Ananda Niaka Vs State

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:23/24.11.11 PASSED BY THE V ADDL. S.J., MYSORE IN S.C.NO.105/06 - CONVICTING THE APPELLANTS/ACCUSED NO.1 FOR THE OFFENCE P/U/S 3 AND 4 OF D.P. ACT AND SEC.498A AND 304B OF IPC; AND APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 4 OF D.P. ACT

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AND SEC.498A OF IPC; AND THE APPELLANTS/ACCUSED NOS.1 AND 2 ARE SENTENCED TO UNDERGO IMPRISONMENT FOR 6 MONTHS AND TO PAY A FINE OF RS.2,000/- EACH AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE P/U/S 4 OF D.P. AC; AND THE APPELLANTS/ACCUSED NOS.1 AND 2 ARE SENTENCED TO UNDERGO IMPRISONMENT FOR ONE YEAR 6 MONTHS FOR THE OFFENCE P/U/S 498(A) IPC AND TO PAY A FINE OF RS.3000/- AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO IMPRISONMENT FOR 3 MONTHS FOR THE OFFENCE P/U/S 498(A) OF IPC; AND THE APPELLANT NO.1/ACCUSED NO.1 IS SENTENCED TO UNDERGO IMPRISONMENT FOR 5 YEARS AND TO PAY A FINE OF RS.15,000/- FOR THE OFFENCE P/U/S 3 OF DP ACT AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO IMPRISONMENT FOR 6 MONTHS; AND THE APPELLANT NO.1/ACCUSED NO.1 IS SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 7 YEARS AND TO PAY A FINE OF RS.5,000/- FOR THE OFFENCE P/U/S 304(B) OF IPC AND IN DEFAULT OF PAYMENT OF FINE, TO UNDERGO S.I. FOR 9 MONTHS; THE SENTENCES OF IMPRISONMENT IMPOSED ON ACCUSED NO.1 AND ACCUSED NO.2 TO RUN CONCURRENTLY.

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THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellants being accused Nos.1 and 2 in SC No.105 of 2006 on the file of the learned V Additional District and Sessions Judge, Mysuru, are impugning the judgment of

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conviction dated 23.11.2011 and order of sentence dated 24.11.2011, convicting accused No.1 for the offences punishable under Sections 498-A and 304-B of IPC and under Sections 3 and 4 of DP Act; convicting accused No.2 for the offences punishable under Sections 498-A of IPC and Section 4 of DP Act and sentencing accused No.1 to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.5,000/- for the offence punishable under Section 304-B of IPC; to undergo imprisonment for a period of 5 years and to pay fine of Rs.15,000/- for the offence punishable under Section 3 of DP Act; accused Nos.1 and 2 are sentenced to undergo imprisonment for a period of 6 months and to pay fine of Rs.2,000/- each for the offence punishable under Section 4 of DP Act and are sentenced to undergo imprisonment for a period of 6 months and to pay fine of Rs.3,000/- each for the offence punishable under Section 498-A of IPC, with default sentences, while acquitting them for the offences punishable under Sections 302 and 306 read with Section 34 of IPC and under Section 6 of DP Act and accused No.2 is also acquitted for the offence punishable under Section 304-B of IPC and under Section 3 of DP Act.

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Brief facts of the case of prosecution is that, accused No.1 married the deceased Lakshmishree on 30.04.2004. At the time of marriage talks, accused Nos.1 and 2 demanded dowry of Rs.4,00,000/-, 250 grams of gold and a Hero Honda motorcycle. Accused No.1 had received Rs.7,000/for the purpose of purchasing clothes. He also received 40 grams of gold ornaments. After marriage, the deceased started residing with accused Nos.1 and 2 at Udboor village. After sometime, accused No.1 shifted his residence to Mahadevapura at Mysuru along with deceased Lakshmishree and started residing in a rented house. It is also stated that still accused Nos.1 and 2 were demanding additional dowry and used to illtreat the deceased.

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It is the contention of the prosecution that on 24.11.2005 at 7.00 p.m., the deceased unable to tolerate the ill-treatment meted to her, poured kerosene on herself and set fire. After the incident, she was shifted to JSS hospital by accused No.1 where she succumbed to the injuries on 26.11.2005. Therefore, it is stated that accused No.1 being the husband, accused No.2 being the mother-in-law demanded dowry, treated the deceased with cruelty and caused dowry

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death punishable under Sections 498-A, 304-B of IPC and under Sections 3, 4 and 6 of DP Act.

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Learned Magistrate took cognizance of the offences and committed the matter to the Sessions Court. The accused have appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 25, got marked Exs.P1 to P42 and identified MOs.1 to 4. The accused denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C., but not led any evidence in support of their defence, but, however, got marked Exs.D1 to D12 during cross examination of the prosecution witnesses. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of accused No.1 for the offences under Sections 498-A and 304-B of IPC and under Sections 3 and 4 of DP Act. It also formed an opinion that accused No.2 has committed the offence punishable under Section 498-A of IPC and Section 4 of DP Act, while acquitting her for the other offences and sentenced both the accused as stated above. Being aggrieved by the same, the accused are before this Court.

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Heard Sri Yashwanth Nethaji N T, learned counsel for the appellants and Sri Harish Ganapathy, learned High Court Government Pleader for the respondent - State. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellants have made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court and to acquit them for the charges leveled against them?"

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My answer to the above point is in ‘partly in the affirmative’ for the following:

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R E A S O N S

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The accused married the deceased on 30.04.2004

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and she sustained burn injuries on 24.11.2005. She was shifted to JSS Hospital where she died on 26.11.2005. Accused No.1 is

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the husband and accused No.2 is the mother-in-law of the deceased. These facts are not in dispute. PW1 is the doctor who conducted postmortem examination of the dead body and

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issued postmortem report as per Ex.P1. As per this document, the deceased had sustained 85 to 90% of burn injuries, all over the body, except on both lower limbs, below the knee joint. As per the opinion expressed by PW1, death was due to antemortem burns sustained.

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PW2 is the casualty Medical Officer of JSS Hospital, Mysuru, who first examined the injured on the date of incident when she was brought to the hospital at 8.45 p.m. by accused No.1. Witness speaks about Ex.P4 wound certificate which describes the burn injuries. Ex.P35 is the statement of PW2 and Ex.P36 is the MLC intimation issued by PW2. This witness states that the injured was conscious, she was responding to the questions put to her and the history of burn injuries was given by the injured herself. As per the history found in Ex.P4, the patient had informed PW2 that while heating water in kadai in the bathroom to take bath and while putting kerosene from stove to lit the fire wood, suddenly she caught fire and sustained burn injuries.

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It is the contention of learned counsel for the appellant that at the earliest point of time, the deceased had given history that she sustained burn injuries accidentally and it

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was not the injuries sustained by her by the act of either accused No.1 or accused No.2. But the fact remains that the deceased had married accused No.1 on 30.04.2004 and the incident had occurred on 24.11.2005, but within about 18 months after her marriage. This history given by the patient was about 8.45 p.m. and the incident had occurred at 7.00 p.m. It is pertinent to note that the injured was brought to the hospital by her husband -accused No.1.

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PW3 is the father, PW4 is the mother, PW5 is the brother, PW6 is the grand mother of the deceased. PW7 is the elder sister to PW4. PW8 is the relative and PW9 is the neighbor of PW3. The relatives of deceased i.e., father, mother, brother, sister and grand mother have consistently deposed that accused No.1 was ill-treating the deceased by demanding dowry. PWs.5 to 7 have categorically stated that about a day before the incident, PW5 had gone to the house of the deceased and in his presence, accused No.1 had conducted himself very rudely by demanding dowry. PWs.6 and 7 have stated that they had been to the house of the deceased on the date of incident itself and the deceased had informed PW7

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being her elder sister regarding the ill-treatment meted to her by accused No.1.

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Even though learned counsel for the appellant contends that evidence of these witnesses cannot be believed since there are inconsistencies, the said inconsistencies highlighted by the learned counsel are only with regard to the date and time referred to by the witnesses regarding the incident and also regarding the date and time when they visited the house of the deceased etc., It is pertinent to note that the incident had occurred on 24.11.2005, whereas the witnesses were examined during November, 2009 i.e., after lapse of over 4 years. Under such circumstances, the difference while mentioning date or time by the witnesses cannot go to the root of the matter and it cannot be said as material contradictions to disbelieve the case of the prosecution.

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PW3 is the father of the deceased. He states that the accused has demanded for motorcycle and had obtained loan in his name and purchased the motorcycle. However, the accused made him to pay the installments. It is elicited from PW17 - the Manager of the Private Bank, who stated that accused No.1 had availed loan for purchase of motorcycle and

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PW3 - the father of deceased stood as surety for the same. It was PW3 who had issued 24 post dated cheques for repayment of the loan amount and 12 installments were received by encashing the cheques. These facts were never disputed by accused No.1. It is pertinent to note that the loan that was obtained by accused No.1 and PW3 stood as security was on 10.05.2004 i.e., within 10 days of his marriage with the deceased. Admittedly, it was PW3 who was made to pay the installments for the motorcycle.

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Learned counsel for the appellants contended that PW17 has admitted that the accused had made down payment of Rs.16,000/- for purchase of motorcycle. That will not come to the rescue of accused No.1 since admittedly, he made PW3 as surety for the loan and he was compelled to issue 24 post dated cheques within 10 days of marriage of the deceased with accused No.1. When these facts are not in dispute, it will go a long way in proving the contention of the prosecution with regard to the commission of offences.

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When it is proved by the evidence of PWs.3 and 17, immediately after the marriage, accused made PW3 as surety and made him to issue various cheques for repayment of the

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loan for purchase of motorcycle and when PWs.3 to 7 stated that the accused was ill-treating the deceased, soon before the incident, I do not find any reasons to disbelieve their version. PW5 being the brother, PW7 being aunt of the deceased have categorically stated that the deceased had explained her plight in the matrimonial house just a day before the incident and their version remains unchallenged.

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Learned counsel for the appellants placed reliance on the decision of the Hon'ble Apex Court in Rajinder Singh Vs State of Punjab¹ to contend that it is requirement of law to prove the offence under Section 304-B of IPC and soon before the death of the deceased, there must be demand for dowry and resultant cruelty or harassment. In paragraph 9 of the judgment, the Hon'ble Apex Court referred to the ingredients of Section 304-B of IPC, which reads as under:

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"9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be:

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(a) death of a woman must have been caused by any burns or bodily injury or her death

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1 (2015) 6 SCC 477

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must have been occurred otherwise than under normal circumstances;

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(b) such death must have occurred within seven years of her marriage;

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(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

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(d) such cruelty or harassment must be in connection with the demand for dowry."

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By referring to clause (c) and (d) above, learned counsel for the appellants tried to contend that both the cruelty and harassment and demand for dowry should be soon before the death of the deceased, but by no stretch of imagination such interpretation can be given to attract Section 304-B of IPC. It is the settled proposition of law that on proof of the deceased having been subjected to cruelty or harassment soon before her death , will attract section 304B IPC against the husband or his relatives. Ofcourse such cruelty or harassment must be in connection with the demand for dowry. But that does not mean that there must be demand for dowry soon before the death of the deceased.

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The materials on record disclose that immediately after the marriage, the accused managed to get loan making

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PW3-his father-in-law as security and made him to issue several post dated cheques and also to honor those cheques to pay the installments. This is never the contention of the accused that he has paid any installments, except saying that he had made down payment of Rs.16,000/-. Under such circumstances, admittedly, accused No.1 purchased the motorcycle immediately after the marriage which is nothing but dowry receiving by him from PW3-the father of the deceased.

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It is to be noticed that unfortunate incident had occurred within about 1½ years after the marriage of deceased with accused No.1. It is stated that 12 installments were paid towards purchase of motorcycle in the name of accused No.1 by encashing cheques that were issued by PW3 and in the meantime, the present incident had occurred. PW3 in his evidence has stated that two more installments were due when the incident had taken place. When such clinching materials were placed, which remains unchallenged, it can be easily concluded that accused No.1 has demanded and accepted the dowry. When the evidence of PWs.3 to 7 remains unchallenged regarding cruelty meted to the deceased, I am of the opinion that the deceased was subjected to cruelty soon before her

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death in connection with demand for dowry. Therefore, accused No.1 is liable for conviction under Sections 498-A, 304-B of IPC and under Sections 3 and 4 of DP Act.

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Accused No.2 is convicted for the offence punishable under Section 498A and under Section and 4 of DP Act by the Trial Court. The Trial Court has held that soon after the marriage, accused No.1 along with the deceased arranged for separate rented house in Mahadevapura, Mysuru and started residing there. Even according to the Trial Court, accused No.2 was not residing with them and therefore, she was acquitted for the offence punishable under Section 304-B of IPC. When the materials on record disclose that accused No.2 being mother of accused No.1 was residing separately soon after the marriage, I do not find any reason to make her party in commission of offences along with accused No.1.

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It is pertinent to note that even though the Trial Court acquitted accused No.2 for the offence under Section 304-B of IPC and Section 3 of DP Act, the State has not preferred any appeal challenging the same. Considering all these facts and circumstances, I am of the opinion that accused No.2 is entitled for acquittal by extending benefit of doubt.

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Before parting with the matter, I have to place on record the able assistance given by the young advocate Sri N T Yashwanth Netaji, who argued the appeal.

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In view of the above, I answer the above point partly in the affirmative and proceed to pass the following:

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ORDER

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(i) Appeal is allowed in part.

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(ii) The judgment of conviction dated 23.11.2011 and order of sentence dated 24.11.2011 passed in SC No.105 of 2006 on the file of the learned V Additional District and Sessions Judge, Mysuru, for the offences under Sections 304-B and 498-A of IPC and under Sections 3 and 4 of DP Act, insofar it relates to accused No.1 is hereby confirmed.

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(iii) The impugned judgment of conviction and order of sentence passed by the Trial Court insofar it relates to accused No.2 for the offences punishable under Section 498-A of IPC and under Section 4 of DP Act, is hereby set aside.

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(iv) Accused No.2 is acquitted for the offences punishable under Section 498-A of IPC and under Section 4 of DP Act.

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