Nagaraja vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned State Public Prosecutor.

The present appeal is filed in the following background:

It was the case of the prosecution that the sister of the complainant one Lakshmi was given in marriage to the present appellant on 11.5.2007 and that he was provided a dowry consisting cash of Rs. 1,25,000/- and 125 grams of gold articles to the bride and that after the marriage, the accused along with Lakshmi and his mother were residing in a rented house at Laggere in Kempegowdanagar Layout, Bangalore. It was alleged that the accused and his mother were demanding household articles and a house site from the inception and were harassing Lakshmi. It transpires that this had continued and the accused and his mother were making unreasonable demands and thereby caused physical and mental torture to Lakshmi and ultimately on 25.9.2007, she is said to have committed suicide.

It is brought on record that PW.11, a neighbour of the accused, had visited Lakshmi when she was at home and had gone to the terrace to meet the mother of the accused, who was said to be washing clothes and when they came down, they found Lakshmi locked herself inside a room and inspite of repeated calls, since she did not open the door, with the help of other neighbours when the door was opened, it was found that Lakshmi had hung herself and had died. The death had occurred within seven years of the marriage and since it was an unnatural death, a case was registered at the instance of the complainant for offences punishable under Sections 498A and 304B of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC'', for brevity) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (Hereinafter referred to as the ''DP Act'', for brevity).

On the basis of the said complaint, a case having been registered, the appellant was arrested and after further investigation, a charge sheet was drawn up against him and his mother and on the case being committed to the Court of Sessions, charges were framed against the accused for the aforesaid offences. Since the appellant had pleaded not guilty and claimed to be tried, the prosecution had examined 18 witnesses, and had marked several exhibits. After having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, and after hearing both the sides, the court below has framed the following points for its consideration:

"1. Whether the prosecution proves hilt that, marriage of deceased Smt. Lakshmi @ Sunitha was solemnized with accused No. 1 on 11.5.07 and accused No. 1 received Rs. 1,25,000/- cash, gold ring and 125 grams gold ornaments to his wife in terms of dowry and thereby committed an offence punishable under Section 3 of D.P. Act?

Whether Prosecution further proves that subsequent to the marriage accused started demanding a site as further dowry and started harassing deceased Lakshmi @ Sunitha for their unlawful demand and thereby committed an offence punishable under Section 4 of D.P. Act?

Whether the prosecution further proves hilt that, even though accused received cash of Rs. 1,25,000/-, one gold ring to bride groom and 125 grams gold ornaments to the bride started giving harassment to the deceased Lakshmi by saying as she was not beautiful, if he married another girl he would have got beautiful woman as his wife and the parents of the deceased did not give more dowry and they have not fulfilled their demand by giving site, utensils, almara and forced the deceased to bring one site from her parental house to build a house and thereby committed an offence punishable under Section 498(A) of IPC?

Whether the prosecution proves hilt that, on 25.9.07 between 6 p.m. to 7 p.m. due to physical and mental harassment given by the accused for their unlawful demand of dowry the deceased committed suicide by hanging herself to a fan in the hall with Vail in the house of accused situated at house No. 23, 19th Cross, Kempegowda Layout, Laggere, Bangalore and her death was other than under normal circumstances within seven years of her marriage and thereby committed an offence punishable under Section 304(B) of IPC?

What Order?"

The court below held points 1 and 4 partly in the affirmative and partly in the negative and has acquitted accused no. 2 and convicted accused no. 1 and sentenced him to undergo simple imprisonment for five years and to pay a fine of Rs. 15,000/- for the offence punishable under Section 3 of the DP Act; simple imprisonment for a period of 1 year and to pay a fine of Rs. 10,000/- for the offence punishable under Section 4 of the DP Act; simple imprisonment for 2 years and to pay a fine of Rs. 5,000/- for the offence under Section 498A, IPC and rigorous imprisonment for seven years for the offence punishable under Section 304B of the IPC. It is this which is sought to be challenged in the present appeal.

The learned Counsel for the appellant would point out that having regard to the allegation that the appellant and his mother were constantly demanding dowry by way of a house site and other articles from inception and it is on account of this constant and continuous cruelty meted out to Lakshmi that she was driven to commit suicide, require a high degree of proof by the prosecution witnesses to establish that Lakshmi was indeed being treated with cruelty day in and day out and that ultimately she had committed suicide on account of such cruelty. Secondly, it was also necessary for the prosecution to prove that the appellant and his mother had demanded and received any dowry. The allegation that cash of Rs. 1,25,000/- and gold weighing 125 grams were provided to the accused at the time of wedding is not established with reference to any material documents. There is no material evidence produced to show that the cash in such a large amount had been demanded and received by the accused, except the self serving statements of the witness, namely, PW.1. This ought to have been established by reference to the independent witnesses, who had heard the demands being made and who had seen the amounts being accepted by the accused. In the absence of which, it could not be said that there was demand and payment of dowry. Insofar as the gold articles weighing 125 grams is concerned, even according to the prosecution, it was given to Lakshmi at the time of the wedding and it was given as a custom and not as a dowry, and certainly would go to the accused or his mother and therefore, it could not be construed as being a demand made and received in the form of dowry.

Insofar as the allegation of cruelty is concerned, the law requires that the same ought to be established for bringing home the charge for an offence under Section 498A, IPC, that the cruelty should be of such a degree as would drive the deceased to commit suicide. Incidentally, it is not the mother, the brother, the sister or other relatives of the deceased, who were providing information about the conduct of the accused and his mother insofar as Lakshmi was concerned. It is the say of these witnesses that Lakshmi had from time to time informed them of such ill-treatment. It is not also in dispute that the marital life of the deceased with the present appellant was short lived and was for a mere period of 4 1/2 months. During this period, it is also on record that Lakshmi was pregnant with a child and there was evidence to indicate that Lakshmi had come along with the accused and stayed in her maternal home for two days. This would hardly indicate that there was any such violence and ill-treatment during the said period of 4 1/2 months of their martial life as would establish a case of constant and continuous cruelty being meted out, which would be necessary for a person to be driven to commit suicide. In this regard, the he would draw attention to a portion of the evidence of the prosecution to point out that apart from the near and dear ones of Lakshmi, namely, her mother, brother, sister and brother-in-law, there were two witnesses who were neighbors of Lakshmi and the appellant. Significantly, it is only those neighbours, who were in a position to speak about the day to day attitude of the accused and his mother with Lakshmi and according to their evidence, the relationship was cordial and it is also on record that those witnesses were visiting Lakshmi in her matrimonial home and they had not found any sign of cruelty.

The learned Counsel would also draw attention to the circumstance where it is on record that Lakshmi was pregnant and since there was abnormality of the heart beat of the fetus not having commenced even after 2 1/2 months of pregnancy, the accused had applied leave to take her for a check up and on the fateful day, it transpires that the Medical Practitioner, who had examined her, had informed the appellant as well as the deceased that the heart beat of the fetus was yet to commence and that if it did not within two weeks, then there was an eventuality where the fetus would have to be aborted, for otherwise, it would prove fatal to the mother and therefore this was a news which had shocked Lakshmi. It is that which has apparently driven her to commit suicide, which has been completely overlooked by the court below in otherwise accepting the allegations and the evidence. Merely because Lakshmi had died an unnatural death, the appellant and his mother have been blamed unfairly, when there is no evidence to indicate that there was such conduct on their part as was sought to be alleged.

The learned Counsel would point out that the very evidence, which was relied upon by the prosecution, was also sought to be relied upon as against accused no. 2, his mother and if the court was of the opinion that the evidence tendered was not sufficient to bring home the charges as against accused no. 2, by the same token of reasoning, the evidence was also not sufficient to bring home the charge against accused no. 1. This is an anomaly, which cannot be reconciled in sustaining the conviction and would therefore seek acquittal of the accused.

While the learned State Public Prosecutor would vehemently oppose the appeal and would submit that the argument canvassed by the learned counsel for the appellant namely, that the deceased was hyper sensitive and it was also a fact that her sister was equally hyper-sensitive and they had suicidal tendencies and therefore, it was not surprising that, having received the bad news about the pregnancy not being normal, she was driven to commit suicide, cannot be readily accepted. The learned Prosecutor would submit that merely because the deceased was shown to be a reserved person, who was not akin to chatting or being very lively, it did not lead to the presumption that she was harbouring suicidal tendencies or that the same ran in the family since her sister was also of a similar nature. These are presumptions, which cannot be attributed without the material evidence in support of the same and would submit that insofar as the cruelty that is meted out to the deceased by the appellant and his mother in they making constant demands for dowry over months of the matrimonial life would have occurred within the four corners of the house and to expect that there would be independent witnesses, who speak to such ill-treatment cannot be accepted and that it is impossible in all cases to produce evidence of such ill-treatment which occurs in a total privacy. Therefore, the contention of the appellant that in the absence of independent witnesses, who could speak about the cruelty that was meted out to the deceased, which had driven her to commit suicide, that the case of the prosecution could not be believed, is not available to the appellant. The nature of the allegations did not warrant that every such incident be established through the evidence of the independent witnesses. It is the overall evidence, which would have to be viewed with reference to the circumstances, in drawing conclusions and presumptions and it is the circumstantial evidence which would at best bring home the charges.

In the instant case on hand, the fact that the close relatives namely, the mother, the brother, the sister and the brother-in-law of the deceased have tendered evidence to support the case of the prosecution, by itself, cannot be negated, merely on the footing that they are interested witnesses. They were certainly interested in the welfare of the deceased and it is they who had the knowledge of such ill-treatment being meted out from time to time and it is only they who could speak about the ill-treatment and the manner in which it had been perpetrated over a period of time and hence, the learned Prosecutor would seek to sustain the judgment and justify the same.

On the above facts and circumstances, as rightly contended by the learned counsel for the appellant, the primary ingredients in establishing a case for an offence punishable under Sections 3 and 4 of the DP Act or having committed offences punishable under Section 498A, IPC and 304-B, IPC, it was necessary for the prosecution to establish that there was demand and acceptance of dowry and further that the accused had ill-treated Lakshmi to such an extent that it ultimately drove her to commit suicide. Insofar as the demand and acceptance of dowry is concerned, except PW.1, there is no material evidence produced to show that such amount was demanded and it was paid to the accused. Insofar as the demand and receipt of gold articles weighing 125 grams is concerned, admittedly, it was given to the bride at the wedding and not to the accused or his mother and therefore it could not be characterized as dowry. In the above circumstances, it is hence inexplicable that the trial court has held that the offences punishable under Section 3 and 4 of the DP Act are established insofar as the present appellant was concerned. Further, as regards the offence punishable under Section 498A, IPC is concerned, the very Section requires that there should be cruelty and cruelty that is meted out was of such degree and extent, that it ultimately drove the deceased to commit suicide. In the instant case on hand, the marriage was short lived, in that, the couple were married only for 4 1/2 months when Lakshmi had committed suicide. During this period, the cruelty that was said to have been meted out is not established with reference to any incident or circumstances, where Lakshmi was driven out of the house or had to leave the house being unable to bear the physical and mental torture and there being attempts at conciliation, which is generally the case, in circumstances where such degree of cruelty is established. There are no such incidents forthcoming in the present case on hand, except the evidence of the witnesses, to state that Lakshmi was from time to time informing them of constant and continuous demands for dowry being made by the accused - appellant and his mother. Further, it is seen that Lakshmi was pregnant by 2 1/2 months. Therefore, there was no love lost between the husband and wife and if she was subjected to continuous and constant cruelty, it is difficult to perceive how there can be any love making for Lakshmi to have become pregnant. Therefore, there were certainly softer moments of their life, which would belie the continuous and constant cruelty being meted out and cruelty of such a nature as would drive her to commit suicide. Further, the more significant circumstance is that on the fateful day, when Lakshmi had committed suicide, she had been taken to a doctor for a check up as regards her pregnancy and he had informed that the heart beat of the fetus in her womb had not commenced and therefore, it would be necessary to await for two weeks, to ensure the same and if it did not, it was imperative that the fetus be aborted, for otherwise, it would prove fatal to Lakshmi and this news, which had completely shattered her, was also a possible case for suicide. Further, Lakshmi is said to have requested the appellant to apply for a whole day leave, but he was able to secure only half-a-day''s leave, because his employer required him urgently and he had to leave. Further, a neighbour of the accused and Lakshmi, had met Lakshmi and it is when the neighbour went to the terrace to talk to the mother of the accused and when she had returned, that she found that Lakshmi had locked herself in a room and would not answer any calls and refused to open the door. It is thereafter that she was found hanging. This would lead to an inference that it was the bad news that she had received about her pregnancy progressing poorly, that she had possibly committed suicide, which would fall well within Section 113A of the Evidence Act, 1872. Therefore, given the plausible explanation for the commission of suicide by Lakshmi, it can be said that the presumption that arises under Section 113A and 113B of the Evidence Act has been discharged by the accused, given the explanation, which is supported by the material on record.

Consequently, the findings of the court below, only on the basis that the death had occurred within seven years of the marriage and since the law takes a strict view of all such unnatural deaths occurring within seven years of marriage, that the prosecution case was loaded against the accused and having found him guilty on the basis of the testimony of the near relatives of the deceased, by itself, was not sufficient to hold 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 and the appellant is acquitted. The bail bond furnished by the accused stands cancelled. The fine amount, if any, paid shall be refunded to the appellant.