S IN TIlE HIGH COURT 01: KARNATAKA CIRCUIT BENCh NI’ I)IIARWAI) DATED ‘fillS 1’IW 21 DAY OF 0C’ FOI3ER 2011 BEFORE THE HOWBLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL No.823 OF 2006 BETWEEN: Veeresh Kouti Sb Chandrappa Kouti, Aged about 26 years. Residing at Gourishankar Nagar. Ranebennur Taluk, District:Haveri. APPEALLANI’ (By Shri.Ravi S. I ledge. Advocate) AND: The State ofKarnataka, Represented by State Public Prosecutor, High Court Building. I3angalore-560 001. .RLSPONDENT (B’ Shri.Anand K. Navalgimath. Government (‘leader) Adoeate This Criminal Appeal is filed under Section 3742 ot (‘ode of Criminal Procedure seeking to set aside the judgment of conviction and sernenee awarded in Sessions Case No.45/2004 on the file of the Court of Sessions Judge. I (at cr1. dated 04.04.2006 and allow the abo e appeal and acquit the appeal tbr the alleged offence. ‘[‘his appeal coming on for hearing this day. the Court delivered the following: g • I t. JUDGMENT Heard the learned counsel for the appellant and the learned Go’ ernment Pleader. 2. The facts briefly stated are as follows: The present appellant ‘was the accused on the basis of a complaint lodged by one Umesh Veeranna Kompi with the Railway Deputy Superintendent of Police, Hubli. alleging that the appellant was married to his sister Rajeswari and the marriage had taken place on 17.02.2002 and two months prior to the marriage, there was negotiation among the members of the appellant’s family and that of his family, whereby they had undertaken to provide money and other articles in consideration of the marriage, to the appellant. ft was further alleged that after the marriage, though the appellant and the complainant’s sister did live together peacefully, for a while, the appellant is alleged to have started demanding dowry and that apart from money and gold, he had demanded that he be provided with a motor cycle as well, and on constant demands ha’ving been 6 3 made, the sister of the complainant was therefore subjected to continued harassment on account of which she was distraught and was suffering from depression. It thereafter transpires that she had committed suicide by throwing herself before a running train and she had died as a result of the injuries suffered, as on 23.05.2003. It is on the basis of the said complaint that a case had been registered against the appellant, his parents and his sister. The prosecution, in support of the charges brought against the appellant and others. had examined 2o witnesses and had marked 28 exhibits. The Trial Court. on a consideration of the evidence and on the rival contentions ofthe parties, had framed the following points ibr consideration: “I. Whether the prosecution has proved that accused 1 to 4 with common intention harassed and ill-treated Srnt. Rajeshwari? 2. Whether the prosecution has proved that accused I to 4 with common intention committed dowry death of Smt. Rajesh& an? S. • 4 3. Whether the prosecution has proved that accused received cash and gold as dowry at the time of marriage of Smt. Rajeshwari? 4. Whether the prosecution has proved that accused harassed and ill-treated Smt. Rajeshwari to bring cash and motorcycle from her parents in the form ofdowry after her marriage? 5. Whether the prosecution has proved that accused failed to return cash and gold received at the time of marriage of Smt. Rajeshwari to her parents after her death?’ 3. The Court below held Point Nos. 1. 2 and 4 in the affirmative while negating Points 3 and 5. Tn other words, the case of the prosecution that the accused had received cash and gold as dowry at the time of the marriage and whether the prosecution had proved that the accused failed to return the cash and gold after her suicide were negated on the ground that there was rio evidence worthy of acceptance in respect of the said accusations while the Trial Court has upheld the case of the prosecution that the accused, had, with a common intention. 3: 5 harassed and ill-treated the victim and whether it was proved that on account of such continued harassment there was dowry death, in part, in holding that Accused No.1 was guilty of the charges whereas the Court has thought it fit to acquit the other accused, namely, the parents and sister of the present appellant. It is that which is sought to be questioned in the present appeal. 4. The learned counsel for the appellant would point out that in so far as the charges that have been held established against the accused are concerned, is on the basis of the evidence of the complainant who was examined as PW-I, his friend one Parmeshi who was examined as PW-5, the complainant’s sister, who was examined as PW-8, apart from two other witnesses, that the Court has held that the charges of continued harassment for dowry. leading to the victim commining suicide, which is termed as “dowry death”, for the purpose of Section 304-13, IPC, that the Trial Court has held that the charges are proved beyond all reasonable doubt. This would therefore take this Court through the evidence of the witnesses while pointing out that it is not the case of the 1; 6 complainant or the other witnesses that they were living along with the appellant and his wife. On the other hand, the appellant and the deceased had set up their independent matrimonial home and none of the witnesses including the complainant were privy to any such continued harassment as is alleged. On the other hand, it is the case of the said wimesses that on occasion the victim had informed them of the continuous demand for dowry. Apart from PW-5 who is the friend of the complainant alleging that such a demand for a motor cycle and cash was made by the appellant in his presence. The learned counsel would submit that these witnesses have, with the pointed intention of bringing the case against the appellant, had tendered such evidence. The evidence in any event, does not evoke confidence in seeking to bring home the charges which would visit the appellant with serious punishment, which has in fact been imposed, but would require a greater degree of impartial evidence, albeit through independent witnesses who could have spoken of such continued harassment of the victim by the appellant. When 7 such evidence is not forthcoming. the evidence of close relatives of the victim who were carried away by emotion, in order to ensure that the appellant suffered on account of the death of their dear one, was uppermost in their mind and it is therefore not safe to rely on such evidence to arrive at a definite conclusion that there was continued harassment of the deceased by the appellant leading to her suicide or that it could be termed as dowry death. 5. The learned counsel would, thereafter, point out that in so far as the evidence of the other witnesses is concerned, it is of a formal nature and would not be material to hold that the charges have been established beyond all reasonable doubt. The only significant evidence is of the aforesaid witnesses and from a plain reading of the evidence of those witnesses, it cannot be concluded that the charges have been held established beyond all reasonable doubt as is necessary in convicting the accused by imposing the serious punishment which has now come to a pass and therefore, would submit that it is a fit case 8 where, without any hesitation, it can be stated that the prosecution has thiled in establishing the case against the accused. 6. The learned Government Pleader, on the other hand, would seek to justify the findings of the Trial Court. He would point out that the marriage of the deceased had taken place about 18 months prior to the incident and by virtue of the law, any unnatural death that occurs within seven years of the marriage, would raise a presumption of ‘yrjn. death’ in the event there are circumstances to indicate that there was harassment which led to such death and this is the tenor of Section 304-B. The ingredients of the said section would stand attracted to the present case on hand having regard to the circumstances of the case. it is incorrect to contend that the evidence of PW-1, 4, 5 8 and 9 do not evoke confidence. He would point out that PW-5 was a friend of the family of the complainant and he had no grouse against the appellant and for him to tender evidence to state that there was demand for dowry in his presence cannot he negated as being the evidence of an S I b C) interested witness and the fact that the complainant was the brother of the victim or PW-8 being the sister and by that fact alone, namely, that they are closely related to the victim, would not justi the negation of their evidence on the ground that they were carried away by emotion and only intended to ensure that the appellant was punished, even though he may not be guilty of the offence. The continued harassment which ultimately led to the death of the victim is certainly established. The attempt on the part of the appellant to claim that the deceased was suffering from an ailment which had caused her to go into depression and ultimately leading to her suicide, which was sought to be established by the production of an alleged suicide note or the personal diary of the deceased, has not been taken to its logical conclusion, in that, it was never established that the suicide note was in the hand of the deceased nor was it explained by the accused while recording his statement under Section 313 Cr.P.C.. as to the time and place at which the suicide note was made and the manner in which it came into his possession. Secondly. the ailments which were I0 alleged which the deceased was said to have been suffering from, were neer disclosed The attempt on the part of the accused to claim that she wa under th treatment of a particular doctor and that all the documents were with that cfrctor were not sought to be produced before the Court nor did it establish the so called defence. 1 herefore, the continued harassment as narrated by the ictim through the se eral persons was sufficient eidence to bring home the charges. The contention that a greater degree of proof was necessary in a case of matrimonial harassment is mpossihle of production The continued harassment within the four waIls of the bedroom of the couple can hardly he expc ted to be produced as eidenee in Court and the only manner in whih a case of su h a nature an h ‘,tah ihed i by he nat r rt drne aki to the e dene di t i i ml et d ‘r I p , cc Id a I c chm na he n b u h T 11 imposed is commensurate itli the seriou%nes of the offence and would meet the ends of justict. 8. In the background of the aNne pleadinu. and the t’actc and circumstances of the case. as rightly contended by the learned counsel for the appellant, there is no material on record to indicate that there was discord bet” cen the appellant and the ictim of a nature which dro e the ietiin to suicide 1 here is no material on record whereb’ it ‘ indicated that there ere continued quarrels between the ictim and the appellant whereby the ictmi sa dri en out of the matrimonial home time and again and 4hIch was of suth lrequent that it would ha’ e dri en the ictin-. to commit suit de out it bheer trusimatron md depie%si ‘w. I N oi.l e idence plated or’ ra.o.d tl at i: ii e ntimplnmnastt P\ -i • nd t’iat ‘1 ui 1 .. i K’ r he Lnmn. alt of sIor 1 fr - rue!’ ,a’d tn.a -lacte .;‘. fs dow’ In die ‘P1’ ‘1 t iN L’ it f • u1f. it l’’._ 301’ t .‘ I pa ‘“ ç azi a; JW!d’-’. ‘ tltit . ..dt Ii IC (. I I ii. S a 12 suicide. Hence. the CoLirt below having thought it fit to hold that the offence punishable under Section 304-B has been established beyond all reasonable doubt and thereafter to sentence the appellant to undergo simple imprisonment for seven years and further to impose the punishment of simple imprisonment of six months apart from fine of ‘I ,000/- for an offence punishable under Section 4 of the Dowry Prohibition Act, is not justified. Further. the punishment of simple imprisonment for one year for the offence punishable under Section 498-A of the IPC and to pay a fine of ‘1,000/- is also not justified. Accordingly. having regard to the allegations and the evidence that is tendered in support of those allegations, ft cannot be said that the prosecution has been able to establish the charges beyond all reasonable doubt. This is especially so since the part of the charges, even according to the Trial Court, cannot be sustained on the basis of the evidence. Therefore, it is inexplicable that the Trial Court proceeds to hold that the evidence was sufficient to establish an even more serious charge under Section 304-B when it was not sufficient to S 1b 1 a ‘3 establish part of the charges in relation to the accused having received dowry and not having returned the same after her death. Accordingly, the appeal is allowed. The judgment of the Trial Court is set-aside. The amount of fine deposited shall be refunded to the appellant. sd/a JUDGE KS