State vs Manikanta and Others

Mohan M. Shantana Goudar, J—The judgment and order of conviction convicting the accused/appellants in Crl. A. No. 669/2011 for the offences punishable under Sections 498(A), 304(B) and 306 r/w Section 34 of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act dated 31.5.2011 passed by the Fast Track Court, Arkalgud in Sessions Case No. 5/2010 is called in question in this appeal.

Crl. A. No. 1025/2011 is filed by the State seeking enhancement of sentence as against all the accused.

Crl. A. No. 669/2011 is filed by the convicted accused seeking an order of acquittal.

Case of the prosecution in brief is that accused No. 1 Manikanta is the husband of deceased Smt. Sowmya; their marriage was performed on 27.5.2009; accused Nos. 2 and 3 are the parents of accused No. 1; at the time of marriage, the accused demanded dowry of Rs. 1,00,000/- apart from gold ornaments weighing about 150 gms; the demand of the accused was acceded to by the parents of the deceased; accordingly, the amount of dowry of Rs. 1,00,000/- and gold ornaments weighing about 150 gms were provided to accused No. 1; the marriage was performed as per hindu custom in a choultry on 27.5.2009; the couple lived happily up to gowri festival. However, thereafter, the accused started torturing the victim to bring additional dowry of Rs. 1,00,000/- and to replace the gold ornaments which were already provided to accused No. 1 on the ground that the gold ornaments earlier provided are of inferior quality. It was also the demand of the accused that accused No. 1 is not provided with a cot though a bed was provided. A day prior to the incident in question, the accused assaulted the deceased, consequent upon which, the deceased sustained bleeding injuries. On the night intervening between 16.9.2009 and 17.9.2009, the deceased left the house and did not return back; the said fact was intimated by the accused to the parents of the deceased; consequently, the father of the deceased (P.W. 1) lodged the complaint as per Ex. P1 at 3.00 p.m. on 17.9.2009 before Konanur police station of Arkalgud taluk; subsequently, after finding the dead body in the water canal, P.W. 1 lodged another complaint as per Ex. P2 on 18.9.2009 at about 10.00 a.m., which came to be registered in Crime No. 194/2009. P.W. 25, the Deputy Superintendent of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 25 witnesses and got marked 25 exhibits and M.Os. 1 to 13. On behalf of the defence no witnesses are examined, but Exs. D1 and D2 are marked.

Sri. S.A. Ahmed, learned advocate appearing on behalf of the convicted accused taking us through the entire material on record submits that the trial Court is not justified in convicting the accused both for the offences punishable under Sections 304(B) of IPC and under Section 306 of IPC; the deceased was an oversensitive lady; she has committed suicide since she found subsequently that accused No. 1 is uneducated whereas, she had completed her 12th standard (PUC II year); minor utterances by the accused in day to day life were made much of by the deceased as well as by the prosecution; it is a case of incompatibility and not the case of harassment by the accused; the reasons assigned and conclusion arrive at by the trial Court is not just and proper. He further submits that accused Nos. 2 and 3 are totally innocent; only omnibus statements are made against them; absolutely no material is found against them to convict them for the offences with which they were charged.

Sri. K.R. Keshavamurthy, learned SPP-II has argued in support of the judgment of the Court below while supporting the judgment of conviction passed by the trial Court. Learned SPP seeks enhancement of sentence having regard to the gravity of the offence.

The material on record reveals that the parents of the deceased are poor as compared to the parents of accused No. 1; the parents of the deceased were owning 2 1/2 acres of land only, which included dry land to the extent of half whereas, the accused were owning paddy fields; arecanut garden; coconut grove etc., they were also growing tobacco in their lands. It is also not in dispute that accused No. 1 is uneducated and has not studied even first standard, whereas, the deceased had completed her 12th standard (PUC II year).

Practically, the evidence of P.Ws. 1 to 4 is consistent, cogent and reliable in as much as, it amply proves the case of the prosecution that accused No. 1 demanded dowry of Rs. 1,00,000/- and accepted the said amount of dowry. Not even a suggestion is made from the defence to show that the amount of Rs. 1,00,000/- paid by the parents of the deceased was towards marriage expenses. No material is placed on record by the accused to show that the amount of Rs. 1,00,000/- received by them was not in the form of dowry etc., However, looking to the gold ornaments such as necklace, bangles, ear stud, nose stud, mangalya chain, ring for the bridegroom, chain for the bridegroom etc., it is clear that all these gold ornaments provided to the bride and bridegroom were customary in nature. In is not uncommon in this part of the State to provide such articles, both to bride and bridegroom in the marriage. It is also not uncommon in marriage to exchange clothes between the two families. Therefore, the evidence relating to giving of gold ornaments during the marriage by the parents of the deceased may not come within the definition of dowry. On the other hand, since they being the customary presentations, they need to be excluded from the definition of dowry. However, the fact remains that accused No. 1 accepted a sum of Rs. 1,00,000/- at the time of marriage.

It is curious to note that the evidence of P.Ws. 1, 2 and 3 was recorded on 4.3.2011, 14.3.2011 and 15.3.2011. Even the cross-examination was completed. It is specifically recorded by the Court below that there is no re-examination by the prosecution. Thus, it is clear that on 14.3.2011 and 15.3.2011 the evidence of P.Ws. 1 to 3 was recorded fully and the evidence of these witnesses was treated to have been closed. However, subsequently, an order seems to have been made by the trial Court permitting to recall P.Ws. 1 to 3 for further cross-examination. Accordingly, further cross-examination of P.Ws. 1 to 3 was made on 16.5.2011. During such further cross-examination which was recorded on 16.5.2011, all the three witnesses took ''U'' turn and thereby, fully supported the defence of the accused. They resiled from their versions made before the trial Court. It seems, the versions of P.Ws. 1 to 3 recorded in further cross-examination dated 16.5.2011 was only to help the accused and it is not a true version, in as much as, they had completely withstood in the cross-examination which was made earlier and they had fully supported the case of the prosecution earlier. Merely because in their further cross-examination which was recorded after two months P.Ws. 1 to 3 have supported the defence, such version of P.Ws. 1 to 3 recorded on 16.5.2011 cannot be believed.

Even after excluding the versions of P.Ws. 1 to 3 recorded on 16.5.2011, we find that omnibus evidence is let in against accused Nos. 2 and 3. Merely because accused Nos. 2 and 3 are the parents of accused No. 1, it cannot be deemed that they also participated in the crime along with accused No. 1. The prosecution has to prove its case beyond reasonable doubt against each of the accused. However, the evidence of P.Ws. 1 to 3 is not sufficient to conclude that accused Nos. 2 and 3 also accepted the dowry of Rs. 1,00,000/- and tortured the victim subsequently, to bring additional dowry of Rs. 1,00,000/- etc, However, one of the witnesses has deposed that accused Nos. 2 and 3 had told the deceased to bring a cot in as much as, she had not brought the cot from her parents place. This solitary evidence of a witness before the trial Court may not be sufficient to bring home the guilt against them. Moreover, such a statement relating to demand of cot was not made before the police during the course of investigation. Therefore, such version appears to be an improvement made before the trial Court.

P.W. 4 is none other than the paternal grand father of the deceased. P.W. 5 is the maternal grand father of the deceased. Both these witnesses have deposed that the gold ornaments prepared weighing about 150 gms were for the purpose of giving to bride and bridegroom during the marriage. The gold ornaments included neck chain, ring, necklace, ear stud for the bride and chain and ring for the bridegroom. Except these gold ornaments no other gold ornaments were provided to accused No. 1. However, both of them have also deposed that Rs. 1,00,000/- was demanded by the accused and the same was provided. It is also deposed by P.W. 4 that the accused were complaining that the gold ornaments provided to accused No. 1 were of inferior quality and that he used to pressurize the deceased to get such gold ornament provided to him changed. We have already mentioned supra that the gold ornaments provided to accused No. 1 were not in the form of dowry, but they are customary articles. However, the consistent evidence of the prosecution including the evidence of P.Ws. 4 and 5 reveal that accused No. 1 was provided with the dowry of Rs. 1,00,000/-.

P.W. 5, the paternal grand father of the deceased, in addition to the aforementioned version, has deposed that when he went near the dead body, the villagers who had gathered near the dead body were talking that the deceased committed suicide since she was educated and accused No. 1 was not educated. It is also deposed by him that prior to marriage they had enquired with accused No. 1 about his educational qualification, but the accused had told that accused No. 1 is educated. He is treated as hostile witness by the prosecution and was cross-examined. Nothing worth is elicited by the prosecution to discard his evidence.

P.W. 6 is the brother-in-law of accused No. 1 who allegedly participated in the marriage talks and who arranged for the marriage of accused No. 1 with the deceased. All other witnesses are either official witnesses or panch witnesses. Their evidence may not be of much help to bring home the guilt against the accused.

Further case of the prosecution is that the accused had assaulted the deceased prior to the incident and consequently, the blood stains were found on the bed sheet, kerchief, nightgown and on the floor of the bedroom wherein the deceased used to sleep. In that regard a panchanama was drawn as per Ex. P3. The panchanama was conducted in the bedroom of the deceased. The panchanama discloses that the floor of the bedroom, bed sheet, kerchief, night gown of the deceased, underwear, blouse and petticoat of the victim were bloodstained. All such articles including the blood stained portion of the floor was scraped by the police and powder was seized under the very panchanama. All such 7 articles were sent to Forensic Science Laboratory for examination. The Forensic Science Laboratory report is at Ex. P22 and the Serologist report is at Ex. P23. The Forensic Science Laboratory report Ex. P22 discloses that all the 7 items sent for examination except item No. 2 i.e., sample cement powder of the floor, were found to contain blood stains. The Serologist report Ex. P23 further makes it clear that all such articles except item No. 2 were stained with human blood. Item Nos. 1, 3 and 4 i.e., cement floor powder, bed-sheet and kerchief were containing ''O'' group human blood. The blood group of the stains on item Nos. 5, 6 and 7 could not be determined since the results were inconclusive. The Forensic Science Laboratory report is supported by the version of the Assistant Director of Forensic Science Laboratory P.W. 21. He has deposed supporting the reports Exs. P22 and P23. Ex. P3 is supported by the version of P.W. 1.

The expert opinion and the concerned reports clearly reveal that the victim was physically assaulted in her matrimonial house that too in her bedroom. Accused No. 1 has not explained anything either by way of suggestion in the cross-examination or in his statement recorded under Section 313 of Cr.P.C. as to how the blood stains of human origin could come on the night gown, innerwear, bed sheet etc., that too in the bedroom. It is needless to observe that bedroom would naturally be shared by the married couple i.e., accused No. 1 and deceased. Therefore, it was incumbent on the part of accused No. 1 to explain such major incriminating circumstance against him. But no explanation of any sort is forthcoming. In this view of the matter, we are of the opinion that accused No. 1 is liable to be convicted for the offence punishable under Section 304(B) of IPC.

We have already made it clear in the aforementioned paragraphs that it was accused No. 1 who demanded dowry of Rs. 1,00,000/- and accepted the said amount of dowry at the time of marriage. Therefore, he is rightly convicted by the trial Court for the offence punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, in as much as, accused No. 1 was retaining the said amount of dowry. It is also amply proved from the evidence that accused No. 1 was subjecting the deceased to cruelty. Therefore, the trial Court has rightly convicted him for the offence punishable under Section 498(A) of IPC.

We have already made it amply clear that the evidence as against accused Nos. 2 and 3 is not sufficient to bring home the guilt against them. Except making vague statements, none of the prosecution witnesses have specified the roles of accused Nos. 2 and 3 in the crime. It seems accused Nos. 2 and 3 are implicated by the prosecution since they are the parents of accused No. 1.

The trial Court has wrongly convicted all the accused for the offence punishable under Section 306 of IPC. Since the accused were convicted for the offences under Section 304(B) of IPC, the trial Court could not have convicted the accused for 306 of IPC, which has got different ingredients. The conviction should have been either for the offence under Section 306 of IPC or under Section 304(B) of IPC. There cannot be conviction of the accused in respect of both the offences. Be that as it may. Since we find that accused No. 1 has committed the offence under Section 304(B) of IPC, no conviction can lie against him in respect of the offence under Section 306 of IPC.

We have heard the learned advocates on the question of sentence.

Sri. S.A. Ahmed, learned advocate appearing on behalf of the convicted accused submits that accused No. 1 has already undergone six years of imprisonment wherein the trial Court has sentenced him to undergo imprisonment for 7 years. Drawing the attention of the Court to the evidence of P.W. 5 he submits that the deceased was over sensitive lady and she committed suicide because of the insult of marrying an uneducated man. Thus, according to him, leniency may be shown while imposing sentence.

As against this, learned SPP submits that minimum of 10 years imprisonment should be imposed on accused No. 1.

Having regard to the totality of the facts and circumstances, in our considered opinion, interest of justice would be met, if accused No. 1 is sentenced to undergo imprisonment for the period for which he has already undergone. Accordingly, the following order is made:

"(a) The judgment and order of conviction convicting accused No. 1-Manikanta, S/o Kalegowda for the offences punishable under Sections 498(A), 304(B) of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act stands confirmed.

(b) The judgment and order of conviction convicting accused Nos. 2 and 3 for the offences with which they were charged stands set aside. They are acquitted of all the charges leveled against them. The bail bonds executed by them stands cancelled.

(c) Accused No. 1 is sentenced to undergo imprisonment for the period which he has already undergone. The period of imprisonment which he has already undergone is sufficient punishment in respect of all the offences with which he is charged.

(d) Since accused No. 1 has already undergone the imprisonment and as he has already satisfied the sentence of imprisonment imposed by this Court in Crl. A. No. 669/2011, he shall be released forthwith, if not required in any other crime."

Accordingly, Crl. A. No. 669/2011 filed by the accused is partly allowed and Crl. A. No. 1025/2011 filed by the State stands dismissed.

The operative portion of this order shall be communicated to the concerned prison authorities.