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Judgment
N. Ananda, J.—The appellants (hereinafter referred to as accused No. 1 to 3) were tried for offences punishable under Sections 498A, 306, 304B r/w 34 IPC and also for offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. The learned Sessions Judge convicted accused No. 1 to 3 in terms of the following order:
I hereby convict accused 1 to 3 u/s. 235 Cr.P.C., for offence committed offence punishable under sections 304B r/w S. 34 IPC and for offence punishable under sections 3, 4 and 6 of Dowry Prohibition Act.
It is also held in alternative that accused are guilty of offences punishable under sections 498A, 306 r/w S. 34 IPC and for offence punishable under sections 3, 4 and 6 of Dowry Prohibition Act.
Therefore, accused No. 1 to 3 are before this court.
I have heard Sri. Dinesh Rao, learned counsel for accused No. 1 to 3 and learned State Public Prosecutor for the State.
In view of conviction of accused for aforestated offences, following points would arise for determination:
1) Whether the prosecution has proved that before the marriage of accused No. 1 with deceased Reshma on 27.09.2004, accused No. 1 to 3 had taken dowry in connection with the marriage of accused No. 1 and deceased Reshma from the parents of deceased, thereby committed an offence punishable u/s 3 of the Dowry Prohibition Act?
2) Whether the prosecution has proved that in the course of same transaction narrated in point No. 1, accused No. 1 to 3 had demanded and accepted dowry from the parents of the deceased Reshma in connection with the marriage of accused No. 1 and deceased Reshma, thereby committed an offence punishable u/s 4 of the Dowry Prohibition Act?
3) Whether the prosecution has proved that accused having demanded and accepted dowry as stated in points No. 1 and 2 failed to transfer the dowry as required u/s 6 of the Dowry Prohibition Act, thereby committed an offence punishable u/s 6 of the Dowry Prohibition Act?
4) Whether the prosecution has proved that after the marriage, when the deceased was staying in the house of accused during period between 27.09.2004 and 26.02.2006, accused No. 1 to 3 were harassing and ill-treating the deceased to bring additional dowry from her parental house, thereby committed an offence punishable under 498-A IPC?
5) Whether the prosecution has proved that deceased being disgusted with cruelty meted to her by accused No. 1 to 3 hanged herself in the house of accused No. 1, consequently died on account of hanging on 13.06.2006 and soon before the deceased hanged in the house of accused, accused had subjected her to cruelty in connection with dowry demand, thereby committed an offence punishable u/s 304B r/w 34 IPC?
6) Whether the prosecution has proved that accused were ill-treating and subjecting the deceased to cruelty with an intention to abet her to commit suicide, thereby committed an offence punishable u/s 306 IPC?
7) Whether the learned Trial Judge has properly appreciated the evidence on record?
8) To what order?
My findings on the above points and reasons thereof are as follows:
The evidence of PW. 1-Shivanna would reveal that accused No. 1 had fallen in love with the deceased and they had decided to marry and their decision was approved by the parents of both parties and the marriage of deceased was performed on 27.09.2004 and a sum of Rs. 5,000/- was paid towards marriage expenditure and they had given half tola gold to the deceased.
P.W. 3-Sattar Sab has not supported the case of prosecution and he was declared as hostile witness.
PW. 4-Mardan Sab had participated in the marriage negotiation of accused No. 1 with the deceased. He has given exaggerated version that there was demand for dowry from the side of accused. PW. 4 and others settled that a sum of Rs. 25,000/- shall be given as dowry.
It is not the case of prosecution that accused had demanded dowry of Rs. 50,000/- and had received dowry of Rs. 25,000/-.
During cross-examination, PW. 4 has admitted that accused No. 1 and deceased had fallen in love with each other. He was not aware that they had prepared to undergo marriage even if it was opposed by their elders. He has admitted that the father of deceased namely PW. 17-Ibrahim Sab was working as Hamali.
P.W. 17-Ibrahim Sab is the father of deceased. PW. 17 has deposed; that on the date of marriage, he had given a sum of Rs. 5,000/- and half tola gold to accused No. 3-Raja Sab (younger brother of accused No. 1).
During cross-examination, PW. 17 has admitted that he was working as a Coolie. PW. 17 has deposed that accused No. 1 to 3 had demanded dowry of Rs. 30,000/-.
At this juncture, it is relevant to state that accused No. 1 and deceased had fallen in love and they had decided to marry. The elders had approved their marriage. In the circumstances, it looks improbable that accused No. 1 or the persons from the side of accused No. 1 had demanded dowry from PW. 17. Above all, they were aware that PW. 17 was working as a Hamali. It appears that PW. 17 had paid a sum of Rs. 5,000/- towards marriage expenditure. Therefore, the evidence of PW. 17 is not sufficient to prove the demand and acceptance of dowry by the accused.
PW. 18-Rajbi is the mother of deceased. PW. 18 has deposed; that about 20 days prior to the date of marriage, there was marriage negotiations. At that time, accused no. 1 to 3 had demanded dowry of Rs. 30,000/- and four tolas of gold and the mediators settled the dowry of Rs. 5,000/- and half tola of gold.
In the discussion made supra, I have held that deceased and accused No. 1 had fallen in love and they were prepared to marry even if their parents had opposed the marriage. In the circumstances, the evidence of PW. 18 that accused had demanded and accepted dowry from PW. 17 who was sustaining by doing coolie work cannot be accepted. Therefore, the prosecution has failed to prove that accused had demanded and accepted dowry. In the circumstances, the question of accused transferring dowry of Rs. 30,000/- to accused does not arise. In the first information, there are no allegations of demand and acceptance of dowry. The first information was lodged on 13.06.2006. The incident had taken place on 26.02.2006. There is no explanation for delay of 3� months in filing first information. The deceased was alive till 13.06.2006 and no effort was made to record her statement.
PW 18-Rajbi has deposed; accused were demanding additional dowry; PW 18 had taken a sum of Rs. 16,000/- to the house of accused; accused refused to receive money by stating that she should give money in the absence of others; therefore, PW 18 returned back without giving money.
If accused had demanded additional dowry, they would not have refused to receive money. Therefore, evidence of PW 18 regarding demand for additional dowry cannot be accepted.
PW 17-Ibrahim Sab (the father of deceased) has deposed; after six months from the date of marriage, he had visited the house of accused; accused No. 2 questioned PW 17 if he had brought dowry; therefore, PW 17 returned back; PW 17 sent a sum of Rs. 16,000/- through his wife (PW 18); PW 18 brought back money and told PW 17 that there was none in the house of accused; therefore, PW 18 could not give money to accused.
The evidence of PW 17 & PW 18 is not consistent. The evidence of PW 17 & PW 18 does not inspire confidence. Therefore, prosecution has failed to prove that accused were demanding additional dowry after the marriage of deceased and accused No. 1.
The learned trial judge without noticing these basic discrepancies in the evidence adduced by prosecution has held the accused guilty of offences punishable u/s 3, 4 and 6 of the Dowry Prohibition Act. Therefore, this finding recorded by the learned trial judge cannot be accepted.
It is the case of prosecution that after the marriage, the deceased was living in the house of accused No. 1 to 3. On 26.02.2006 at about 4.00 p.m., the deceased hanged herself to a rafter in the house of accused. Immediately it was noticed by the accused. They cut the rope and shifted her to Government Hospital at Shikaripur. After preliminary treatment, she was shifted to McGann Hospital at Shimoga. Thereafter, the deceased was admitted to Nanjappa Hospital. The deceased was also treated in NIMHANS Hospital at Bangalore and also in Bapuji Hospital at Davangere. All along, accused No. 1 to 3 were taking care of the deceased and accused No. 1 had met the hospital expenditure. On 08.05.2006, the deceased was discharged from Bapuji Hospital at Davangere. Thereafter, she was brought to the house of accused. On 13.06.2006, the deceased succumbed to Bed sores.
The contents of postmortem examination report would reveal that deceased had bed sores and she died of Septicemia consequent to infection of bed sores.
PW. 7-Dr. Bhagyalakshmi has deposed; that she has not opined that there was any nexus between ligature mark and death of the deceased. The contents of postmortem examination report marked as per Ex. P8 would reveal that the death of Reshma was due to Septicemia as a result of infection due to bed sores.
In an answer to the opinion sought by the investigation officer from the medical officer of Government Hospital at Shimoga, they have furnished their opinion on 04.08.2006, wherein, it is stated that patient developed bed sores which got infected. Thus, it is not a case where the deceased had died due to asphyxia consequent to hanging. The deceased attempted to commit suicide on 26.02.2006 and the accused had cut the rope and prevented the suicide. The accused shifted and admitted the deceased to hospital. The deceased had developed respiratory problem due to compression of neck. She was discharged from Bapuji hospital on 08.05.2006. Thereafter, she was in the house of accused.
It is pertinent to note that accused were taking care of the deceased in various hospitals stated supra. This fact has been admitted by the parents of the deceased. It appears that deceased was taking rest and she was not in a position to move, therefore, she developed bed sores and died due to septicemia.
At this stage, it is relevant to state that an offence u/s 304B IPC is attracted, if it is proved that 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 if 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.
It is also necessary to state that an offence u/s 306 IPC is attracted if it is proved that accused had abetted commission of suicide by the deceased.
In the case on hand, it is not possible to hold that death of the deceased was suicidal in nature. An offence u/s 304B IPC is attracted if the death of a woman occurs within a period of seven years otherwise than under normal circumstances. Even if it is held that the death of deceased had occurred otherwise than under circumstances within 7 years of her marriage, an offence u/s 304B is not attracted, as the evidence on record does not reveal that deceased had been subjected to cruelty in relation to dowry demand soon before her death. On the other hand, the evidence on record, in particular, medical records would reveal that there was an attempt to commit suicide by the deceased on 26.02.2006 and the accused prevented the deceased from committing suicide. She was admitted to hospital and accused were taking care of the deceased and met the hospital expenditure in various hospitals viz., McGann Hospital at Shimoga, Nanjappa Hospital at Shimoga, Bapuji Hospital at Davangere and also in NIMHAINS Hospital at Bangalore. The deceased was discharged from Bapuji Hospital on 08.05.2006. Thereafter, the accused brought back the deceased to their house and she was taken care of by the accused. In the circumstances, even if it is held that the death of the deceased had occurred otherwise than under normal circumstances within seven years of her marriage, the evidence on record is hardly sufficient to hold that deceased was being subjected to cruelty in relation to dowry demand and the death of deceased was a dowry death.
The next point for consideration is: whether the accused had subjected the deceased to cruelty as defined u/s 498A IPC with an intention to abet the deceased to commit suicide.
In the discussion made supra, I have held that death of the deceased was not suicidal in nature. It is not the case of prosecution that accused No. 1 to 3 had instigated the deceased to attempt to commit suicide. The death of the deceased was due to septicemia as a result of infection due to bed sores. The conduct of accused before and immediately after the incident would reveal that they had no grievance or grudge against the deceased. Accused No. 1 to 3 were taking care of the deceased when she was in the hospitals and they had met the hospital expenditure. If the accused had subjected the deceased to cruelty or they had intention to instigate the deceased to commit suicide, they would not have taken care of the deceased. They would not have got the deceased admitted in various hospitals as aforestated and they would not have met the hospital expenditure. Even after discharge of the deceased from Bapuji Hospital on 08.05.2006, they would not have brought the deceased to their house and the parents of the deceased would not have sent the deceased to the house of accused. Therefore, the facts and circumstances of the case, evidence on record and the conduct of accused before the incident and after the incident would belie the case put forth by the prosecution that accused No. 1 to 3 were subjecting the deceased to cruelty and that accused No. 1 to 3 had instigated the deceased to attempt to commit suicide.
The learned trial judge without proper appreciation of evidence has convicted the accused in terms of the following order:
I hereby convict accused 1 to 3 u/s. 235 Cr.P.C., for offence committed offence punishable under sections 304B r/w S. 34 IPC and for offence punishable under sections 3, 4 and 6 of Dowry Prohibition Act.
It is also held in alternative that accused are guilty of offences punishable under sections 498A, 306 r/w S. 34 IPC and for offence punishable under sections 3, 4 and 6 of Dowry Prohibition Act.
The impugned judgment cannot be sustained.
In the result, I pass the following:
ORDER
The appeal is accepted. The impugned judgment is set aside. Accused No. 1 to 3 are acquitted of offences punishable under Sections 498A, 306, 304B r/w 34 IPC and also for offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act. Their bail bonds stand cancelled. If the accused have deposited fine amount in terms of the impugned judgment, the same shall be refunded to them.