State of Karnataka vs Mahadevaswamy and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 15th September 2009 passed by Fast Track Court, Kollegal sitting at Chamarajanagar in S.C. No. 20/2008 is called in question in the appeal by the State.

The accused were tried and acquitted of the offences punishable under Sections 498-A, 304-B, 302, 201 r/w 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.

The case of the prosecution in brief is that accused No. 1 is the husband of deceased Nethravathi; their marriage was performed as per the Hindu rights on 5.3.2003 at Nanjanagud, Mysore District; accused No. 2 is the mother of accused No. 1, accused No. 3 is the maternal uncle of accused No. 1 (brother of accused No. 2); the accused demanded Rs. 1.00 lakh and 50 gm of gold as dowry during the marriage negotiations held prior to the marriage between accused No. 1 and deceased; it was settled that the parents of the bride shall give Rs. 50,000/- in cash and 50gm of gold ornaments to the bride-groom as dowry; accused Nos. 1 and 2 received the same; after marriage, deceased Nethravathi was living with accused Nos. 1 and 2; a child was born out of the wedlock between accused No. 1 and deceased; after the birth of a female child, the accused started demanding additional amount of dowry and deceased was threatened with dire consequences of taking away her life in case of non-payment of additional amount of dowry. It is relevant to note that accused No. 3 was living in a separate house in the same village; he was not residing with accused Nos. 1 and 2; On 26.3.2005, accused Nos. 1 and 2 quarreled with deceased Netravathi from 8 a.m. to 10.00 a.m., assaulted her and committed her murder by smothering. The accused caused disappearance of the evidence of murder and created make-believe story that the victim committed suicide in the house; the accused came outside the house by bolting from inside by removing the roof tiles at 4 p.m. and made the people to believe that Nethavathi committed suicide by hanging herself.

The intimation of death of the deceased was sent to the parents of the deceased; parents and other relatives of the deceased came to the matrimonial house of the deceased and after seeing the dead-body, a complaint came to be lodged as per Ex-P1 by P.W.-1 (uncle of the deceased). Based on the complaint lodged by P.W.-1, Crime No. 66/2005 came to be registered in Gundlupet police station, Chamarajanagar District. After investigation, the Investigation Officer(P.W.-18) laid the charge-sheet against all the three accused for the aforementioned offences.

In order to prove its case, the prosecution in all examined 18 witnesses and marked 24 exhibits and one material object. On behalf of the defence, two exhibits were got marked. The trial Court acquitted the accused.

The learned Government Pleader taking us through the entire material on record and the judgment of the court below submitted that the Court below is not justified in acquitting the accused; the evidence on record amply proves that it is a case of homicidal death and therefore the accused ought to have been convicted for the offence punishable under Section 302 IPC. The offence has taken place in the matrimonial house and therefore it is incumbent on the part of the accused to explain as to how the incident has taken place; non-explanation by the accused would lead to only inference that the accused were responsible for the death of the deceased.

Per-contra, Sri. K.A. Chandrashekara, learned counsel appearing on behalf of the accused argued in support of the judgment of the Court below. He submits that the Appellate Court may not interfere in the judgment and order of acquittal since two views are possible under the facts and circumstances of the case; there is no concrete material to show that it is a case of homicidal death; the evidence of the Doctor, who conducted the post-mortem examination is shaky, inasmuch as, it appears he was not sure as to the cause of death of the deceased; the evidence of mother of the deceased would clearly reveal that the deceased was not willing to marry accused No. 1 and despite the same, the parents of the deceased forced the deceased to marry accused No. 1 and thus the deceased being unwilling lady for the marriage committed suicide. According to him, the judgment and order of acquittal passed by the Court below is just and proper.

P.W.-1 is the complainant. He is the uncle of the deceased. The complaint is at Ex-P1. The complaint reveals the demand and payment of dowry as well as harassment by the accused after the marriage.

PW-2 is the father of the deceased. P.W.-3 is the mother of the deceased. Both of them have also deposed about the demand and payment of dowry as well as about the harassment by the accused towards deceased by demanding additional amount of dowry.

PW-4 is the close relative of the victim as well as accused. He has also deposed about the marriage talks, demand of dowry as well as harassment.

PW-6 is another relative of the deceased. He has also deposed about the harassment by the accused. However, he has turned hostile to the case of the prosecution on the point of dowry.

PWs-7 and 8 are the neighbours residing in the nearby house of the accused. They have turned hostile to the case of the prosecution.

PW-9 is the witness for inquest panchanama Ex-P18.

PW-10 is the head constable, who registered case in Cr. No. 66/2005. Based on the complaint lodged by P.W.-1, he has sent the FIR as per Ex-P19 to the jurisdictional Magistrate.

PW-11 is the photographer, who took the photographs of the dead body as per Ex-P8 to P13.

PW-12 is the sister of the deceased. Her evidence is also on par with the evidence of P.W. s-2 and 3.

PW-13 is the Taluka Executive Magistrate. He conducted inquest proceedings. Ex-P18 is inquest panchanama.

PW-14 is the Doctor, who conducted the postmortem examination. His report is at Ex-P20.

PW-15 is another relative of the deceased. He had deposed about the demand and payment of dowry.

PW-16 is the Engineer. He drew the sketch of scene of offence as per Ex-P21.

PWs-17 and 18 are the Investigation Officers. Among them, P.W.-18 wrote the charge-sheet.

As aforementioned, the case of the prosecution is that the accused demanded dowry of Rs. 1.00 lakh apart from gold ornaments prior to the marriage; it was settled in the marriage negotiations that the parents of deceased would pay Rs. 50,000/- and 50 gms of gold as dowry to accused Nos. 1 and 2. It is not in dispute that the deceased and accused No. 1 lived happily for about 9 months. During the said period, the deceased became pregnant. She went to her parents'' house, wherein a child was delivered. She lived in the house of her parents for about seven months after the birth of the child. About five months prior to the incident, the victim came back to her matrimonial house. After staying for one or two days, the victim again went back to her parents house and told her parents that she is being harassed by the accused; that the accused were pressurizing her to bring additional amount of dowry etc; the parents and relatives of the deceased took the deceased back to her matrimonial house and held panchayath in the house of accused No. 1 in the presence of elders. The differences were pacified. The victim stayed back in her matrimonial house. However, on 26.3.2005, the unfortunate incident in question has occurred in the matrimonial house.

Before proceeding further, it is relevant to note that accused No. 2-Smt. Ningarajamma expired on 24.1.2011 and therefore the appeal is abated as against her.

As aforementioned, accused No. 3 is the maternal uncle of accused No. 1 i.e., brother of accused No. 2. Admittedly, he is residing in a separate house though in the same village. It is not in dispute that accused Nos. 1 and 2 only were living in the matrimonial house. However, even according to the prosecution, accused No. 3 participated in the marriage talks and demanded dowry on behalf of accused Nos. 1 and 2. The material on record is also not sufficient to convict accused No. 3. Except bald allegations against him, no concrete material is found against him. As aforementioned, he is residing in a separate house. It is the case of the prosecution that at the time of incident, only accused Nos. 1 and 2 were present in the house and they quarrelled with the deceased. Accused No. 3 being brother of accused No. 2 allegedly participated in the marriage talks and nothing more. In view of vague allegations against accused No. 3, in our considered opinion, the trial Court is justified in acquitting accused No. 3.

Sofar as, marriage talks are concerned, we find that the material on record is un-believable. It is specific case of the prosecution that the marriage talks were held in the house of bride, whereas, in the evidence before the Court, it is admitted by the mother of the deceased that the marriage talks were held in the house of the bridegroom. So also, we find in the evidence of other witnesses, there is lot of difference as to the place of marriage talks. Though P.W.-1 in his complaint has deposed about the demand of dowry and payment of dowry, he had admitted that he had not participated in the marriage talks and he was not present when the alleged payment was made to the accused and therefore it is clear that P.W.-1 was not witness for either the marriage talks or demand and payment of dowry. P.W. s-2 and 3 are the parents of the deceased. P.W.-3 also has deposed that she learnt about demand of the accused through her husband(P.W.-2), i.e., she did not have personal knowledge about such demand of the accused. P.W.-2 in his examination-in-chief has deposed that he had paid Rs. 50,000/- and 50 gm of gold ornaments to the accused. Nowhere in his examination-in-chief, he has stated that the accused demanded and such demand was met by him. He further admits that as per his voluntary will and wish, he gave gold ornaments to the accused. Even otherwise, it is not uncommon in this part of the State to provide customary gold ornaments and clothes both to the bride as well as the bridegroom by their in-laws. Generally, the gold ornaments would be provided to the bride by the parents of the bridegroom and so also, the bridegroom would be provided with certain gold ornaments by the parents of the bride.

Be that as it may, from the evidence of P.W.-1, P.W.-2 and P.W.-3, it is not clear whether the accused demanded Rs. 50,000/- as dowry or that demanded 50 gm of gold as dowry. On the other hand, the material on record clearly reveals that an amount of Rs. 50,000/- and gold ornaments were given to the accused voluntarily i.e., as per will and wish of parents of the deceased. It is also admitted by P.W.-2 that similar offerings were made at the time of marriage of his eldest daughter. Having regard to such shaky material, in our considered opinion, the trial Court is justified in concluding that there was no demand of dowry by the accused nor payment of dowry by the parents of the deceased.

However, we find that ample material is found against accused Nos. 1 and 2 with regard to harassment. As aforementioned, it is the case of the prosecution that accused Nos. 1 and 2 started harassing deceased by pressuring her to bring some amount from her parents'' house after the birth of the child. Till such time, there was no demand. P.W. s-1, 2, 3, 4, 5 and 12 have deposed about the harassment by the accused after the birth of the child. Their evidence further clarifies that a panchayath was held in the village of accused viz., Agathegowdanahalli, i.e., in the house of accused Nos. 1 and 2. P.W. s-1, 2, 3, 4 and others participated in such panchayath at Agathegowdanahalli. In the said panchayath, differences between accused No. 1 and deceased were pacified and the deceased was also advised to live amicably in her matrimonial house. So also, P.W.-2 was requested on those lines. The evidence of P.W.-4 would disclose that it was mainly accused No. 2 who was torturing the victim. Though no allegations are made by P.W.-4 as against accused No. 1, we find from the versions of other witnesses that accused No. 1 was also harassing the victim. We hasten to add here itself that the accused were financially well off, so also, the parents of the deceased. P.W.-3 has admitted in the cross-examination that she wanted to get the marriage of deceased with her brother viz., Shivananjappa and that even the deceased was willing to marry Shivananjappa. However, looking to the very good financial condition of accused No. 1, the parents of the deceased decided to perform the marriage of deceased with accused No. 1, though she was unwilling for the same. These facts are admitted by P.W.-3-mother of the deceased. Having regard to such material, Sri. Chandrashekara, learned counsel appearing on behalf of accused submits that deceased was not happy of her marriage with accused No. 1 and therefore she committed suicide. Such submission cannot be accepted in view of the fact that the deceased was living happily with accused No. 1 for about 8-9 months and thereafter she gave birth to a child. Even after birth of the child, the couple lived happily for about seven months. The trouble started only after certain time after about seven months after the birth of the child. Though it is the case of the prosecution that deceased was harassed by accused for bringing additional amount of dowry, no reliable material to that effect is found. But the material on record would clearly reveal that some sort of harassment by the accused continued though the reason for harassment is not really forthcoming.

The death has occurred in the matrimonial house of the deceased and accused No. 1. During the relevant point of time, only accused Nos. 1 and 2 and deceased were living. The post-mortem report is at Ex-P20. The death was due to asphyxia consequent to smothering. The Doctor P.W.-4 has opined that it is a case of homicidal death. He has been cross-examined at length by the defence to show its'' not a case of homicidal death. The Doctor has admitted that smothering has taken place due to closure of nose and mouth by hands and therefore superficial injuries are found. In our considered opinion, it may not be possible to close the nose and mouth lightly by the third parties. The victim will generally protest and consequently leading injuries would have been found on her face. However, to such question, the Doctor has opined that the death may be either suicidal or homicidal. Since there is no reliable material to show that the death was homicidal in nature and as the Doctor in the cross-examination comes out with a theory that the death might be a suicidal also, we are not inclined to accept the argument of the prosecution that the deceased died homicidal death. May be it is case of suicidal death.

As aforementioned, it is not case of dowry harassment. Consequently, there is no material to show that the death is a dowry death which falls under Section 304-B of IPC. But the fact remains that the victim was subjected to cruelty by accused Nos. 1 and 2, though not for dowry, which is punishable under Section 498-A IPC. So also, accused No. 1 is liable to be punished under Section 306 IPC in view of fact that he has abated the victim for commission of the suicide, inasmuch as, accused drove the victim to commit suicide.

In view of the above, we are of the opinion that the trial Court is not justified in acquitting the accused. Having evaluated the material on record, we are of the opinion that accused No. 1 has committed the offence punishable under sections 498-A and 306 of IPC.

Hence, the following order is made:--

"1. Accused No. 1 is convicted for the offence punishable under Section 498-A IPC and is sentenced to undergo imprisonment for a period of two years and to pay fine of Rs. 5,000/- for the same. In default of payment of fine, he shall undergo further imprisonment for a period of one year.

Accused No. 1 is convicted for the offence punishable under Section 306 IPC. He is sentenced to undergo imprisonment for a period of five years and to pay fine of Rs. 20,000/- for the same. In default of payment of fine, he shall undergo further imprisonment for a period of two years.

Both the sentences of imprisonment shall run concurrently. The accused No. 1 shall be given the benefit of set off, of the period of imprisonment which he has already undergone. It is made clear that the judgment and order of acquittal acquitting accused Nos. 1 and 3 for the offences punishable under Sections 302, 304-B, 201 IPC and under Sections 3, 4 and 6 of Dowry Prohibition Act stands confirmed.

In the event of deposit of fine, the entire amount so deposited, shall be kept in Fixed Deposit in the name of the child viz., Ms. Mamatha born out of wedlock between accused No. 1 and deceased till she attains the age of majority."