B.N. Shashidhara vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned State Public Prosecutor. The facts leading up to this case are as follows:

The appellant was Accused No. 1 along with his mother who was Accused No. 2. The appellant was married to one Vasanthalaxmi as on 5.6.2002. It was claimed by the prosecution that even prior to the marriage, the present appellant and his mother had demanded dowry of Rs. 50,000/- with 12 tolas of gold and it was ultimately settled that cash of Rs. 40,000/- and 10 tolas of gold would be paid. This was partially satisfied and the couple are said to have led a normal life for about three months. But, after three months, when the complainant, the father of the deceased had visited Vasanthalaxmi along with Soujanya, his other daughter, Vasanthalaxmi had revealed to Soujanya that her husband was in the habit of physically abusing her and Soujanya had even noticed a mark left behind by a belt which he had used on Vasanthalaxmi. This was brought to the attention of the complainant as well. This was one instance of ill-treatment. It further transpires that the complainant had requested Accused No. 1 to send Vasanthalaxmi to her maternal home for 15 days, to which he did not agree. Therefore, it was claimed that Vasanthalaxmi was very unhappy in her matrimonial home and it is also stated that there was an attempt at conciliation and to bring about a change in attitude, in which several people of the complainant had participated and sought to bring about a change in attitude. But however, it is the case of the prosecution that the accused continued to make demand for the remaining amount of dowry and continued to ill-treat the deceased to such an extent, that ultimately she had committed suicide by hanging herself at about 4.00 p.m. on 15.08.2003. It is on receiving information about the same that the complainant and his family members had rushed to the house of the accused to find that his daughter was hanging and her feet were resting on the floor. Therefore, suspecting foul play, he had immediately lodged a complaint alleging offences punishable under Sections 498A, 304B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity), as well as Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 (hereinafter referred to as ''the DP Act'', for brevity). It is on that basis proceedings were initiated against the appellant and his mother and after investigation and further proceedings, charges were framed against the accused. The appellants having pleaded not guilty and having claimed to be tried, the court below framed the following points for consideration:

I) Whether the prosecution proves beyond reasonable doubt that accused No. 1 being the husband of deceased Vasanthalaxmi, accused-2 being the mother-in-law of the deceased demanded dowry at the time i.e., earlier to 5.6.2002 and received dowry of Rs. 40,000/- cash 10 tola of gold, so as to attract the ingredients of Section 3, 4 and 6 of Dowry Prohibition Act?

II) Whether the prosecution further proves beyond reasonable doubt accused No. 1 and 2 in prosecution of their common intention demanded dowry from the parents of deceased Vasanthalaxmi soon before her death i.e., Rs. 20,000/- because of that harassment she committed suicide on 15.8.2003 between 2.00 p.m. to 8.00 p.m. in the house of accused No. 1 and 2 so as to attract the ingredients of Section 304B read with 34 of Indian Penal Code?

III) Whether the prosecution further proves beyond reasonable doubt that accused No. 1 and 2 in prosecution of their common intention ill-treated the deceased Vasanthalaxmi prior to 15.8.2003 in between 5.6.2002 to 15.8.2003 harassed her ill-treated her by their willful conduct so that she could commit suicide so as to attract the ingredients of Section 498A read with 34 of Indian Penal Code?

IV) What order?

The Trial Court answered Point No. 1 in the negative, Point No. 2 partly in the affirmative convicting Accused No. 1 for the offence punishable u/s 306 IPC and Point No. 3 partly in the affirmative convicting Accused No. 1 for offence punishable u/s 498A IPC and had acquitted Accused No. 2. It is that which is under challenge in the present case on hand.

The learned counsel for the appellant, while taking this court through the record, would point out that insofar as the demand and acceptance of dowry is concerned, the court below has acquitted both the accused and has found a case only against the present appellant for an offence punishable u/s 498A and Section 306 of the IPC. Insofar as the case of the prosecution that the appellant had meted out such cruelty to the deceased in order to drive her to commit suicide, is only on the basis of the evidence of PW-2, the father of the deceased and PW-4 who is the sister of the deceased. The learned counsel would also take this court to the relevant portion of the evidence of the said witness which is to the effect that when PW-2 on an occasion visited his daughter three months after the marriage, she had informed him that she was undergoing lot of suffering and she was being ill-treated and she was tolerating the same only because PW-2 had asked her to remain with her husband and his family. Beyond this, there is no indication of any specific act of cruelty meted out to the deceased by either Accused No. 1 or any of his family members. The learned counsel would also draw attention to the statements attributed to PW-4, which according to the prosecution would establish the case of cruelty as contemplated u/s 498A of IPC and would point out that the witness has spoken about the incident, where three months after the marriage of the deceased with Accused No. 1, when she and her father had visited her, she had noticed that there was a mark on the back of the deceased, which on enquiry, was found to have been by virtue of the accused No. 1 having struck the deceased with a belt and that it was not unusual for the accused to have ill-treated and physically abused the deceased on many occasions.

The learned counsel would point out that it is not the case of the prosecution that either PW-2 or PW-4 had actually seen the commission of any physical acts of violence against the deceased by the accused. It is only the statements made by the deceased which are reported by the said witnesses. The instances referred to are immediately after the marriage and not immediately prior to the incident. Therefore, the learned counsel would submit that in order to establish that there was cruelty of such a degree as established, which has driven the deceased to commit suicide, would necessarily have to be demonstrated to be such acts of cruelty over a period of time not only from the date of marriage, but continued over time upto the date of the incident, for the prosecution to establish that there were acts of cruelty which drove the deceased to commit suicide. Except for the stray instances which are referred to, which are of hearsay, it cannot be said that there is any strict evidence of acts of cruelty demonstrated, which have been meted out by the accused on the deceased. Further, the learned counsel would submit that in order to bring home the offence punishable u/s 306 of the IPC, it would also be necessary for the prosecution to establish that there was abetment and instigation to commit suicide. Except to state that there were acts of cruelty, there is no indication that there was any instigation by the accused on the deceased to commit suicide. When it is not established that there were any acts of cruelty of such a nature as would drive a person to commit suicide, the reason as to why the deceased had committed suicide cannot be attributed to any such acts of cruelty which are not established. Therefore, the learned counsel would submit that the conviction of the Accused No. 1, on the basis of vague and incomplete evidence of allegations of cruelty, could not be pressed into service to hold that the prosecution had established its case beyond all reasonable doubt and therefore, seeks acquittal of the accused.

On the other hand, the learned State Public Prosecutor would submit that the fact that Vasanthalaxmi had committed suicide is not denied. The fact that she has died an unnatural death within seven years of marriage, is also not a disputed fact. Therefore, when an unnatural death has occurred within seven years of marriage, the law requires that a serious view be taken of the circumstance in addressing the commission of the offence by the accused. Since the relationship of matrimony is a private affair, the ill-treatment and abuse is restricted to the four walls of the bedroom, or the house of the victim and her matrimonial family including Accused No. 1, the husband. Therefore, to expect a degree of proof for evidence of a nature to indicate that there was cruelty meted out on a day-to-day basis over a period of time, is almost impossible. It is hence the endeavour of the prosecution to place reliance on such evidence which is humanly possible to be present, which the prosecution has done through the medium of PWs 2 and 4 who were the most competent witnesses to speak about the state of mind and the suffering to which they were privi, of which the deceased was undergoing, since they were the only near and dear ones who were in contact with the deceased and were in a position to narrate the kind of treatment she was receiving in the hands of the accused. There could have been no better evidence to have been placed by the prosecution in support of its case. Therefore, the court below having addressed the overall circumstances coupled with the unimpeachable evidence of the father and sister of the deceased who have narrated the several instances where the deceased has undergone ill-treatment at the hands of the accused over a period of time, it is not necessary that the prosecution was required to place evidence as regards the ill-treatment suffered by the deceased, on a day-to-day basis. The social strata of the parties, manner in which the sequence of events have unfolded and the evidence of the witnesses cannot be negated and the court below has rightly found that the prosecution case has been established beyond all reasonable doubt and therefore, seeks to justify the judgment. Given the above facts and circumstances, since the court has acquitted Accused No. 2 and also Accused No. 1 insofar as the offence punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and has found the appellant guilty for the offence punishable u/s 498A and Section 306 IPC, it is for this Court to consider whether the prosecution had made out a case of the accused committing such acts of cruelty of a nature which drove the deceased to commit suicide.

As rightly pointed out by the learned counsel for the appellant, the evidence though is not expected to such a degree as to demonstrate that the deceased was suffering cruelty at the hands of the accused on a day-to-day basis, it was necessary that there was evidence of more than one person apart from the father and sister of the deceased, such as the neighbours and others who could, from the demeanor and conduct of the deceased, speak of the ill-treatment that albeit that she may have suffered within the confines of her house, for it is quite possible for a third person to notice from the demeanor of a person who has constantly suffered ill-treatment, even if the actual acts of cruelty could not be witnessed by such person. There could be no better person to speak of this than the neighbours of the deceased, who would have been privi to the demeanor and the state of mind of the deceased at all relevant points of time. Though witnesses have been examined such as the neighbour PW-10 and other witnesses, those witnesses have not supported the case of the prosecution. The prosecution has therefore sought to place reliance only on the evidence of the father PW-2 and PW-4, the sister of the deceased. As already pointed out by the learned counsel for the appellant, these witnesses have spoken about stray instances of alleged cruelty meted out by the accused against the deceased. That by itself would not be sufficient to hold that the prosecution had established its case beyond all reasonable doubt, for the reason that the evidence of PW-2 and PW-4 is not direct evidence of having witnessed acts of cruelty meted out against the deceased, but only the alleged statements made by the deceased of such cruelty being meted out to her. Therefore, notwithstanding that the nature of offences are such that it cannot be expected of the prosecution to tender evidence as regards the conduct of the accused on a day-to-day basis, it was however necessary to cover the entire period from the date of marriage till the date of the deceased committing suicide by examining such other witnesses who could speak of the presence of such possible acts of cruelty having been meted out against the deceased. When no such evidence is available, this court cannot proceed on the basis of presumptions that there was possible cruelty which drove the deceased to commit suicide. Consequently, the offences punishable u/s 306 IPC cannot also be said to have been made out, when the basis and the foundation for leading to a presumption that she was driven to commit suicide by the appellant, was absent. There is not even a case made out to show that the deceased was driven to commit suicide. Hence, in the above facts and circumstances and having regard to the evidence on record, it cannot be said that the prosecution had established its case beyond all reasonable doubt.

Consequently, the appeal is allowed. The judgment of the court below is set-aside insofar as the conviction of Accused No. 1, the appellant herein is concerned and the appellant is acquitted of the offence punishable u/s 498A and Section 306 IPC and the fine amount if any paid shall be refunded. The bail bond furnished shall stand cancelled.