Raju and Others vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned Additional State Public Prosecutor.

The appellants are accused Nos. 1 to 3 and 5, who have been convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'', for brevity) and sentenced to undergo simple imprisonment for life and to pay a fine of Rs. 10,000/- each and in default to undergo further sentence of simple imprisonment for four years, apart from convicting them for the offence punishable under Section 304B read with Section 149 of the IPC to undergo simple imprisonment for ten years and to pay fine of Rs. 5,000/- each, in default to undergo simple imprisonment for two years and to undergo simple imprisonment for a period of three years for the offence punishable under Section 498A read with Section 149 of the IPC and to pay a fine of Rs. 2,000/- each, in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 147 read with Section 149 of I.P.C. and all the sentences were to run concurrently.

The facts of the case are, that accused No. 1 is the son of accused No. 2 and accused No. 3 and accused No. 5 are the sisters of accused No. 1. Accused No. 1-Raju, a resident of Sulebavi village had married Kalavati, the deceased in the year 2004. Kalavati had joined accused No. 1 in her matrimonial home. It transpires that accused No. 1 was living along with his parents and accused No. 5, who was a widow with children and staying along with the said family. Accused No. 4 was another sister of accused No. 1 against whom also there were allegations. It transpires that till about one year after their marriage, they had a normal matrimonial life. Immediately thereafter, it is alleged that accused No. 1 made demands for dowry and he had demanded a sum of Rs. 40,000/- and on that account was abusing Kalavati mentally and physically and he had sent her to her maternal home to get the dowry, he had demanded, and she had accordingly come to Talakatnal, where her parents were staying and had narrated the ordeal she was going through.

It transpires that the parents of the deceased along with the help of others of Talakatnal had even lodged a police complaint as regards the acts of accused No. 1. However, the police had brought about an amicable settlement and had managed to send Kalavati back to Sulebavi, to her husband''s home. For about two months, there were no further incidents of ill-treatment.

However, it is alleged that such physical assault and verbal abuse continued and she was again sent to her maternal home to get the dowry that was being demanded. She had gone there with her son, who was born to her one year after their marriage, and had narrated further ill-treatment at the hands of the accused. At that point of time, it was said that she was pregnant with a second child. The mother of the deceased Kalavati had, therefore, decided to institute legal proceedings and had filed a case in Criminal Miscellaneous No. 221/2006 before the Court of Civil Judge (Senior Division) and Judicial Magistrate First Class, Gokak, seeking maintenance and yet another criminal case was instituted in C.C. No. 1720/2006 alleging offences punishable under Sections 498 and 323 of I.P.C. These cases were, however, settled as compromised, by order dated 01.09.2007 and again accused No. 1 had brought back Kalavati to Sulebavi. Two months, thereafter, Kalavati is said to have gone to Talakatnal with her husband.

It transpires that there was a bitter quarrel between them and the complainant, namely, the mother of the deceased had tried to intervene and had managed to send them back to Sulebavi.

It transpires that on 27.10.2007 around 3.00 p.m. Kalavati had called the complainant and had informed her that all the accused, namely, accused No. 1 to 5 were assaulting her indiscriminately and as she was speaking, the phone was said to have been disconnected and thereafter at about 5.00 p.m. the complainant had received a phone call from the Marihal Police Station that Kalavati had been murdered and she was asked to come to Sulebavi immediately. Therefore, the complainant along with her brothers and other elders had rushed to Marihal Police Station, and accompanied by the Police Officers, had gone to the house of accused No. 1 where they found Kalavati lying face down with serious injuries on her head and it was noticed that her brains had spilled out as a result of the injuries.

It was the complainant''s case that Kalavati had contacted her through telephone, which was from a public telephone booth, and it was obviously the accused, who had brought her back from there and had killed her using a iron rod used by weavers, for rolling twine, and therefore, on the basis of the complaint the criminal law was set in motion.

A case was registered in Crime No. 186/2007 for the offences punishable under Sections 147 , 498A , 302 and 304B read with Section 149 of I.P.C., and the First Information Report was submitted to the jurisdictional Court and after further investigation and gathering of evidence the charge sheet was placed before the Magistrate, who had after taking cognizance had registered a case in C.C. No. 42/2008 and had committed the case to the Court of Sessions for trial. The Court of Sessions, in turn, had made over the case to the Fast Track Court for trial. The charges having been framed against the accused, he had pleaded not guilty and claimed to be tried and the prosecution had then tendered the evidence of 29 witnesses as P.W. 1 to P.W. 29, apart from marking several exhibits, namely Ex. P-1 to Ex. P-35 and material objects as M.O. No. 1 to M.O. No. 14. The accused had chosen to examine three witnesses D.W. 1 to D.W. 3 and had got marked Ex. D-1 and Ex. D-2. On hearing the arguments of the State as well as the accused, the court below had framed the following points for consideration:

Whether the prosecution has proved that on 27.10.2007 at 4.00 p.m. at village Sulebavi, the accused persons in their house formed an unlawful assembly with common object for violence or force to commit certain offence, thereby committed the offence punishable under Section 147 read with Section 149 of I.P.C.?

Whether the prosecution has further proved that the accused persons after marriage of deceased Smt. Kalavati and prior to the above date and above place subjected her to cruelty, torture on account of dowry, thereby committed the offence punishable under Section 498A read with Section 149 of I.P.C.?

Whether the prosecution has further proved that on 27.10.2007 at 4.00 p.m. at the above place, the accused persons committed murder of deceased Smt. Kalavati, thereby committed the offence punishable under Section 302 read with Section 149 of I.P.C.?

Whether the prosecution has further proved that on 27.10.2007 at 4.00 p.m. at the above place, the accused persons committed dowry death of deceased Smt. Kalavati thereby committed the offence punishable under Section 304B read with Section 149 of I.P.C.?

What Order?

The Court below had answered the said points in the affirmative and convicted the accused No. 1 to 3 and 5, as aforesaid, and having acquitted accused No. 4, the same is challenged by the appellants herein.

The learned counsel for appellants had raised several grounds primarily to point out that, of the several witnesses examined, P.W. 8, P.W. 9, P.W. 10, P.W. 13, P.W. 14, P.W. 15, P.W. 19 and P.W. 22 were all natives of Sulebavi village and were the neighbourers of the deceased and the accused, who had been examined to support the case of the prosecution and that they were purportedly witnesses to the constant harassment and ill-treatment by the accused of the deceased. However, all these witnesses having turned hostile, the very circumstance that there was a constant ill-treatment of the deceased did not stand established. However, the Court below having proceeded on the footing that there was such ill-treatment, is therefore, not supported by any evidence of persons, who were best suited to narrate the circumstances, in the absence of which the entire case of the prosecution rests on the evidence of the mother of the deceased and other interested witnesses, who were admittedly not witnesses to any such ill-treatment by the accused of the deceased and the instances where the deceased is said to have narrated the ill-treatment caused to her by the accused, is therefore, at best hearsay and would not be direct evidence of any ill-treatment meted out to the deceased.

The mere filing of case for maintenance and a case alleging ill-treatment being treated as evidence of such ill-treatment was again not tenable as those cases had been settled and withdrawn and the couple had reunited. Therefore, it was not evident that there was ill-treatment of such a degree and of such nature, as was possible for the accused to have committed the murder of the deceased.

It is also pointed out by the learned counsel that if there was no love last between accused No. 1 and the deceased, it is indeed inexplicable that they had a male child one year from the date of marriage and she was again pregnant at the time of her death. This would be the circumstance that there was such ill-treatment and cruelty on the part of accused No. 1 and others against the deceased. The circumstance that there were no eye-witnesses to the commission of the murder and given the defence set up by the accused that they had all gone out of the village to attend a jathra elsewhere, on the fateful day, has been disbelieved by the Court. Therefore, in the absence of any direct evidence of the accused having committed any such act of violence on the deceased, it could not be said that the prosecution had established its case beyond all reasonable doubt as to the accused together having committed the murder of the deceased.

The further circumstance that the panchanamah witnesses in respect of the inquest, as regards the recovery of the M.O. No. 3 M.O. No. 14, had turned hostile, would also indicate that the prosecution has not been able to establish the recovery of those articles and as regards Ex. P-1 since P.W. 1 panchanamah witnesses to the inquest panchanamah having turned hostile, would render Ex. P-1 an invalid document, which could not be relied upon as it was not proved in accordance with law.

It is further pointed out that the significant circumstance which is inconsistently put forward by the prosecution, namely, that on 27.07.2007 the police having informed the complainant of the death of Kalavati and they having come to the Marihal Police Station and the complainant and others having gone to the house of accused No. 1 along with the police officers had not stated that the accused were present in the police station.

However, in the cross-examination of P.W. 5, P.W. 4 and P.W. 12, they had inconsistently stated that when they came to Marihal Police Station, the accused were present in the Police Station. This would clearly indicate that the police had falsely implicated the accused as it is the case of the prosecution that the accused were arrested much later and the significant circumstance of their presence in the police station as on the date of the incident would be the case of the prosecution.

The prosecution also seeks to rest its case on the last seen theory. In that, P.W. 8 and P.W. 13 are said to have seen the deceased alive at about 11.00 a.m. on the said day. This by itself would not establish that the deceased was murdered by the accused, when the time of death is stated to be between 3.00 p.m. to 5.00 p.m.

It is also on record that the complainant in her cross-examination had admitted that her daughter wanted the accused No. 1 to set up an independent home and on account of paucity of funds, he had suggested that she bring some money from her matrimonial home and it is this which is characterised as a demand for dowry. The learned counsel would place reliance on a decision of the Supreme Court in the case of Appasaheb and Another Vs. State of Maharashtra, , to contend that in such cases a demand for dowry for domestic expenses cannot be made out as a demand for dowry and that there could not be conviction brought on that account.

It is further significant that the maintenance case and the dowry harassment case, which were instituted by the deceased had been compromised, as settled, on 01.09.2007 and it is close on the heels of such a settlement, the present complaint was filed on 27.10.2007 and there was no untoward incident between the two dates to indicate that the deceased was subjected to harassment and cruelty leading to her murder.

It is also pointed out by the learned counsel that the deceased had suffered 13 injuries and the prosecution had not attributed as to which of the injuries was caused by which of the accused and how, and most of the injuries were lacerated wounds and whether the same could be caused by the iron rod alone is left to ones imagination. Therefore, the entire case of the prosecution sought to be made out against all the accused without any specific allegation as to which of the accused caused which injury has led to a mis-carriage of justice in the Court below having mechanically convicted the accused on the basis of evidence, which was unacceptable to bring home the charges against the accused.

In this fashion, the learned counsel would seek to point out other infirmities in the reasoning of the Court below to highlight that there was no basis for the Court to arrive at a categorical finding as to all the accused, who are now been convicted having committed the murder of deceased and seeks their acquittal.

The learned State Public Prosecutor, on the other hand, seeks to justify the judgment of the Court below and would seek to support the reasoning of the Court below as to there being strong circumstantial evidence, which could be safely relied upon to bring home the charges against the accused.

He would, particularly, draw attention to the circumstance that it is not in dispute as to the deceased being found dead and having suffered 13 injuries, which were the cause for her death and the burden is on the accused, in such cases where the death had occurred within seven years of the marriage of deceased with the accused No. 1, to explain the circumstances under which the death may have occurred except stating that somebody had committed the murder of the deceased and that they were away from the village at the time of the incident, no attempt is made to establish this alibi, which is sought to be set up nor have they provided any clue as to who else had the motive to commit the murder of the deceased.

In that view of the matter, the Court below having taken an overall view of the sequence of events where there were frequent quarrels between the deceased and the accused No. 1 and the constant harassment and ill-treatment by other members of the family of accused No. 1, the unerring presumption that they had, in fact, committed the murder of the deceased having been held to be proved beyond all reasonable doubt could not be faulted and seeks that the appeal be dismissed and the conviction be confirmed.

We have carefully considered the record and the rival contentions as well as the reasoning of the Court below.

It is seen that there are six sets of witnesses, who are examined for particular purposes. P.W. 5 the complainant, P.W. 6 the Advocate for the deceased, P.W. 11 father of the deceased, P.W. 12 one Paramappa of Masaraguppi, an elder, who was instrumental in bringing about the reconciliation between the deceased and the accused No. 1, on one occasion, have all spoken about the motive which the accused may have had in committing the murder of the deceased.

P.W. 1 Fakirappa, P.W. 2 Yamanappa, P.W. 3 Shankar, P.W. 4 Shanthavva and P.W. 16 Nanappa were panchanamah witnesses. They have deposed about the panchanamas drawn up at Ex. P-1 and Ex. P-9 to Ex. P-13.

P.W. 8, P.W. 9, P.W. 10, P.W. 13, P.W. 14, P.W. 15, P.W. 19 and P.W. 22 were all neighbourers of the accused and were examined to prove the circumstances, which would point to the accused having committed the murder of the deceased.

P.W. 17 one Dr. Gurudatt, P.W. 20 a retired Tahsildar, P.W. 24, who worked as Secretary of Gram Panchayat, P.W. 25 an Assistant Engineer, P.W. 27 a Photographer, they have been examined to speak for documents that were produced.

P.W. 18 a Policeman, P.W. 21 another Policeman, P.W. 23 yet another Policeman and P.W. 26, P.W. 28 and P.W. 29 are all Police Personnel, who were examined to speak regarding the investigation and the gathering of the material evidence.

D.W. 1, D.W. 2 and D.W. 3 were in support of the defence, that, was set up by the accused No. 4 and 5. The Court below in addressing the points framed for consideration had considered points No. 1 to 4 together. This has proved to be cumbersome in analysing the reasoning of the Court below. The Court straight away had noticed that the neighbourers, who were examined, having turned hostile was unfortunate for the prosecution. Therefore, it is the evidence of the other witnesses, which has been taken into consideration by the trial Court in holding that the prosecution had established its case beyond all reasonable doubt.

Insofar as the circumstance of there being bitterness between the deceased and the accused, the Court below had considered the evidence of P.W. 18 and P.W. 21 to demonstrate that on two occasions Kalavati had withdrawn from the society of the accused and it is at the instance of those witnesses that they had been reunited.

P.W. 12 the village elder had spoken about the money paid to the accused at the time of the marriage and about the differences that the accused and the deceased had over a period of time and how she had been sent home repeatedly and how he along with others had sought to bring about reconciliation on the several occasions and also of having accompanied the complainant on the date of the incident to the house of the accused and having seen the dead body of Kalavati.

P.W. 7 had also reiterated the very evidence, as narrated by P.W. 12.

The trial Court, has therefore, reasoned the marriage having taken place on 09.04.2004 and the homicidal death having occurred three years from the date of marriage and within seven years and further circumstance that there were cases initiated by the deceased which were summarily withdrawn at the instance of the accused would indicate that all was not well between the accused and the deceased and there being evidence of, on two occasions when the deceased had been turned out of her matrimonial home, and had been, once at the instances of the elders and well-wishers and on another occasion at the instance of the concerned police station, was sufficient proof of there being constant rancour between the deceased and the accused and a strong possibility of harassment for dowry.

The Court below, has therefore, held that a presumption could be raised under Section 113B of the Evidence Act, 1872 (hereinafter referred to as ''the Act'', for brevity) against the accused persons, for the reason that, when a question as to whether a person has committed dowry death of a woman and it is shown that immediately before her death, the woman was subjected to cruelty on a demand for dowry, the Court shall presume that such person had caused the dowry death and the Court has emphasised the mandatory nature of the Section which mandates that the Court shall presume the commission of dowry death by the person accused of such crime and once a presumption is raised as aforesaid, then under Section 106 of the Act, the burden would be upon the accused persons to explain the circumstances leaving to her death.

As laid down by the Supreme Court in Kundula Bala Subrahmanyam and Another Vs. State of Andhra Pradesh, , that in case of dowry death when such occurrence has taken place in the house of the husband, the onus is on the inmates of the house to explain the circumstances leading to her death.

In the present case on hand, the occurrence of the death of the deceased having taken place at Sulebavi in the house of the husband, it was for the accused to explain how she had met such unnatural death by sustaining 13 injuries.

Though the accused had claimed that they had been to the Balekundri jatra and by the time they returned home, they found the deceased murdered and that some unknown persons had committed the murder of Kalavati, the Court below has not accepted the theory, for the reason, that if the entire family was proceeding to the Jatra, it was inexplicable that the deceased was left behind, and therefore, had refused to accept such a theory and further as accused No. 1 had not provided any clue as which other person had a motive to commit the murder of Kalavati and when there is no case made out of murder having committed for gain, it was doubtful, as held by the court below, that there was any other person involved and the law mandates that in such circumstances, it was the burden on the accused to explain the manner in which the death may have occurred and as per Ex. P. 1 inquest panchanama, the trial Court had observed that the deceased was last seen sitting on the bench, in front of their house, at about 11 a.m. and she was dead by 5 p.m. and she was last seen together only with the accused and none else.

Accused No. 4 and 5 had adduced evidence in addition to the above defence set up through D.W. 2 one Arjun Nagappa Narendra to the effect that accused 4 - Rajawwa was a resident of the street where he was living and after her marriage she had not gone to her parent''s house at Sulebavi at all.

P.W. 5 being the complainant had also admitted that accused No. 4 was married and was living in her matrimonial home and was never visiting Sulebavi. On these counts, the Court below had accepted the defence set up by accused No. 4. But, however, has negated the defence set up by accused No. 5 and had, in the above circumstances, concluded that accused No. 1 to 3 and 5 had together committed the murder of the deceased and accordingly had acquitted accused No. 4 and convicted accused No. 1 to 3 and 5, as aforesaid.

On a overall consideration of the manner in which the trial Court had proceeded, it is no doubt true that there was evidence to indicate that accused No. 1 was subjecting the deceased to ill-treatment since on more than one occasion she had been turned out of the matrimonial home and had reunited only at the instance of the well-wishers and even the police on one occasion and the fact that the deceased was found murdered with 13 injuries in the house of the accused did require, as rightly held by the trial Court for the accused to offer an explanation as to how she had met her death.

Again as rightly held by the Court below, there is no acceptable explanation put forth by the accused. However, it is not demonstrated that all the accused together had committed the murder of the deceased. The finger of suspicion no doubt would point at accused No. 1 and not also against the other accused, namely, the parents of accused No. 1 or the widowed sister of accused No. 1, namely, accused No. 5.

There are no specific reasons assigned by the trial Court in arriving at a conclusion that all the accused carried the same degree of animosity against the deceased. It could be presumed that accused No. 1, who was the husband and who was ill treating the deceased was capable of committing the murder of the deceased, as the deceased was found dead inside the matrimonial home. The same could not be said about the other accused.

Having regard to the age of accused No. 2 and 3 namely, 63 and 53 and further the widowed sister of accused No. 1 who had children of her own being capable of committing such murder is not established beyond reasonable doubt. The 13 injuries caused on the deceased are not shown to have been caused by various weapons. If the iron rod which was said to be the weapon with which the murder was committed, it is highly possible that it was the accused No. 1 alone who had repeatedly beaten the deceased to death and it could not be said that all the accused had attacked the deceased. Therefore, it was not justified in convicting all the accused with the same punishment, as sought to be done by the trial Court while acquitting accused No. 4.

In our opinion, the conviction and sentence of accused No. 1 again is the maximum punishment imposed and having regard to the age at which the incident had occurred when the accused No. 1 was apparently a hot blooded youth aged 23 years when the incident had occurred and he having spent time in prison for more than eight years now, it would be appropriate to reduce and modify the sentence considerably in the expectation that the accused is filled with remorse and would now live as a law abiding citizen.

However, insofar as the conviction and sentence of accused No. 1 is concerned, the Court below was not justified in convicting the accused for the offence punishable under Section 302 of the IPC. It may at best be said that a presumption arises of accused No. 1 having committed a dowry death in terms of Section 304B of the IPC. Therefore, while setting aside the conviction of accused No. 1 for an offence punishable under section 302 IPC, and restricting the same to one punishable under section 304-B of IPC, accused No. 1 is given set off for the period that he had undergone in custody and is directed to serve the remaining sentence of two years, in the expectation that the accused would mature with age and would turn a new leaf and possibly make himself a useful citizen. Since he has a child, it would be expected of him to live a normal life.

Therefore, while confirming the sentence and imprisonment imposed in respect of the other offences which are visited with lesser punishment and which would run concurrently, the judgment of the Court below is thus modified, in terms as stated above.

The conviction of the accused No. 1 is restricted to an offence punishable under Section 304-B of the IPC. The appellant No. 1 is given set off for the period of detention.

The accused Nos. 2, 3 and 5 are acquitted. The bail bonds furnished stands cancelled and the fine amount, if any, paid to be refunded to the said accused.

The trial Court having held that accused No. 1 is acquitted for the offence punishable under Section 302 of the IPC is set aside.

Criminal Appeal No. 2876/2011 is partly allowed. Criminal Appeal No. 2587/2012 is allowed.