State of Karnataka by Gubbi Police - Appellant @HASH Krishnamurthy

Mohan M. Shantanagoudar, J. - The judgment and order of acquittal dated 28-2-2012 passed by the Fast Track Court-III, Tumkur in SC No. 118 of 2010, is called in question in this appeal by the State.

The Trial Court framed the charges against the accused for the offences punishable under Sections 498-A and 304-B, alternatively Section 306 and in the alternative Section 302 of Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961 and has acquitted the accused after trial of all the charges levelled against him.

Case of the prosecution in brief is that the accused and the decease Sowmya are from different castes; they were loving each other; both of them went to Lingasugur in Raichur District for getting married on 19-4-2005 and they got their marriage registered on the very day in the Sub-Registrar''s Office at Lingasugur; after the marriage, they spent some time outside Tumkur District (their native District) and thereafter they came back to their native District, i.e., Tumkur; out of the wed lock, a child is bom; when Sowmya was pregnant, her parents were residing with them at Tumkur; after delivery of the child, Sowmya went to Gubbi as she was temporarily appointed as Lecturer in a college at Gubbi; accused insisted Sowmya to bring dowry from her parents'' place; he used to tell the deceased that her parents did not spend any money to perform their marriage and they have not given any gold ornaments; since the deceased Sowmya could not tolerate the ill-treatment by the accused, she committed suicide by hanging on 11-11-2009. It is also alleged that prior to the death of the deceased, the parents of the deceased used to look after the family expenses of the accused and they had spent money for establishing a photo studio for the accused and for purchase of computers and also for depositing of money for getting the house on rent for the deceased and the accused.

The dead body was found hanging at 7.30 p.m. on 11-11-2009. Admittedly, the accused was not present at the time of the death of the deceased; on being informed by P.W. 17-the neighbour of the accused and the deceased, accused rushed to the spot and broke open the door, entered the house and found her wife in hanging position. The parents of the deceased were also informed about the incident in question by the neighbours of the accused and the deceased during night of 11-11-2009. However, the first information came to be lodged by P.W. 24 (father of the deceased) as per Ex. P. 29 at 11.30 a.m. on 12-11-2009 before Gubbi Police Station, Gubbi, which came to be registered in Crime No. 230 of 2009 for the offences punishable under Sections 498-A and 304-B of IPC. P.W. 23-the Sub-inspector of Police of Gubbi Police Station registered the crime and sent the FIR to the jurisdictional Magistrate. The part of the investigation is conducted by P.W. 37 and ultimately the charge-sheet came to be filed by P.W 35.

In order to prove its case, the prosecution in all has examined 37 witnesses and got marked 35 Exhibits and 9 Material Objects. On behalf of the defence, one exhibit was got marked. As aforementioned, the Trial Court acquitted the accused of the offences by giving benefit of doubt in his favour.

Sri P.M. Nawaz, learned State Public Prosecutor taking us through the material on record submits that the Trial Court is not justified in acquitting the accused particularly in the light of the evidence of P.Ws. 24, 25, 26, 27,31 and 36 who have consistently deposed against the accused. There is voluminous evidence to show that the accused was paid dowry after the marriage since he was insisting the deceased and torturing her to get the money from her parents; these witnesses have deposed about the harassment by the accused both physically and mentally; the accused was drunkard, he never used to come back to his house regularly; death is within seven years of marriage; no valid explanation is forthcoming as to why the deceased committed suicide in the matrimonial house; the evidence on record is sufficient to bring home guilt against the accused for the offence punishable under Section 304-B of IPC or at least for the offence punishable under Section 306 of IPC. He further submits that since the accused was absconding after the incident, that itself would be the additional circumstance as against the accused.

Per contra, Sri Gangadharaiah, learned Counsel appearing on behalf of the accused argued in support of the judgment of the Trial Court.

P.W. 1 is the owner of the house wherein the accused and the deceased were living for 5 to 6 months. He has deposed before the Court that the deceased and the accused were cordial with each other.

P.Ws. 2, 3, 4, 5, 6, 15, 21 and 28 have turned hostile to the case of the prosecution.

P.W. 17 has partly turned hostile to the case of the prosecution.

All these witnesses have deposed that accused and the deceased were living amicably and cordially. Despite lengthy cross-examination by the Public Prosecutor, the evidence of these witnesses as found in their examination-in-chief was not shaken. Be that as it may, having regard to the totality of the facts and circumstances, we are of the clear opinion that the evidence of these witnesses is not helpful to the case of the prosecution as well to the defence. Of course the defence can take advantage of the fact that these witnesses have deposed that there was cordial relationship between the deceased and the accused.

P.W. 16-Mohammed Shafie, who is the owner of the house wherein the deceased and the accused were living in the first floor, at the time of the incident. Has deposed about the cordial relationship between the deceased and the accused. His evidence discloses that even on the date of the incident, the deceased came weeping to the house from the college, and closed the door inside; however, she did not come out of the house; in the meanwhile, child of the deceased came from the school and as the door was closed, the child was playing in front of the house along with the grandson of P.W. 16. P.W. 16 has further deposed that he does not know about harassment of dowry etc., by the accused and he also does not know about providing of money by the parents of the deceased to the accused for running photo studio as well as for purchasing computers, etc.

P.W. 11 is the Secretary of Anikethana Muttipurpase Women Co-operative Society. She has deposed that the deceased and the accused had borrowed loan from the said society and they were paying Rs. 1,000/- per month towards the loan amount. Pass book relating to the said loan is at Ex. P. 16, which means that the accused and the deceased were cordial and were repaying the loan jointly.

P.W. 17 is an Advocate by profession. He is the neighbour of the accused and the deceased. He has also deposed that at about 5.15 p.m. on 11-11-2009, when he returned to the house he saw the son of the deceased playing outside the house. Normally at that time, the accused used to return to the house. Since the accused did not return back to the house around 7 to 8 p.m he informed him that his wife has not come back to the house and that his child is playing outside the house; however, the accused informed P.W. 17 that the deceased must have already come to the house; P.W. 17 once again called the accused to back to the house and subsequently, accused came back to the house and broke open the door and found that his wife has committed suicide by hanging. He has also not supported the case with regard to harassment, demand of dowry, share in the property etc.

From the aforementioned narration, it is clear that P.Ws. 2, 3, 4,5, 6,15, 21, 28 and 17 did not support the case of the prosecution. On the other hand, their versions support the defence of the accused. In addition to the same, the evidence of P.W. 22 the classmate and close friend of the deceased namely Soumya does not support the case of the prosecution. She has deposed that she was the classmate of the deceased while studying Diploma Course. She has deposed about love marriage of the deceased with the accused, payment of advance amount by the father-in-law of the accused for the house wherein the accused and deceased were living; at the time of committing suicide by the deceased, the accused was not in the house; she identified the death note left behind the deceased (Ex. P. 25); deceased had taken Rs. 2,000/- from her and had given back only Rs. 1,000/-; the deceased had requested P.W. 22 to receive remaining amount from P.W. 24. The evidence of P.W. 22 also does not no where disclose that the deceased was subjected to ill-treatment by the accused either physically or mentally. She has not deposed about the ill-treatment by the accused at any point of time; she has identified the death note left behind the deceased.

The aforementioned evidence on record virtually does not support the case of the prosecution. On the other hand, versions of all the above witnesses would dearly rule that the accused was not harassing the victim at any point of time.

However the evidence of P.Ws. 24 and 36 (parents of the deceased), P.W. 25 (sister of the deceased), P.W. 26 (husband of P.W. 25), P.W. 31 (nephew of P.W. 24) support the case of the prosecution to the effect that the accused was harassing the deceased by demanding dowry from her parents and that the accused was paid dowry after the marriage by the parents of the deceased.

Before proceeding further, it is relevant to note the discussions of P.Ws. 24, 25, 36, 28 and 31, etc. The defence of the accused is that the deceased was not treated well by her parents and relatives since she had married the accused who was not belonging to the caste of that of the deceased. In other words, since the marriage of the deceased and the accused was inter-caste marriage, the same was not liked by the parents of the deceased as well as her relatives; the deceased as well as the accused were not invited for any functions by the relatives of the deceased; on the other hand, the deceased was being looked down in the society by her relatives; even when the uncle of the deceased died due to old age, she was not informed she was not informed by her parents to participate in funeral formalities; thus, the deceased was depressed and therefore she has committed suicide. Keeping this evidence in mind also we have evaluated the entire material on record, more particularly, the evidence of P.Ws. 24, 25, 26, 27, 29, 31 and 36 who have supported the case of the prosecution.

As mentioned supra, P.Ws. 24 and 36 are the parents of the deceased. Among them, P.W. 24 (father of the deceased) had lodged the complaint as per Ex. P.29. It is admitted by P.W. 24 that he and his relatives numbering about 50, came to the scene of offence and saw the dead body after 7.00 p.m. on 11-11-2009 after hearing the news of the death of the deceased. However, they did not choose to lodge the complaint before the police till morning. The complaint came to be lodged by P.W. 24 on 12-11-2009 at 11.30 a.m. He has also admitted in the examination-in-chief that the deceased had written death note as per Ex. P. 25. It is further admitted that the death note discloses that the deceased was atone responsible for her death.

In the cross-examination, P.W. 24 has admitted that after the marriage, deceased and accused were living at Raichur; P.W. 24 did not go to the house of his daughter while she was living at Raichur with the accused; however he had gone to the house at Bangalore when they shifted their residence to Bangalore; the deceased had got the job at Gubbi and hence she and the accused were living at Gubbi thereafter. It is further admitted by P.W. 24 that his uncle died in the month of August 2009; that said fact was not informed to the deceased by him; that the accused never demanded dowry directly before P.W. 24; the child was living with the accused and the deceased prior to the death of the deceased. It is clearly admitted by P.W. 24 that the deceased with a view not to give trouble to anybody after her death, had left the death note as per Ex. P. 25. He has admitted that he had filed an application for custody of the child and a copy of the said application is marked at Ex. D. 1. Lastly, P.W. 24 has admitted that since they did not agree for the marriage of the deceased with accused, they might have left to Lingasugur.

From the evidence by P.W. 24, it is clear that accused has not demanded dowry directly from him. However, he has admitted that he did not go and see his daughter when he was living at Raichur after her marriage with accused. He has admitted that his daughter had written the death note as per Ex. P. 25. So also, he has admitted that child was living with the accused and the deceased prior to the death of the deceased.

P.W. 36 is the mother of the deceased, i.e., wife of P.W. 24. Her evidence is almost on par with the evidence of P.W. 24. P.W. 36 has deposed that the accused was not regularly coming back to the house on the ground that he had to go to other villages for taking photographs in certain function; that she was with the deceased for five months at the time of delivery of the child; that the accused was harassing the deceased and he was not regularly coming back to the house; however, she used to pacify the deceased that as she has married the accused on her own, she should adjust with him.

In the cross-examination, P.W. 36 has admitted that while the deceased and the accused were living at Raichur, none of the family members of the deceased visited them; when the accused and the deceased shifted to Bangalore, P.W. 24 alone had gone to meet the deceased, but P.W. 36 did not go and meet the deceased; however, she has gone to the house of the deceased when they shifted their residence at Tumkur at the time of delivery of child and she was with the deceased for about five months at that point of time; the accused and the deceased started living at Gubbi after deceased getting the job in Gubbi and at that point of time, P.W. 36 used to visit the house of the deceased once in a week. P.W. 36 has admitted that she has not given statement before the police that the accused was in the habit of smoking and that he was torturing the deceased by burning her with cigarette buds. Curiously it is admitted by P.W. 36 that when she visited the spot, the dead body was still in a hanging position and thereafter the police came and took the dead body to the hospital; in the midnight at about 1.00 a.m. she came back to her place with her grandson and she went to the house of the deceased only on the next day at about 1.00 p.m. and cremation was performed at 4.00 p.m. P.W. 36 has further admitted that the deceased had asked for some amount to purchase site, but the said request was not acceded to by the parents of the deceased.

Same is the evidence of P.W. 25 (sister of the deceased), P.W. 26 (husband of P.W. 25) and P.W. 31, who is the nephew of P.W. 24. All these witnesses have deposed on par with the evidence of P.Ws. 24 and 36. However, among them, P.W. 31-Manjunath has admitted in the cross-examination that as the deceased had married a person from another caste, relatives of the deceased did not go to her house at any point of time.

From the aforementioned narration, it is clear that there are two sets of evidence. One set of evidence is pro-prosecution and another set is pro-defence. The versions of P.Ws. 2, 3, 4, 6, 21, 17 and 22 would clearly reveal that the accused and the deceased were living cordially. They did not support the case of the prosecution with regard to harassment by the accused at any point of time. All these witnesses are independent and are not related to the deceased. These witnesses are from different castes from that of the accused as well as the deceased. Version of all these witnesses would clearly support the defence case. On the other hand, P.Ws. 24, 36, 25, 26, 27 and 31 support the case of the prosecution. They are all relatives inter se and they are closely related to the deceased.

From the above, it is clear that two versions are forthcoming with regard to the relationship between the accused and the deceased. One set of evidence which is of independent witnesses would clearly reveal that the accused never harassed the deceased at any point of time including demand of dowry, etc. Another set of evidence which is of the relatives of the deceased would disclose that the accused was harassing the deceased on one pretext or the other, more particularly by demanding dowry. It has also come in the evidence of these witnesses including the parents of the deceased that they never visited the house of the deceased frequently. The persons who would be well-versed with the day-to-day happenings of the deceased and the accused would be their immediate neighbours. P.W. 16-owner of the house, wherein the deceased and accused were living, P.W. 17 an Advocate by profession and the neighbour of the deceased have deposed that the accused and the deceased were living cordially and were never quarrelled. When two sets of witnesses which are diametric to each other are available on record, it is but natural to take the evidence which is favourable to the accused.

Moreover, undisputedly the deceased had left the death note at Ex. P. 25. The parents of the deceased (P.Ws. 24 and 36) and P.W. 22 (close friend of the deceased) have clearly admitted that the deceased had left death note as per Ex. P. 25, which means that handwriting of the deceased at Ex. P. 25 is not in dispute at all. The Taluka Executive Magistrate (P.W. 29) who conducted inquest proceedings as per inquest panchanama at Ex. P. 24 has deposed before the Court that P.W. 24-father of the deceased has admitted that the handwriting in Ex. P. 25 is that of the deceased. He has further deposed that the chit (death note) was handed over by the father of the deceased to the Tahsildar. Consequently, it is admitted by the prosecution that Ex. P. 25 is written by the deceased and she left behind the said chit at the time of her death.

As mentioned supra, P.W. 16, the neighbour of the deceased and the accused and P.W. 28, who is working in Suggi Motors has deposed that on the date of the incident, the deceased Sowmya while coming from college was weeping which means that she was in a depressed mood. She went inside the house and thereafter she did not open the door. It is also not in dispute that the accused was not in the house at that point of time. The accused came to house only at about 7.30 p.m. on being informed by P.W. 17.

The postmortem report at Ex. P. 14 and the evidence of the doctor who conducted the postmortem examination-P.W. 9 would clearly reveal that the deceased had not sustained any injury. Though it is the case of the prosecution that the accused was addicted to smoking and drinking alcohol, and used to assault the deceased physically and used to burn her with burning cigarette buds, no injuries were found on the dead body. Even otherwise, it is clear from the evidence of the Investigating Officer, who recorded the statement of P.Ws. 24 and 36 that the evidence of these witnesses before the Court relating to burning the deceased with cigarette buds by the accused is an improvement made before the Court. In other words, major omissions in the evidence of the prosecution are proved by the defence as per law. Since the material omissions amount to contradictions and if such material omissions are excluded from consideration, it is clear that there is nothing on record to show that the accused used to torture the deceased physically.

Ex. P. 25, the death note clearly discloses that the deceased was depressed at the time of incident because of the attitude of her relatives. She has mentioned in the death note that her parents did not get any happiness from her at any point of time; that she behaved like a devil; she spoiled their reputation in the society and consequently, she was rejected by the society at large; she has requested her parents in Ex. P. 25 that her child should be admitted to any boarding school (school having hostel facility); she has also addressed her husband to the effect that she was responsible for getting bad name for him and because of her, he is not respected in the society; she has requested him to look after the child properly. Other factors are also mentioned the death note.

From the aforementioned death note at Ex. P. 25, it is amply clear that neither the parents nor the parents of the deceased nor the husband were responsible for her death and she was alone responsible for her death inasmuch as her parents as well as her husband got bad name in the society because of her and she became devil for herself. As mentioned supra, it is not in dispute that Ex. P. 25 is written by the deceased. In view of the above, in our considered opinion, the Trial Court is justified in acquitting the accused inasmuch as it could be safely conducted that the prosecution has not proved its case beyond reasonable doubt against the accused. Even on reconsidering the entire material on record, we do not find any ground to interfere with the impugned judgment.

It is not in dispute that the accused has absconded after the incident in question. Only on the ground of abscondence, it cannot be said that the accused has committed the offence. The behaviour of persons depends upon the person to person, some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied.

Be that as it may, though there is material to show that the accused has absconded immediately after the incident, the said circumstance alone would not bring home guilt against him, particularly in the light of the versions of the independent witnesses as well as the death note of Ex. P. 25 left behind the deceased.

In view of the above, we do not find any ground to interfere with the impugned judgment. Hence, appeal fails and the same stands dismissed.