Sharanu and Others vs State of Karnataka

Crl. A. No. 3667/11 is filed by the accused, challenging their conviction and sentence for the offence punishable under Section 304-B r/w. 34 IPC, on a trial held by the learned Sessions Judge, Gulbarga, whereas Crl. A. No. 3524/13 is filed by the complainant and Crl. A. No. 3569/12 is filed by the State, challenging the acquittal of the accused for the other charges.

The facts reveal that Savita [deceased] married to accused No. 1 on 05.02.2007. P.W. 4-Malkajappa is her father, whereas P.W. 6-Shantabai is her mother. Approximately, 8 months prior to the marriage, there were negotiations and at that time, the accused said to have demanded 50 tolas gold as dowry. The parents of Savita were not in the position to give so much of gold and ultimately, 25 tolas of gold was agreed to be given by way of ornaments. The ornaments were given at the time of the marriage in addition a sum of Rs. 15,000-00 was given to the 1st accused to purchase clothes. After the marriage, Savita led a happy married life for sometime in the house of accused No. 1.

Accused No. 2 and 3 are the mother and father, accused No. 4 is the brother, accused Nos. 5 and 6 are the sisters of accused No. 1 respectively, whereas accused No. 7 is the daughter of accused No. 5. The prosecution claims that Savita was subjected to cruelty and harassment and that a sum of Rs. 75,000-00 was demanded as additional dowry and Savita was harassed for the said sum. Ultimately, on 29.01.2010, she died in the house of the 1st accused in suspicious circumstances. Her death was within 7 years of the marriage.

P.W. 4-Malkajappa received phone information about the death of his daughter-Savita and with the members of the family he came to the house of accused No. 1, saw the dead body of Savita in the bed room and there were injuries on the neck and other parts of the body. He suspected that Savita was done to death by the accused. Therefore, he approached the Police and submitted his complaint-Ex. P5. It came to be registered by P.W. 19 in Crime No. 12/2010 and the FIR was sent to the Magistrate. P.W. 20 took out the investigation and held the spot-mahazar as per Ex. P2 and seized M.O. 1-saree of the deceased, M.O. 2-head phone wire, M.O. 3-broken latch of the door. In the presence of the Taluk Executive Magistrate, P.W. 5-Dr. Shankargouda held the inquest as per Ex. P1 in the presence of the attesting witnesses. The dead body was sent for post-mortem examination and Ex. P10 is the post-mortem report issued by the doctor-P.W. 13. There was a ligature mark over the neck. The hyoid bone was extracted and sent to P.W. 12. There was no fracture and opinion-Ex. P9 was obtained after the requisition under Ex. P8. The clothes-M.Os. 4 to 7 on the body of the deceased were seized under mahazar-Ex. P3 and the marriage articles-M.Os. 8 to 31 were seized under Ex. P4 in the presence of the attesting witnesses. Seized articles were sent for the opinion of the experts and the FSL report-Ex. P11 was obtained. The sketch of scene of occurrence-Ex. P4 which was drawn by P.W. 14 was collected. The photographs-Ex. P15 to 19 taken by P.W. 15 were secured and in the course of the investigation, the accused were arrested. The voluntary statement of accused No. 1 as per Ex. P25 was also recorded. A video CD of scene of occurrence as per Ex. P29 was taken and the marriage photographs-Exs. P27 and 28 were also collected. The statements of the witnesses were also recorded and on completion of the investigation, a charge-sheet was laid against the accused for the offence punishable under Sections 498-A, 304-B r/w. Section 34 IPC and under Sections 3 and 4 of the Dowry Prohibition Act [hereinafter referred to as "the D.P. Act" for short].

During the trial, the prosecution examined P.Ws. 1 to 20. Documents at Exs. P1 to 29 and M.Os. 1 to 31 were admitted in the evidence. Statements of the accused were recorded under section 313 Cr.P.C. The defence evidence of D.Ws. 1 to 4 was recorded and documents Exs. D1 to 7 were marked.

The trial Court heard the counsel and on appreciation of the evidence on record, convicted the accused for the offence punishable under Section 304-B r/w. 34 IPC and ordered them to undergo imprisonment for 10 years and to pay a sum of Rs. 25,000-00 each, in default to undergo simple imprisonment for 5 years. Aggrieved by the conviction and sentence, Crl. A. No. 3667/11 is preferred by the accused challenging the conviction and sentence for the offence under Section 304-B IPC, whereas the complainant has filed Crl. No. 3524/13 and the State has filed Crl. A. No. 3569/12 challenging the acquittal of the accused for the other charges.

We have heard learned counsel for the parties.

The points that arise for our consideration are;

"1) Whether the accused have made out any grounds to warrant interference in their conviction and sentence for the offence punishable under Section 304-B r/w. 34 IPC?

2) Whether the trial Court was justified in granting acquittal of the accused for the offence punishable under Sections 498-A, 304-B, 302 r/w. 34 IPC and under Sections 3 and 4 of the D.P. Act?"

Learned counsel for the appellants/accused submits that the conviction of the accused for the offence under Section 304-B r/w. 34 IPC is improper. It is his submission that there is no evidence of cruelty and harassment and in the absence of any cruelty and harassment soon before death of Savita under Section 304-B IPC is not attracted. Furthermore, he contended that there are vague and general allegations regarding the demand and acceptance of dowry and also about the cruelty and harassment as against all the accused and in the absence of consistent and cogent evidence and specific instances of cruelty and harassment, the conviction for the offence under Section 304-B IPC cannot be sustained. In support of his arguments, he has also relied upon decisions, which will be referred to hereafter.

On the other hand, learned counsel for the complainant-P.W. 4-Malkajappa and the Additional State Public Prosecutor submit that the death of Savita is homicidal and further that there is ample evidence to prove the offence of murder in addition to the evidence to prove the cruelty and harassment and the trial Court was not justified in granting acquittal for the offence punishable under Sections 498-A and 302 IPC. They submit that the evidence on record is sufficient to prove the offence under Section 302 IPC and a severe punishment of death penalty is needed. They contend that there is sufficient evidence to prove cruelty and harassment and even for the offence under Section 304-B IPC there is ample material.

We have gone through the oral and documentary evidence placed on record by the parties in the trial Court. We have given anxious consideration to the submissions made by learned counsel for the appellants/accused, complainant and also the Addl. State Public Prosecutor.

As could be seen from the evidence led by the prosecution, P.Ws. 1 to 3 and 5 speak to the holding of inquest and the seizure of articles marked as M.Os. 1 to 31. P.W. 14 is the person, who drawn the sketch of scene of occurrence as per Ex. P14. P.W. 15 is the photographer, who took the photographs-Exs. P15 to 19. P.W. 17 is the constable, who entrusted the dead body to post-mortem examination, whereas P.W. 18 is the Police Constable, who carried the seized articles to the experts. There appears to be no serious dispute as regards the drawing up of inquest-Ex. P1, seizure of M.Os. 1 to 3 under Ex. P2, seizure of M.Os. 4 to 7 i.e., clothes of the deceased Savita under Ex. P3 and seizure of the articles-M.Os. 8 to 31 under Ex. P4.

So far as the proof of the offence under Sections 3 and 4 of the D.P. Act, cruelty, harassment and homicidal death of Savita and also her death in suspicious circumstances, the prosecution relies upon the evidence of P.Ws. 4 and 6-the parents of deceased Savita, the evidence of P.Ws. 7, 8, 11 and 16 to prove the marriage negotiations, demand of dowry and cruelty and it has also examined P.Ws. 12-Dr. Umesh, who examined the deceased immediately on her death and P.W. 13 is the doctor, who held the autopsy on the body of the deceased. The rest are the police officials.

D.Ws. 1 to 4 have been examined by the accused to prove the fact that the 1st accused was elsewhere at the time of the incident and the other witnesses were examined to prove that there was no demand for dowry and that their financial condition is satisfactory.

The scrutiny of the evidence led by the prosecution reveals that there is no ocular evidence to prove the incident of murder. P.Ws. 9 and 11 were the persons according to the prosecution who were present in the house at the relevant point of time. They have turned hostile. So, in the absence of any ocular evidence to prove an incident of murder, the other evidence which is available in this regard relied upon by the prosecution to prove the homicidal death is that of the doctors and the other witnesses, who were present at the time of inquest in addition to the parents of the deceased, who speak that there were external injuries on the body.

The inquest is at Ex. P1 and it is drawn by the Taluk Executive Magistrate in the presence of the witnesses. In column No. 7(ii), it is stated that there are contusions on the sides of the neck and also near the left wrist. No other injuries except a ligature mark over the neck are mentioned in the inquest. The parents of the deceased also state in their oral evidence that there were contusions over the face, neck, hands, etc. Anyhow, either the Taluk Executive Magistrate, who drawn the inquest, the attesting witnesses who were present at that time or the parents of the deceased, who saw the dead body are not experts to speak about the external injuries. It is necessary for us to find out as to whether there is any supporting medical evidence to prove the said fact.

The post-mortem examination was held by P.W. 13-Dr. Saranbasappa and the post-mortem report is produced at Ex. P10. So far as the external injuries are concerned, in Ex. P10 it is stated that no external injuries are seen except the ligature mark over the neck. According to P.W. 13, the death took place within 24-30 hours prior to the post-mortem examination. The post-mortem examination was held on 30.01.2010 in between 10.45 a.m. and 12.30 p.m. in the oral evidence, P.W. 13 says that there were no external injuries on the body of the deceased. There was a ligature mark over the neck extending from the left ear to below right ear measuring 7" x 1/2" skin deep and the underlying muscles and vessels were contused. P.W. 13 says that except the aforesaid injuries, there were no other external injuries.

That apart, hyoid bone was sent for the opinion of the doctor-P.W. 12 and Ex. P9 is the opinion furnished by him. There was no fracture of the hyoid hone. It is true that P.W. 10-Dr. Veerbhadrappa, who saw the dead body at the instance of the accused in the house immediately after the information of death of Savita and he states that contusions like injuries were found on the sides of the neck. But, except his oral evidence in this regard, there is no material.

So, the scrutiny of the post-mortem report, the opinion, etc., and the medical evidence, which has been placed on record does not reveal any other injury except the ligature mark over the neck. Existence of ligature mark over the neck may lead to two inferences; (1) the suicidal death of Savita and (2) her homicidal death due to strangulation. M.O. 1-saree is said to have been used at the time of the incident to commit suicide. It may be that by use of saree there need not be such injury, which would affect the muscles of vessels below the ligature mark. But, there is no evidence as to in what manner the ligature mark was inflicted. Merely because of the circumstance the underlying muscles and vessels were affected due to the ligature mark, itself cannot be a strong circumstance to draw an inference that it is homicidal death. When the ocular evidence reveals other external injuries and when P.W. 13 does not speak to such injury other than the ligature mark, the only circumstance placed on record cannot be accepted to hold that the death of Savita is homicidal.

It is also borne out from the evidence of the prosecution that the inmates of the house went to the bed room, in which Savita was there and knocked the door, but it did not open. With the help of others, the door was pushed and thereby inside latch was broken. To prove the broken latch, the prosecution has placed the evidence by the seizure of M.O. 3 under mahazar-Ex. P2 and this circumstance placed on record by the prosecution would reveal that before the death of Savita, her room was latched from inside. This is an inconsistent circumstance placed on record by the prosecution to over-rule the possibility of homicidal death.

May be that there are some suspicious circumstances about the homicidal death of Savita, we find that these circumstances are insufficient to conclude her death as homicidal. Therefore, in our opinion, Section 302 IPC is not attracted.

So far as the demand of dowry of 50 tolas of gold by the accused at the time of marriage negotiations, it is the evidence of P.W. 4-father of Savita [deceased], P.W. 6-her mother, P.W. 7-Shivashankreppa, P.W. 8-Veeranna and P.W. 11-Surekha, the sister of Savita [deceased] is relied upon. Each of these witnesses in their evidence state that there was demand for 50 tolas of gold by the accused. They further state that in the negotiations, ultimately the parents of Savita [deceased] agreed to give 25 tolas of gold in the form of ornaments. The ornaments were given at the time of marriage.

There are as many as 7 accused. Accused No. 1 is the husband, accused Nos. 2 and 3 are his parents, accused No. 4, 5 and 6 are the brother and sisters respectively, whereas accused No. 7 is the daughter of accused No. 5. Amongst these accused, which of the accused made a demand for dowry is not stated. There is an omnibus and general allegation that at the instance of the accused and on the demand by the accused to give 50 tolas of gold, it was agreed to give 25 tolas of gold. None of these witnesses specifically state about the presence of the other accused other than accused Nos. 1 to 3 at the time of the marriage negotiations. Except referring in their evidence as "the accused made a demand", there is no specific statement by these witnesses, demand by anyone, amongst the accused. All the accused together cannot make a demand for 50 tolas of gold at one time. It is for these reasons, the trial Court did not accept the evidence placed on record by the prosecution for the offence punishable under Sections 3 and 4 of the D.P. Act. Even looking to the evidence of the aforesaid witnesses placed on record by the prosecution, we are not persuaded to accept the contentions of the Addl. State Public Prosecutor or the counsel for the complainant to arrive at a conclusion that there was a demand of dowry by any one of the specific accused. A general and vague statement of demand of dowry by the accused is insufficient to prove the offence alleged.

Even for the subsequent demand of Rs. 25 lakhs as additional dowry, the aforesaid witnesses state that this demand was on the ground that accused No. 1 was intending to install a dhal mill. There is specific version of the witnesses that the demand of Rs. 25 lakhs was only for the purpose of installing a dhal mill. On this aspect of the matter, reliance is placed on by learned counsel for the accused on the decision of the Apex Court reported in Appasaheb and Another Vs. State of Maharashtra, ; wherein the demand was made by the appellants/accused from the parents of the deceased to meet domestic expenses and for purchasing manure, it was held by the Apex Court that this demand cannot be a demand of additional dowry. Therefore, as the essential ingredients of Section 304-B IPC was not established, the conviction for the offence under Section 304-B IPC was set aside. Even in the case on hand as well, there was a demand to install a dhal mill, this demand cannot be said to be a demand of additional dowry. Therefore, in our considered opinion, the essential ingredients of demand for dowry as contemplated under Section 304-B IPC is missing and therefore, the offence is not attracted. The conviction of the accused for the offence punishable under Section 304-B IPC is both erroneous and illegal.

It is no-doubt true that in the complaint-Ex. P5 there is no mention regarding demand of Rs. 25 lakhs by the accused. It is stated by P.W. 4 in the complaint that the accused were demanding gold and money and insisting Savita [deceased] to bring the same from her parents. It is specifically stated by the complainant that with this demand, Savita was subjected to cruelty and harassment. The marriage of Savita was held on 05.02.2007 and her death was on 29.01.2010. The death is within 3 years of the marriage. In this context, if we look into the evidence of P.W. 4-the father, P.W. 6-the mother, P.W. 8-Veeranna, a distant relative, P.W. 11-Surekha, the sister of the deceased consistently state about the demand for a sum of Rs. 25 lakhs. The evidence of P.W. 8-Veeranna appears to be relevant as he corroborates the evidence of other witnesses relating to the demand for a sum of Rs. 25 lakhs. The parents of the 1st accused are 57 years and 64 years respectively. The 1st accused had married Savita [deceased] just 3 years prior to the incident. It was he, who was intending to install a dhal mill and there is consistent version in the evidence of the aforesaid witnesses. They reveal that there was a demand for a sum of Rs. 25 lakhs. From the aforesaid circumstances, an inference could be drawn that this demand was by the 1st accused though there is a general statement that the demand for said sum was by all the accused. Admittedly, accused Nos. 5 and 6 are married and they are residing in their respective husband''s home. Accused No. 7 is the daughter of accused No. 5. There is no such direct nexus between them and Savita [deceased] to make a demand for the said sum. The death of Savita was in suspicious circumstances. It is only the family members, who can speak about what happened in the house all along between the date of the marriage and the death of Savita. They have not come forward with a specific case as to why Savita died in the suicidal death. She had a child through the wedlock and the relationship was cordial for a year of the marriage. None of the accused have spoken to the circumstance and the reason for Savita, to commit suicide. In fact, we feel that there was a duty upon the accused as contemplated under Section 106 of the Evidence Act to place on record the circumstance for Savita to commit suicide. Merely because that the accused were in a sound financial position, in our opinion is not a ground to reject the version of the prosecution witnesses so far as the demand of Rs. 25 lakhs is concerned to install a dhal mill. Though this demand cannot be a demand for the other accused, except the 1st accused, it was he who was in need of the money to install a dhal mill. From the evidence, we can gather that there was harassment by the 1st accused with a demand for a sum of Rs. 25 lakhs to install a dhal mill.

Now, as could be seen from the provisions of Section 498-A IPC, if a woman is harassed and such harassment was with a view to coerce her to made any unlawful demand for any property or valuable security, such harassment would fall within the purview of Section 498-A IPC. The consistent harassment with such a demand would make Savita [deceased] to commit suicide and therefore, this harassment by the 1st accused with the demand for a sum of Rs. 25 lakhs to install the dhal mill, in our opinion is sufficient to draw an inference that there was an instigation to commit suicide. When the demand is not met and the harassment is continued, the purpose is only to make her to commit suicide. Therefore, on the face of this evidence, which is available and the evidence of the prosecution and in view of the provisions of Section 113-A of the Evidence Act, as the death of Savita was with 7 years of the marriage and there is abetment by her husband i.e., the 1st accused, to commit suicide for the reason that she was subjected to cruelty, a presumption could be raised that the suicide has been abetted by her husband. With this presumption, which could be rightly raised under Section 113-A of the Evidence Act and the material placed on record, we are of the opinion that there is ample material to prove the offence under Section 306 IPC as against the 1st accused i.e., the husband of Savita [deceased]. Despite the fact that there is no charge for the said offence, there could be a conviction for the said offence as the sentence is lesser to the sentence for the offence punishable under Section 304-B IPC. So far as this demand of Rs. 25 lakhs is concerned against the other accused, there is general allegation. They do not have any nexus to the installation of a dhal mill, as it may not be for their benefit. Therefore, they cannot be made responsible for the offence under Section 306 IPC. There is no evidence against them even for the offence under Section 304-B IPC.

At this juncture, it is relevant to note that P.W. 11 is the sister of Savita [deceased], who says that she went to the house of the 1st accused on the date of the incident in the morning. Except her interested version about the harassment on that day, there is no other material to support that version. The provisions of Section 304-B IPC are not attracted against all the accused. Therefore, they are entitled to an Order of acquittal. There is no material worth acceptance either for the offence under Sections 3 and 4 of the D.P. Act or for Section 302 IPC. The 1st accused is responsible for both the offence punishable under Sections 498-A and 306 IPC having subjected Savita [deceased] to cruelty and harassment and having abetted her to commit suicide, a reasonable sentence has to be awarded. Hence, point No. 1 is answered partly in affirmative as regards accused No. 1 and in negative as against the other accused and point No. 2 is answered in affirmative.

Consequently, Crl. A. No. 3667/11 filed by the appellants/accused is allowed insofar as appellant Nos. 2 to 7 and allowed in part in respect of appellant No. 1. Crl. A. Nos. 3524/13 and 3569/12 filed by the complainant and State respectively are partly allowed. The accused are acquitted of the charge under Sections 304-B r/w. 34 IPC. The 1st accused/1st appellant in Crl. A. No. 3667/11 is convicted for the charge under Sections 498-A and 306 IPC. For the offence under Section 498-A IPC, he is ordered to undergo rigorous imprisonment for 3 [three] years and to pay a fine of Rs. 50,000-00, in default to undergo simple imprisonment for one year. For the offence under Section 306 IPC, he is ordered to undergo simple imprisonment for 10 years and to pay a fine of Rs. 50,000-00, in default to undergo simple imprisonment for 2 [two] years. The bail bonds of the other accused are cancelled. Accused No. 1 is entitled to set off under Section 428 Cr.P.C. Hence, I.A. No. 1/14 filed for suspension of sentence in Crl. A. No. 3667/11 does not survive for consideration and it is accordingly rejected.