Sharadamma vs State

A.S. Pachhapure, J.—The order passed under Section 319 Cr.P.C. arraying the petitioner as an accused in S.C. No. 180/13 is challenged in this revision petition.

The facts reveal that the petitioner herein is the mother-in-law of Sowmya [deceased], who married the 1st accused 3 years prior to the incident. At the time of the marriage, dowry was given. After the marriage, the couple led happy married life for sometime. There was cruelty and harassment on Sowmya [deceased] by her husband i.e., 1st accused and the petitioner herein. Ultimately, on 03.07.2013 Sowmya committed suicide by hanging herself in her husband''s home. A complaint in this regard was filed by her father-P.W. 2 alleging cruelty, harassment for dowry, unnatural death, etc. After the investigation, a charge-sheet was laid against her husband who is the accused before the trial Court.

After framing the charges, the matter was posted for trial. Chief-examination of P.Ws. 1 to 4 was recorded. At that juncture, an application came to be filed by the prosecution to array the petitioner as an accused on the ground that, evidence is available against the petitioner as well for the offence under Sections 498-A and 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act [hereinafter referred to as "the D.P. Act" for short]. The said application was objected by the petitioner and under the impugned order, the trial Court directed to array the petitioner as accused No. 2. Aggrieved by the said order, the present revision petition has been filed.

I have heard learned counsel for the petitioner and also learned High Court Government Pleader.

The point that arises for my consideration is;

"Whether the trial Court was justified to proceed against the petitioner for the offence under Sections 498-A and 304-B IPC and under Sections 3 and 4 of the D.P. Act?" 5. Learned counsel for the petitioner submits that there is no material to implicate the petitioner as an accused in the case and the trial Court has committed a grave error in invoking the powers under Section 319 Cr.P.C. He submits that it is only in rare cases such a discretion could be exercised and in the absence of any material on record, it is not proper for the trial Court to accept the application of the State. Therefore, he has sought for setting aside the impugned order.

On the other hand, learned High Court Government Pleader supporting the order of the trial Court submits that the evidence of P.W. 3 is sufficient to pass order under Section 319 Cr.P.C., directing the petitioner herein to frame the charges.

As could be seen from the contents of the complaint-Ex. P13, it is the father of the deceased-Sowmya, who submitted a complaint to the Police stating that at the time of the marriage, gold and silver ornaments and cash were given and it is stated that after the marriage, the 1st accused developed illicit relationship with a teacher and he started insisting Sowmya [deceased] to bring an additional sum of Rs. 50,000-00 towards dowry from her parental house. She used to complain the same to her parents and on 03.07.2013, he was informed about the death of Sowmya. Having narrated these facts, at the fag end it is stated that the accused, who is the husband of Sowmya [deceased] was not looking after Sowmya [deceased] properly and he had illicit relationship with other woman and this conduct was at the instigation of Shashikumar, the brother-in-law of the petitioner, mother-Sharadamma and friends by name Krishna and Gangadhar. After registration of this complaint, investigation was held and none amongst the witnesses examined by the Investigating Officer stated anything against the petitioner in respect of any of the offences. It is for this reason that despite a general allegation in the complaint-Ex. P13, the Investigating Officer dropped the petitioner and charge-sheet was laid only against the accused [husband of the deceased].

Now, as could be seen from the copies of the depositions of P.Ws. 1 to 4, P.W. 1 is the cousin brother of the deceased and as could be seen from the chief-examination, except stating that the accused, his mother, his sister''s husband started troubling the deceased a lot, nothing more has been stated by way of any instances of cruelty and harassment.

As could be seen from the evidence of P.W. 2-the father of the deceased, he has not referred to the name of the petitioner and totally there is cruelty and harassment meted out by Sowmya [deceased] at the hands of the petitioner.

P.W. 3 is the mother of the deceased and for the first time before the court in her evidence she states that the petitioner herein was subjecting the deceased of cruelty on the ground that the dowry was insufficient and that she was not allowing the spouses to stay together and further that Sowmya [deceased] was admitted to the college and she was not permitted to study and further that the petitioner used to make a false representation that the electrical motor to lift the water though was at the instance of the petitioner herself, she was blaming the deceased on that count and ultimately, at the fag end of her examination-in-chief she states that the deceased was subjected to cruelty and harassment at the instance of the accused, his mother, brother-in-law and friends.

P.W. 4 is another cousin brother of Sowmya [deceased]. He states in his chief-examination that the accused, his mother, brother-in-law Shashikumar and friends Gangadhar and Krishna supported the 1st accused demanding for dowry. Except this sentence, there is nothing in the evidence of P.W. 4 as well as regards the cruelty and harassment.

The scrutiny of the aforesaid evidence of material witnesses reveal that the statement made by P.Ws. 1 and 4 is vague and general. P.W. 2 has not made any statement before the Court though he is the father of Sowmya [deceased]. It is only on the basis of the evidence of P.W. 3, in the chief-examination for the first time before the Court that there was a statement about cruelty and harassment. P.W. 3 has not made any statement before the Police at any time during the investigation. Even her husband-P.W. 2 does not refer to the name of the petitioner in his evidence. That apart, in the complaint, nothing is mentioned particularly about the cruelty and harassment and except the stray statement of P.W. 3 for the first time before the Court there is no other material. It is under these circumstances, it is necessary for this Court to consider as to whether the statement made by P.W. 3 for the first time in her evidence is sufficient to array the petitioner as an accused.

Reliance is placed on the decision of the Apex Court reported in S. Gopal Achar and N. Rajalakshmi Vs. The State of Karnataka, . The facts reveal that the petitioners therein were dropped during the course of the investigation and not sent up for trial and for the first time, some evidence was made available in the course, this Court held that possibility of their conviction is remote and therefore, the criminal petition came to be allowed.

Reliance is also placed on the decision of the Apex Court reported in Krishnappa Vs. State of Karnataka, ; wherein it is held that the exercise of the powers under Section 319 Cr.P.C. has to be used sparingly and only on the existence of compelling reasons. It is in the context of the aforesaid principles laid-down that the evidence of P.W. 2 has to be considered.

Even as could be seen from her version for the first time before the Court, she has not given any date, month, etc., as regards the cruelty said to have been caused by the petitioner. Though she states that the petitioner was subjecting the deceased to cruelty and harassment for dowry, no particulars are furnished in this regard. For the first time, it is stated by P.W. 3 that the petitioner was not allowing the spouses to stay together and that she was not allowing Sowmya [deceased] to read books to attend her examination and that there was a misrepresentation at the instance of the petitioner in starting the electric motor for lifting water. This version is after long gap of time and that apart, though some instances are given, the particulars relating to the date, time and month are not furnished. Even if this version is accepted in toto, as the version of P.W. 3 is not supported by any other witnesses and as P.W. 3 is an interested witness, being the mother of the deceased, I do not find any remote chance for conviction of the petitioner for such a charge. Looking to the material placed on record, it cannot be said that an exceptional case has been made out to array the petitioner as an accused by exercising the discretionary power under Section 319 Cr.P.C. in that view of the matter, I am of the opinion that the Judgment and Order impugned is both erroneous and illegal. It is not necessary to implead the petitioner as an accused on the basis of the scanty evidence made available in the deposition of P.W. 3.

Consequently, the revision petition is allowed. The impugned Order dated 07.02.2015 passed in S.C. No. 180/2013 by the learned Addl. District and Sessions Judge, Chikkaballapura is set aside. In the circumstances, I.A. No. 1/2015 filed for stay does not survive for consideration and the same is rejected.