible and it was the accused who had instigated the deceased to commit suicide being established, is well settled in many decided cases, these circumstances are apparently not present in the present case on hand. The fact that Susheela died committing suicide, in other words, cannot to held to be at the instigation of the accused. She has possibly died due to depression and one of the causes which may be that she was not allowed to meet her parents and possibly on account of bodily illness as the postmortem did indicate that she had a badly infected uterus and possibly on account of poverty she did not get proper medical treatment. This may be yet another reason for committing suicide. Therefore, the prosecution proving the guilt of the accused beyond all reasonable doubt as opined by the Court below while relying upon evidence which was indifferent cannot be sustained.
Consequently, the appeal filed by the accused is allowed. The judgment of the Court below is set aside and the accused are acquitted. The bail bonds furnished by the accused stand cancelled.
Consequently, the appeal filed by the State does not merit consideration and is dismissed.
The fine amount in deposit be refunded to the appellants.