The State vs D.R. Ismail

Mohan M. Shantana Goudar, J.

The judgment and order of acquittal dated 17.5.2011 passed by the First Additional Sessions Court, Tumkur in S.C. No. 21/2009, is called in question in this appeal by the state.

The accused was charged, tried and acquitted of the offences punishable under Sections 498A, 304-B, 306 of IPC and Sections 3, 4 and 6 of Dowry Prohibitions Act.

Case of the prosecution in brief is that the marriage of the accused and the deceased was performed on 24.12.2006 at Arafath Community Hall, Mysore, as per the customs prevailing in Muslim Community; at the time of marriage talks, the accused demanded a sum of Rs. 1,00,000/- apart from gold ornaments and motorcycle; however, the parents of the deceased agreed to pay Rs. 28,000/- in cash, neck chain, two rings and a wrist watch as dowry to the accused; certain gold ornaments were given to the bride; the accused and the deceased led married life for 15 days in Devanayakanahalli and thereafter they shifted their residence to Vijayanagar, Bangalore; the accused was working as Senior Accountant, Housing Development Corporation, Bangalore; the deceased was a Degree holder; they lived happily after their marriage for about five months and thereafter the accused started to harass the deceased pressurizing her to bring an additional amount of Rs. 50,000/-; the said amount of Rs. 50,000/- was paid in cash to the accused by the parents of the deceased; despite the same, he continued to ill-treat her by demanding a chain and a mobile phone; however, the said demand was not satisfied by the parents of the deceased; the brother of the deceased (P.W. 3), namely Noorulla Khan who was working at Haryana at that point of time came to Tumkur wherein his parents (parents of the deceased) were living, for celebrating Ramzan festival; PWs. 1 and 2 (parents of the deceased) requested the accused over phone to celebrate Ramzan festival along with them at Tumkur; however, the accused refused to go to Tumkur; PWs. 1 and 2 sent PW 3 to bring the accused and the deceased to Tumkur for celebrating Ramzan festival; despite the same, the accused did not proceed to Tumkur; however the deceased went to Tumkur along with her brother-PW. 3 on 10.10.2007; at about 6.00 to 6.30 p.m., on 11.10.2007, when PWs. 1 to 3 wanted to go to market for purchasing some articles for Ramzan festival, they requested the deceased to accompany them; however she refused to accompany them and she remained in the house on the ground that she was suffering from pain in her legs and that she needed rest; at about 9.00 p.m., when PWs. 1 to 3 came back to their house they found the deceased committing suicide by hanging herself.

The complaint came to be lodged by P.W. 1 as per Ex. P1 on 12.10.2007 at 1.15 a.m. before the SHO Kyathasandra (P.W. 15) which came to be registered in Crime No. 203/2007. The FIR was sent to the learned jurisdictional Magistrate. The Inspector of Police (P.W. 23) completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 23 witnesses and got marked 19 Exhibits and 7 Material Objects. On behalf of the defence, 4 Exhibits were got marked. On evaluation of the material on record, the trial Court acquitted the accused by giving benefit of doubt in his favour.

Sri Chetan Desai, learned Government Pleader appearing on behalf of the State taking us through the entire material on record and the judgment of the Court below submits that the Court below is not justified in ignoring the evidence of PWs. 1 to 5; the trial Court has casually proceeded to acquit the accused despite incriminating material found against the accused in the evidence; the evidence of PWs. 1 to 5 is sufficient to bring home guilt against the accused for the offences punishable under Sections 304-B and 498A of IPC; even the offences punishable under the provisions of the Dowry Prohibition Act are proved inasmuch as the material on record clearly revealed that there was a demand and payment of dowry; the trend of cross-examination to the defence would clearly reveal that the defence has admitted that the accused was harassing the victim on one pretext or the other. On these among other grounds, he prays for setting aside the judgment of the Court below.

Ms. K.S. Champoo, learned advocate appearing on behalf of the defence submits that the deceased had committed suicide on 10.10.2007 and not on 11.10.2007; the real date of death is suppressed by the prosecution; PWs. 1 to 3 in collusion with the Police Officers created the false story against the accused by postponing the date of incident; the Investigating Officer has created the story merely on the surmises and conjectures; PWs. 1 to 5 have deposed about the demand of Rs. 28,000/- as dowry by the accused during the marriage talks; they did not even depose that such dowry was ever paid to the accused; the gold ornaments given to the deceased and the accused at the time of marriage were all customary articles; the trial Court has assigned valid reasons for acquitting the accused; since the view taken by the trial Court is just and proper, she prays that there is no need to interfere with the judgment of the Court below.

Before proceeding further, it is relevant to note the defence of the accused. According to the accused, the incident has taken place on 10.10.2007 and not on 11.10.2007. The prosecution has suppressed the real date of the incident in order to buy time for creating the false case against the accused; it is further defence of the accused that the deceased was depressed in life inasmuch as she was suffering from acute thyroid problem; her both legs had become weak and she was not in a position to perform her day-today activities from 8 to 10 months (prior to her death) and she had also suffered two abortions of her pregnancy.

PWs. 1 and 2 are the father and mother of the deceased respectively. P.W. 1 has lodged the complaint as per Ex. P1. P.W. 3 is the brother of the deceased. All these three witnesses have deposed about the marriage talks. However, PWs. 1 and 2 have deposed about the payment of dowry of Rs. 28,000/- to the accused.

PWs. 4 and 5 are the relatives of the deceased. They also deposed about the marriage talks as well as demand and payment of dowry.

P.W. 6 is the Taluka Executive Magistrate who conducted the inquest examination. Inquest report is Ex. P7.

P.W. 7 is the witness for scene of offence panchanama at Ex. P2.

P.W. 8 is the Police Constable who scribed the scene of offence panchanama at Ex. P2.

P.W. 9 is the photographer who took the photographs of the dead body. Photographs are at Ex. P5 and P6.

PWs. 10 and 11 are the witnesses for inquest panchanama at Ex. P7.

P.W. 12 is the Junior Engineer who drew the sketch of scene of offence as per Ex. P9.

P.W. 13 is the another witness for scene of offence panchanama at Ex. P2.

P.W. 14 is the Second Division Assistant working in Municipality, Tumkur. He issued house property extract of the house wherein the incident has taken place as per Ex. P10.

P.W. 15 is the SHO of Kyathasandra Police Station. He received the complaint, registered the same and sent the FIR to the jurisdictional Magistrate.

P.W. 16 is the jeweller who has produced Ex. P11 and P12, the receipts for having prepared the gold ornaments.

P.W. 17 is the witness for seizure panchanama at Ex. P13 under which M.O. No. 6 (watch of the accused) was seized.

P.W. 18 is the witness for another seizure panchanama Ex. P14 under which M.O. No. 7 (thali of the deceased.

PWs. 19 and 20 are the doctors who deposed about postmortem examination. Postmortem report is at Ex. P15.

PWs. 21 and 22 are the Inspectors of Police who investigated the case in part.

P.W. 23 is another Inspector who completed the investigation and laid the charge sheet.

Ex. P1, the complaint lodged by P.W. 1 nowhere reveals that either there was a demand of Rs. 1,00,000/- or Rs. 1,50,000/- by the accused prior to the marriage. However, it merely states that the accused asked for a sum of Rs. 28,000/- at the time of marriage apart from 150 gms. of gold. Accordingly, the complainant had paid an amount of Rs. 28,000/- and 150 gms. of gold to the bride. Thus, it is clear that the evidence of PWs. 1 to 5 makes improvements in the case of the prosecution that the accused demanded Rs. 1,00,000/- or Rs. 1,50,000/- during marriage talks. However, exaggeration is found in the evidence of these witnesses to the effect that accused had demanded a motorcycle, gold chain, two rings, etc. The first version of the complainant before police in the form of complaint makes it amply clear that he paid Rs. 28,000/- and 150 gms. of gold to the accused. It is customary to give certain gold ornaments to both bride and bridegroom at the time of marriage by their parents. Even the bride will be provided certain gold ornaments by the parents of the bridegroom and vice versa.

There cannot be any dispute that there is no system of dowry in Mohammedan custom. However, it is case of the prosecution that a sum of Rs. 28,000/- was paid to the accused as dowry. In order to prove the said aspect of the matter, PWs. 1 to 5 are examined before the Court by the prosecution.

As aforementioned, P.W. 3 has not deposed in his examination-in-chief to the effect that an amount of Rs. 28,000/- was paid to the accused as dowry. He has merely deposed that it was settled during the marriage talks that Rs. 28,000/- was to be given to the accused. So also in the evidence of P.W. 4, he has deposed that it was decided to pay Rs. 28,000/- to the accused. However, he has also not deposed before the Court that the said amount of Rs. 28,000/- was paid by the parents of the deceased to the accused. P.W. 3 is none other than the brother of the deceased and P.W. 4 is the close relative of the deceased. It is further case of the prosecution that PWs. 1 to 5 together participated in marriage talks and the it was decided in the marriage talks that an amount of Rs. 28,000/- was to be paid to the accused. Since PWs. 3 and 4 did not depose about the payment of Rs. 28,000/- to the accused as per the marriage talks, there is no reason as to why we should not disbelieve the version of PWs. 1, 2 and 5, inasmuch as their version runs to contrary to the evidence of PWs. 2 and 4. Moreover, P.W. 2 has admitted that there is no system in Mohammedan Community for the ladies to participate in marriage talks. P.W. 5 admits that he does not know as to whether P.W. 2 participated in the marriage talks.

Be that as it may, none of the five witnesses has deposed that when the marriage talks took place and as to when the said amount of Rs. 28,000/- was paid to the accused. P.W. 1 further admits that he does not know the denomination of the notes so paid to the accused. P.W. 1 admitted that he is a retired Accounts Officer and is a pensioner. He also admitted that he is not a businessman. So also, P.W. 3 is a salaried person. They are not expected to keep heavy amount of Rs. 28,000/- in their house. Generally they would not be in a position to have liquid cash and they would either borrow heavy amount from their friends or relatives or they would draw such amount from the bank. In the matter on hand, nothing is found to support the evidence of PWs. 1 and 2 that a sum of Rs. 28,000/- was paid to the accused except their oral say.

In addition to the same, P.W. 3 has admitted that it was agreed in the marriage talks that Rs. 28,000/- should be paid as Mehar amount. P.W. 4 has also admitted that though he does not know the quantum of Mehar, he has admitted that he has signed the document relating to payment of Mehar. In this context, learned advocate appearing for the defence is justified in arguing that it is not clear as to whether an amount of Rs. 28,000/- referred to by PWs. 4 and 5 was dowry or dower (Mehar)

In addition to the aforementioned facts, the trial Court has assigned certain valid reasons for disbelieving the version of the prosecution with regard to demand and payment of dowry, as also the harassment by the accused for the purpose of getting additional amount of dowry.

It is further the case of the prosecution that an amount of Rs. 50,000/- was paid to the accused by the parents of the deceased. There is also no satisfactory evidence so far as alleged payment of Rs. 50,000/- is concerned. Casual reference is made in this regard by PWs. 1, 2 and 3. PWs. 4 and 5 are hear-say witnesses in respect of allegations relating to payment of Rs. 50,000/- to the accused. P.W. 3, the brother of the deceased has merely deposed that the said amount of Rs. 50,000/- was arranged and paid to the accused. P.W. 3 was admittedly working at Haryana during the relevant period and he used to come to Tumkur once in one-and-half and two months. As aforementioned, it is admitted by this witness that the accused and the deceased were living happily for about 5 to 6 months after their marriage. The death has taken place within 10 months after the marriage. P.W. 3 has admitted during his cross-examination that he had come to Tumkur for one week in October 2007 to celebrate Ramzan festival and even while he returning to Haryana, there was no quarrel between the accused and deceased. Thus, admission of P.W. 3 completely takes away the case of the prosecution, inasmuch as there was no quarrel between the accused and the deceased even at the time of death of the deceased. The death has taken place immediately after Ramzan festival. In addition to the same, there was no evidence as to when an amount of Rs. 50,000/- was demanded by the accused and when the said amount was paid to him. It is also not brought on record as to from where the said of Rs. 50,000/- was brought by P.W. 1. It is clearly admitted by P.W. 1 that the accused is working as Senior Accounts Officer and he is financially well off. Be that as it may, having regard to the totality of the facts and circumstances of the case, in our considered opinion, the trial Court is justified in disbelieving the version of the prosecution with regard to the demand and payment of Rs. 50,000/- after the marriage.

So far as cause of death of the deceased is concerned, as aforementioned, the prosecution has not proved that it is a case of dowry death. Even the offence may not fall under Section 306 of IPC, inasmuch as the accused was not responsible for the deceased to commit suicide. The evidence does not also disclose that the accused has abetted the deceased to commit suicide. It is admitted by P.W. 1 that the deceased was a Degree holder. He further admits that even prior to the marriage, the deceased underwent operations for thyroid problem. It is pertinent to note that P.W. 1 clearly admits that despite knowing that the victim was suffering from weak personality and fits disease he performed her marriage with the accused taking the help of his nephew namely, Mohammed Rafi (P.W. 4). These admissions of P.W. 1 would clearly reveal that P.W. 1 and his family members suppressed the ill-health of the deceased at the time of her marriage. In all fairness they should have shared the said information with the accused before the marriage. It has also come on record and the same is admitted by P.W. 1 that the victim underwent two abortions within a span of 10 months after her marriage. In that regard, the defence is justified in contending that the victim was depressed in life inasmuch as she did not beget any child and that she was suffering from ill-health and was having weak physique. She had developed problems in her both legs and therefore she was not able to perform her day-today routine activities.

It is also relevant to note that admittedly, the deceased was living with the accused in her matrimonial house till 10.10.2007. On that day, she went to her parents place for celebration of Ramzan festival. She did not attempt to commit suicide at any time prior to 10.10.2007. Only after going to her parents'' house she committed suicide. It is also relevant to note that the accused and the deceased only were residing in their house and that accused was going for job from morning till evening. Despite the same, no untoward incident had happened in the matrimonial house of the deceased. However, the unfortunate incident has taken place in the parental house of the deceased. Though the deceased was asked by PWs. 1 to 3 to accompany them to go to market, she refused to do so as she was suffering from pain in her legs and during that time she committed suicide. All these materials would clearly go to show that the accused did not abet the deceased to commit suicide. So also, as aforementioned, it is not a case of dowry death, inasmuch as there is no harassment by the accused with regard to payment of dowry.

The contention of the defence that the death has occurred on 10.10.2007 itself and the same is suppressed by the Investigating Officer also gets certain support from the postmortem report and the evidence of the doctors. The postmortem report at Ex. P15 consciously omits to note the time of death though a separate and specific column is provided for the same. The doctor who has conducted the postmortem examination has omitted to note the approximate time of the death of the deceased prior to the postmortem examination. However, in the evidence, the doctor-P.W. 20 has deposed that the death must have occurred within about 2 to 40 hours prior to postmortem examination. If really the death had occurred on 11.10.2007 at 6.00 p.m. as alleged by the prosecution, the doctor would have noted that the incident must have occurred within 24 hours of the postmortem examination. It is not in dispute that the postmortem examination is conducted at about 6.00 p.m. on 12.10.2007, which means that the postmortem examination is conducted exactly after about 24 hours of the death. The aforementioned facts also create sufficient doubt in the case of the prosecution with regard to suppression of material fact.

Be that as it may, without standing on technicality, we are of the clear opinion that the prosecution has not proved its case beyond reasonable doubt. We find that the trial Court has assigned valid reasons for coming to the conclusion. Since the view taken by the trial Court is one of the possible views under the facts and circumstances of the case, no interference is called for.

Hence, appeal fails and accordingly the same stands dismissed.