Shivappa Gowda S/O. Basavaraja Naik Vs. the State of Karnataka by State Public Prosecutor - Court Judgment

Excerpt:
- code of civil procedure, 1908. section 100:[v. jagannathan, j] remand of case by second appellate court held, directions given by second appellate court cannot be ignored by lower appellate court on the grounds that said directions are without jurisdiction or nullity and non-est in eyes of law. -- section 100: second appeal concurrent findings of fact held, it is not liable to be interfered with even if first appellate court commits an error in recording a finding of fact. -- order 41, rule 23a & section 105(2): appealable order - decree passed by lower appellate court was reversed in appeal and further directions were given to dispose of matter in light of observations made in the order of remand held, appeal can be said to have been disposed of otherwise than on a preliminary point. provisions of rule 23a of order 41 is applicable. order passed pursuant to rule 23a becomes an appealable order. no appeal against remand order having been preferred, party aggrieved is precluded from disputing correctness in view of section 105(2). orderl. narayana swamy, j.1. a complaint has been lodged by the brother of the deceased. hence, a case in crime no. 3/2009 has been registered for an offence punishable, under section 498a, 304b and 306 r/w. 34 ipc. the petitioner submits that he is the only son to his parents and he has got duty to look after them. he further submits that he had married the deceased about 6 years ago and he has got. two children and since from the date of marriage, he was leading happy life with his wife. however, for the reasons unknown, his wife has committed suicide by consuming poison on 12.1.2009 as a result, she died on 13.1.2009. the prosecution has completed the investigation and there is no scope for any tampering of evidence by the petitioner. hence, he prays for enlarging him on bail.2. the learned prosecutor submitted that within 7 years of marriage, death has taken place and that too the deceased died in the residence of petitioner for which, the husband owes duty to reveal the cause of death. the case registered against the petitioner is under sections 498 and 306 ipc and there is also a presumption under section 113 of the evidence act. under these circumstances, the sessions judge has lightly evaluated the case of the petitioner and rejected the same. he further submitted that. at. the time of marriage, accused nos. 1 to 4 have demanded rs. 1.00 lakh as dowry of which only rs. 25,000/- was paid and rs. 75,000/- was due. petitioners were harassing deceased for not fulfilling the dowry. under these circumstances, he prays for dismissal of this petition.3. i have heard the arguments of learned counsel for both parties.4. the learned sessions judge has formulated points and answered the points in favour of the prosecution and rejected the bail application.5. the contention of the prosecution is that the petitioner has made a demand for dowry. since the same has not been complied with, the deceased was being harassed and she was suffering the same for the last 6 years and ultimately she committed suicide by consuming poison for which the petitioner is held responsible.6. the petitioner submitted that marriage has been taken place 6 years ago and if it. is true that they were harassing the deceased, she could have committed suicide at any point of time earlier in that 6 years and there is no nexus between suicide and harassment. he contended that there was no dowry harassment against the deceased. the contention of the petitioner is that investigation is already completed by the prosecution and there is no apprehension of tampering with the witnesses by the petitioner.7. the learned sessions judge has granted the benefit of bail to accused nos. 2 to 4. it is stated that the petitioner is the only bread earning member of his family. his parents are aged about 70 years and 65 years respectively. nothing is beneficial to the prosecution by detaining the accused, since investigation is already completed. in respect of dowry harassment which resulted in death of the wife of petitioner, the same has to he tried before the court and prosecution has to prove before the court. the learned sessions judge has not evaluated the case of the petitioner properly.8. under these circumstances, i pass the following order:petition is allowed. petitioner is enlarged on hail subject to the following condition:petitioner shall execute a bond for a sum of rs. 25,000/- with two sureties for likesum to the satisfaction of the court below.

Judgment:
ORDER

L. Narayana Swamy, J.

1. A complaint has been lodged by the brother of the deceased. Hence, a case in Crime No. 3/2009 has been registered for an offence punishable, Under Section 498A, 304B and 306 r/w. 34 IPC. The petitioner submits that he is the only son to his parents and he has got duty to look after them. He further submits that he had married the deceased about 6 years ago and he has got. two children and since from the date of marriage, he was leading happy life with his wife. However, for the reasons unknown, his wife has committed suicide by consuming poison on 12.1.2009 as a result, she died on 13.1.2009. The prosecution has completed the investigation and there is no scope for any tampering of evidence by the petitioner. Hence, he prays for enlarging him on bail.

2. The learned Prosecutor submitted that within 7 years of marriage, death has taken place and that too the deceased died in the residence of petitioner for which, the husband owes duty to reveal the cause of death. The case registered against the petitioner is under Sections 498 and 306 IPC and there is also a presumption Under Section 113 of the Evidence Act. Under these circumstances, the Sessions Judge has lightly evaluated the case of the petitioner and rejected the same. He further submitted that. at. the time of marriage, accused Nos. 1 to 4 have demanded Rs. 1.00 lakh as dowry of which only Rs. 25,000/- was paid and Rs. 75,000/- was due. Petitioners were harassing deceased for not fulfilling the dowry. Under these circumstances, he prays for dismissal of this petition.

3. I have heard the arguments of learned Counsel for both parties.

4. The learned Sessions Judge has formulated points and answered the points in favour of the prosecution and rejected the bail application.

5. The contention of the prosecution is that the petitioner has made a demand for dowry. Since the same has not been complied with, the deceased was being harassed and she was suffering the same for the last 6 years and ultimately she committed suicide by consuming poison for which the petitioner is held responsible.

6. The petitioner submitted that marriage has been taken place 6 years ago and if it. is true that they were harassing the deceased, she could have committed suicide at any point of time earlier in that 6 years and there is no nexus between suicide and harassment. He contended that there was no dowry harassment against the deceased. The contention of the petitioner is that investigation is already completed by the prosecution and there is no apprehension of tampering with the witnesses by the petitioner.

7. The learned Sessions Judge has granted the benefit of bail to accused Nos. 2 to 4. It is stated that the petitioner is the only bread earning member of his family. His parents are aged about 70 years and 65 years respectively. Nothing is beneficial to the prosecution by detaining the accused, since investigation is already completed. In respect of dowry harassment which resulted in death of the wife of petitioner, the same has to he tried before the court and prosecution has to prove before the court. The learned Sessions Judge has not evaluated the case of the petitioner properly.

8. Under these circumstances, I pass the following Order:

Petition is allowed. Petitioner is enlarged on hail subject to the following condition:

Petitioner shall execute a bond for a sum of Rs. 25,000/- with two sureties for likesum to the satisfaction of the court below.