STATE Vs. SATISH SHETTY

JUDGEMENT

(1.) 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 with P. W. 6-mother, P. W. 7-first cousin and P. Ws. 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 wedlock, 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 dvvvscvas" aate of marriage between the parties, wherein the respondents/accused demanded a lakh of rupees ad 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. 9-Muthayya Shetty and performed the marriage after giving 30 sovereigns of gold. It is their further case that sometime later, there was demand for further payment of Rs. 1,00,000-00 and 20 sovereigns 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 poisonous 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 unconscious state of mind. Her pulse was feeble. Even her heartbeats were not heard properly. Ultimately, she died within an hour i. e. , 8. 00 a. m. on 19. 11. 1993. The 1st respondent-Satish Shetty 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 sent from Alva's Health centre to the Police on 19. 11. 1993 itself. Ex. P21 is the F. I. R. pertaining to udr No. 40/1993. We notice from the records that though a request was made by the investigating agency to the Tahsildar-P. W. 15 on the very same day i. e. , on 19. 11. 1993 to conduct inquest proceedings under Section 174 Cr. P. C. , it was not conducted on the same day and the inquest came to be conducted two days later i. e. , on 22. 11. 1993. As per the inquest proceedings, the unnatural death of deceased-Rekha was confirmed. Apart from recording the statement of kith and kin of the deceased and also the family members of the matrimonial home of the deceased on the very same day, P. W. 6 mother of the deceased lodged a complaint as per Ex. P9 giving details of demand before the marriage of her daughter with 1st respondent/accused, subsequent demand and the harassment caused to her daughter at the hands of the respondents/accused ultimately resulting in her death on 19. 11. 1993. Based on this complaint, second F. I. R. came to be issued as per Ex. P18, which came to be registered for an offence punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, so also for offences punishable under sections -98-A and 304 -B IPC. During the course of the investigation, the dead body was sent for post-mortem and after the post-mortem, the personal belongings of the deceased came to be seized under mahazar. So also at the instance of the accused, the gold ornaments and other articles said to be belongings of the deceased came to be seized from the matrimonial home. As the external injuries found on the dead body of the deceased were not sufficient to show that the death was not in the normal course of nature, the doctor sent the viscera to the forensic laboratory and deferred his opinion for want of chemical examination report. Subsequently, he opines that the death of the deceased was due to Organo phosphorous poison. During the course of the investigation, spot mahazar was conducted, statements of several persons like neighbours of the deceased, elders and other family members like mother of the deceased so also neighbours of the husband of the deceased came to be recorded. After completing the investigation, as the material collected by the investigating agency was pointing out a prima facie case against the respondent, a charge sheet came to be filed against the husband and in-laws of the deceased. During the course of the proceedings, after the evidence of P. W. 6, an application under Section 319 Cr. P. C. to implead 4th respondent as accused came to be allowed and accordingly, he was also brought on record as 4th accused. Ultimately, the trial was conducted against four respondents for the above said charges by examining P. Ws. 1 to 21 and marked Ex. P1 to P23 and also M. Os. l to 15 for the prosecution. Exs. Dl to D12 are the statements and certain documents came to be marked for the defence. After recording statement of the respondents/accused under Section 313 Cr. P. C. , respondents 1 and 2 filed their defence statement under Section 233 (2) of Cr. P. C. According to the defence, deceased-Rekha took the extreme step of ending her life by consuming poison as she was thoroughly upset when the 1st respondent/accused her husband did not permit her to visit her parents as demanded by her on 18. 11. 1993. The learned Judge on appraisal of the entire material both documentary and evidence of the witnesses assigning several reasons, which would be dealt hereinafter, acquitted the respondents of all the charges. Aggrieved by the said Order of acquittal, the State has come up in appeal.

(3.) ACCORDING to the learned Addl. S. P. P. , the reasoning of the learned judge with reference to the statements of the witnesses recorded under section 174 Cr. P. C. on the face of the records is perverse in view of the fact that the original statements of the witnesses were part of the inquest report which finds a place in the records. So far as the reasoning of the learned Judge regarding delay in lodging the complaint, it is properly explained from the evidence of P. Ws. 6 and 15, so also the contents of Ex. P9, the complaint lodged by the mother. According to the learned Addl. S. P. P. , the reasoning of the learned Judge with regard to the demand and payment of dowry is unreasonable in view of the 1st accused himself admitting receipt of dowry in his UDR complaint. It was further argued on behalf of the State that the prosecution need not establish the source of money towards the payment of dowry raised by the kith and kin of the deceased and therefore, the discussion of the learned Judge at paras 21, 22 and 23 on these aspects has to be held as perverse. We also notice that the learned judge at paras 25 and 26 refers to the offence punishable under Section 304-B IPC and comes to the conclusion that in view of the reasoning on the above said issues, when no offence came to be made out for the offence under Section 304-B IPC. , the respondents/accused could not be punished for lesser offence under the Dowry Prohibition Act. Of course, this was with reference to the Judgment of this Court and the Apex Court. He relies upon (2004) 5 SCC 334 (Dalbir Singh Vs. State of U. P.) and ILR 2007 Kar. 2117 (State of Karnataka Vs. Chowdegowda and Others) on the point that even if no charge came to e framed under Section 306 IPC, in view of a charge being framed under Section 498-A IPC, in the absence of ingredients of Section 304-B IPC. , the offence being established by the prosecution, the accused could still be convicted for alternate charge under section 306 IPC provided the prosecution establishes the ingredients of the said offence to the knowledge of the accused/respondents, even if no charge as such came to be framed for the offence punishable under Section 306 IPC of any other similar offence.