1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23RD DAY OF OCTOBER, 2013 BEFORE THE HON'BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL No.811 OF 2006 BETWEEN: 1. Sri. Shivarudrappa, Son of Bhadraiah, Now aged about 41 years, Occupation : Agriculturist. 2. Achamma, Wife of Bhadraiah, Now aged about 76 years, House wife. 3. Vijayamma @ Vijayalakshmi, Wife of Veeranna, Now aged about 31 years. All are residents of Siddekatte, Tumkur Taluk. ...APPELLANTS (By Shri. N. Srinivas, Advocate) 2 AND: State of Karnataka by Tumkur Rural Police. ...RESPONDENT (By Shri. B.T. Venkatesh, State Public Prosecutor - II ) ***** This Criminal Appeal filed under Section 374(2) of the code of Criminal Procedure, 1973, by the advocate for the appellants against the judgment dated 16.3.2006 passed by the II Additional Sessions Judge, Tumkur in S.C.No.34/1999 - convicting the appellants-accused 1, 2 and 4 for the offence punishable under Section 498-A, 304-B and sentencing them to undergo rigorous imprisonment for 3 years and to pay fine of Rs.5,000/- each and in default to suffer simple imprisonment for 4 months by each of the accused for the offence punishable under Section 498-A Indian Penal Code and sentencing them to undergo rigorous imprisonment for 7 years by each of the accused for the offence punishable under Section 304-B Indian Penal Code. This appeal coming on for Final Hearing this day, the Court delivered the following: JUDGMENT
Heard the learned Counsel for the appellants and the learned State Public Prosecutor.
2. The appellants were the accused before the trial court. Appellant no.1 is the son of appellant no.2 and appellant no.3 is the sister of appellant no.1. There was one other accused namely, accused no.3, who was the brother-in-law of appellant no.1 and the husband of appellant no.3, who died during the pendency of the proceedings. The background to the case is as follows:
The complainant Eshwarappa was the father of one Swarnamma, a resident of Jalikatte village, Chitradurga taluk. He had given Swarnamma in marriage to appellant no.1 on 24.2.1998. It is alleged that even prior to the marriage, there were talks of dowry and the complainant had provided dowry by way of cash and valuables on 2.12.1993 at Siddarameshwara temple, Yellode. It is the case of the prosecution that four months after the marriage, Swarnamma had informed the complainant and other family members that the appellants along with accused no.3, were treating her with cruelty both physically and mentally and were demanding additional dowry and when the sister of Swarnamma visited her, she was also informed of the constant harassment and ill-treatment. Swarnamma bore two children and though there were constant complaints of ill-treatment, the complainant had advised Swarnamma to continue her life with the appellants. It is alleged that about one year prior to the incident, which is the subject matter of the proceedings, Swaranamma had come home and informed again about the physical and mental torture and the demand for additional dowry. It is claimed that the complainant had provided Rs.10,000/- as additional dowry and sent her back to her matrimonial home, but again she was back in the complainant’s house. It is much later that the father of appellant no.1 had visited them and he had promised to set up a separate home for appellant no.1 and Swarnamma and on that assurance, she had again gone back to the matrimonial home. But on 24.12.1997, it is stated that the complainant was informed by two persons from Siddanakatte about the death ofSwarnamma and when the complainant and others had rushed to the village of the appellants, they saw the dead body of Swarnamma kept in the mortuary of the Government Hospital at Tumkur and they were informed that she had committed suicide by consuming poison.
3. It is in this background that the complainant suspecting foul play and being certain about the deceased having committed suicide, even if it was suicide only on account of the constant cruelty and harassment, had lodged a complaint for offences punishable under Sections 498Aand 304B of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (Hereinafter referred to as the ‘DP Act’, for brevity).
4. It is on the basis of this complaint that further proceedings were initiated and after investigation, a charge sheet having been filed and thereafter charges having been framed against the accused, they had pleaded not guilty and claimed to be tried and on the basis of the evidence tendered and the rival contentions, the court below framed the following points for consideration:
“1. Whether the prosecution proves that A1 contracted marriage with daughter of CW1 Swarnamma in Yellod Siddarameshwara temple, Taluk C.N.Halli, on 2.12.93 and 15 days earlier to marriage in the marriage talks A1, A2 and A4 along with A3 who was reported as dead, made a proposal to pay cash of Rs.10,000/-, golden ring weighing half tola, 2 pairs of clothes and accordingly at the time of marriage accused took cash of Rs.10,000/-, half tola golden ring and 2 pairs of clothes from CW1 as dowry and after the marriage when deceased Swarnamma was leading her marital life in her husband’s house, A1, A2 and A4 along with A3 who was reported as dead, were abusing and giving ill- treatment and cruelty to deceased both physical and mental demanding to bring additional dowry of Rs.10,000/- from her parental house and accordingly, Rs.10,000/-
was brought and given to accused and again accused insisted the deceased to bring additional Rs.10,000/- as dowry by giving physical and mental ill-treatment to her and thereby committed an offence punishable under Section 498(A) of I.P.C. beyond all reasonable doubt?
2. Whether the prosecution proves that on 24.12.97 in the land of A1, deceased Swarnamma consumed Organophosphorus being a poison and died by committing suicide without tolerating to the cruelty and ill- treatment given by A1, A2 and A4 along with A3 who was reported as dead and the said death of Swarnamma was well within seven years of the marriage of A1 with her and soon before death, accused has subjected Swarnamma to cruelty and harassment in connection with demand of Rs.10,000/- and thereby committed an offence punishable under Section 304(B) of I.P.C. beyond all reasonable doubt?
3. Whether the prosecution proves that A1, A2 and A4 along with A3 who was reported as dead, 15 days prior to 2.12.1993 at the time of marriage talks of deceased Swarnamma with A.1, demanded to pay Rs.10,000/- cash, golden ring weighing half tola, and 2 pairs of clothes as dowry and at the time of marriage dated 2.12.1993 accused received Rs.10,000/- golden ring weighing half tola and 2 pairs of clothes as dowry and thereby committed an offence punishable under Section 3 of Dowry Prohibition Act beyond all reasonable doubt?
4. Whether the prosecution proves that accused as mentioned above, earlier to marriage of Swarnamma demanded to give cash of Rs.10,000/-, half tola golden ring and 2 pairs of clothes as dowry and at the time of marriage accused took the said articles as dowry and after the marriage accused gave ill-treatment and cruelty to deceased both physical and mental to bring the said articles from her parental house and thereby committed an offence punishable under Section 5 of Dowry Prohibition Act beyond all reasonable doubt?
5. Whether the prosecution proves that accused along with A3 who was reported as dead has taken dowry of Rs.10,000/-, golden ring weighing half tola and 2 pairs of clothes from CW1 at the time of marriage of deceased Swarnamma with A1 and subsequently after the death of Swarnamma, accused did not return the said dowry amount, golden ring and 2 pairs of clothes to CW1 and thereby committed an offence punishable under Section 6 of Dowry Prohibition Act beyond all reasonable doubt?
6. What order? ”
5. The court below answered points 1 and 2 in the affirmative and points 3 to 5 in the negative and accordingly sentenced the appellants to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for a period of four months for the offence punishable under Section 498A IPC and further to undergo rigorous imprisonment for 7 years for the offence punishable under section 304-B of the IPC.
It is that which is under challenge in the present appeal.
6. The learned Counsel for the appellants would point out that the case of the prosecution was sought to be substantiated by examining not less than 29 witnesses, though more were cited. Of these witnesses, PWs.2 to 7 were witnesses, who were said to be neighbourers of the appellants or the matrimonial home of the deceased. None of the witnesses, have supported the case of the prosecution. Therefore, the only evidence on the basis of which, the court below has sought to find the prosecution case as regards offences punishable under sections 304B and 498A of the IPC, is with reference to the evidence of PWs.1 and 12 to 14. PW.1 was the complainant and the father of the deceased. PW.12 was her mother and PW.13 was the sister of the deceased and PW.14 was the brother of the deceased. They have consistently narrated the instances of complaints made by the deceased of ill-treatment by appellant no.1 and his other family members. The admitted circumstance was that the marriage between the deceased and accused no.1 had taken place in the year 1993 and there were two children by the marriage and the incident whereby the deceased had committed suicide had occurred in the year 1997. Therefore, the time frame between the date of marriage and the date of death was relevant in considering whether the prosecution had made out a case of continuous ill-treatment and cruelty of such a degree as to drive the deceased to commit suicide. In this regard, there is no direct evidence of any witness having seen and heard the physical and mental ill- treatment meted out to the deceased. The evidence of PWs.1 and 12 to 14 is only with regard to complaints having been made by the deceased from time to time of such ill-treatment. This by itself cannot be sufficient to hold that the prosecution had established its case of offences punishable under Sections 304B and Section 498A. Therefore, the learned Counsel would take this court through the record and particularly through the evidence of PWs.1, 12 to 14, to demonstrate that the statements in the testimony of the said witnesses are at best in the nature of allegations, since they are only reiterating the alleged statements made by the deceased. That by itself would not be sufficient to hold that the prosecution had established its case beyond all reasonable doubt. Therefore, the trial court notwithstanding that it is with reference to the testimony of each witness has recorded that all the witnesses had turned hostile, but proceeding on the basis of the evidence of PWs.1 and 12 to 14, had concluded that the charges have been established and convicted the accused especially, accused nos.2 to 4, against whom, there are not even clear allegations of ill- treatment. It is in this vein that the learned Counsel would seek to take this court through the record to highlight that when the endeavour of the prosecution was to establish the ill– treatment by the witnesses, who were most competent to speak about the conduct and behaviour and the date-to-day instances in the life of the appellant and the deceased through PWs.2 to 7, who were their immediate neighbourers and were in a most vantageous position to have observed the day-to-day life of the couple having not supported the case of the prosecution, there was no substance whatsoever in the case of the prosecution to bring serious charges that have grave circumstances being held established as against the present appellants. Therefore, the learned Counsel would submit that given the state of the record and the tenor of the evidence that is placed on behalf of the prosecution, the trial court has grossly erred in holding that the same has been established beyond all reasonable doubt and therefore, pleads that the judgment be set aside and the appellants-accused be acquitted.
While the learned State Public Prosecutor would vehemently oppose the appeal and seeks to justify the judgment of the trial court.
7. It is pointed out that the having regard to the circumstances of the case and the offences alleged being offences committed by the husband against his wife and which would normally be a private matter with little scope for other persons to either privy to it or to be direct witnesses to such acts of cruelty. It is only the indirect evidence that can possibly be adduced as in the present case on hand. The neighbourers of the appellants having turned hostile, possibly on account of the continued relationship that they have to maintain with the appellants and therefore being embarrassed to tender evidence against the appellants, the fact remains that the consistent evidence of the father, mother, brother and sister of the deceased, who were certainly privy to the direct evidence provided by the deceased, as to the cruel treatment that she had undergone at the hands of the accused from the time of her marriage till her death, is adequate and cannot be brushed aside as being the testimony of interested witnesses. They are certainly interested witnesses, in that, they are the blood relatives of the deceased and have spoken about the circumstances to which they were charged. There is no law which requires that the evidence so tendered by the blood relatives ought to be negated or trashed, merely because, they happened to be the blood relatives. The court would yet have to sift evidence of such witnesses and if found acceptable, notwithstanding that they are characterized as interested witnesses, they are witnesses all the same and it is the veracity that matters and not the relationship or the person who has deposed, which would be material. It is only if it could be demonstrated that the evidence tendered is shown to be stage- managed or concocted, merely to bring home the charges, which is in the discretion of the court to negate the same if such a measure is warranted. However, there being no impediment in the evidence being tendered in support of the charges by the relatives of the victim, cannot be shut out.
He would also submit that having regard to the very private circumstances, which are required to be established, there can be no better evidence of persons with whom the deceased victim would have confided as regards her suffering and therefore, their evidence to be treated as hearsay evidence, would result in a gross miscarriage of justice. This court would have ample discretion to accept such evidence notwithstanding that it comes from the close relatives of the deceased and hence would submit that the trial court was amply justified in holding that the charges were proved in convicting the accused.
8. Given the above rival contentions and on a careful perusal of the record, the significant circumstance that there is no independent witness, who has supported the case of the prosecution though not less than six witnesses who were fielded as independent witnesses namely, the neighbourers of the appellant’s family having been examined and all of them having been treated as hostile witnesses, would certainly dilute the case of the prosecution. The endeavour being to establish the case against the accused with reference to the evidence of those witnesses and that endeavour having failed, to fall back on the evidence of PWs.1 and 12 to 14, would not advance the case of the prosecution. For it is not a situation where the only witnesses to an incident were the witnesses who have been examined. On the other hand, it is the case of the prosecution that the ill-treatment and cruelty meted out to the deceased by the accused was known to several people, including PWs.2 to
7. When those witnesses have not supported the case of the prosecution, it certainly would dilute the case of the prosecution. Hence, in the circumstances, the argument canvassed by the learned State Public Prosecutor that there needs to be a pragmatic approach in accepting the evidence of the family members and that they cannot be characterized as interested witnesses, would be in a situation where there were no other witnesses and the circumstances were such that it is only the evidence of those witnesses which would support the case of the prosecution. On the other hand, it is not the case of the prosecution in the present case on hand. There were many witnesses who could speak to the circumstance. But none having supported the case of the prosecution at the trial, would not certainly enable the prosecution to fortify its case and even the evidence of PWs.1 and 12 to 14 would only be peripheral in nature as the said witnesses have spoken about the incidents spread over a period of time and only with reference to the statements made by the deceased or the complaints narrated by the deceased about the conduct of the appellants and even those acts not being specific in nature and with reference to a particular time period, it can only be taken as vague allegations which cannot be characterized as categorical statements with reference to particular acts of cruelty.
9. Therefore, on the broad contours of the evidence on record, it cannot be said that the case of the prosecution can be accepted even on generalities let alone on the establishment of specific acts of cruelty. Hence, it would not be possible for this court to sustain the judgment of the trial court and hold that the prosecution had established its case beyond all reasonable doubt especially, to support the judgment of conviction whereby, the accused suffer long periods of imprisonment. This would certainly result in a gross miscarriage of justice. And further insofar as accused nos.2 and 4 are concerned, there is not even a semblance of a case made out against the said accused except the vague allegation that accused no.2 who is aged about 76 was in the habit of spitting at the deceased. This by itself is not any direct evidence of any witness who has seen this act on the part of accused no.2, but was as narrated by the deceased. Therefore, there is no semblance of a case made out by the prosecution on the basis of the evidence on record.
Consequently, the appeal is allowed. The judgment of the court below is set aside. The accused are acquitted. The fine amount, if any, paid shall be refunded. The bail bonds executed by the appellant stands cancelled.