Full Judgment
R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF NOVEMBER, 2021 PRESENT THE HON’BLE MR.JUSTICE K.SOMASHEKAR AND THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR CRIMINAL APPEAL No.1669 OF 2016 BETWEEN: State of Karnataka By Mysore South Police Station Mysore District, Mysore Rep. by State Public Prosecutor High Court Building Bengaluru - 560 001. ...Appellant (By Smt. K.P. Yashodha - HCGP) AND:
1. Shivakumar S/o. Channabasava Shetty @ Basavashetty Aged about 35 years 2. Mahadevamma W/o. Channabasava Shetty @ Basavashetty Aged about 53 years 2 3. Basavashetty @ Channabasava Shetty Aged about 67 years All are R/o Madakalli Village Mysore Taluk - 570 001. ...Respondents (By Sri. Manjegowda B.V - Advocate for Sri. K.A. Chandrashekara - Advocate for R-1 to R-3) This Criminal Appeal filed under Sec.378(1) and (3) of Criminal Procedure Code, by the Advocate for the appellant praying to set aside judgment and order dated 27.02.2016 passed by V-Addl. District and Sessions Judge at Mysuru in S.C.No.305/2013 acquitting the Respondents / accused for the offence punishable under Sections 498(A), 304(B) r/w 34 of IPC and Sec. 3, 4 and 6 of Dowry Prohibition Act. This criminal appeal coming on for hearing through video conference this day, K. SOMASHEKAR J., delivered the following:
JUDGMENT
This appeal is directed against the judgment and order of acquittal rendered by the Court of V-Addl.District and Sessions Judge, Mysuru in S.C.No.305/2013 dated 27.02.2016 and whereby acquitted the accused for the offence punishable under Section 498-A and 304-B r/w 34 and so also, Sections 3 3, 4 and 6 of the Dowry Prohibition Act, 1961. Whereas under this appeal the appellant / State is seeking to set aside the acquittal judgment rendered by the trial Court and consequently to convict the accused for the aforesaid offences amongst various grounds urged therein.
2. The factual matrix of the appeal are as under: It is transpired in the case of the prosecution that on 27.05.2009 the marriage of accused No.1 - Shiva Kumar was performed with deceased Roopa at Srikanteshwar Kalyan Mantap in Mysore, as per their customs. Prior to the marriage accused Nos.2 and 3 had demanded Rs.30,000/- cash and gold ring weighing 5 gms. The complainant had given Rs.30,000/- cash to accused No.3 and gold finger ring weighing 5 gms to the bridegroom who is arraigned as accused No.1 in terms of dowry. Subsequent to her marriage the deceased had been to her husband’s house wherein accused No.1 was 4 addicted to consuming alcohol and in a drunken state of affairs was subjecting her to both physical and mental harassment by insisting her to bring additional dowry from her parents house. In pursuance of the demand made by him CW.1 gave Rs.40,000/- as additional dowry in the last week of March, 2012. Despite of it accused No.1 Shivakumar again developed habit of consuming alcohol and in a drunken state of affairs, he demanded more money by saying that he has borrowed heavy loan and he has to repay the same and assaulted her during whole night and further on 08.07.2012 during the night hours, accused Nos.1 and 2 made some altercation with deceased Roopa and the said fact was disclosed by her to CW.1 who is her father. Due to the mental and physical harassment given by accused No.1 who is none other than her husband and so also, by the other accused, panchayath was constituted on 12.07.2012 in the presence of elderly persons that is PWs.1, 3, 5 and 9, wherein 5 accused Nos.1 to 3 were advised not to extend any ill- treatment to deceased Roopa. Despite of the advise made by the elderly persons, accused Nos.1 to 3 subjected deceased Roopa to cruelty both mentally and physically. It is further stated that on 18.07.2012 at about 6.30 p.m. when CW.1 called Roopa on her mobile phone No.8693933684 she informed that she could not able to tolerate the ill-treatment extended by accused Nos.1 and 2 and being enraged by this accused No.2 quarreled with deceased Roopa and when the deceased tried to call CW.1 through mobile phone, accused No.1 snatched the mobile phone from her hand and threw it. As such the deceased being disgusted in life went to the room and committed suicide by hanging with means of her saree between 5.30 a.m. to 7.00 a.m. In pursuance of the act of the accused, on filing of the complaint by the complainant, criminal law was set into motion by registering the case in Crime No.271/2012 for the offences under the Indian Penal Code and so also for the 6 offences under the Dowry Prohibition Act, 1961, as reflected in FIR.
3. Subsequent to registration of the crime by the police having jurisdiction, the investigation was done by Investigating Officer thoroughly and charge sheet was laid against the accused persons for the aforesaid offences before the Court having jurisdiction. The case was committed by the committal Court by passing an order and thereafter the accused had faced trial before the trial Court in S.C.No.305/2013. The charges were framed against the accused and the accused refuted the charges and claimed to be tried. Accordingly, plea has been recorded separately.
4. Subsequent to framing of charge by the trial Court against the accused in the aforesaid sessions case the prosecution to prove the guilt of the accused in all subjected to examine PWs.1 to 29 and got marked several documents at Exs.P1 to P51 and so also, got 7 marked MO.1 and 2. Subsequent to closure of the evidence on the part of the prosecution that the incriminating evidence appeared against the accused has been subjected to record, whereby the accused denied the truth of the prosecution evidence adduced so far. But they did not come forward to adduce any defence evidence as contemplated under Section 233 of Cr.P.C.
5. Subsequent to closure of evidence on both side of the prosecution and the defence, the trial Court after hearing the arguments advanced by the prosecution and the counter arguments advanced by the defence counsel and on evaluation of oral and documentary evidence and on close scrutiny of the evidence of the prosecution, arrived at a conclusion that the prosecution did not facilitate worthwhile evidence and consequently, acquitted the accused for the aforesaid offences which were leveled against them. It is this 8 judgment of acquittal rendered by the trial Court which has been challenged under this appeal by urging various grounds.
6. It is contended by learned HCGP for State that the trial Court has failed to appreciate the evidence of PWs.3, 4, 5 and 7 whereby these witnesses have categorically stated in their evidence that at the time of marriage of deceased Roopa with accused No.1 as per the marriage talks held among the members on the part of bride and also the bridegroom, that accused Nos.2 and 3 had demanded dowry of Rs.30,000/- and gold finger ring weighing 5 gms. Subsequent to the marriage, the deceased had been to the house of her husband and her husband accused No.1 was coming to the house in a drunken state of affairs and subjected her to both physical and mental harassment by demanding her to bring additional dowry from her parents. In pursuance of the demand made by him, CW.1 being the father of 9 deceased - Roopa had provided additional dowry of Rs.40,000/-. But the Court below instead of appreciating the evidence of PWs.3, 4, 5 and 7 passed the impugned judgment acquitting the accused persons of the charges leveled against them. The prosecution has established the guilt against the accused by facilitating worthwhile evidence and also relevant circumstances against the accused for forming chain of circumstances leading to conclusion that the accused are responsible for the cause of death of deceased - Roopa. Therefore, under this appeal it requires for consideration of the evidence of these witnesses, if not considered, there shall be miscarriage of justice.
7. It is further contended that PW.24 being the Asst.Director of FSL and so also, PW.28 were subjected to examine, but their evidence has not been properly appreciated by the trial Court. But the documentary evidence at Exs.P28 to P.35 are important piece of 10 materials on the part of the prosecution and vital in nature and more so, PW.24 has given his opinion about the handwriting of deceased Roopa in the death note marked at Ex.P.28 by comparing the same with the admitting writings of deceased - Roopa marked as per Ex.Ps.30 and 31 and has given his report and opinion as per Exs.P32 and 33. Therefore, the evidence of PW.24 is corroborated by the evidence of PW.28 who is the investigating officer and who laid the charge sheet against the accused who caused the death of deceased Roopa and also extended physical as well as mental harassment by insisting her to bring additional dowry from her parents house. This important evidence has not been appreciated by the trial Court in a proper perspective manner.
8. Further it is contended that the Court below has failed to appreciate the fact that PW.24 was not subjected to examine on the defence side with regard to 11 admitted writing as not belonging to deceased Roopa. However, the trial Court held that the prosecution has failed to prove that all those admitted and disputed writings are that of deceased Roopa. Therefore, the said approach of the Court below is not just and proper and the same is liable to be set-aside.
9. It is also contended that the judgment of the Apex Court reported in 2015 AIR (Criminal) 201 wherein it is held that “dying declaration cannot be doubted and it alone can form the basis of conviction.” But in the instant case, deceased - Roopa has made some writings and her admitted and disputed writings have been subjected to examination by the handwriting experts and opinion report has been issued. But the same has not been properly scrutinized and also not properly evaluated by the trial Court. Further, the trial Court has manifestly and erroneously has come to the conclusion by misreading the material evidence 12 facilitated by the prosecution. Therefore, under this appeal it requires for re-evaluating the evidence and it requires for intervention of this Court.
10. It is further contended that if the death of the deceased has taken place within 7 years from the date of marriage, the presumption is that the death has occurred due to dowry harassment made by the accused persons. But the trial Court has failed to appreciate the said fact by misreading the evidence and so also, misdirected the evidence facilitated by the prosecution. Therefore, under this appeal it requires for intervention as where the prosecution has adduced evidence relating to proving of the facts under Section 498-A relating to physical as well mental harassment given by the accused persons to the deceased and so also, caused her death within a span of 7 years from the date of marriage and more so, the accused insisted to bring additional dowry in terms of money from her 13 parents’ house. On all these premises learned HCGP is seeking for consideration of the grounds urged in this appeal and set-aside the impugned judgment of acquittal rendered by the trial Court in S.C.No.305/2013 dated 27.02.2016.
11. On the other hand, learned counsel for the respondent/accused has taken us through the evidence of PW.1 - Mahadevamma @ Madhu who is none other than the sister of deceased - Roopa, PW.2 - Basammanni is the mother of deceased - Roopa and through them Exs.P1, P2, P3, P4 and P5, P6, P7 and P8 were got marked and they have spoken about their evidence relating to the aforesaid exhibited materials. But there some contradictions and inconsistencies in their evidence and the same has been appreciated by the trial Court relating to each one of the offence that is physical as well as mental harassment extended by the accused and also by insisting to bring additional dowry 14 from her parents house and lost her breath within a span of 7 years from the date of marriage by hanging in her husband’s house.
12. PW.3 - Mahadevasetty, PW.4 - Basavaraju, PW.5 - Rangasetty @ Sutturu Rangappa, PW.6 - Madappa, PW.7 - Mahadevasetty, S/o Kivudasetty, PW.8 - Mahadevasetty, S/o Nanjasetty are the persons who participated in marriage talks and Exs.P9, P10, P11, P12, P13, P14 were got marked. PW.9 - Basavaraju is none other than the brother of accused No.1 who had participated in the marriage talks and this witness was subjected to examination on the part of prosecution and Ex.P15 was got marked. But these witnesses did not supported the case of the prosecution that the accused persons have given physical as well as mental harassment and made her to commit suicide by hanging with means of saree to her neck in the house of her husband being not tolerated by the harassment 15 extended to her. There are omissions and commissions and so also, there are contradictions and inconsistencies noticed in their evidence. The trial court has properly appreciated the evidence of these witnesses and had come to right conclusion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. Therefore, the accused persons were rightly acquitted by the trial Court for the aforesaid offences.
13. It is further contended that PW.10 - Roopa who is the wife of PW.9 - Basavaraju, brother of accused No.1 who had also participated in the marriage talk. PW.11 - Chikkamadappa, PW.12 -Siddanayaka, PW.13 - Gowramma and PW.15 - Nagamma had participated in the marriage negotiations. Exs.P17, P18, P19 and P20 were got marked on their behalf. But they did not withstood the version of their statements which was recorded by the investigating officer during the 16 course of investigation. This evidence has also been appreciated by the trial Court in a proper perspective manner. Therefore, it does not arise for re-visiting in this appeal as according to the contention taken by the learned HCGP for State whereby the trial Court has appreciated entire evidence of those witnesses inclusive of exhibited documents. On this ground alone, the appeal is liable dismissed as being devoid of merits.
14. It is further contended that PW.16 - Siddaraju and PW.17 - Hebbalegowda are the panch witness to Ex.P5 - inquest mahazar. PW.18 - Ningaraju and PW.19 - Shambanna are the panch witness to Ex.P21 - mahazar under which Exs.P28 to 31 were sealed and forwarded to FSL for subjecting to examination. These witnesses were secured by the investigating officer during the course of investigation and drew the mahazar at Ex.P21 in their presence and their evidence was also appreciated by the trial Court inclusive of 17 other material witnesses facilitated by the prosecution. But no worthwhile evidence has been facilitated by the prosecution for convicting the accused for the offence under Section 498-A for having extended physical as well as mental harassment to the deceased and so also drew her to suicidal death by hanging with means of saree in the house of her husband’s house within a span of 7 years from the date of her marriage by insisting her to bring additional dowry in terms of cash from her parents house.
15. PW.20 being the Doctor who conducted autopsy over the dead body of deceased - Roopa and issued report as per Exs.P22, 23, 24, 25 and 26. PW.21 - Beeregowda who was secured to act as panch witness to Ex.P7 - mahazar and also drew mahazar at Ex.P28. PW.22 - Chikkaboregowda is the PDO who issued demand register extract as per Ex.P27. PW.23 - Manjula who conducted the inquest over the dead body 18 as per Ex.P5. PW.24 - Dr.V.Aravind is the FSL Officer who gave opinion on Exs.P28 to 31. PW.25 - Satish is the police constable who had taken photographs of the deceased and apprehended Accused Nos.2 and 3. PW.26 - Kumuda is the woman police constable is the carrier of FIR and submitted the same to the jurisdictional Court. PW.27 - Girish is the scribe of Exs.P1, 7, 21 and 47. PW.28 - Siddappa is the Deputy Superintendent of Police who submitted the charge sheet after completion of investigation. PW.29 is the investigating officer in part. All these witnesses have been subjected to examination on the part of prosecution.
16. Ex.P1 is the mahazar, Exs.P29 and 31 - note books two in numbers and Ex.P30 - Diary were seized from the parental home of the deceased. But there are some discrepancies relating to the signature and the writing of the deceased in those note books two in numbers and also the diary wherein it is specifically 19 stated that she inclusive of her parents suffered physical and mental harassment extended by the accused. On all these premises, learned counsel for respondent/accused specifically taken a contention that though the prosecution has subjected to examine several witnesses as PWs.1 to 29 and even got marked several documents as per Exs.P1 to P51 inclusive of M.Os.1 and2, but the prosecution did not facilitate worthwhile evidence to prove the guilt of the accused beyond all reasonable doubt and more so, the trial Court has appreciated the entire evidence in a proper perspective manner by keeping in view the averments made in the complaint. Even the averments at Ex.P1, seizure mahazar and also Ex.P7, spot mahazar inclusive of Ex.P29, note book, and writing portion marked at Exs.P29(a)(b)(c) and Ex.P30, Diary and Exs.P30(a)(b)(c)(d) portion of writings. But nothing worthwhile evidence has been facilitated by the prosecution and the same has been observed by the 20 trial Court and rightly come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, under this appeal, it does not arise for intervention as sought for. Therefore, the appeal be dismissed as devoid of merits.
17. It is in this context of the contention as taken by learned HCGP for State by referring to so much of evidence and so also, materials which have been got marked and so also, the counter arguments advanced by learned counsel for respondents / accused relating to death of deceased - Roopa by insisting her to bring additional dowry from her parents house, CW.1 - Mahadevashetty is the father of the deceased and he died during the course of trial. PW.2 - Basammanni, mother of deceased, PW.1 Mahadevamma @ Madhu, sister of the deceased have been subjected to examination inclusive of evidence of PWs.1 to 19. But 21 as per the evidence of these witnesses and also their cross-examination done by the defense counsel that the marriage of deceased - Roopa was performed with accused No.1 - Shivakumar on 27.05.2009 as per the customs prevailed in their society at Srikanteshwar Kalyan Mantap in Mysore. There is no dispute that subsequent to the marriage, she has been to her husband’s house and lead marital life. But the allegation made against her husband Shivakumar is that he was addicted to bad vices by consuming Alcohal and due to the intoxication he insisted her to bring additional dowry from her parent’s house. When she had informed her parents about the harassment meted out by her, CW.1 had given sum of Rs.40,000/- as additional dowry. Despite of it, accused No.1 - Shivakumar did not come out of the bad vices of consuming alcohol. Thereafter, panchayath was constituted wherein accused Nos.1 to 3 were advised not to ill-treat deceased Roopa. Inspite of it accused 22 subjected her to mental and physical harassment due to which she committed suicide by hanging in her husband’s house with means of saree. This is the genesis of the theory set up by the prosecution that the accused are cause for the death of deceased.
18. PW.2 - Basammanni is none other than mother of deceased and she did not speak about her daughter that she briefed about looking after in her husband’s house as well as parents. Accused No.1 - Shivakumar was addicted to consuming alcohol and also had habit of smoking and her daughter was not happy with her. But her daughter - Roopa did not narrated before her relating to the harassment meted out by her husband and also his parents. She did not spell about the panchayath held by securing elderly persons. This witness has been treated as hostile and even though subjected to cross-examination by the prosecution, but nothing worthwhile has been elicited to 23 believe the evidence of this witness on the part of the prosecution that the accused had given physical as well mental harassment to her and caused the death of deceased.
19. PW.1 - Mahadevamma @ Madhu is none other than the sister of deceased - Roopa and PW.2 - Basammani is the mother of the deceased. They have spoken about the marriage talks held in the house of bridegroom. They did not participated in the marriage talk and they do not know the details of marriage negotiation held in the house of accused No.1 but this PW.1 turned hostile and thereafter was subjected to cross-examination by the prosecution, but nothing worthwhile was elicited. This witness did not supported the case of prosecution relating to the physical and mental harassment given by the accused persons by insisting her to bring additional dowry from her parents house and similarly, they did not speak about accused 24 Nos.2 and 3 who are parents of accused No.1 - Shivakumar that deceased - Roopa informed to them and also narrated them that they had also given harassment to them subjectively in terms of physical and mental harassment. Ex.P1 is the seizure mahazar conducted by the investigating officer and they do not know the contents of the same and nothing worthwhile has been elicited relating to the fulcrum of facts in mahazar and also denied the contents of Ex.P4, further statement also.
20. The prosecution has subjected to examine PWs.3 to 15 and they did not withstood their statements as per Exs.P9 to 20 and more so, PW.2 also did not supported the case of the prosecution and her further statement has been got marked at Ex.P8.
21. PW.28 is the investigating officer who laid the charge sheet against the accused by drawing the mahazar at Ex.P1. PW.29 is the investigating officer in 25 part. But the aforesaid witnesses did not support the case of prosecution to any extent and more so, they have given a goby to the version of their statements as per Exs.P9 to P20. Their evidence has been minutely considered by the trial Court.
22. PW.23 is a responsible Taluka Executive Magistrate who conducted the inquest over the dead body as per Ex.P5 as where the deceased committed suicide by hanging in her husband’s house within a span of 7 years from the date of marriage. Though this witness has stated in her evidence relating to conducting of inquest over the dead body of the deceased as per Ex.P5, but her evidence did not support the case of the prosecution even by PW.1 who is the sister of deceased and PW.2 - Basammanni who is the mother of deceased.
23. PW.16 - Siddaraju has stated in his evidence specifically that he has been to K.R.Hospital to seek the 26 dead body of deceased - Roopa and by that time signature has been secured over Ex.P5. But he does not know the reason as to why she committed suicide in the house of her husband. He has specifically stated that he do not know the contents in Ex.P5 and even the police did not read over the contents to him.
24. PW.17 - Hebbalegowda has subscribed his signature at Ex.P5 nearby the mortuary near Mysore Medical College during the inquest held over the dead body. But he do not know whether any injuries are found over the dead body and also he do not know specifically for what reasons the deceased committed suicide with means of M.O.1 in the house of her husband. In the presence of PWs.16 and 17 the inquest was held over the dead body by PW.23 being the Taluka Executive Magistrate and even in the presence of PW.2 - Basammanni. But they did not support the case of the prosecution and their evidence has been minutely 27 considered by the trial Court in the impugned judgment of acquittal.
25. PW.20 is the Doctor who conducted autopsy over the dead body and issued PM report as per Ex.P23 and he has stated only about conducting post mortem report over the dead body and given the opinion relating to the death due to hanging and also had been subjected to examine M.O.1 piece of saree which was used for committing suicide by deceased - Roopa. This evidence relating to Ex.P23, Post mortem report relating to conducting the autopsy over dead body, but there is no corroboration of independent witnesses on the part of the prosecution.
26. PW.21, Beeregowda was secured to act as panch witness relating to spot mahazar at Ex.P7 under which Ex.P28 was seized. He has specifically stated in his evidence that he do not know the contents in the mahazar and this witness has turned hostile and 28 thereafter nothing worthwhile has been elicited by the prosecution and he has denied the suggestion made specifically during the time of drawing spot mahazar at Ex.P7, piece of saree, death note and broken latches were seized. But this witness was treated hostile and nothing worthwhile has been elicited even after subjecting to cross-examination by the prosecution. Therefore, there is no assistance for the prosecution and the trial court has appreciated the evidence relating to note books two in numbers as per Ex.P29 and 31 and Ex.30, Diary relating to the writings made by the deceased. But there is no supportive evidence on the part of the prosecution to prove that the writings made by deceased - Roopa was of her. But there shall be some variations relating to the signature and also writings.
27. PW.29 is the Police Inspector who has stated that CW.1 - Mahadevashetty had come to the police 29 station at around 1.00 p.m. and gave complaint as per Ex.P6 and based upon his complaint, criminal law was set into motion by recording the FIR by registering the case in Crime No.271/2012 for the offences punishable under Sections 498-A, 304-B, 302 r/w 34 of IPC. The FIR is marked at Ex.P51. But the offences are serious in nature and also death occurred within a span of 7 years from the date of marriage. Therefore, investigation has been handed over to PW.28 and thereafter investigation has been done by PW.28 and charge sheet has been laid against the accused persons. He has specifically stated in his evidence that he drew the spot mahazar as per Ex.P7 in the presence of panch witnesses and so also seized note books, calendar in all three which contains the hand writings of deceased - Roopa and they have been subjected to examination by handwriting experts to ascertain whether the hand writings in those documents is of the deceased or not. Though the aforesaid note books two in numbers are 30 marked as Exs.P29 and 31 and Diary as per Ex.P30 containing the writings of deceased including the note book at Ex.P31 and disputed writings at Ex.P31(a), S1 to 25 but the evidence of PW.29 has not been corroborated with any of the independent witnesses. These materials have been seized in the presence of panch witnesses but does not find place the signature of CW.1 - complainant. But on a close scrutiny of Exs.P28 to 31 note books and calendar with bare eyes, it is found that there is some natural variation of admitted as well as disputed writings of the deceased. Even though the writings is made by deceased- Roopa, but the domain it is vested with the prosecution to establish the guilt of the accused beyond all reasonable doubt and it is also the responsibility of the prosecution to prove that it is the signature of deceased Roopa and the writings are made by her. Therefore, the writings made at Exs.P28 to 31 create some doubt as there are some variations and the same has been appreciated by the 31 trial Court by testing the veracity of the entire evidence which has been facilitated by the prosecution. Even at a close scrutiny of the entire evidence, it is seen that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt by providing worthwhile evidence. Therefore, the grounds which are urged in this appeal by the State by challenging the acquittal judgment rendered by the trial Court and even re-evaluation of the evidence put forth by the prosecution does not hold any substance and also does not have any bone of contention. The domain is vested with the prosecution to prove the guilt by facilitating positive, corroborative and consistent evidence to probabalise that the accused persons caused death of deceased. But in the instant case, the prosecution has failed to prove the guilt of the accused and the same has been appreciated by the trial Court. Therefore, it does not arise for call for interference and no warranting circumstances would arise as contended by the 32 prosecution for interference. Therefore, in view of the aforesaid reasons we are of the opinion that this appeal deserves to be rejected being devoid of merits. Accordingly, we proceed to pass the following: ORDER
The appeal filed by the State under Section 378(1) and (3) of Cr.P.C. is hereby rejected. Consequently, the acquittal judgment rendered by the trial Court in S.C.No.305/2013 dated 27.02.2016 is hereby confirmed. The bail bonds if any, executed by the accused shall stands cancelled. Sd/- JUDGE Sd/- JUDGE DKB