Judgment:
(Prayer: This Criminal Appeal filed under Section 374(2) of the code of Criminal Procedure, 1973, by the advocate for the appellant praying to set aside the judgment dated 22.6.2009 passed by the Presiding Officer, Fast Track Court-V, Mysore, in S.C.No.90/2008 - convicting the appellant/accused for the offence punishable under Sections 498(A) and 304(B) of IPC and Sections 3 and 4 of the Dowry Prohibition Act and etc;)
1. Heard the learned counsel for the appellant and the learned State Public Prosecutor.
2. The present appeal is filed by Accused No.2, in the following background:
Accused No.1 Lokesh was said to have been married to Poornima as on 1.11.2005. Poornima was the daughter of Nagamma and it is alleged that though Lokesh and Poornima were reasonably happy as a couple for the first four months of their marriage, it is alleged that thereafter there were constant demands for dowry and that Poornima was subjected to both physical and mental torture calling upon her to fetch more dowry from her maternal home. It is alleged that the present appellant who is the mother of Accused No.1, had joined her son in so torturing Poornima. It is also alleged that Lokesh was jobless and therefore, Nagamma had taken the initiative of getting him a job from M/s. GRS Fantacy Park, Mysore, and that he had worked there for about six months and during this period, Lokesh and Poornima had lived with Nagamma in her house. But without any reason, it is alleged that Lokesh again took away Poornima to her matrimonial home and continued to subject her to mental and physical ill-treatment, thereby meting out unbearable cruelty and on 3.4.2007, it is alleged that he had brought Poornima to the Ring Road and had dropped her there and had left saying that she should not return to the matrimonial home without more dowry and had gone away. Poornima in turn, had reached her maternal home and related her plight to her mother, who in turn was proceeding to her other daughter's house at Mandya and it transpires that when she returned on 4.4.2007, she found that her daughter had hung herself and she had died. Thereafter, her maternal uncle Potharaju had reported the matter to the police, who had registered a case as an unnatural death report in UDR No.7/2007 and had transmitted the First Information Report (F.I.R.) to the Court. The inquest having been conducted by the competent authority and since the death had occurred within seven years of marriage, a serious view was taken of the situation and after further investigation, both Lokesh and Gowramma were accused of offences punishable under Sections 498-A and 304-B of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) read with Sections 3 and 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as 'the DP Act', for brevity). After further proceedings, they were charge-sheeted and the matter was committed to the Court of Sessions and charges were framed.
3. The accused having pleaded not guilty and claimed to be tried, the prosecution had tendered evidence through 12 witnesses namely PW-1 to PW-12, apart from producing other material documents. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity), the court below had framed the following points for consideration:
"POINT NO.1: Whether the prosecution proves beyond all reasonable doubt that the accused A2 being the mother-in-law of the deceased Smt. Poornima, along with her deceased son A1, subjected her daughter-in-law Smt. Poornima to cruelty, both physically and mentally prior to 04.04.2007 and thereby the accused A2 along with her deceased son A1 has committed an offence punishable under Section 498-A of I.P.C.?
POINT NO.2: Whether the prosecution further proves beyond all reasonable doubt that on 03.04.2007 the accused A2 along with her deceased son A1 subjected the deceased Smt. Poornima to cruelty and that the accused A1 left his deceased wife Smt. Poornima near the Ring Road on 03.04.2007 and that on 04.04.2007 the deceased Smt. Poornima committed suicide by hanging and that her death has been caused within 7 years of her marriage otherwise than under normal circumstances and soon before her death she was subjected to cruelty in connection with demand for dowry by the accused A2 and her son A1 and thereby the accused A2 along with her deceased son A1 has committed an offence punishable under Section 304-B of I.P.C?
POINT NO.3: Whether the prosecution further proves beyond all reasonable doubt that prior to the marriage of the deceased Smt. Poornima with the accused A1 on 01.11.2005, the accused A2 and her son demanded dowry comprising of Rs.40,000/- in cash and also gold chain from P.W2 Smt. Nagamma and thereby the accused A2 along with her son A1 has committed an offence punishable under Section 4 of Dowry Prohibition Act?
POINT NO.4: Whether the prosecution further proves beyond all reasonable doubt that the accused A2 and her son A1 at the time of marriage had received dowry consisting of Rs.40,000/- in cash and a gold chain from P.W2 Smt. Nagamma and thereby the accused A2 along with her deceased son A1 has committed an offence punishable under Section 3 of Dowry Prohibition Act?
POINT NO:5: To what order?"
The court had answered all the points in the affirmative.
It transpires that even during the trial, Accused No.1 had died and therefore, the court below proceeded to convict and sentence Accused No.2 to rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- for offence punishable under Section 498-A IPC and to a period of ten years for the offence punishable under Section 304-B and also rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- for the offence punishable under Section 3 of the DP Act. She was also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- for the offence punishable under Section 4 of the DP Act.
It is that which is under challenge in the present appeal.
4. The learned counsel for the appellant while taking this Court through the record, would seek to demonstrate that there are no independent witnesses supporting the case of the prosecution. The entire prosecution case rests on the evidence of PWs 2 to 5 who are close relatives of the deceased Poornima and were therefore strongly biased against the accused and with the sole objective of ensuring that they were found guilty of the offence alleged, have tendered evidence, which would not be wholly reliable and hence, the court below having held that the prosecution had established its case beyond all reasonable doubt, is not tenable.
It is further pointed out that the case of the prosecution is to the effect that Accused Nos.1 and 2, namely Lokesh and Gowramma, the present appellant had subjected Poornima to constant and continuous cruelty of such a degree, as had driven her to commit suicide. However, from the evidence of the witnesses, it is clear that none of them had lived along with the deceased and her husband during their matrimonial life. On the other hand, there is positive evidence to demonstrate that Nagamma, the mother of Poornima the deceased, had brought Lokesh Accused No.1 to her own home and had even found him a job, which he held for six months and during that period, he had stayed with his wife Poornima in Nagamma's house and there is no evidence of any ill-treatment during the said period. This would demonstrate that the case of the prosecution that there was constant and continuous cruelty meted out to Poornima, as highly doubtful. Further, it is also on record that for at least four months of their matrimonial life, Lokesh and Poornima lived together relatively harmoniously. Hence, the case of the prosecution would further get diluted to that extent and the mere fact that the death had occurred within seven years of the marriage by itself, would not establish the guilt of the accused. During the 24 months or more of the wedded life of Lokesh and Poornima, the question of continuous and constant cruelty meted out to Poornima, is not forthcoming. The learned counsel would take the court through the evidence of the witnesses, namely PWs 2 to 5 who are the only witnesses who have supported the case of the prosecution. Though the independent witness PW-8 was tendered in support of the case of the prosecution, he was treated as a hostile witness since his evidence did not support the case of the prosecution. It is in this vein that the learned counsel would seek to contend that the reasoning of the court below based on generalities and case laws which had no connection with the facts of the present case, has led to the court taking a serious view and of having convicted the present appellant who in her 50s, to serious punishment extending to 10 years of rigorous imprisonment apart from exorbitant amounts of fine, though it is not demonstrable that she had subjected Poornima to such cruelty, as would have driven her to commit suicide. Therefore, the reason that Poornima having committed suicide remaining vague, it cannot be said that it was on constant demands for dowry and physical and mental cruelty that had driven her to commit suicide. It is further pointed out that apart from the ocular evidence of the witnesses as to demand of dowry having been made in the first instance and cash of Rs.40,000/- apart from gold having been provided as dowry, is not established by tendering any independent evidence or any material documents in support of the same. Hence, the learned counsel would submit that the judgment of the court below has resulted in a gross miscarriage of justice and the same would require to be set at naught.
5. While the learned State Public Prosecutor would vehemently justify the judgment of the court below and would emphasize the presumption that arises when an unnatural death has occurred within seven years of matrimony. Since the prosecution proceeds on a presumption that there is all possibility of cruelty and other harassment and that it was indeed a dowry death, the evidence of PWs 2 to 5 would clinch the case of the prosecution. The suggestion that PWs 2 to 5 were closely related to the deceased and therefore were seeking to secure their conviction by tendering false and misleading evidence, cannot be readily accepted. Insofar as the cruelty meted out to a wife by the husband or to a daughter-in-law by the mother-in-law within the confines of their home, cannot be readily evidenced by independent witnesses and it is the information provided by the deceased time and again to the said witnesses, which alone is available and it cannot be brushed aside as being that of interested witnesses. The witnesses are certainly interested, since they are related in the welfare of Poornima and it is only to them Poornima had access in providing the information which they have related as evidence in support of the case of the prosecution. Therefore, it cannot be trashed merely on the claim of the accused and would have to be given credence and seeks to therefore support the case of the prosecution and the reasoning of the court below.
6. In the light of the above contentions, the definition of 'cruelty' as found under Section 498-A IPC, would require that the cruelty meted out to the deceased wife was of such a degree as would have driven her to commit suicide.
If the sequence of events are taken into account, it is the case of the prosecution that Lokesh and Poornima lived harmonious at least for four months and further that Nagamma, the mother-in-law of Lokesh had procured him a job and that he had brought his wife and had lived along with Nagamma in her house. They had lived together for at least six months. There is no evidence by Nagamma that during the time that Lokesh was living under her roof, that he was constantly subjecting Poornima to cruelty and was making demands for dowry. This is an aspect which appears to have been overlooked by the court below. Insofar as the alleged demand and receipt of cash and jewellery as dowry in the first instance, but from the oral evidence of the witnesses, there is no other material. Consequently, if Lokesh and Poornima were living in their matrimonial home, the witnesses PWs 2 to 5 would not be privy to any ill-treatment meted out to Poornima by Gowramma, the appellant herein, or by Lokesh. It is their claim that Poornima had constantly intimated them of such cruelty and there is also no indication of the said witnesses having taken any initiative to counsel Lokesh and the present appellant as to providing Poornima a better deal and the fact that admittedly there was no continuous and constant cruelty meted out to Poornima for several months, is also not in dispute. Therefore, the degree of cruelty that would necessarily have to be apparent to come to a conclusion that the deceased had been driven to commit suicide, is not present.
The court below having quoted the several decisions in drawing sustenance from propositions laid down therein, cannot be mechanically applied to the present case on hand. Therefore, the fact that the death has occurred within seven years of marriage and that it was an unnatural death, could be attributed to other reasons as well. This aspect cannot be ruled out. The death has not occurred in the matrimonial home of the deceased, but in the home of her mother. There is no other information apart from the allegations made by the witnesses. In the absence of any independent witness supporting the case of the prosecution, it cannot be said that the prosecution had established its case beyond all reasonable doubt.
Consequently, the appeal succeeds and is allowed. The judgment of the court below is set-aside. The accused is acquitted. The fine amount if any paid shall be refunded to the appellant. The bail bond furnished stands cancelled.