Subramani vs State

Mohan M. Shantana Goudar, J.—1. The judgment and order of conviction dated 28.11.2011 passed by the Fast Track Court - V, Madhugiri, in Sessions case No. 48/2011 convicting accused No. 1 for the offence punishable under Section 302 of IPC, is called in question in this appeal.

By the impugned judgment, accused Nos. 2 and 3 are acquitted. The State has not filed any appeal questioning the acquittal of accused Nos. 2 and 3. Whereas, this appeal is filed by the convicted accused No. 1

The case of the prosecution in brief is that the deceased is the wife of accused No. 1. Their marriage was performed on 16.05.2010. The elder brother of accused No1 is PW.2. The elder sister of the deceased (PW.3) had married PW.2. Accused Nos. 2 and 3 are the parents of accused No. 1.

The marriage between accused No. 1 with the deceased was a love marriage. The parents of accused No. 1 viz., accused Nos. 2 and 3 did not agree for the said marriage; there used to be quarrel between deceased and accused No. 1. Accused Nos. 1 to 3 as well as the deceased were living under one roof. On the date of the incident i.e., on 01.09.2010 at about 04:30 p.m., quarrel ensued between the deceased and accused Nos. 2 and 3; accused No. 1 being enraged, throttled the neck of deceased, consequent upon which the deceased breathed her last; all the accused went away from the house leaving the dead body in the house; the rumours about the death of the deceased spread in the village at about 06:00 p.m. Ultimately the rumours reached police. PSI - (PW.7) of Tirumani police Station, Pavagada Taluka, came to the spot and made enquiries. On the next date of the incident i.e., on 02.09.2010, at about 10:00 a.m. the father of the deceased (namely Gopalappa - PW.1) lodged the first information as per Ex. P3, which came to be registered in Tirumani Police Station by PW.7 in Cr. No. 52/2010 for the offences punishable under Sections 498A, 302, 304-B r/w Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act. After completion of the investigation, charge sheet came to be filed by PW.8 - Deputy Superintendent of Police for the offence punishable under Sections 302, 498A, 304B r/w 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act against three accused i.e., husband and parents-in-law of the deceased.

In order to prove the case of the prosecution, in all 10 witnesses have been examined and got marked 22 documents and three material objects. No witnesses have been examined on behalf of the defence and no document is marked.

The trial Court on appreciation of the evidence and material on record, acquitted accused Nos. 2 and 3 and convicted accused No. 1 for the offence punishable under Section 302 of IPC.

Sri Amar Corea, learned counsel for the accused taking us through the materials on record submits that except the official witness, no other witness has supported the case of the prosecution. There is no evidence to show that the accused were present in the house at the time of incident. The incident allegedly took place at 04:30 p.m. in the house and that is not the time for accused No. 1 to stay back in the house inasmuch as he was working as an agriculturist; the father, mother, sister as well as the brother-in-law of the deceased have turned hostile to the case of the prosecution; The material on record does not disclose any allegation of demand of dowry or payment of dowry; None of the circumstances relied upon by the prosecution are proved by the prosecution. On these grounds, he prays for acquittal of the accused.

Per contra, learned Additional SPP, Sri Vijayakumar Majagge, argued in support of the judgment and order of conviction of the court below.

Before proceeding further, it would be relevant to note the gist of the versions of each of the witnesses examined before the Court by the prosecution. PW. 1 is the father of the deceased, who has lodged the complaint as per Ex. P3 before the Police and FIR - Ex. P15 discloses that accused No. 1 used to demand dowry and in regard to the same he used to harass the victim continuously, but he turned hostile to the case of the prosecution before the Court below. PW.2 is the brother of accused No. 1 and brother-in-law of the deceased. He had married the sister of the deceased and he has also turned hostile to the case of the prosecution. PW.3 is sister of the deceased and wife of PW.2. PW.9 is the mother of the deceased. Both of them have also turned hostile to the case of the prosecution. PW.4 is one of the acquaintance of the complainant's family and witness to the mahazar - Ex. P4 wherein the marriage of accused No. 1 was performed with deceased. He has also turned hostile to the case of the prosecution. Ex. P8 is the spot mahazar, wherein the alleged incident has taken place. PW.5 is the Doctor who conducted autopsy over the dead body. Ex. P10 is the opinion rendered by the Doctor. The doctor has opined that death is due to asphyxia strangulation. He has opined that the death in question is homicidal. PW.6 is the Panchayat Secretary who got issued certificate of Khatha of the house wherein, the incident has taken place as per Ex. P1 1; PW7 is Sub-Inspector of Police who lodged FIR and conducted part of the investigation. PW.8 is the Deputy Superintendent of Police, who has completed the investigation and lodged charge sheet. PW.10 is the Tahsildar, who has drawn inquest mahazar and further inquest mahazar is at Ex. P22.

From the aforementioned materials, it is amply clear that PWs. 1, 2, 3 and 9 were supposed to depose about the demand for dowry by accused No. 1, payment of dowry to the parents-in-law of the deceased and harassment by accused No. 1 to the deceased etc., but have turned hostile to the case of the prosecution. They were cross-examined at length by the prosecution but no useful purpose was served by cross-examining them by the prosecution and no materials are gathered in favour of the prosecution. It seems, all the family members have comprised inter se and that they did not come forward to depose before the Court. Even the witness to the mahazar -Ex. P4, namely Basappa - PW.4 has turned hostile to the case of the prosecution. Hence, it is clear that all the non-official witnesses including the family members of the deceased did not come forward before the Court below to depose against accused No. 1. Consequently, no material is found against accused No. 1 from the deposition of PWs. 1, 2, 3, 4 and 9.

The evidence of PW.5 - Doctor clearly reveals that the death is homicidal. He has clearly opined that some person has pressed the neck of the deceased consequent upon which the deceased died. The doctor has further opined that the death is due to asphyxia as a result of strangulation. Thus, it is a case of homicidal. Except that it is a case of homicidal no other material is found against the accused.

As the dead body was found in the house of the accused, in the normal course, it is for the accused to explain as to how the death has taken place within the house. But in the matter on hand there is nothing on record to show that accused No. 1 was present in the house during the relevant point of time. If the presence of accused No. 1 on the scene of offence proved by prosecution, then presumption would have been raised against him and adverse inference could have been drawn against him. In such event, he had to explain as to how the death has taken place. But in the matter on hand, the evidence on record does not disclose the presence of accused No. 1 at all during the relevant point of time in the home or near the house. The incident has not taken place during the night but has taken place at 04:30 p.m., In this context, learned counsel - Sri Amar Corea may be justified in arguing that accused being an agriculturist, he was not expected to stay back in the house, in the normal course, he would have been outside the house. Be that as it may, in the absence of any material on record to show that accused No. 1 was present in or around the house or in the village during the relevant of point, the defence is justified in contending that presumption is not against accused No. 1.

It is relevant to note the dictum of the Hon'ble Apex Court in the case of Ashok v. State of Maharashtra (2015 Crl.L.J. 2016), at this stage. The Hon'ble Apex Court while considering the circumstances of last seen together has observed that initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per S.106 of Indian Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt. In the matter on hand, neither last seen circumstance is proved nor any other circumstances surrounding the incident like quarrel between the accused and the deceased; enmity between them; previous history of hostility, recovery of weapon from the accused etc., On the other hand, the evidence of PWs. 1, 2, 3 and 10 would clearly reveals that accused and deceased were living happily as husband and wife and the deceased might have committed suicide since she was suffering from stomach ache since long time i.e., even prior to the marriage. In view of the same, in our considered opinion, the trial Court is not justified in convicting accused No. 1 for the offence punishable under Section 302 of IPC.

In the matter on hand, absolutely no material is found against accused No. 1. Merely on presumptions or assumptions, the trial Court could not have convicted accused No. 1 for the offence punishable under Section 302 of IPC. The prosecution has not proved its case beyond reasonable doubt. On reconsidering the material on record, we are of the opinion that the trial Court is not justified in convicting the accused No. 1 for the offence punishable under Section 302 IPC inasmuch as absolutely no material is found against accused for convicting him for the offence punishable under Section 302 of IPC.

Accordingly, the impugned judgment and order of conviction is liable to be set aside and the same stands set aside.

The bail bond of the accused stands cancelled.