T.P. Pandurangaiah vs Manjunatha and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal, dated 26.11.2008, passed by the Fast Track Court, Tumkur in SC. No. 154/2005, is called in question by Sri T.P. Pandurangiah (complainant), the father of the deceased, by filing the appeal.

Respondent-husband of the deceased was charged, tried for and acquitted of the offences punishable under Sections 3, 4 and 6 of Dowry Prohibition Act and Sections 498A and 304B of IPC.

Case of the prosecution in brief is that Savitha, aged about 19 years (at the time of incident) is the wife of accused; their marriage was performed two years prior to the incident in question; on 17.8.2004 at 12.00 Noon, Savitha called her mother-PW.25 over phone and invited her for ''Satyanarayana Pooja'' which would be performed in her matrimonial house on the forthcoming Saturday and requested her to come along with some ghee and money; however, at 2.00 p.m. on the very day, i.e., on 17.8.2004, father of the accused called the parents of the deceased and informed them that the deceased has died; immediately after getting such news, the complainant-father of the deceased (PW.23) came to Badavanahalli Village, where the deceased and accused were living and saw the dead body of the deceased; a complaint came to be lodged by PW.23-father of the deceased as per Ex.P19 at 1.30 a.m. on 18.8.2004 before Madhugiri Police Station; PW.16 the Sub-Inspector of Police of Madhugiri Police station registered Crime No. 121/2004 based on Ex.P19; ultimately, the Investigating Officer (PW.35) completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 35 witnesses and got marked 27 Exhibits and 11 Material Objects. On behalf of the defence, two witnesses are examined apart from exhibiting 34 documents. The trial Court, as aforementioned, acquitted the accused by giving benefit of doubt in his favour.

Sri Kempegowda, learned counsel appearing on behalf of the complainant taking us through the material on record submits that the evidence of parents, brothers of the deceased and other independent witnesses is sufficient to bring home guilt against the accused. The material on record amply discloses that the accused demanded dowry at the time of marriage and accepted the same. Even after the marriage, the demand of accused persisted; since the deceased could not bear the ill-treatment of accused as well as the repeated demands by the accused relating to balance amount of dowry, the deceased committed suicide by hanging. He further submits that the Court below is not justified in coming to the conclusion that the prosecution has not proved its case beyond reasonable doubt. According to him, the reasons assigned and the conclusion arrived at by the Court below are improper and incorrect.

Per contra, Sri Murari Mouni, learned counsel appearing on behalf of the accused submits that the appeal is not maintainable; since the impugned judgment is passed prior to 31.12.2009, the date on which Proviso to Section 372 of Cr.P.C. is inserted, the appeal filed by the original complainant is not maintainable. He further submits that the trial Court is justified in acquitting the accused inasmuch as the material on record clearly reveals that the parents of the deceased were not in a position to pay any sort of amount much less in the form of dowry to the accused; the family of the accused was rich and it is highly improbable for the accused, being rich person to ask for small amount of Rs. 10,000/- or Rs. 50,000/- from the parents of the deceased who were in fact under debts; after the death, the parents of the deceased did not allow the accused and his family members to perform the last rites; number of persons from the village of the parents of the deceased gathered in front of the house of the accused and gheraoed all the members of the family of the accused and forcibly extracted the cheque leaves from the father of accused in order to show that there was money transaction between the two families and the father of accused had received a sum of Rs. 3,50,000/- and in order to repay the said amount, cheques were issued by him. He further submits that none of the independent witnesses has supported the case of the prosecution and therefore the trial Court is justified in acquitting the accused.

Impugned judgment is passed on 26.11.2008. Proviso to Section 372 of Cr.P.C. is introduced by virtue of the amendment w.e.f. 31.12.2009. Thus, prior to 31.12.2009, the State could have filed appeal against the order of acquittal. Undisputedly, the State has not filed appeal. Appeal by other persons will not be entertained unless provided under Code of Criminal Procedure. Since the appeal could not have been filed by the original complainant prior to 31.12.2009, in our considered opinion, this appeal may not be maintainable. However, the original complainant had got right to file the Revision Petition under section 397 of Cr.P.C.

Therefore, the appeal can be treated as Revision Petition in order to avoid further delay in the matter. We are conscious of the limited powers of the revisional Court while deciding such matters. Keeping in mind the well settled principles of law, we have proceeded to decide this matter treating it as a Revision Petition.

In the matter on hand, though 35 witnesses are examined, the important witnesses who are from Badavanahalli Village have turned hostile. However, the witnesses from Thimmanahalli Village have supported the case of the prosecution.

PWs.1, 2, 5 to 12, 17, 18, 19, 20, 31 and 34 have turned hostile to the case of the prosecution. Their evidence is of no use either to the defence or to the prosecution.

PW.3 is the photographer who took photographs of the dead body. PW.4 is the witness for inquest panchanama at Ex.P4. PW.13 is the doctor who conducted the postmortem examination; P.M. report is at Ex.P12; the doctor on getting the report from Forensic Science Laboratory has opined that the death has occurred due to asphyxia as a result of hanging. PW.14 is the Village Accountant who issued assessment extract as per Ex.P17 relating to the house wherein the incident has taken place. PW.15 is the Junior Engineer who drew sketch of scene of offence as per Ex.P18. PW.16 is the PSI who registered the crime based on the complaint lodged by PW.23. PW.21 is the Sub-Divisional Magistrate who conducted inquest proceedings; inquest panchanama is at Ex.P.22. PW.22 is the witness for inquest panchanama at Ex.P22. PW.29 is the Inspector who conducted the investigation in part. PW.30 is the Officer of Forensic Science Laboratory who issued the report as per Ex.P13. PW.32 is the witness for seizure of clothes of the deceased in the hospital as per Ex.P4. PW.35 is the Investigating Officer who completed the investigation and laid the charge sheet.

All the aforementioned witnesses are either official witnesses or the witnesses who conducted mahazars. Their evidence is of not much use for deciding the fate of the accused in this case. However, as aforementioned, the doctor has opined that it is a case of unnatural death. The death has occurred due to asphyxia as a result of hanging.

The remaining witnesses are PW.23 (father of the deceased) who lodged the complaint at Ex.P19, PW.24 who speaks about the marriage talks relating to the marriage between the accused and the deceased and PW.25 is the mother of the deceased. PWs.26 and PW.28 are the brothers of the deceased. PW.27 participated in the marriage talks. Thus, PW.23 to 28 are the witnesses, who supported the case of the prosecution by deposing against the accused. All of them are from Thimmanahalli Village, i.e., the village from which the deceased hailed from. All of these witnesses are near relatives of the deceased.

Though PWs.23 to 28 have deposed about the marriage talks, about the demand of dowry by the accused and payment of the same by the parents of the deceased, those factors are not forthcoming in the complaint lodged by the father of the deceased vide Ex.P19. The complaint at Ex.P19 does not whisper about the demand of dowry and payment of dowry at the time of marriage. It merely discloses that the accused used to trouble the deceased frequently and on 17.8.2004, i.e., on the date of the incident at about 12.00 noon, the deceased called them over phone and invited them for attending ''Satyanarayana Pooja'' on the forthcoming Saturday. She requested them to come with ghee and money. There is no whisper with regard to the money asked for by the deceased relating to dowry in the complaint. However, the original complaint at Ex.P19 if perused makes it clear that the words (balance of dowry amount) are inserted subsequently in a different ink and different handwriting. Such interpolation does not bare the signature of the complainant. Hence, it is clear that the Investigating Officer has tried to improve the case of the prosecution from time to time, that too from the very inception. He has tried to interpolate the words "balance of dowry" in the complaint though it was not stated by the complainant in the complaint. However, during the course of investigation, the aforementioned witnesses, namely, PWs.23 to 28 have deposed that a sum of Rs. 10,000/- was paid to the accused for purchase of clothes and Rs. 50,000/- was paid to him towards dowry apart from gold ornaments.

The trial Court has assessed the entire material on record and has rightly concluded that the family of the accused is rich and it is highly improbable on their part to ask for a meager amount of Rs. 10,000/- or Rs. 50,000/- as the case may be, as aforementioned. More over, the amount paid for dresses and certain gold articles such as thali earrings, ring, watch, etc. cannot be fall with the definition of dowry. Such articles are usually provided to bride and bridegroom at the time of marriage.

Firstly, there was no mention about demand of dowry in the complaint or in the initial records prepared by the Investigating Officer. Secondly, the records produced by the defence would clearly reveal that the father of the deceased had got only 10 coconut trees and 40 areca nut trees apart from 1 1/2 acres of dry land. Per contra, the family of the accused was owning more than 20 acres of irrigated land and about 2 1/2 acres of areca nut and coconut garden. The material also reveals and it is also admitted by PW.23 that he was under debt of Rs. 25,000/- at the time of marriage of the deceased. These facts would clearly establish that the parents of the deceased were not financially well off and on the contrary the family of the accused was rich. It is specific defence of the accused that PW.23-father of the deceased himself was addicted to bad habits including playing of matka (gambling) and he used to extract money from his daughter (deceased) frequently. It is also the specific defence of the accused that PW.23 had pledged the gold ornaments of the deceased and in that regard the deceased was depressed inasmuch as such gold ornaments were not returned by her father.

In order to show that the accused had borrowed a sum of Rs. 3,50,000/- from PW.23 and for repayment of the said amount, the accused had issued cheques for Rs. 3,50,000/- to PW.23 (father of the deceased), he has created a make believe story.

It has come in the evidence that on the date of the incident, more than 70 to 80 persons from Thimmanahalli Village came along with PW.23 and gheraoed the house of the accused pressuring the family members of the accused to issue cheque for Rs. 3,50,00/-. Since the father of the accused did not have a cheque book with him, he was threatened and physically taken by the parents of the deceased along with their companions to the bank on 18.8.2004 and got a cheque book by submitting an application and thereafter got two cheque leaves issued from the father of the accused in the name of PW.23. To prove this aspect, DW.2 the bank official is examined. DW.2 has emphatically deposed that number of villagers forced the father of the accused to seek for a cheque book and in their presence the application was submitted by the father of the accused for issuance of a cheque book and consequently the cheque book was issued on the next date of the incident. Out of the said cheque book, two cheque leaves were handed over to PW.23, the father of the deceased for Rs. 3,50,000/-. These facts would clearly reveal that all is not well with the case of the prosecution. PW.23 and his family members wanted to some how harass and threaten the accused and his family members on one pretext or the other. The fact that the Investigating Officer has tried to improve the case from time to time including tampering of the original complaint, would clearly reveal that the prosecution has not come before the Court with clean hands and with true story.

The accused in his statement recorded under Section 313 Cr.P.C. has denied the case of the prosecution. In addition to the same, he has clarified that the deceased committed suicide because of the attitude of PW.23 in pledging the gold ornaments of the deceased to satisfy his bad habits.

Be that as it may, the material on record is not sufficient to bring home guilt against the accused. The prosecution has not only suppressed the real facts, but has tried to create and improve the case against the accused. The trial Court has assessed the entire material in a proper perspective and has come to a right conclusion.

Though it was not open for this Court to reassess the evidence while exercising revision jurisdiction, in order to satisfy our conscious, we have assessed the entire material on record and conclude that the view taken by the trial Court is one of the possible views under the facts and circumstances of the case.

Hence, the revision petition fails and accordingly, the same stands dismissed.