Nanjamma vs Manjunath and Others

Mohan M. Shantana Goudar, J.—The Judgment and Order of acquittal passed by the Fast Track Court-V, Bangalore Rural District, Bangalore in S.C. No. 376/2002 is called in question in this appeal by the original complainant. It is relevant to note that the State has not filed any appeal against the Judgment and Order of acquittal.

Case of the prosecution in brief is that Accused No. 1 is the son of Accused No. 2; Deceased Nagarathna is the wife of Accused No. 1; that the marriage between the deceased and Accused No. 1 was performed on 18.6.2000 in Sharadamba Dharma Shala at Kolar; that at the time of marriage, the parents of the deceased i.e., PWs.1 and 2 gave Rs. 50,000/- to the Accused No. 1 in cash as dowry apart from ring, watch, clothes and other articles; that after the marriage, the deceased and Accused No. 1 were living happily alongwith Accused No. 2 at Nidagatta for about one year and then they started staying at Kimmasandra; that after one year of the marriage, Accused Nos. 1 and 2 started harassing Nagarathna demanding Rs. 1,00,000/- from her parents (PWs.1 and 2) for purchasing the tractor; so also Accused No. 1 started harassing the victim pressurizing her to bring Rs. 50,000/- for the purpose of digging the borewell; since PWs.1 and 2 were poor and were unable to meet the demand of the accused, they requested PW.3 (the brother of PW.2) to provide them the said money; PW.3 gave Rs. 1,00,000/- plus Rs. 50,000/- to PW.2 to satisfy the need of the accused and consequently PW.2 paid the said amount to the accused; with the help of the said money, Accused No. 1 purchased the tractor and dug the borewell; even thereafter the demand of the accused did not stop; as on 19.12.2001, the victim was three months pregnant; her pregnancy was forcibly aborted by the accused; since the deceased could not tolerate the ill-treatment and harassment by the accused against her, she has consumed poison at about 10.00 a.m. on 6.1.2002 and died on 7.1.2002 at Manipal Hospital, Bangalore.

Complaint came to be lodged by PW.1 (mother of the deceased) at 4.00 p.m. on 7.1.2002 as per Ex.P1, which came to be registered in Crime No. 10/2002 in Hosakote Police Station. The PSI - PW.21 received the complaint and registered the crime. Since PW.1 was an illiterate, the complaint was scribed by PW.18. The Police after investigation, laid the charge sheet.

In order to prove its case, the prosecution in all examined 26 witnesses and got marked 36 Exhibits and 2 Material Objects. On behalf of the defence, no witness was examined. However 18 documents were got marked. As aforementioned, the trial Court, on evaluation of the material on record acquitted both the accused by giving the benefit of doubt to them.

Sri P.M. Nawaz, learned advocate appearing on behalf of the appellant taking us through the material on record submits that the appreciation of evidence by the Court below is improper and incorrect; the Court below has given much weightage for the minor variations in the evidence of the prosecution witnesses; the material on record clearly discloses that the accused demanded dowry and such demand was satisfied by PWs.1 and 2 with the help of PWs.3 and 4; even after the marriage, the accused used to harass the deceased by pressurizing her to bring additional amount of dowry; the accused demanded Rs. 1,00,000/- for purchase of tractor and Rs. 50,000/- for digging the borewell; with great difficulty and by raising the loan, PWs.1 and 2 satisfied the said need of the accused also; twenty days prior to the incident in question, the pregnancy of the victim was got terminated forcibly. In view of the same and as the deceased could not tolerate the ill-treatment and harassment by the accused against her, she committed suicide by consuming poison. On these among other grounds, he submits that the judgment of the Court below is liable to be reversed.

Per contra, Sri Anandeeshwara, learned amicus curiae argued in support of the judgment of the Court below by contending that the accused purchased the tractor by raising the loan from Co-operative bank; there is no document to show that Accused No. 1 dug the borewell; none of the independent witnesses have supported the version of relatives of the deceased pertaining to alleged demand of dowry and payment of dowry. He further submits that all the articles given to the bridegroom at the time of marriage are customary in nature and therefore it cannot be said that Accused No. 1 was given those articles in the form of dowry. He argued for confirmation of the judgment of the Court below.

PWs.1 and 2 are the mother and father of the deceased. PW.3 is none other than brother of PW.2 and PW.4 is the wife of PW.3. PW.5 is the son-in-law of PW.4. PW.6 is the repairer of watches and he has got his own shop in the name and style ''Time Link'' and he has turned hostile. PWs.7 and 8 are the jewellery shop owners who have deposed that PWs.1 and 2 had purchased gold ornaments in the year 2000. However they are ignorant as to why such ornaments were purchased by PWs.1 and 2. PWs.9 and 10 are the witnesses for inquest panchanama Ex.P6. PWs.11 to 13 and 18 are the relatives of PWs.1 to 4. All of them have deposed that the accused demanded dowry prior to the marriage; the said demand was met by PWs.1 and 2; the accused demanded Rs. 1,00,000/- for purchase of the tractor and an amount of Rs. 50,000/- for digging the borewell and the said demand was also satisfied by PWs.1 and 2 with the help of money which PW.3 (the retired Government servant) got from his pensionary benefits. PWs.14 and 15 have turned hostile and their evidence is of no use to the prosecution or the defence. PW.16 is the doctor who conducted D and C procedure on the victim Nagarathna at her request. She has deposed that the said procedure was not conducted forcibly, but the same was done on the basis of the request of the deceased. She has further deposed that the deceased was 2 1/2 months pregnant and at that point of time, the foetus had died in the womb and therefore having felt that the victim was in great danger, the foetus was removed from her womb. PW.17 is the witness for mahazar relating to seizure of the poison packet under Ex.P7. PW.18 is the scribe of the complaint and is relative of the complainant. PW.19 is the doctor of Suguna Nursing Home. Practically, his evidence is of no use to the case of the prosecution. PW.20 is the Police Constable who watched the dead body. PW.21 is the Sub-Inspector of Police who received the complaint from PW.1 and registered the same in Crime No. 10/2002. PW.22 has conducted a part of investigation. PW.23 is the Inspector who conducted the investigation and laid the charge sheet. PW.24 is the officer of FSL. He has given the report as per Ex.P35 disclosing that the contents of the stomach of the deceased were having organo phosphorous chemical (poison). PW.25 is the doctor working in Manipal Hospital. She has deposed about death of the deceased in the Manipal Hospital. PW.26 is the doctor who conducted the post-mortem examination; The post-mortem report is at Ex.P33.

Case of the prosecution is two fold. According to the case of the prosecution, the deceased committed suicide because of two reasons (a) the accused used to torture the victim after the marriage by pressurizing her to bring additional amount of dowry though they had demanded and accepted the dowry prior to the marriage; that after the marriage, the accused had demanded Rs. 1,00,000/- and Rs. 50,000/- for the purpose of purchasing the tractor and for digging the borewell respectively. (b) the pregnancy of the victim was subjected to forcible abortion by the accused. Because of the same, the victim committed suicide since she could not tolerate the ill-treatment.

Re. Demand of Dowry by the accused:

In order to prove the first circumstance relating to demand of dowry, the prosecution has examined PWs.1 to 5 and 11 to 13. As aforementioned, PWs.1 and 2 are the parents of the deceased; PWs.3 and 4 are the uncle and aunt of the deceased; PW.5 is the son-in-law of PW.3; PWs.11 to 13 are the relatives of the deceased. All of them have deposed that at the time of marriage, the accused was given Rs. 50,000/- in cash towards dowry; certain gold ornaments were also given to bride as well as the bridegroom. The gold ornaments were allegedly provided to deceased at the time of marriage are neck lease , bangles, Mangalya chain (thali), watch, ear studs and leg chains. It is also alleged that one gold chain, watch and finger rings are given to Accused No. 1.

It is customary to provide necklace, bangles, Manglya chain (thali), watch, ear studs, leg chains etc., to the bride during the marriage in this part of the area. So also it is customary to provide neck chain, ring, watch, clothes to the bridegroom at the time of marriage. The customary offerings to the bride and bridegroom at the time of marriage will not fall within the definition of ''dowry''.

The evidence of these witnesses in respect of providing Rs. 50,000/- as dowry is also completely shaky. The trial Court has in detail assessed the evidence of each of these aforementioned witnesses to rightly conclude that the material on record is not sufficient to hold that Accused No. 1 was given dowry of Rs. 50,000/- at the time of marriage. Though it is deposed by PW.3 that he financed for the marriage of the deceased with Accused No. 1 and that the three villagers were present at the time of marriage talks, none of the independent witnesses were examined before the Court. According to PW.3, Shantharangappa, Seenappa and Narayanappa were present at the time of marriage talks, but the Investigating Officer did not even make effort to enquire those witnesses and record their statements during investigation. PW.3 has allegedly provided finance to PWs.1 and 2 for the purpose of marriage. He has deposed that he had given Rs. 2,00,000/- cash to PW.2 for the purpose of marriage of the deceased; out of said Rs. 2,00,000/-, rupees one lakh was paid by PW.2 for the purpose of gold ornaments and clothes i.e., for purchase of customary articles. However the same is not deposed by PW.2 before the Court. On the contrary, PW.2 has deposed that his elder brother viz., Nanjappa (PW.3) had taken responsibility to conduct the marriage inasmuch as his share of four acres of land was given to Nanjappa with a request to him that he should get the marriage of his daughter performed. According to PW.2, his elder brother (PW.3) had paid Rs. 50,000/- in cash to Accused No. 1. But, no independent witness has deposed about payment of Rs. 50,000/- by either PW.2 or PW.3.

PW.11 is the daughter-in-law of PW.3. It is relevant to note that the marriage of son of PW.3 was performed with PW.11 on the very day and in the same muhurtham and at the same choultry, wherein the marriage of the deceased was performed with Accused No. 1. PW.11 has admitted in her evidence that her parents had given all the customary articles to her as are provided by PW.2 to the deceased. Evidence of PW.11 clearly shows that the gold ornaments and other articles were given to the deceased by PWs.2 and 3 as per the traditional customs prevailing in their community. Having regard to such shaky material on record, the Court below is justified in disbelieving the version of the prosecution witnesses that Accused No. 1 was provided with the dowry prior to the marriage.

It is further case of the prosecution that Accused No. 1 demanded Rs. 1,00,000/- for purchase of tractor and Rs. 50,000/- for the purpose of digging the borewell and the said amount was paid by PW.3 from out of the retirement benefits which he got. PW.3 is a retired Government servant. According to him, he got Rs. 6,00,000/- towards retirement benefits. It is the further case of PW.3 that he got Rs. 21,00,000/- by selling an agricultural land to the third party and out of that Rs. 21,00,000/-, PW.2 had got one-third share. To support the said contention of the prosecution, no material is produced. No document is forthcoming to show that Rs. 1,00,000/- plus Rs. 50,000/- was paid to the Accused No. 1 either by PW.2 or PW.3. It is admitted by PW.3 that an amount of Rs. 1,00,000/- plus Rs. 50,000/- was paid by him by drawing the amount from bank on two occasions. It is the specific assertion of PW.3 that the said amounts were paid out of his pensionary benefits which were deposited in the bank. To prove the same, the prosecution ought to have produced the bank records such as passbook etc., In the absence of any documentary evidence showing withdrawal of Rs. 1,00,000/- and Rs. 50,000/- from the bank, the Court below is justified in holding that such plea of the prosecution appears to be doubtful. Per contra, it is the specific defence of Accused No. 1 that he purchased the tractor from raising the loan. Ex.P26 is the document which shows that Accused No. 1 borrowed loan from the Primary Co-operative Agriculture Rural Development Bank, Hosakote for purchasing Tractor. Thus the contention of the prosecution that Accused No. 1 was provided Rs. 1,00,000/- for purchase of tractor is unacceptable.

It has also come on record that the accused himself has sold the land bearing Sy. No. 173/1A to one Smt. Lakshmidevamma w/o Veerappa for a sum of Rs. 54,000/- at the time of purchasing the tractor. The said fact is not disputed by the prosecution. Ex.P26 - loan document issued by the bank coupled with the aforementioned sale transaction would clearly reveal that it is Accused No. 1 who purchased the tractor from his money.

So also there is nothing on record to show that Accused No. 1 has dug the borewell. If really Accused No. 1 had dug the borewell, the prosecution would have produced certain records, atleast the records relating to digging of borewell by the contractor. But absolutely no supporting material is found in support of the said contention of the prosecution.

It is further case of the prosecution that an agricultural land measuring about 12 acres was sold by PW.3 for a sum of Rs. 21,00,000/- in which PW.2 has got one-third share. In order to show such sale transaction has taken place, no documentary material is found. If really the agricultural land of PW.3 was sold at the relevant point of time for providing funds to Accused No. 1, the prosecution would not have failed to produce the sale deed pertaining to the agricultural land of PW.3. In view of the aforementioned facts and circumstances, the Court below is justified in disbelieving the aforementioned version of the prosecution.

Re. pregnancy of victim being subjected to forcible abortion:

The doctor - PW.16 has deposed that the deceased had approached her on 19.12.2001 since there was bleeding from the vagina. The victim was 2 1/2 months pregnant during that time. Immediately the victim was subjected to scanning and the doctor had found that the foetus had expired in the uterus itself and therefore the victim was subjected to D and C procedure and dead foetus was removed and the doctor has testified that the removal of foetus by having D and C procedure cannot be equated to the procedure of abortion. The doctor has further deposed that since the foetus had expired, the same was removed and the uterus of the deceased was cleaned by her. Doctor has opined that if there is deficiency of hormones in the body of the pregnant woman, the foetus may not develop properly and it may die in the uterus itself; since the victim had got deficiency of hormones, the foetus has died. Doctor has further asserted that the pregnant woman was not subjected to abortion forcibly by anybody. Doctor has withstood cross-examination by the Public Prosecutor after treating her as hostile witness.

Keeping the aforementioned facts in mind, the trial Court has assessed the evidence of the prosecution witnesses independently and objectively. PW.1 has admitted that the victim was complaining pain in the abdomen inasmuch as she was not having menstrual cycle at regular intervals. It is further admitted by PW.1 that the deceased had informed her over phone that she was suffering from stomach pain and thereafter PW.2 brought Nagarathna to the house. PWs.1 and 2 also took Nagarathna to Suguna Nursing Home at Kolar and got treatment as an out-patient after D and C procedure. Nowhere in the evidence of PWs.1,2 and 4, we find that the witnesses have alleged that accused had ill-treated the deceased for the purpose of abortion. In the complaint lodged by PW.1, not even a sentence is found against the accused that they subjected the victim for forcible abortion. Therefore it is clear that the accused cannot be blamed for the death of the foetus in the womb of the deceased and consequently, they are not responsible for getting the pregnancy aborted.

Having regard to the totality of the facts and circumstances, the defence may be justified in arguing that the victim was depressed because of loss of the child in the womb and therefore she has committed suicide. We are of the opinion that the accused cannot be blamed for the same. We do not find any fault on the part of the accused. The prosecution has utterly failed to prove the demand of dowry and payment of dowry prior to the marriage or after the marriage. So also the prosecution has failed to prove the harassment by the accused after the marriage for any reason. In view of the same, the trial Court is justified in concluding that the deceased might have committed suicide because of post-natal depression.

Even on reconsidering the material on record, we do not find any ground to interfere in the Judgment and Order of acquittal since the view taken by the trial court is the only plausible view under the facts and circumstances of the case.

Accordingly, the appeal fails and the same stands dismissed.

We place on record the valuable services rendered by Sri Anandeeshwara, learned amicus curiae. In recognition thereof, we direct the Registry to pay Rs. 10,000/- (Rupees ten thousand only) to the learned amicus curiae as honorarium.