(Prayer : This Criminal Appeal is filed under section 374(2) CR.P.C praying to set aside the judgment dated 31.12.2011/07.01.2012 passed by the P.O. Fast track Court, Chikmaglur in S.C.No.128/2010-convicting the Appellant/Accused for the offence punishable under section 4 of D.P.Act and Sec 498(A) and 304-B of IPC.
This criminal appeal having been heard and reserved for judgment on 27.09.2016 before the Division Bench consisting of HGRJ and KNPJ, coming on for pronouncement of judgment , this day, K.N. J.Phaneendra., delivered the following.)
1. The appellant, who was arrayed as Accused No.1 (A.1) before the Fast Track Court, Chikmaglur, in SC No. 128/2010 has called in question the judgment of conviction and sentence passed against him in the said case vide judgment dated 31.12.2011. The trial Court has convicted the appellant for the offences punishable under sections 304B and 498A of IPC and also u/s.4 of the Dowry Prohibition Act. The appellant is sentenced to
(i) undergo imprisonment for life for the offence punishable under section 304B of IPC;
(ii) further sentenced to undergo simple imprisonment for three years and to pay a fine of Rs. 5,000/- with a default sentence of 6 months simple imprisonment for the offence punishable under section 498A of IPC; and
(iii) also sentenced to undergo simple imprisonment for two years and to pay a fine of Rs. 5,000/- in default of payment of fine to undergo simple imprisonment for six months for the offence punishable under section 4 of the Dowry Prohibition Act.
2. Before adverting to the grounds urged before this Court by the appellant, it is just and necessary to have brief factual matrix of the case:
Totally, three accused persons were prosecuted before the trial Court. Out of them, Accused No. 2 (A2) and Accused No. 3 (A3) were acquitted. The prosecution case is that A2 and A3 are the brothers of A1. A lady by name Thirthashri, daughter of PW-1 Lokeshappa and PW-2 Manjula was given in marriage to A1 Krishanmurthy. It is alleged that at the time of marriage some gold articles and cash of Rs.1 lakh were demanded by the accused in consideration of the marriage and the same were given as dowry by PWs. 1 and 2. After the marriage, the couple lived happily for some time. Later about 5 months after the marriage, it is alleged that accused person started treating her in a cruel manner in demand of further dowry of Rs. 1 lakh. Thereafter, PWs.1 and 2 have in fact gave Rs. 50,000/- at one time and further sum of Rs.50,000/- later. In spite of that, it is alleged that the accused person did not desist themselves from ill-treating and harassing the deceased in demand of further dowry.
3. in the above said context, it is alleged by the prosecution that PWs. 1 and2 came to know about the death of Thirthashri on 17.04.2010 in the village of the accused persons. They immediately rushed to the land of Hanumanthappa, where they found their daughter Thirthashri s dead body in the garden land of the father of accused No.1, having sustained injuries to her head, neck and other parts of the body. Immediately, PW-1 lodged report as per Ex.P1 and it is clearly stated in the report that, accused persons are responsible for the death of the deceased and they have actually committed the murder of the deceased Thirthashri in connection with demand of dowry.
4. on the basis of the above said report, the Jurisdictional police have registered a case in Crime No. 51/2010, investigated the matter and submitted a charge sheet for the offence punishable under sections 498A and 302 of IPC and also u/ss. 3 and 4 of Dowry Prohibition Act read with Section 34 of IPC.
5. After committal proceedings and also after securing the presence of the accused persons, the Court initially has framed charges for the offences punishable under sections 498A and 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act read with Section 34 of IPC. As the accused pleaded not guilty, they were ordered to be tried.
6. It is seen from the judgment of the trial Court and the records, that after recording of the evidence, the Court has altered the charge by including an offence under Section 304B of IPC. The accused were also called upon to enter into the defence if any, while recording their statement u/s. 313 of Cr.P.C., As the accused did not choose to lead any defence evidence, the trial Court after hearing the arguments, has rendered the judgment of conviction and sentenced A1 as detailed above. As the trial Court found inadequate and insufficient evidence against A2 and A3, consequently the Court has acquitted A2 and A3.
7. We have heard the arguments of the learned counsel for the appellant Sri Chandrashekar for C.H. Hanumantharaya and the learned High Court Government Pleader for the respondent State. We have given our anxious consideration to the evidence on record as well as the judgment rendered by the trial Court.
8. On overall analysis of the entire oral and documentary evidence on record and on re-appraisal of the materials, the only point that would arise for consideration of this Court is:
Whether the appellant has made out any reasonable or sustainable ground to interfere with the judgment of conviction and sentence passed by the trial Court?
9. In order to substantiate the grounds urged, the learned counsel appearing for the appellant strenuously contented before the Court that, the trial Court has misdirected itself in appreciating the oral and documentary evidence on record. The evidence of PWs. 1 and2 strongly relied upon by the prosecution is the only evidence available to the prosecution. The evidence of PWs.1 and 2 with reference to any dowry demand, the evidence is totally in-sufficient to draw any interference that at any point of time, A1 has demanded any dowry as such at the time of marriage or after the marriage. No specific averments in the evidence of PWs. 1 and 2, as to what was the nature of ill-treatment or harassment adverted to their daughter deceased Thirthashri. It is further submitted that, on the basis of the same evidence, the Court has Acquitted A2 and A3 and there was no reason for the trial Court to convict A1 only. The trial Court has not properly given the benefit of reasonable doubt in favour of A1. Therefore, he contends that the judgment of the trial Court suffers from serious incurable defects and the same is liable to be set aside.
10. The learned High Court Government Pleader countering the above said arguments submitted that the Court cannot expect the evidence from other source except from the relatives of the deceased in cases of like this. PW1, PW2 and other relatives of the deceased have categorically stated before the Court about the ill-treatment and harassment in demand of dowry, at the time and after the marriage. The trial Court, in fact has considered in detail the evidence of the prosecution witnesses and after appreciating the same, rendered the impugned judgment of conviction against A1 which does not call for any interference at the hands of this Court.
11. Having heard the arguments of the learned counsels, we feel it is just and necessary to have a cursory look at the evidence of the witnesses in brief:
11.1 PW-1 Lokeshappa and PW-2 Manjula are the father and mother of the deceased Thirthashri. PW-5 Basavalingappa is the brother of PW-1. PW-4 Yogisha is the brother of PW-2. They are all related witnesses and in fact, supported the case of the prosecution in this regard. They have spoken to about the conduct of A1 in demand of dowry and ill treatment with reference to the death of the deceased Thirthashri, etc.,
11.2 PW-3 Jagadisha is the panch witness to the spot mahazar Ex.P2 and Inquest report Ex.P3.
11.3 PW-6 L. Anilkumaris the brother of the deceased Thisthashri, who is also a panch witness to mahazar Ex. P-5 under which the marriage photos of deceased and A1 were recovered which are marked at Exs.P7 to P12. He has also spoken about the conduct of the accused.
11.4 PW-7 Dr. Manjunath has conducted the post mortem examination on the dead body of the deceased Thirthashri.
11.5 PW-9 Kumar is the distant relative of the deceased and PWs.1 and 2 and he was present at the marriage talks, speaks about the demand of dowry and payment of dowry and gold articles at the time of marriage between A1 and the deceased.
11.6 PW-10 Bhagya was working as a Conciliator in Santhwana Kendra at Kadur. She speaks about previous complaint lodged by the deceased Thirthashri against her husband and the compromise entered into between them at that point of time in the year 2010.
11.7 PW-11 Mallikarjuna,is the witness who was examined to establish that on the date of the incident, the accused No.1 and the he has turned hostile to the prosecution.
11.8 PW-12 Girish Naik, PC No.353, is the witness who carried the sealed seized articles to the FSL.
11.9 PW-13 Marigowda, was working as ASI Sakarayapatna, who after receiving the complaint from PW-1 as per Ex.P1 registered a case in Crime No. 51/2010 and dispatched the FIR to the Court as per Ex.P-17.
11.10 PW-14 H.B. Mallikarjunappa, who has investigated the matter and submitted the charge sheet before the court.
12. Before adverting to the evidence on record, we would like to take note of the fact that the trail Court though framed charges for the offence punishable under section 302 of IPC and as well as u/s.3 of the Dowry Prohibition Act, the Court has acquitted the accused for the above said offences as the trial Court did not find any evidence in order to attract the above said provisions.
13. There are certain admitted facts in this particular case:
There is no dispute with regard to the marriage between A1 and the deceased Thirthashri and that the deceased Thirthashri started living with A1 in his house, after the marriage. There is no dispute, that, the death of the deceased Thirthashri occurred on 17.04.2010 within seven years from the date of the marriage. The learned counsel for the appellant has also not disputed the homicidal death of the deceased or the unnatural death of the deceased while she was residing with A1. But their claim is that, they are not responsible for the death of the deceased.
14. The prosecution has also led the evidence to prove Homicidal death of the deceased. PW-3 Jagadeesha, is the witness for inquest proceedings which is marked at Ex. P-3. The said inquest report reveal the injuries found on the dead body. He is also a witness to Ex. P2 Spot Mahazar under which the police have seized MOs.1 to 5 which are the blood stained mud, un-stained mud, two sickles and the clothes of the deceased. PW-7 Dr. Manjunath has deposed before the Court that he has conducted the Post Mortem on the dead body of the deceased Thirthashri on 17.04.2010. After thorough examination he gave the opinion that the death was due the injuries sustained by her to the brain and those injuries are anti-mortem in nature, . Accordingly, he issued Post Mortem report as per Ex.P-13. For the limited purpose of showing that the deceased has died an un-natural death, which is actually a homicidal death. Therefore, there is no impediment for this Court to draw an interference on the basis of the above evidence that the death of the deceased was homicidal occurred in the land belonging to the father of A1.
15. In this backdrop, it is just and necessary for us to have a glance of the provisions under which the appellant was convicted in order to ascertain whether the prosecution has proved by sufficient materials, in order to convict the accused.
Section 304-B of IPC read thus:
304B DOWRY DEATH: (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death , and such husband or relative shall be deemed to have caused her death.
Explanation For the purpose of this sub-section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not less than seven years but which may extend to imprisonment for life.
For the purpose of proving the guilt under the above said section, the prosecution has to prove that:
(a) Death of a woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances.
(b) Such death took place with seven years of marriage.
(c) The woman was subjected to cruelty or harassment by her husband or his relatives.
(d) Such cruelty or harassment was or in connection with, any demand for dowry and
(e) Such cruelty or harassment was soon before her death.
In order to prove a case u/s.498A of IPC, the prosecution has to prove the ingredients of section 498A of IPC. The said section reads thus:
498A. HUSBAND OR RELATAIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand .
Section 4 of the Dowry Prohibition Act reads in the following manner:
4. PENALTY FOR DEMANDING DOWRY: If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
16. The prosecution case is to effect that five months after the marriage between A1 and the deceased Thirthashri, the accused started ill-treating and harassing her in demand of further dowry of RS. 1 lakh and in that regard, A1 treated her with cruelty and that on 17.04.2010, they committed the murder of the deceased. The death of the deceased was occurred with 7 years from the date of the marriage and soon before her death, there was an ill- treatment and harassment by the accused. On these facts, the prosecution has led evidence. In this regard, the prosecution has mainly relied upon the evidence of PWs.1, 2, 4 to 6 as well as PW-10. PW-1, 2 and 4 to 6 are closely related to the deceased, however, PW-10 is an independent witness. All these related witnesses have categorically stated with regard to the ill-treatment given by A1 in demand of a sum of Rs. 50,000/- particularly PWs.1 and 2 have specifically stated that after five months of the marriage of Thirthashri with A1, the accused persons have started abusing and assaulting her in demand of Rs. 50,000/- and in fact, PWs.1 and 2 have adjusted the said money and gave the same to A1 and thereafter, about one year, A1 looked after the deceased with love and affection. Again A1 started demanding further sum of Rs. 50,000/-. In fact, PWs.1 and 2 and Thirthashri have given a complaint to Santhwana Mahila Samaja Kendra, at Kadur and the said Institution has secured both the parties and during the compromise talks A1 gave the assurance that he would look after Thirthashri with all love and affection and thereafter the husband and wife started residing together once again. These witnesses have further stated that A1 and Thirthashri started residing separately from their family members after they rejoined. Again A1 further started about demanding the amount of Rs. 50,000/. It is stated that PWs.1 and 2 had been to the house of A1 and gave Rs. 50,000/-. Except the above evidence nothing has been stated in the examination in chief itself by these witnesses that the said amount of Rs. 1 lakh was demanded by A1 in lieu of consideration of the marriage or in the nature of further dowry, but they have omnibusly sated that A1 was demanding Rs. 50,000/- on two occasions, but not stated for what purpose.
17. The remaining portion of the evidence is with reference to the death of the deceased and allegations with regard to the accused persons committed the murder of the deceased which are not relevant because the accused has been acquitted for the offence u/s. 302 of IPC.
18. PWs.1 and 2 in the course of cross examination have categorically stated that they have given some gold ornaments and cash at the time of marriage. But they have never stated that they have given by way of dowry on demand to A1. It is admitted by them that those ornaments and cash were given as usually given to the bride-groom at the time of marriage by way of traditional presentations, perhaps that may be the reason the trial Court has acquitted the accused for the offence u/s. 3 of the Dowry Prohibition Act. Though it is not relevant for the purpose of considering the offence u/s. 304-B of IPC and Section 4 of the Dowry Prohibition Act, nevertheless, it shows the conduct of the witnesses that there was no demand of any dowry at the time of marriage or prior to that. Regarding subsequent conduct of the Accused, PWs.1 and 2 in the course of cross examination have categorically stated that even after compromise and payment of Rs 50,0000/- for the second time to A1, they lived together for more than 10 months i.e, after the compromise before the Santhwana Mahila Kendra, Kadur. These two witnesses have never stated either in the examination in chief or in the cross examination that what happened after the compromise. During the said period of ten months what transpired between the husband and wife is not elicited in the evidence of these two witnesses. Therefore, the evidence of these two witnesses so far as demand of any dowry of Rs. 50,000/- at the first instance and subsequently, another sum of Rs. 50,000/- is not elucidated specifically from them though they have categorically stated that there was a demand for Rs. 50,000/-, but not specifically stated that the same was demanded by way of any dowry or in consideration of marriage so as to attract Section 304-B of IPC, or Sections 4 of Dowry Prohibition Act.
19. PW-4 Yogisha has only stated that after the marriage between A1 and the deceased Thirthashri, they were happily residing together, but on some occasions, Thirthashri had come to the parental house and thereafter, PWs.1 and 2 have given some money to A1. In fact, he has not all stated anything about the amount paid by PWs.1 and 2 on particular date, time and place. He only spoke about the gold ornaments and other things given at the time of marriage. He also never deposed about the nature of ill-treatment or harassment by A1 to the deceased. Therefore, his evidence is very vague and it will not convey proper meaning to the Court with regard to the cruelty adverted to against A1.
20. PW-5 Basavalingappa has deposed in the same fashion stating that at the time of marriage, some ornaments were given to A1, and after the marriage A1 started ill-treating the deceased. Except this one sentence, he has not stated anything. In the course of cross examination, he has admitted that at no point of time, he has seen A1 ill-treating and harassing the deceased, but about 2 to 3 days prior to the incident, the deceased Thirthashri has informed about the ill-treatment and harassment. But for what purpose the said ill-treatment was given is also not spoken to by the witnesses. Therefore his evidence is also not sufficient to prove the offences under Section 304(B) of IPC and Section 4 of Dowry Prohibition Act.
21. L. Anilkumar, the brother of the deceased has in fact reiterated that after five months of the marriage A1 started ill-treating and harassing the deceased and this was intimated to him over phone. Thereafter, there was a demand of Rs.50,000/- and the said amount was accomplished by PWs. 1 and 2 and thereafter about one year, the accused persons have looked after the deceased with all love and affection, but they again started ill-treating the deceased, as such there was a complaint to Santhwana Mahila Kendra at Kadur. During the compromise talks at Santhwana Kendra, the accused persons have assured that they will take care of the deceased and took her back to her matrimonial home. Again A1 demanded for Rs. 50,000/- and the said amount was also paid. He has specifically stated that after five months husband and wife lived happily. Therefore, the evidence of these two witnesses clearly discloses that there was no demand of any amount by A1 in lieu of consideration of marriage from PW-1, but amounts to unlawful demand by A1. Therefore, it cannot with all certainty be said that, there was any demand of dowry and in connection with the said demand of dowry A1 has ill-treated and harassed the deceased.
22. PW-9 kumar has also stated that subsequent to the marriage, the accused persons have demanded Rs.1 lakh and the same was paid by PWs.1 and 2 and he has also spoken about the compromise between the parties at Spandana Mahila Samaja, Kadur. He never spoke anything about the demand of dowry by A1. He has also admitted in the course of cross examination that once in two months, he used to visit the house of the accused, but absolutely no evidence from this witness as to what is the nature of ill-treatment and harassment that was meted out by the accused persons on the deceased.
23. PW-10 Bhagya, is an independent uninterested witness has stated that she was working as a Conciliator in Sri Veerabhadreshwara Vidhya Samsthe Santhwana Kendra at Kadur. She has deposed that in connection with their dispute, Thirthashri has lodged a complaint before the said Santhwana Kendra and stated about the ill-treatment and harassment by her husband and other members of their family. PW-10 has advised them to adjust themselves in the family by condoning the small differences between them. At that time, A1 has demanded a letter from Thirthashri that if she dies in future she would be responsible for her death. However, Thirthashri did not accept for the same. PW-10 in fact has not stated anything about the allegations regarding demand of any dowry from Thirthashri or from her family members. On the other hand, in the cross examination she has admitted that Thirthashri has demanded maintenance from A1.
24. From the above evidence, what is clear is that the death of the deceased Thirthashri occurred otherwise than in normal circumstance and her death was unnatural when she was residing with A1. The death of Thirthashri was occurred within seven years of her marriage and she was subjected to cruelty or harassment by her husband for demand of Rs. 1 Lakh and the same has been meted out by PWs.1 and2. However, the evidence falls short to prove any demand by the accused persons for payment of Rs.1 lakh in connection with dowry.
25. As noted above, the ingredients of Section 304B of IPC and Section 4 of the Dowry Prohibition Act, are not at all made out by the prosecution beyond reasonable doubt. Though there is evidence to show that A1 has been ill-treating and harassing her for the purpose of demanding some amount, but it cannot be dubbed as harassment or cruelty in connection with demand of dowry or there was any ill-treatment or harassment soon before her death. On the other hand, the evidence discloses that even after meeting out the said amount of Rs. 1 lakh of Rs. 50,000/- each on two occasions, for a period of more than ten months, the accused and the deceased lived together happily. Thereafter, for about five months after the compromise, A1 and deceased were residing separately and lived with each other. This creates a serious doubt whether there was any ill-treatment or harassment soon before her death. Hence, we are of the opinion that the prosecution has not proved the case of the prosecution beyond reasonable doubt in order to bring home the guilt of the accused for the offence punishable under section 304B of IPC and Section 4 of the Dowry Prohibition Act.
26. Though we do not found sufficient evidence to convict the accused for the offence punishable under section 304-B of IPC and Section 4 of the Dowry Prohibition Act, we are of the opinion that the evidence placed before the Court shows that there was ill-treatment and harassment for unlawful demand of Rs. 1 lakh by A1. In 313 Cr.P.C statement also, the accused has not taken any special plea except denying the whole case of the prosecution. The evidence of PW-10 who is un-interested witness has also spoken to about the deceased lodging a complaint alleging ill-treatment and harassment at the hands of A1 and the prosecution witnesses noted above have also categorically stated that A1 was assaulting and abusing her in demand of the said amount. Therefore, we are of the opinion that the conviction recoded by the trial Court so far as the offence punishable u/s.498-A of IPC deserves to be sustained. Section 498A of IPC says if any unlawful demand is made and if the same has not been accomplished if it is proved that there was ill-treatment and harassment in connection with such unlawful demand, in such an event accused is liable to be convicted for the offence u/s.498A of IPC. As we found sufficient materials to show the ill-treatment and harassment, we are of the opinion that the accused is liable to be convicted for the said offence as rightly done by the trial Court.
27. In view of the above said facts and circumstances of the case, we are of the opinion that the trial Court has committed a serious error in appreciating the evidence on record with reference to the offence u/s. 304B of IPC and Section 4 of the Dowry Prohibition Act and particularly in appreciating the evidence with reference to demand of dowry and the ill-treatment or harassment soon before the death in demand of dowry. Therefore, we are of the opinion that to that extent, the judgment of conviction and sentence passed by the trial Court deserves to be set aside.
28. With this observation, we proceed to pass the following:
The appeal is partly allowed. The judgment of conviction and sentence passed against the accused for the offence punishable under section 304B of IPC and Section 4 of the Dowry Prohibition Act are hereby set aside and the accused is acquitted for the above said offences. However, the sentence passed by the trial Court for the offence punishable under section 498A of IPC is hereby maintained and the appeal is dismissed to that extent.
It is submitted by the learned counsel that the accused has been in custody since six years and he has already served the sentence imposed upon him u/s.498A of IPC. We have also examined the judgment of the trial Court and the trial Court has also observed that accused has been in Judicial Custody since 19.4.2010. Therefore, we are of the opinion that he has already served the period of sentence for the offence u/s. 498A of IPC. Hence, the accused shall be released forthwith in connection with this case, if he is not required in any other case. If any fine amount is deposited, with reference to the alleged offences, the same shall be refunded to the accused.
Registry is hereby directed to send a copy of this order to the concerned Jail authorities for release of the accused.