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2007 Supreme(Kar) 602
2008 (2) KLO 1373 (DB)
IN THE HIGH COURT OF KARNATAKA
Mrs. Manjula Chellur and A.S. Pacchapure, J.
Criminal Appeal No. 1409 of 2000
State by Sub-Inspector of Police - Appellant
Vs.
Satish Shetty& Others - Respondent
Decided on 13-9-2007
Appellant: Sri N. Rudramuni, Adv.
Respondents: Sri R.B. Deshpande, Adv.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 378: [Mrs. Manjula Chellur & A.S. Pacchapure, JJ] Scope and powers of the Appellate Court - Interference in the order of acquittal - Held, There is no second opinion regarding scope and powers of Appellate Court in case of acquittal, but once the reasoning of the Trial Judge is an outcome of perversity, it is open for the Appellate Court to interfere with the order of acquittal.
DOWRY PROHIBITION ACT, 1961 - Sections 3, 4 & 6: [Mrs. Manjula Chellur & A.S. Pacchapure, JJ] Offences under -When once the accused are not found guilty of the offence punishable under Section 304-B of I.P.C., they cannot be saddled with offence punishable under Section 3 & 4 of the D.P. Act as a subsequent demand was not in relation to the dowry agreed at the time of marriage. Hence, no offence under Section 4 of the D.P. Act is made out.
INDIAN EVIDENCE ACT, 1872 - Section 113-A: [Mrs. Manjula Chellur & A.S. Pacchapure, JJ] Presumption under - External injuries noticed on the dead body of the deceased which were ante mortem in nature, supported by Report of the Doctor and description of injuries in the Inquest Report - Non-explanation by the husband in respect of presence of injuries on the body of the deceased - Held, The accused/husband has utterly failed in rebutting the initial presumption against him. In view of presumption under Section 113-A of the Evidence Act, the non-explanation by the husband/accused in respect of presence of injuries on the body of the deceased, the presumption in law operates against the accused/husband that he is responsible for such injuries. The reasoning of the Trial Court in ignoring such a presumption available in law is nothing but perversity and result in miscarriage of justice.
INDIAN PENAL CODE, 1860 - Sections 498-A, 304-B & 306 & Dowry Prohibition Act 1961, Section 3,4 & 6: [Mrs. Manjula Chellur & A.S. Pacchapure, JJ] Offences under - A case of a married women committing suicide within seven years of marriage - Suicide was on account of cruel treatment by her husband/accused - On facts, held, There is no scope for two views in the facts and circumstances of the case and the only reasonable and justifiable view is that the deceased was driven to commit suicide on account of ill-treatment by her husband/accused. Further, When once the accused are not found guilty of the offence punishable under Section 304-B of I.P.C., they cannot be saddled with offence punishable under Section 3 & 4 of the D.P. Act as a subsequent demand was not in relation to the dowry agreed at the time of marriage. Hence, no offence under Section 4 of the D.P. Act is made out. The judgment of the Trial Court acquitting the first accused is set aside and the first accused is found guilty of the offence punishable under Section 498-A and 306 of I.P.C.
Manjula Chellur, J.
This is yet another case involving a young lady who has left this world at the age of 25 years leaving behind a tender aged son by name Rakesh that too when she was pregnant of 20 weeks. The State has come up with this appeal challenging the Judgment and Order of acquittal, wherein the respondents were tried for offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and also Sections 498-A and 304-B of IPC.
2. The case of the prosecution in brief is as follows:
It is not in dispute that the deceased-Rekha was affectionately called as Baby by her kith and kin married the 1st respondent/accused on 5-6-1991. The relationship inter se between the respondents i.e. accused No.1 being the son of accused Nos. 2 and 3, and accused No.4 being the son-in-law of accused Nos. 2 and 3 is not in dispute. The relationship of deceased-Rekha withP.W. 6-mother, P.W.7-first cousin and P.W s. 9 and 19-maternal uncles is not in dispute. It is also not in dispute that subsequent to her marriage with the 1st respondent/ accused she started living in the matrimonial home at Kollakady village of Puthige village in Karkala Taluk. Out of the said wadlock, a son was born to them, who was named as Rakesh as on the date of the alleged unnatural death i.e., 19-11-1993, as per the post-mortem report she was pregnant of 20 weeks. It is also not in dispute that within 7 years of her marriage with the 1st respondent/accused, she met with an unnatural death in the matrimonial home as she consumed pesticide, containing poisonous chemical i.e. Organo phosphorous.
According to the prosecution, there were marriage talks prior to the date of marriage between the parties, wherein the respondents/ accused demanded a lakh of rupees and gold to be given as dowry. However, according to the prosecution, the complainant raised Rs. 85,000-00 with the assistance of the younger brother i.e., P. W.9Muthayya Shetty and performed the marriage after giving 30 soverigns of gold. It is their further case that sometime later, there was demand for further payment of Rs. 1,00,000-00 and 20 soverigns of gold as additional dowry from respondents 1 to 3, which developed into harassment and ill-treatment towards deceased Rekha.
It is also their case that she has not only disclosed the said harassment and cruel treatment to her kith and kin but also wrote certain letters. At that time, the first child was about 10 months old. According to the prosecution, P. W. 7 - Prathap Shetty who was in V Standard, visited deceased-Rekha at her matrimonial home during October 1993 i.e., Dasara Vacation. The ill-treatment and harassment meted out to the deceased at the hands of the respondents/accused was witnessed by this first cousin of the deceased, which were informed to others later. Ultimately, on 19-11-1993, the kith and kin of the deceased received the intimation of death of the deceased due to consumption of poisinous substance like Organo phosphorous. The mother of the deceased lodged a complaint saying deceased would not have died taking poison and says with certainty that her son-in-law has murdered her. Therefore, she seeks investigation of the matter.
Apparently, prior to the kith and kin of deceased- Rekha learnt about, her death by 7.00 a.m. on 19-11-1993, the family members of the respondents were aware of the death of deceased- Rekha by 5.00 a.m. due to consumption of Hinacin pesticide as she started vomiting. She was shifted to Alva’s Health Centre at Moodabidri by 7.00 a.m. By the time she was taken to the hospital, She was in an unconsious state of mind. Her pulse was feeble. Even her heartbeats were not heard properly. Ultimately, she died within an heard properly. Ultimately, she died within a an hour i.e., 8.00 a.m. on 19-11-1993.
The 1st respondent-Satish Sehtty i.e., the husband of deceased-Rekha by 9.45 a.m. lodges a complaint in UDR No. 40/1993, which is at Ex.P20. As a matter of fact, as it was medico legal case, intimation was
