Noor Ahmed vs State of Karnataka

B.V. Nagarathna, J.—This appeal, filed against the order of conviction is directed against the judgment passed by the Fast Track Court No. 5 at Tumkur, in S.C. No. 254/2000 wherein, the Appellant has been convicted of having committed the offence punishable u/s 498A of IPC and Section 4 of the Dowry Prohibition Act (hereinafter, referred to as the ''Act'').

The essential facts of the case leading to the filing of this appeal with reference to the rank of the parties before the trial Court are as under:

It. is the case of the prosecution that the deceased Afsana was the daughter of P.W. 1 - Ameer Ahmed and P.W.2 Shakirabee and she was given in marriage to the first accused and their marriage was performed on 7/12/1997. The second accused is the mother of the first accused. According to the prosecution, prior to the marriage, during negotiations, the Accused Nos. 1 and 2 had demanded from C.W.1 dowry in the form of cash of Rs. 40.000/-, a watch, ring, neck chain and gold ornaments to the deceased and that they had received cash of Rs. 30,000/-. a watch, a ring and ornaments to the deceased as dowry in consideration of marriage of Accused No. 1 with the deceased: that after the marriage, the deceased was living in the house of the Accused No. 1 at Handanakere and she was in the family way and at that time, Accused Nos. 1 and 2 forced the deceased to get the child aborted, as they were not interested in having the child, unless the father of the deceased would secure a job for the first accused, as a result, the parents of the deceased had requested the deceased to live at their house at Tiptur where she continued her studies and gave birth to a girl child, which had a disability in the right leg. After the birth of the child, the accused quarreled with the deceased and her parents for giving birth to a child with disability and for not listening to their advice for getting the child aborted. Subsequently, the accused were harassing the deceased and forcing her to get a Television, gold bangles and cash of Rs. 10,000/- from her parents and the deceased had informed about the said demand of the accused to her parents by writing a letter and despite the request made by the father of the deceased, the accused continued to harass the deceased; that on 24/5/2000 the deceased being unable to bear the torture given to her by the accused, committed suicide by hanging in the house of the accused. P.W.1 and his family members reached the house of the accused and found the dead body of the deceased in the house and P.W.1 later lodged a complaint at Huliyur Police Station on 25/5/2000 at about 5 p m. The complaint: was registered in Crime No. 114/2000 by P.W.8 and F.I.R. was filed u/s 498A, 304B of IPC and Section 3 and 4 of the Act. Inquest proceedings were conducted on the dead body of the deceased by the Tahsildar, P.W. C.N. Halli and the dead body was subjected to post-mortem examination by P.W.4. The accused were arrested and voluntary statement of the first accused was recorded at his instance, who had stated that with the help of a veil, the deceased had committed suicide, which was seized under a mahazar (M.O.I). Further investigation was taken up by P.W. 11 - the Deputy Superintendent of Police, Tiptur, who examined the material evidence and recorded their statement. The matter was taken up by the C.O.D. Inspector and charge sheet was filed against the accused in respect of the aforesaid offences.

In pursuance of an order of the First Addl. Sessions Judge, Tumkur, learned J.M.F.C. C.N. Halli, released the second accused on bail. Since the offence u/s 304B of IPC is triable by the Court of Sessions, the JMFC C.N. Halli, committed the case to the Sessions Court at Tumkur and the 2nd Addl. Dist. and Sessions Judge had released the first accused on bail and subsequently, the Prl. Dist. and Sessions Judge at Tumkur had made over the case to the Fast Track Court No. 5 at Tumkur for disposal. Thereafter, charge sheet for the offence u/s 498A, 304B of IPC and Sections 3, 4 and 6 of the Act, was framed against the accused and the accused denied the said charges and claimed to be tried.

The prosecution in support of its case had examined P.W.s. 1 to 15 and produced 7 documents, which were marked as Exs.P.1 to P.7 and 4 M. Os were marked as M. Os. 1 to 4. On behalf of the Accused, Ex.D. 1 was marked as a contradiction in the statement of P.W. 1. After closure of the prosecution evidence, statement of the accused u/s 313 of Code of Criminal Procedure was recorded. The Accused had examined one T.K. Udayakumar, Advocate, as D.W.1.

Arguments were heard on both sides and on the basis of the oral and documentary evidence, the trial Court raised the following points for its consideration:

Now the points that arise for my consideration are:

(1) Whether the prosecution has proved, beyond reasonable doubt that after the marriage of the deceased with the 1st accused on 7-12-97 the accused had subjected the deceased to mental and physical cruelty of such a nature so as to drive her to commit suicide, so as to punishable u/s 498A of IPC ?

(2) Whether the prosecution has proved beyond reasonable doubt that the accused committed the offence of dowry death of the deceased as the deceased committed suicide on 24-5-2000 around 5 P.M. in the house of the accused at Handanakere unable to bear the torture given to her on the ground, of dowry, so as to punishable u/s 304B of IPC?

(3) Whether the prosecution has proved, beyond reasonable doubt. that the accused had accepted the dowry from the father of the deceased in the form of cash of Rs. 30000/- and jewellary in consideration of the marriage of the deceased with A-1 so as to punishable u/s 3 of D.P. Act ?

(4) Whether the prosecution has proved, beyond reasonable doubt, that after the marriage of the deceased with the 1st accused, the accused demanded additional dowry of Rs. 10000/-, a T.V. and a gold bangle by forcing the deceased to bring the same from her parents so as to punishable u/s 4 of D.P. Act ?

(5) Whether the prosecution has proved beyond reasonable doubt, that the accused after the death of the deceased had not returned the dowry amount and jewellary to the parent of the deceased and committed an offence punishable u/s 60 D.P. Act ?

(6) To what order ?

and answered the same as follows:

My findings on the above points are:

Point No. 1: In the affirmative against the accused and in the negative against 2nd accused.

Point No. 2: In the negative.

Point No. 3: In the negative.

Point No. 4: The prosecution has proved; beyond reasonable doubt, that the 1st accused after his marriage with the deceased, demanded dowry by forcing the deceased to get a T.V. from her parents and thereby committed an offence punishable u/s 4 of D.P Act.

Point No. 5: In the negative.

Point No. 6: As per final order.

and accordingly, acquitted the second accused of the charges u/s 498A, 304B of IPC and Section 3, 4 and 6 of the Act, the first accused was also acquitted for the offences under Sections 304B of IPC and Section 3 and 6 of the Act. However, the first accused was convicted for the offences punishable u/s 498A of IPC and Section 4 of the Act and was sentenced to undergo R.I. for a period of 2 1/2 years and to pay fine of Rs. 2,000/- in default, to undergo R.I. for a further period of three months for the offences u/s 498A of IPC and was sentenced to undergo R.I. for a period of 9 months and to pay fine of Rs. 1.000/- in default, to undergo R.I. for a further period of two months u/s 4 of the Act and ordered that the sentences shall run concurrently. It was also directed that the first accused was entitled for set-off of the period of detention which he had undergone as an under-trial prisoner. Being aggrieved by the said order of conviction, the first accused has preferred this appeal.

I have heard the learned Counsel appearing for the Appellant and the learned Govt. Pleader appearing for the Respondent - State.

Learned Counsel for the Appellant has taken me through the evidence of P. Ws.1 to P. Ws.15 and the contents of documents marked by the prosecution and submitted that the evidence of P. Ws.1, 2, 3, 9 and 10 only have to be considered and that P. Ws.6, 7, 12, 14 had turned hostile and that P.W.4 - Medical Officer was the Doctor, who conducted the autopsy. P.W.5 is the panch witness and P. Ws.8. 11. 13 and 15 were the formal witnesses who conducted the investigation: that P. Ws. 1 and 2 are the parents of the deceased. P.W.3 is the sister of the deceased. P.W.9 is the brother-in-law of P.W.1 and P.W.10 is the brother of the deceased; that P. Ws.1 and 10 are working in the Police Department. After eschewing the evidence of the witnesses who have turned hostile and even after considering the evidence of P. Ws.1, 2, 3, 9 and 10, the guilt of the accused has not been proved by the prosecution; that P. Ws.1, 2, 3, 9 and 10 are the close relatives of the deceased and therefore, their evidence had to be appreciated, by the trial Court keeping in mind their relationship with the deceased; that the trial Court also failed to note that P. Ws.6, 7. 12 and 14 have not supported the case of the prosecution though they are independent witnesses, There are inconsistencies in the evidence of P. Ws.1, 2, 3. 9 and 10 and hence, their evidence have not proved the offences alleged against the accused No. 1 so as to bring home the guilt of the accused and therefore, the trial Court ought to have acquitted the Appellant of all the charges and hence, the impugned judgment calls for interference in this appeal.

It is the specific contention of the learned Counsel for the Appellant that when the material on record clearly demonstrates that there was no demand made for dowry at the time of marriage, it is improbable whether such a demand would have been made two years after the marriage; that the complaint was not filed at an earliest point of time that P.W. 1 had sufficient time to ponder over the matter and filed the complaint so as to falsely implicate the Appellant in the case; that having regard to the fact that the educational qualification and the background of the deceased being different, since the deceased was born and brought up in a city and she had to live in the village after her marriage and considering the fact that she had given birth to a female child with a disability in the leg, the suicide committed by the deceased was on account of the aforesaid reasons and therefore, the trial Court could not. have convicted the accused u/s 498A and Section 4 of the Act. He therefore, submits that the order of conviction has to be set. aside. In the alternative, he submitted, that in the event of this Court coming to a conclusion that the accused was guilty of the offence for which he has been convicted, the sentence may be restricted to the period he has been in prison and that the fine has also been deposited.

Per contra. learned Govt. Pleader supporting the judgment as well as the sentence has stated that the evidence of P.W.1 is corroborated by the evidence of P. Ws.2, 3. 9 and 10: that Ex.P.2 which is the post-mortem report shows that the death had been caused due to asphyxia: that the trial Court on appreciation of the evidence on record has held that the prosecution has proved its case and accordingly, convicted Accused No. 1 while acquitting Accused No 2 and that the said judgment does not call for any interference in this appeal.

Having heard the submissions of the learned Counsel on both sides and on perusal of the material on record, the point that arises for my consideration are:

1) Whether the finding of the trial Court that the prosecution has proved the guilt of accused No. 1 of having committed the offence punishable u/s 498A of IPC and Section 4 of the Act, is justified or calls for any interference in this appeal?

2) What order?

POINT No. 1: I answer Point No. 1 holding that the judgment of conviction passed by the trial Court is justified and does not warrant interference in this appeal.

POINT No. 2: In view of my finding on Point No. 1, Point No. 2 is answered by holding that the sentence awarded by the trial Court does not call for any interference in this appeal for the following Reasons:

REASONS

According to the prosecution, the deceased Afsana, daughter of P. Ws. 1 and 2 was married to Accused No. 1 on 7/12/1997 and that a month prior to the marriage, talks were held in the house of P.W. 1 at Tiptur and during the course of such talks, accused Nos. 1 and 2 had demanded dowry in the form of cash of Rs. 40,000/- and gold ornaments and that P.W.1 had agreed to give a sum of Rs. 30.000/- in cash, a ring, chain and a watch to the first accused and on the same day, P.W.1 gave Rs. 30,000/- and a ring, to the accused and other ornaments and a watch were given to him at the time of marriage. However, a perusal of complaint which is marked as Ex.P.1 would make it clear that P.W.1 has not stated that there was such a demand for dowry. On the other hand, it is stated that P.W. 1 gave a neck chain, ring and a watch to the first accused and also some ornaments to the deceased which would imply that P.W.1 had voluntarily given the said ornaments and therefore from the complaint it is not established that the accused had demanded and accepted dowry in the form of ornaments and cash of Rs. 30,000/- at the time of marriage negotiations as is alleged in the charge sheet so as to bring the case within Section-3 of the Act. Intact, P.W.2 during her statement made to the Tahsildar at the time of inquest has categorically stated that there was no demand from the accused for dowry but only with an intention that the couple would live happily, gold and cash was given along with some household Articles. The statement made by P.W.2 is infact contradictory to what has been alleged by the prosecution that there was a demand for dowry and that cash of Rs. 30,000/-, chain and watch was given as part of dowry prior to the marriage in response to demand made by the accused.

On perusal of the oral evidence of P. Ws.1, 2, 3, 9 and 1.0, it is seen that P.W.1 has stated about the persons who were present at the time of the marriage negotiations and that a demand was made for a sum of Rs. 40,000/-, a watch, ring and chain but a sum of Rs. 30,000/-, a watch, ring and chain was given to the accused. Even P.W.2 has stated in the same manner as P.W.1 but the said evidence is contradictory to the complaint in as much as in the complaint it is stated that on the date of negotiations, a sum of Rs. 30,000/- was given to the first accused along with the ring and that other ornaments were given on the date of marriage. However, with regard to the time when cash of Rs. 30.000/- was given, a chain and a ring was given to the first accused is concerned, P.W.2 states that it was at the time of marriage, whereas P.W.1 has stated that a sum of Rs. 30,000/- and a ring was given on the date of marriage was settled i.e., prior to the marriage. The evidence of P.W.2 is also contradictory to the statement made by her at the time of inquest and is only to improve the case of prosecution. From the evidence of P.W.3 - elder sister of the deceased it is not forthcoming that the accused had demanded dowry prior to the marriage or at the time of marriage and similarly, P.W. 10 - elder brother of the deceased has not stated about the demand for dowry made by the accused. On the other hand, he has stated that, P.W.1 was given a ring, watch and a chain at the time of marriage. The evidence of P.W.9 is that three months prior to the marriage, talks were held and at that time, cash of Rs. 30,000/-, watch, neck-chain and two rings were to be given as dowry.

On a combined reading of the evidence of P. Ws.1, 2, 3, 9 and 10, the allegations that the accused had demanded and accepted dowry at the time of/or prior to the marriage has not been established since the evidence on this aspect is not only contradictory to one another but the same has not been corroborated by any independent witness. Under the circumstances, the trial Court has rightly held that the prosecution has failed to prove that the accused had demanded and accepted dowry from the parents of the deceased and that P.W.1 had paid a sum of Rs. 30,000/- and gold ornaments in consideration of the marriage of the deceased with Accused No. 1.

Subsequent to the marriage of the deceased with the first accused, she stayed at his house at Handanakere and after some time, she conceived and was in the family way and gave birth to girl child. According to P. Ws.1 and 2, the accused and her mother had advised the deceased to terminate the pregnancy but the deceased did not: do so and instead stayed back in her parents house and continued her studies in college at Tiptur and delivered a child and that the child had a disability. According to the prosecution, first accused threatened the deceased to return to the matrimonial home and P.W. 1 took the deceased and the child to the house of the accused and from then on, a demand was made by harassing the deceased to get a Television, bangles, chain and cash of Rs. 10,000/- as dowry from her parents and P.W.1 had stated that he would meet the demand in due course of time but since the accused were harassing, the deceased, she was unable to bear the same and on 24/5/2000 committed suicide by hanging.

In "support of the aforesaid allegation, P.W.1 has further stated in his evidence that the deceased had visited his house and mentioned that her mother-in-law was forcing her to get the pregnancy terminated and after the birth of the child, first accused asked the deceased over telephone to return to his house and he took the deceased and the child to the house of the accused and left them there, but within a few days later, the deceased informed him over telephone that her husband was forcing her to bring a sum of Rs. 10,000/- towards treatment of the child and also ring, gold neck chain, gold bangles and a Television and at that time, P.W.1 went to the house of the accused and told them in the presence of C.W.12 that they were in financial difficulties and they would meet the demand after some time, but the first accused stated that if he did not give ornaments as demanded, he would kill the deceased by cutting her into pieces and set her on fire. In support of this allegation. although P.W.1 has stated that Nazarath - C.W. 12 was present, he has not been examined and in the evidence of P. Ws. 1 and 2, it is not stated that PW.2 accompanied the deceased and child to Handanakere and that the aforesaid demand was made. Under the circumstances, the evidence of P.W.1 with regard to the demand made for Rs. 10,000/-, bangles, neck chain and a Television by the first accused at the time when the deceased and the child returned to the house of the accused is not corroborated.

As far as two letters which are said to have been written by the deceased on 2/3/1999 is concerned, with regard to the demand made by the accused, which are marked as Exs.P.12 and P. 13, what is stated is that the first accused was forcing the deceased to get a Television from her parents, but the said letters do not mention that a demand was made for cash of Rs. 10,000/- towards the treatment of the child, bangles and neck chain. According to P.W.1, the deceased informed him over telephone and also through letters with regard to the said demand. In the absence of there being any mention of cash of Rs. 10,000/-towards treatment of the child or bangles in Exs.P.12 and 13, and in the absence of there being any corroborative evidence in this regard, the evidence of P.W.1 cannot be believed with regard to the demand made by accused being communicated to P.W.1 through letters and over telephone.

It is the further evidence of P.W.1 that pursuant to the telephone call made by the first accused on 23/5/2000. P.W.1 along with P. Ws.9 and P.W.2 and C.W.7, went to the house of the accused and stated that P.W. 1 would give the ornaments demanded by the accused in installment and requested the accused not to harass the deceased for which the accused threatened and stated that if the said ornaments were not given, the deceased would be killed and cut into pieces and set her on fire. 23/5/2000 is the date prior to the date of death of the deceased. However P.W.2 and P.W.9 do not speak about this aspect.

P.W.9 in his evidence stated that three months prior to the death of the deceased, he and his wife visited the house of the accused and at that time, a demand was made for cash of Rs. 10,000/- and a Television and gold ornaments and P.W.1 had stated that a sum of Rs. 10,000/- and a Television would be given but this aspect has not been spoken to by the P.W.1 and therefore, the evidence of P.W.9 that on the day previous to the death of the deceased, he and his wife visited the wife of the accused cannot be believed. In fact. C.W.7 has not been examined by the prosecution and therefore, the evidence that P.W.9 and that he and C.W.7 visited the house of the accused along with P.W. 1 on 23/5/2000 cannot be believed.

As far as the evidence of P.W.3 is concerned, she has stated that the deceased has informed over telephone that the accused were harassing and forcing her to bring Bangles, Television and to secure a job for the first accused but the fact of the matter is that the said information on telephone was not given to her directly and hence, her evidence regarding the demand made by the accused is of no value. The brother of the deceased, who has deposed as P.W. 10 has stated that the accused had told the deceased not to have a child until the first accused had a secured job and that the deceased had stated the same when she had come to their house while she was pregnant and though he has stated that the deceased had also informed them over telephone and through letters that her husband was harassing her for a Television, Necklace and cash of Rs. 10,000/-, in the cross-examination he has ad milted that his parents had mentioned to him that the deceased had telephoned and written letters. Once again, the evidence of P.W.10 is hearsay evidence and cannot be taken into consideration.

As already staged, the harassment meted out to the deceased and the demands made on her was after the deceased and her child returned to the first accused house and prior to that, there is no cogent evidence with regard to any demand for articles or valuables made by the accused. Under the circumstances, the trial Court held that the essential ingredient to draw a presumption u/s 304B of the Act that the accused had died on account of dowry harassment is not proved.

However, Ex.P.13 makes a reference about the assault of the deceased. Exs.P.12 and 13 were written on 2/3/1999 and 3/9/1999 respectively whereas, the death occurred on 24/5/2000. Therefore, it is necessary to consider the evidence as to whether the deceased was subjected to cruelty. In this context, the evidence let in by the prosecution that the deceased was asked to get her pregnancy terminated since the first accused was not having a proper job and subsequently, the harassment caused to the deceased by condemning her for not terminating the pregnancy and for giving birth to a child with physical disability can be held to be Acts of cruelty which would be punishable u/s 498A of IPC.

In this context, the contention of the learned Counsel for the Appellant is that on account of the deceased giving birth to a girl child which had disability and the fact that her educational qualification and background was quite different from that of the firs'' accused and that she was born and brought up in a city while after her marriage she was living in a village and the fact that the first accused did not have a proper job, were factors which the deceased to commit suicide and that the same had nothing to do with the accused and hence, Section 498A and Section 4 of the Dowry Prohibition Act could not be invoked in the instant case. The answer to the said contention is that the deceased was pregnant for the first time and it is in evidence that the accused were forcing her to terminate her pregnancy for the reason that the first accused did not have a proper job. It has also established that the deceased stayed with her parents during the remaining period of pregnancy, and completed her degree education and gave birth to the child. The fact that the girl child had a disability would not hove caused or aggravated the situation but for the fact that the accused had retorted by stating that she had failed to adhere to their advice and had she terminated her pregnancy there would not have been the birth of a girl child with a disability. This retort by the accused had caused mental cruelty to the deceased. In fact, after her marriage, the deceased resided with the first accused in the village and after the birth of the child when the first accused asked her to return to his house, she went back. There is no evidence on record that she was unwilling to return to her matrimonial house or on account of education she was unable to adjust herself to a rural life style. There is no evidence let in by the defence that the difference in the family background of the deceased and accused or on account of the educational qualification or for that matter, on account of giving birth to a girl child with a disability had made the deceased to commit suicide. On the other hand, none of those factors are responsible for the death of the deceased.

On appreciation of the evidence on record, it becomes clear that the mental harassment caused to the deceased with regard to the termination of pregnancy and subsequently, by the reaction of the accused when she had given birth to a girl child with disability and the fact that there was a demand made on the deceased after her return from her parents house to the house of the accused with a child, for a Television and for cash of Rs. 10.000/- would mean that the first accused is guilty of the offence committed u/s 498A of IPC and Section 4 of the Dowry Prohibition Act.

Section 498A of IPC which deals with the offence of subjecting a woman to cruelty which includes any willful conduct of such a nature as is likely to drive the woman to commit suicide or harassment of a woman with a view to coercing her to meet any unlawful demand for any property or valuable security is applicable in the present case. Further, Section 4 of the Dowry Prohibition Act, which pertains to the demand made for dowry is also applicable to the facts of the present case in as much as the demand made for cash and ornaments subsequent to the return of the deceased to her matrimonial home along with the child by the first accused is clearly established. The trial Court was therefore, justified in convicting the first accused for the aforesaid offences.

As far as the order regarding sentence is concerned, the trial Court has having regard to the gravity of the punishment prescribed for the aforesaid offences and that the deceased had committed suicide on account of the cruelty meted out to her by the first accused, sentenced him to undergo R.I. for a period of 2 1/2. years and to pay fine of Rs. 2,000/- in default to undergo R.I. for a further period of three months for the offence u/s 498A of IPC and also to undergo R I. for a period of 9 months and to pay fine of Rs. 1,000/- in default, to undergo R.I. for a further period of two months for the offence punishable u/s 4 of the Dowry Prohibition Act. has been imposed. it is also stated that the first accused is entitled to set off for the period of detention which he has undergone as an under trial prisoner.

Learned Counsel for the Appellant submitted that in case, the judgment of conviction is confirmed by this Court, then a lenient view may be taken in the matter of sentence and that the sentence may be restricted to the period of detention which he had undergone as an under trial prisoner for nine months and that portion of the order may be modified in this appeal.

Having regard to the gravity of the offence and the fact that the order of conviction passed by the trial Court is confirmed, there is no good reason to vary the order of sentence passed by the trial Court.

Accordingly, the appeal fails and is dismissed.