Byregowda M.C. vs Nagaraja and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 3.7.2012 passed by the Principal Sessions Judge, Chikmagalur in S.C. No. 143/2010 is called in question in this appeal by the father of the deceased namely, Sri. M.C. Byregowda (PW.1). The State has not preferred appeal questioning the order of acquittal.

By the impugned judgment, the Trial Court has acquitted the accused of the offences punishable under Sections 498-A and 304-B of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.

Case of the prosecution in brief is that the deceased Meena is the daughter of PW.1 - Byregowda (the appellant herein); marriage between the deceased Meena and accused was performed on 22.8.2004 as per Hindu custom; three months prior to the marriage, marriage negotiation took place between the family members of the accused as well as the deceased; in the said negotiation, neither the deceased nor the accused participated, only family members of the accused and the deceased had participated; during the marriage negotiation, the elders of the accused demanded an amount of Rs. 50,000/- in cash, a motor cycle and 100 grams of gold; however, the father of the deceased (appellant herein) agreed to pay Rs. 65,000/- in cash, 12 grams of gold chain and one ring to the accused and some ornaments to his daughter; on the date of negotiation, an amount of Rs. 15,000/- was paid to the father of the accused; the Betrothal ceremony was performed after twenty days of the marriage negotiation, wherein the relatives and friends of both the families were present; on that day PW.9 - Vishwanath paid Rs. 50,000/- to the father of the accused Somashekharappa; the marriage was performed at the temple in the village and at the time of the marriage, the parents of the deceased gave gold ring and chain to the accused and one pair of ear-rings, one neck chain and necklace to the deceased; the deceased and accused lived happily for three to four months after the marriage; thereafter, problems were cropped up between the deceased and the accused; however, two children were born out of the wedlock, one child was aged about 5 years and another child was aged about 1 1/2 years, at the time of the incident.

It is further case of the prosecution that the accused started demanding additional amount of dowry, since he felt that the amount of dowry paid to him at the time of marriage was not sufficient; in that context, he used to ill-treat the deceased both physically and mentally; the accused used to send back the deceased to her parental house to bring dowry; in order to pacify, the father of the deceased had paid Rs. 60,000/- in installments till her death; inspite of the same, the accused continued ill-treatment and harassment on the deceased; panchayats were held in the village and the accused was suitably advised by the elders; though the accused returned back to his matrimonial house along with the deceased happily, that happiness did not remain for long period; he used to harass the deceased on one pretext or the other; the accused was having illicit relationship with a lady in his village; when the deceased asked the same, he used to quarrel with her and harass her; in that context, few months prior to the death of the deceased, she had come back along with her children to her parental house on being frustrated about the conduct of the accused; however, the accused about few days prior to the incident has brought back his son without informing the deceased; about 4-5 days prior to the death of the deceased, she was brought back to the matrimonial house by PW.1 (appellant herein) along with his relative; both the accused and deceased were advised suitably; however, she could not tolerate the harassment of the accused; she committed suicide by hanging herself during the intervening night of 11th and 12th September of 2010.

The First Information Report came to be lodged by PW.1 (appellant herein) as per Ex. P1 at 12.00 noon on 12th September, 2010 which came to be registered by PW.21 - the Station House Officer in Crime No. 284/2010. He has sent the First Information Report to the jurisdictional Magistrate as per Ex. P17. PW.20 - Deputy Superintendent of Police has completed the investigation and laid the chargesheet.

In order to prove its case, the prosecution in all has examined 21 witnesses and got marked 17 Exhibits and 3 Material Objects. On behalf of the defence, no witness is examined.

Sri. Ashok Nayak, learned counsel appearing on behalf of the appellant taking us through the entire materials on record submits that the evidence of PWs.1, 7, 8, 9 and 11 is sufficient to bring home guilt against the accused; all these witnesses have deposed about the demand of dowry by the accused and the payment of dowry by the parents of the deceased prior to the marriage; they have deposed about the demand of dowry by the accused and consequently, harassment by the accused on the deceased repeatedly till her death; though the number of Panchayats were held in the presence of elders of the village, the accused and his family members did not mend their conduct; since, the deceased could not sustain the harassment given by the accused, she tried to commit suicide at an earlier point of time by consuming poison and was admitted to the hospital; however, by the grace of God, she survived; since accused continued with the old habit of harassing the deceased and did not mend his conduct, the deceased committed suicide in the matrimonial house.

He further submits that the accused has not offered any explanation as to why the deceased committed suicide and therefore, according to him, the accused has not rebutted the presumptions against him as contemplated under Section 106 of the Indian Evidence Act. He further submits that the conclusion arrived at by the Trial Court is improper and incorrect.

Sri. P.M. Nawaz, learned State Public Prosecutor appearing on behalf of respondent No. 2 - State however submits that the offences committed by the accused may fall under Sections 498-A and 306 of IPC inasmuch as the death has occurred during seven years after the marriage and the deceased committed suicide without any valid reason; the material on record amply reveals that the accused used to harass the deceased not only pressurizing her to bring money from her parents repeatedly, but also having illicit relationship with another lady in the village with the knowledge of the deceased.

Smt. Suja Surendran, learned counsel appearing on behalf of the accused/respondent No. 1 however argued in support of the judgment of the Court below contending that the Trial Court is justified in acquitting the accused.

PW.1 is the father of the deceased - the appellant herein. He has deposed about the marriage negotiation, demand of dowry by the family members of the accused, payment of dowry by him prior to the marriage, repeated demands of the accused relating to money after the marriage and about convening of Panchayats for pacifying the quarrel and also about accused having illicit relationship with another lady in the village and lodging of complaint as per Ex. P1.

PW.2 is the witness for inquest mahazar at Ex. P6, seizure mahazar at Ex. P7, under which saree and other articles were seized in the Police Station, seizure mahazar at Ex. P5, under which wedding card (Ex. P3) and four photographs (Ex. P4) were seized.

PW.3 is another witness for inquest mahazar at Ex. P6.

PW.4 has deposed about his presence during the inquest mahazar and recording of his statement during inquest proceedings.

PW.5 is the neighbour of the accused and the witness for spot mahazar at Ex. P2, seizure mahazar at Ex. P8, under which the gold chain and ring were recovered at the instance of the accused after his arrest. He has turned hostile to the case of the prosecution.

PW.6 is the neighbour of the accused. He has also turned hostile to the case of the prosecution.

PW.7 is the relative of the deceased. He has also acted as a Panchayatdar in the panchayat held between two family members. He has deposed about the marriage negotiation, demand of dowry, acceptance of dowry, performance of the marriage and also further demand of dowry etc.

PW.8 - the evidence of PW.8 is almost on par with the evidence of PW.7.

PW.9 is the brother of the deceased. He has also deposed about the marriage negotiation, demand of dowry, payment of dowry and the demand of additional amount of dowry by the accused after the marriage.

PW.10 is another neighbour of the accused. He has turned hostile to the case of the prosecution.

PW.11 is the relative of the deceased. His evidence is also on par with the evidence of PWs.7, 8 and 9 regarding marriage negotiation, demand of dowry and payment of dowry etc.

PW.12 is the owner of jewellery shop. He has deposed about the recovery of M.Os.2 and 3 at the instance of the accused from his shop. But he has turned hostile to the case of the prosecution.

PW.13 is another witness for spot mahazar at Ex. P2. He has turned hostile to the case of the prosecution.

PW.14 is another witness for seizure of saree under mahazar at Ex. P7 executed in Kadur Police Station.

PW.15 is the witness for seizure of gold chain and ring at the instance of the accused as per Ex. P8. But he has turned hostile to the case of the prosecution.

PW.16 has produced wedding card at Ex. P3 and photographs at Ex. P4, which were seized under mahazar Ex. P5.

PW.17 is the P.D.O. (Panchayat Development Officer), who has issued the House Assessment Register Extract to the Investigating Officer as per Ex. P12.

PW.18 is the Doctor, who conducted the Autopsy over the dead body. He has given his answers as per Ex. P14 to the questions asked by the Investigating Officer. He has opined that the death is due to hanging.

PW.19 is the Tahsildar, Kadur Taluk, who conducted the inquest mahazar as per Ex. P.6.

PW.20 is the Deputy Superintendent of Police, who completed the investigation and laid the charge sheet.

PW.21 is the Head Constable. He was the Station House Officer, Kadur Police Station during relevant point of time; he received the written complaint - Ex. P1 lodged by PW.1 and registered in Crime No. 284/2010 and sent the First Information Report to the jurisdictional Magistrate.

From the aforementioned narration, it is clear that entire case of the prosecution rests on the evidence of PWs.1, 7, 8, 9 and 11. It is not in dispute that the deceased committed suicide by hanging in her matrimonial house during the intervening night of 11.9.2010 and 12.9.2010. It is also not in dispute that the death has occurred within about 6-7 years after the marriage of the accused with the deceased. It is also clear from the evidence of PW.18 - the Doctor that the deceased did not suffer any injuries except the ligature mark on the neck.

It is also not in dispute that the deceased and the accused had two children; the elder one was aged about 5 years and the younger one was aged about 1 1/2 years, at the time of the death of the deceased.

It is also not in dispute that the accused was the only son of his parents and they were rich; the father of the accused had expired about 2 1/2 years prior to the death of the deceased; the mother of the accused was suffering from Diabetes and Blood Pressure; as she could not get sufficient attention from the deceased and the accused in the house of the accused and she had to be on strict diet because of the aforementioned health problems, she started residing in her daughter''s house from two years prior to the incident in question. It is also not in dispute that the accused, deceased along with their children were only residing in the matrimonial house.

P.Ws.1 and 9 are father and brother respectively of the deceased. Except these two witnesses, no other family members of the deceased are examined before the Court. The other witnesses namely P.Ws. 7, 8, 11 and 6 etc., are the close relatives of the deceased.

Though Ex. P.1 (complaint) lodged P.W.1 was not orally made before the Police and though the first version of P.W.1 (the complainant) immediately after the incident is submitted as a written complaint, the complainant/father of the deceased had not alleged anywhere in the complaint that the accused demanded dowry at any point of time prior to the marriage. On the other hand, the complaint merely disclosed that at the time of marriage, the complainant had paid Rs. 65,000/- and 100 grams of gold as dowry to the accused. We have also mentioned that the complaint does not disclose that the accused had demanded dowry. However, in the evidence, P.W.1 has deposed about the alleged demand made by the accused. In his deposition, P.W.1 has stated that elders of the accused demanded the sum of Rs. 50,000/- in cash, a motor cycle and 100 grams of gold. But, P.W.1 agreed to pay Rs. 65,000/-, 12 grams of gold apart from ornaments to his daughter. The evidence of P.W.1 even relating to the payment of dowry completely differs. The complaint discloses that a sum of Rs. 65,000/- with 100 grams of gold was given to the accused without any demand, whereas in the evidence, P.W.1 has deposed that a sum of Rs. 65,000/- and 12 grams of gold chain and gold ring was given to the accused. This improvement made by P.W.1 before the trial court is the material omission which is to be seriously taken note of by the Court while appreciating the entire materials. With regard to the demand by the accused after the marriage is concerned, the complainant has not stated in the complaint that the accused demanded additional dowry after the marriage. On the other hand, the complaint discloses that the accused had asked money for purchasing agricultural land and meeting hospital expenses of his father and to repay hand loan etc. In that regard, the complainant had paid Rs. 60,000/- in four installments to the accused and such amount of Rs. 60,000/- was paid into the hands of the deceased to be paid to the accused. Nowhere in the complaint, it is disclosed that the accused had demanded additional amount of dowry or the amount demanded by the accused was in the form of additional dowry. Per contra, even assuming that the contents of Ex. P.1 are true and correct, then what can be presumed is that the accused had demanded certain amount for his family necessities or for purchasing land etc. Even in his evidence, P.W.1 has not deposed that the amount of Rs. 60,000/- was paid by him to the accused as additional amount of dowry. But, according to him, he has paid Rs. 60,000/- for purchase of agricultural land and for personal expenses of the accused.

This evidence of the complainant in examination in chief is clearly watered down in the cross-examination. P.W.1 admits in the cross examination that as per the custom and tradition, there is payment of amount and gold to the bride and bridegroom during the marriage; he has not refused to pay cash or gold to the bride or bride groom; only elders of the family had participated in the family negotiation. Neither deceased nor the accused participated in the negotiation. He further admits that after one and half years of the marriage, accused purchased two acres of land; the said two acres of land was adjoining the land of the accused which he already owned; P.W.1 agreed to get marriage of the deceased performed with the accused only because he was the only son and all his sisters were married and they were well off. He had specifically admitted that family members of the accused had got good income and they were financially well off at the time of marriage and subsequently also. The accused and the deceased used to visit his house even after the marriage; after 11 months of the marriage, the deceased delivered the first child. When the deceased had consumed poison at the earlier point of time, the accused alone had taken her to Birur hospital and got her treated. Two children were born prior to the deceased consuming poison; after three years of the marriage, father of the accused died and his mother is suffering from diabetes and blood pressure. P.W.1 further admits that he had paid Rs. 60,000/- by drawing from Syndicate Bank account. But he has not produced any records to prove the same; the accused had his own motor cycle and in that motor cycle, he used to go to his house. He had not lodged any complaint about the alleged missing of the male child or allegedly taking away the male child by the accused without informing the parents of the deceased or the deceased. He further admits that giving of ''Bagina'' is also being performed in the house of the accused and ''Bagina'' would be given to his sisters in Gowri festival. He further admits that he has not seen any injuries on the body of the deceased. He did not make any enquiry with the neighbours of the accused about the assault or the ill-treatment by the accused to the deceased. C.Ws.12, 13 and 16 i.e., P.Ws.7, 8 and 11 have not seen the accused assaulting the deceased. He had not made any enquiry about the accused really having any illicit relationship with any other lady; he did not make any enquiry with the neighbours of the accused to know as to with which lady the accused was living.

The aforementioned admissions made by P.W.1 clearly reveal that the complaint is lodged merely on assumption. Till the second child was born, it seems that there were no quarrel between the deceased and accused inasmuch as it is the case of prosecution that the deceased had consumed poison after the birth of the second child. The second child was about one and half years of age at the time of the death of the deceased which means the dispute between the accused and the deceased had arisen just about within one year prior to the incident. The evidence of P.W.1 is of no help to the case of prosecution to show that the accused either demanded or accepted the dowry. On the other hand, the offerings made by P.W.1 to the bride or bride groom was customary in nature. It is not uncommon in this part of the State to give certain amount for the purchase of clothes etc., to the bride and bride groom. It is also customary to give certain gold ornaments to both bride and bride groom by the elders of both sides. Hence, such offerings made by P.W.1 cannot be termed as dowry.

The evidence of P.W.9 (brother of the deceased) is also of no use to the accused inasmuch as admittedly he was working at Bangalore at that relevant point of time. He admits in his evidence that he did not participate in the marriage negotiation. Therefore, the evidence of P.W.9 with regard to the demand and payment of dowry is purely hearsay evidence. It is specifically admitted by P.W.9 that he used to visit his parents during festivals. Otherwise, he would be in Bangalore; marriage of the accused with deceased was performed as per the custom prevailing in the community; he did not tell before the police that he paid Rs. 15,000/- to the hands of accused. Since family of the deceased did not have money, they did not get any gold ornaments to be paid to the deceased, when she conceived/matured, though there was custom prevailing in the community to give certain gold ornaments to the matured girl. He admits in the cross examination that two days prior to Gowri festival, he visited the house of the accused to give ''Bagina'' to his sister and that usually the female will be called to her parents house during Gowri festival as per custom. Despite the same, the deceased was willing to stay in the house of her father and brother during Gowri festival. In view of the aforementioned answers, we are of the opinion that the evidence of P.W.9 also will not be of helpful in order to prove the aspect of dowry.

With regard to harassment of the accused to deceased and consequent episode of deceased committing suicide etc., the prosecution has relied upon by the evidence of P.Ws.1, 7 to 9 and 11 apart from P.Ws.4 and 6.

It is further case of prosecution that accused used to harass the victim pressurizing her to bring money from her parental house even after the marriage and that the accused was having illicit relationship with another lady in the village. Though it is deposed by P.Ws.1 and 9 that accused had illicit relationship with another lady, not even the name of the said lady is forthcoming in the evidence of these witnesses. They have not even stated as to where her house is and what are the enquires made by them. On the other hand, both these witnesses including P.Ws.6 to 8 and 11 did not depose that they had the personal knowledge of such illicit relationship of the accused with another lady. All these witnesses are the hearsay witnesses inasmuch as they did not have the first hand information with regard to the said allegation. The investigating officer also had not made any effort to trace the lady with whom the accused had the alleged illicit relationship. Only on the bald allegation, the prosecution cannot prove its case since it is the duty of the prosecution to prove its case beyond reasonable doubt and as the prosecution has not placed any record to prove the said aspect of the matter, the trial Court has rightly disbelieved the said version of the prosecution.

However, with regard to the physical and mental harassment is concerned, P.Ws.1, 7 to 9 and 11 have deposed about the ill treatment to certain extent. But in the cross examination, these witnesses virtually have taken ''U'' turn to depose that they did not have the first hand information about the same. P.Ws.5 and 7 are the persons who participated in the panchayat held between the two families to pacify the dispute.

P.W.5 in the examination in chief itself has deposed that panchayat was held on the ground that the deceased was not properly staying in the house of the accused and she did not even go to the house of accused. In that regard, the accused had requested them to convene panchayat.

Another panchayatdar i.e., P.W.7 has admitted in the cross examination that there is custom prevailing in the community to pay certain amount and gold ornaments in the marriage. He had also given certain gold ornaments, cash to his son-in-law during the wedding of his daughter; accused was the only son to his parents and they are well off; he admits specifically that P.W.1 was not well off as the parents of the accused; P.W.1 was having a coconut garden, wherein there are about 30-40 coconut trees; as such, the garden yields 2000 coconuts which will be hardly sufficient to meet his family expenses; by raising crop loan, P.W.1 has met expenses of the marriage. But neither P.W.1 nor the investigating officer has made efforts to produce the records to show that P.W.1 had raised loan for payment of dowry. P.W.7 has specifically admitted in para No. 5 of his deposition that he along with others went to the house of panchayatdar and the accused had told that his mother is suffering from blood pressure and diabetes and his father is also not keeping well; there is nobody to cook food in the house; the deceased used to go to parents house often, P.W.7 and other panchayatdars, on objection by the other side, pacified the accused by saying that in the families, such differences will be there and advised the accused and deceased to lead cordial life. It is specifically admitted by P.W.7 that the deceased might have stayed in the house of the accused hardly for about one year during the marital period and most of the time, she had stayed in her parental house; since the mother of the accused had to diet as per prescription of the doctor due to her ailment and as nobody is there in the house of the accused, she is staying with her daughter; he has not seen beating or ill treating the deceased by the accused, however, he came to know about the same only when the deceased had told before him; he had not told before the police about the ill treatment or assault by the accused to the deceased; he also admits that the accused owns a motor cycle.

The aforementioned evidence of P.W.7 amply makes it clear that it was the accused who was suffering because the deceased was living in the house of parents though the marriage had taken place for about six years prior to her death; except for one year. the deceased lived in the house of her parents; the father of the accused was unwell and mother was suffering from blood pressure and diabetes. Since nobody was looking after mother of the accused and as she had to be in strict diet, she started living along with her daughter in a different place; despite repeated request of accused in panchayat, the deceased did not mend her conduct but she continued to live in her parental house. Therefore, the evidence of P.Ws.5 and 7 practically helps the defence of accused and not the prosecution.

The evidence of P.W.8 is almost on par with the evidence of P.W.7. He also admits that as per the custom of their community, the daughter will be given some gold and cash; at the time of marriage negotiation, he did not object for payment of gold or cash by P.W.1; he went to the house of accused on two occasions and on both occasions, he was treated with honour; the accused and deceased used to visit his house together; he did not try to find out as to with whom the accused was having illicit relation etc.

P.W.9, the brother of the deceased, has clearly admitted that accused and deceased were cordial for more than three years though P.W.1 had deposed that accused and deceased started quarrelling after 3-4 months of the marriage.

P.W.11 is another relative who admitted that for about 3 to 3 1/2 years, the accused and deceased were living cordially. He has also admitted that in their custom, they would give some cash and gold according to their financial capacity. In the cross examination, P.W.11 has admitted that during about 3-4 years, there was no dispute between the accused and the deceased and they were cordial; after 2-3 years of marriage, father of the accused died. He admits that mother of the accused was suffering from diabetes and blood pressure and as she could not be on strict diet in the house of accused, she started staying in the house of her daughter; since the deceased was the only daughter to P.W.1, most of the times, she used to stay in his house; accused often used to go and request P.W.1 and others to send the deceased to matrimonial home since there was nobody to look after and cook food. In that context, himself (P.W.11) and P.W.1 advised the deceased to go to house of the accused and they had left her in the house of accused. He has not seen the accused assaulting or ill-treating the deceased. He also did not know the relationship of the accused with another woman. The aforementioned admission of P.W.11 clearly reveals that the deceased was not willing to perform marital obligation by living in the matrimonial house. She was always fond of living in her parents house. Except for one year, she lived in the house of her father for the rest of her life after marriage. Though the accused used to request the family members of the deceased to send the deceased to his house, the deceased used to stay back in her parents house. None of these witnesses have specifically deposed that the accused tortured the victim either physically or mentally. On perusal of the material on record, it is clear that it was accused who was mentally harassed by the deceased.

It is relevant to note that P.W.6 was treated hostile and he was examined by the public prosecutor. The public prosecutor has suggested that ten months prior to the death, the deceased had been to her parents house along with her children; the accused by going to the parents of the deceased had brought his son back. Both these suggestions made by the prosecution to P.W.6 are admitted by him which means that the deceased was not living with the accused ten months prior to the incident in question and that the accused had brought back his son and not the deceased. The incident has taken place in the intervening night between 11.09.2010 and 12.09.2010. P.W.6 has admitted the suggestions of the public prosecutor that on 08.09.2010, P.W.1 (father of the deceased) along with the elders brought the deceased back to the house of accused and left her by advising the accused. He has also admitted the suggestion that on 11.09.2010, the accused had gone to his sister''s house for giving ''Bagina'' and he came in the early morning of 12.09.2010, which means that the accused was not present at the time of the deceased committing suicide. P.W.6 has further admitted that the accused came in the morning of 12.09.2010, knocked the door of the house, but the deceased did not open. Thereafter the accused by climbing the roof removed the tiles and went inside the house and after sometime, he came out shouting that the deceased committed suicide. Thereafter all the neighbours rushed to the spot. The aforementioned evidence of P.W.6 clearly shows that the accused was not present at the time of the incident in question. Be that as it may, the factual aspect is that the deceased used to stay back in her parents house all through the years except for one year. Even prior to the incident in question, the deceased was living in her parents house and she had not gone to the accused. Just three days prior to her death, that too she was brought to the accused by her father and other elders. It seems that she was not willing to stay in the house and hence, she might have committed suicide.

The evidence on record does not in any way reveals that the accused harassed the victim both physically and mentally on one pretext or the other. The case as made out by the prosecution before the Court is not proved by the prosecution. On the other hand, the evidence on record clearly reveals that the accused had suffered mentally because of the conduct of the deceased in staying back in her parents house all through even after the marriage. She did not take care of the family members of the deceased including parents of the accused. Though the accused was financially well off and though he was ready to look after the deceased, she lost her life, but it was not because of the fault of the accused. On reconsidering the entire material on record, we find that the reasons assigned by the trial Court while coming to the conclusion are just and proper. The view taken by the trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case. Hence, no interference is called for.

The appeal stands dismissed accordingly.