The State of Karnataka Vs Kumar

THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED 09.08.2017 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC AND ETC.

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IN CRL.A NO. 1400/2017

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BETWEEN:

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KUMARA S/O MADAPPA, AGED ABOUT 39 YEARS, R/AT KABBALLI VILLAGE, GUNDLUPETE TALUK, CHAMARAJNAGAR DIST-571 440.

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...APPELLANT

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(BY SRI. JAVEED S.,ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH GUNDLUPETE P.S. CHAMARAJANAGAR DIST. (REPRESENTED BY SPP HIGH COURT OF KARNATAKA) BENGALURU-560 001.

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...RESPONDENT

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(BY SRI. RAJATH SUBRAMANYA, HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 09.08.2017 AND ORDER OF CONVICTION OF SENTENCE DATED 14.08.2017 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN S.C.NO.34/2015 -CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498A AND 304B OF IPC AND SEC. 3 AND 4 D.P. ACT AND ETC.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

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These two appeals arising out of judgment and order dated 09.08.2017 passed in S.C.No.34/2015 on the file of Principal District and Sessions Judge, Chamrajanagar, by which though the accused has been acquitted of the offence punishable under Section 302 of IPC, he has been found guilty for the offence punishable under Sections 498A and 304B of IPC read with Sections 3 and 4 of the Dowry Prohibition Act, 1961 and sentenced;

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(i) to undergo imprisonment for a period one year and to pay fine of Rs.500/- for the offence punishable under

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Section 498A of IPC and in default of payment of fine to undergo simple imprisonment for a period of one month;

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(ii) to undergo simple imprisonment for 7 years for the offence punishable under Section 304B of IPC and to pay fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment of 15 days;

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(iii) to undergo simple imprisonment for 5 years and to pay fine of Rs.15,000/- for the offence punishable under Section 3 of Dowry Prohibition Act and in default of payment of fine, to undergo simple imprisonment for 2 months;

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(iv) to undergo simple imprisonment for 6 months and to pay fine of Rs.500/- for the offence punishable under Section 4 of Dowry Prohibition Act and in default of payment of fine, to undergo simple imprisonment for 8 days.

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Crl.A.No.90/2018 is filed by the State to the extent, acquitting the accused for the offence punishable under Section 302 of IPC while Crl.A.No.1400/2017 is by the accused to the extent of his conviction and sentence for the offences

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punishable under Sections 498A and 304B of IPC read with Sections 3 and 4 of Dowry Prohibition Act, 1961.

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Case of prosecution is that the marriage of

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deceased Sowmya was solemnized with the accused on 07.12.2008. That the accused had subjected the deceasedSowmya to physical and mental cruelty by making illegal demands on two occasions for Rs.1,00,000/- and Rs.50,000/-. That during the night hours on 16.03.2015, when said Sowmya was at her parents house and when her parents were away, accused thrusted cloth into her mouth and pressed a pillow on her face and thus committed her murder. Her death was unnatural occurred within seven years of the marriage amounting to a dowry death.

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Upon complaint filed by Madappa the father of the deceased, case was registered in Crime No.63/2015. After investigation charge sheet is filed by Chamarajanagar Rural Police against the accused for the offences punishable under Section 498A, 304B and 302 of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961.

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Prosecution examined 22 witnesses as PW1 to

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PW22 and produced 18 documents marked as Exs.P1 to P18 and 4 material objects M.Os.1 to 4 respectively in support of its case. Accused examined himself as DW.1 and got marked contradiction in the evidence of the prosecution witnesses as Exs.D1 and D2.

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Based on the above, the Sessions Court framed the following points for its consideration;

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"(1) Whether prosecution proves beyond reasonable doubt that the marriage of deceased Sowmya with accused had taken place on 07.12.2008 and thereafter when deceased Sowmya was residing in the house of accused at Kabballi village, Gundlupet Taluk and Udigala village of Chamarajanagar Taluk, the accused inflicted mental torture and harassment by his willful conduct with a view to coerce her to meet his illegal demands for dowry and subjected her to physical and mental torture and harassment and thereby committed the offence punishable under Section 498(A) IPC?

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(2) Whether prosecution proves beyond reasonable doubt that on 16.03.2015, during night hours, at Udigala village in Chamarajanagar Taluk, the accused subjected deceased Sowmya to mental and physical cruelty and picked up quarrel with her by demanding dowry amount and when accused and deceased Sowmya were in their house, the accused intentionally caused the death of Sowmya by pressing pillow against her face and as a result of the same, deceased Sowmya expired due to suffocation and thereby he

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committed the offence punishable under Section 302 IPC?

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(3) Whether prosecution further proves beyond reasonable doubt that on aforesaid date, time and place, in Udigala village, in the alternative, the accused subjected his wife Sowmya to mental and physical cruelty and picked up quarrel with deceased Sowmya by demanding dowry amount and as a result of the same, deceased Sowmya expired and it was unnatural death within 7 years of her marriage, which amounts to dowry death and thereby committed the offence punishable under Section 304(B) IPC?

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(4) Whether prosecution proves beyond reasonable doubt that during the aforesaid period and place, the accused demanded and received dowry of Rs.1,00,000/- and again he also demanded and received dowry of Rs.50,000/- from the parents of deceased Sowmya for having married her and thereby he demanded the dowry and accepted the same and thereby committed the offence punishable under Section 3 of Dowry Prohibition Act, 1961?

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(5) Whether prosecution proves beyond reasonable doubt that during the aforesaid period and place, the accused demanded the dowry from the parents of deceased Sowmya and thereby committed the offence punishable under Section 4 of Dowry Prohibition Act, 1961?

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(6) What order?"

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PW1 -Father of the deceased deposed that the

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accused had demanded Rs.1,00,000/- on the ground of he having incurred loan, to which PW1 had offered to sell his land

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and pay the amount as demanded by the accused but PW1

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could not give him the sum of Rs.1,00,000/-. It is further deposed that on consultation with his elder son-in-lawMahalingappa, PW1 was advised not to sell the land but to repay the loan incurred by the accused by making some arrangement which was not agreed by the accused. As such, PW1 sold his 2 acres 14 guntas of land for Rs.1,05,000/- per acre to a person from Tamil Nadu and had received Rs.2,45,000/- and out of the said sum he had paid Rs.1,00,000/- to the accused and Rs.25,000/- to elder daughter and he had deposited Rs.1,00,000/- in the Bank. Though the accused looked after deceased Soumya well for about 3 to 4 months, he again demanded Rs.50,000/- for purchase of a cow. To which, PW1 had requested him not to hurry and had asked him to wait for 2 to 3 months. Since the accused did not agree and Sowmya insisted the amount be paid to the accused to purchase the cow, after one month PW1 paid the said sum of Rs.50,000/- to the accused. Though accused had received the said sum of Rs.50,000/- he had not purchased the cow. In the meantime dispute arose between the accused and his mother and he constructed a separate shed in his

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agricultural land. Thereafter the accused demanded for further

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sum of Rs.35,000/- to purchase the cow. Accordingly PW1 paid further sum of Rs.35,000/- to purchase the cow and again accused looked after Sowmya well for about 2 to 3 months. The accused thereafter having pledged all the gold ornaments of deceased Sowmya, sent her out of material home by beating and forced her to get further sum of Rs.25,000/- or else to dowse herself with the kerosene and to set herself ablaze. Accordingly, Sowmya had come to their house.

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Aforesaid version of PW1 is repeated by PW2, the

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mother of the deceased. The Sessions Court though found minor contradiction in the evidence of PW1 and PW2, since there was material with regard to PW1 alienating his 2 acres 14 guntas of land for Rs.1,05,000/- per acre, it held that there is a probability of the accused demanding the amount and same having been paid by sale of the land by the father of the deceased. The Sessions Court then concluded that the prosecution had established the case of demand for dowry and payment of Rs.1,00,000/- and Rs.50,000/- and thereafter additional sum of Rs.35,000/- to the accused.

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The aforesaid evidence is supported by PW7 son-inlaw of PW1 and PW2, PW11 Mahadevappa the neighbour of PWs.1 and 2, PW13-Uncle of the deceased and PW17 sister of the deceased. Thus, based on the aforesaid deposition of witnesses, the Sessions Court concluded there being a demand for dowry, accordingly answered point No.1 in the affirmative by holding that the accused had subjected the deceased to physical and mental cruelty and thereby committed offence punishable under Section 498A of the IPC.

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While answering point No.2 regarding commission of offence punishable under Section 302 of IPC, the Sessions Court referred to the deposition of PWs.8 to 12, 14 to 21. The said witnesses claim to have seen the accused and deceased Sowmya on the evening of the date of incident. But there is no eye-witness to the incident.

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PW.21-Dhanu is the son of accused and the deceased who was then aged about 8 years. The said witness has been examined and as noted by the trial Court, he has answered rationally and his evidence was therefore recorded. Said witness has deposed that there was Bandi festival in their

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village and on the next day his mother expired. His grandfather

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had gone to Kamarahalli and his elder aunt resides in Kamarahalli and his grandmother had gone to M.M. Hills and on that day he had gone to Nanjangudu temple along with his parents and they had returned home. That on the said day he and his father and mother went to sleep and when he woke up in the morning at 07.00 a.m. he did not find his mother. The said witness has stated that on the previous day his father and mother were cordial. He admits in the cross- examination that his grand-parents had brought him to the Court. That when he had gone to Nanjanagudu his parents had purchased whatever he had asked for. Thus, based on the evidence of PWs.2 to 12 and 14 to 21, the Trial Court found that though the said witnesses claimed to have last seen the accused and the deceased together. The said evidence was not sufficient enough to infer that the accused had smothered the deceased Sowmya by pressing the pillow against her face, as such she had expired due to suffocation.

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The Trial Court referred to evidence of PW15Dr.D.R.Mahadeshwara Prasad, who referring to the post

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mortem report at Ex.P14, had deposed that the cause of death

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of the deceased "was due to asphyxia as a result of antemortem chocking associated with smothering". However, in the cross-examination said witness admitted that if a person had suffered epileptic attack and had fallen on the ground backwards, there are chances of he biting his tongue and choking due to the blood entering into the throat.

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Thus, since the circumstances narrated by the said witnesses had raised doubt as to whether the accused had committed murder of the deceased by pressing the pillow against her face, the Trial Court held the said point No.2 in the negative.

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However, the accused during his evidence had admitted he having stayed along with the deceased on the date of incident and he having left the home at 4.30 a.m. on the premise of he requiring to graze the cattle. The trial Court referring to Section 106 of the Indian Evidence Act, found that the burden of explaining cause of death was within his special knowledge, since the accused had not given explanation, an inference/presumption was drawn under Section 113B of the

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Indian Evidence Act, 1872, that the death is a dowry death caused on account of cruelty and harassment, caused by the deceased. Accordingly, the Trial Court acquitted the accused for the offence punishable under Section 302 of IPC and held him guilty of offences punishable under Section 498A and 304B IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 and sentenced him to undergo imprisonment as stated above.

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Learned HCGP reiterating the grounds urged in the appeal filed by the State submits that the Trial Court having found that the accused had neither given any explanation regarding his presence nor had discharged the burden as contemplated under Section 106 of the Indian Evidence Act, and in the light of the evidence given by PW15 who had conducted the post mortem regarding the cause of death of deceased Sowmya due to asphyxia resulting in anti-mortem choking, the Trial Court ought not to have acquitted the accused for the offence punishable under Section 302 of IPC. Hence, he submits the appeal be allowed and the accused be held guilty of offence punishable under Section 302 of the IPC as well.

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On the other hand, learned counsel appearing for the accused/appellant in Crl.A.No.1400/2017 reiterating the grounds urged in the memorandum of appeal submitted that none of the witnesses have spoken about any overt act by the accused. Based on the statement/evidence of PW1 and PW2, the Trial Court ought not to have convicted the accused for the offence punishable under Section 498A of IPC merely on the presumption without there being any substantive evidence in this regard. He submits that the evidence of PW21 the child would indicate that the accused and the deceased had cordial relationship the day before the incident. The said witness has not spoken any circumstances which would indicate accused committing offence. He further submits that the death of the victim had occurred in the house of the complainant and the medical evidence would indicate that the deceased was suffering from epileptic attacks and the evidence of the doctorPW15 would indicate deceased suffering such injuries as a result of she falling due to the epileptic attack. He submits that the Trial Court ought to have held these aspects of the matter in favour of the accused, acquitted him even for the offence

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punishable under Section 498A and 304B of IPC and other

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offences. He seeks to allow the appeal.

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Heard both side and perused the records.

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The point that arises for consideration in these

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appeals is:

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" Whether the Trial Court is justified in acquitting the accused for the offence punishable under Section 302 of IPC and convicting the accused for the offence punishable under Section 498(A) and 304B of IPC and Sections 3 and 4 of the Dowry Prohibition Act warranting interference?."

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As already noted above, the Trial Court acquitted the

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accused for the offence punishable under Section 302 of IPC, and convicted him for the offences punishable under Section

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498A and 304B of IPC and Sections 3 and 4 of the Dowry Prohibition Act, solely on the premise of the death of Sowmya having occurred within 7 years of the marriage and in the light

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of accused failing to discharge his burden as contemplated under Section 106 of the Indian Evidence Act. The accused in

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his evidence has admitted he having stayed with the deceased in the house of the PW1 on the date of the incident. The

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accused himself has deposed in his examination that he had left home at 4.30 a.m. on the premise of taking care of his cattle. The accused has not spoken anything regarding if he had spoken to his wife or his son when he left home at 4.30 a.m. No whisper in his evidence regarding the status of the deceased at 4.30 a.m. either. Normally, if the relationship was cordial as stated by PW21 who is the child of the deceased and the accused, the accused would have informed the deceased about he leaving home at 4.30 a.m. Therefore, it is incomprehensible that the accused has remained silent as to the whereabouts and also about the status of the deceased when he left home.

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Death of victim -Sowmya cannot be said to be under normal circumstances. When the depositions of PW1 and PW2 with material evidence regarding demand and payment of dowry amount is on record, indicating the offence contemplated under Section 498A of IPC. As rightly held by the Trial Court, accused was under the obligation to explain the facts and circumstances within his special knowledge as required under Section 106 and 113B of the Indian Evidence Act. As such, the presumption drawn by the Trial Court inferring the death of

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deceased-Sowmya due to dowry harassment cannot be found fault with.

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As such, no grounds are made out by the accused in his appeal in Crl.A.No.1400/2017 warranting interference.

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As regards the appeal filed by the State in Crl.A.No.90/2018, except the evidence of PW15 there is no other circumstances or evidence brought on record to indicate any overt act of murdering the deceased. As rightly taken note of by the Trial Court, PW15 in his cross-examination has admitted that though the deceased died of asphyxia, the same could occur if the deceased had fallen on her back. This evidence being on record and with the pre-history of the deceased suffering from epileptic attacks, the Trial Court has rightly come to the conclusion that no acceptable, credible evidence is brought on record by the prosecution beyond reasonable doubt to indicate that the accused had indeed committed murder punishable under Section 302 of IPC.

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