Govindaraju Vs. State
of Karnataka [2009] INSC 1125 (29 May 2009)
Judgment
Reportable IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 570
OF 2003 Govindaraju .... Appellant Versus State of Karnataka .... Respondent
V.S. SIRPURKAR, J.
1.
In
this appeal which has been filed by one Govindaraju, original accused No. 1
before the Trial Court (appellant herein), the challenge is against his
conviction for the offence under Section 304B Indian Penal Code (IPC) and the
consequent punishment of rigorous imprisonment for seven years. Initially, the
appellant/accused Govindaraju was tried for offence under Section 302 and/or
304B, IPC along with his father and mother, accused Nos. 2 and 3 respectively
as also his brother Vasu, accused No.4. They were tried for the murder of
Susheela, the wife of Govindaraju (present appellant) which took place on the
night between 28/29 Janunay, 1987 in her matrimonial home which was No.
CH.27/1, 6th Cross, Ashokapuram, Mysore.
2.
Eventually,
we are not concerned with accused Nos. 2 and 3 and also the accused No.4, Vasu,
as the accused No. 2 Krishnaiah and 2 accused No. 3, Eramma @ Marimadamma died
during the pendency of the trial and accused No. 4 was acquitted both by
Sessions Court and the High Court. Initially, both the accused No.1 (for short
"A-1") and his brother accused No. 4 (for short "A-4") were
acquitted by the 1 st Additional Sessions Judge, Mysore. However, in appeal by
the State against this acquittal, the present appellant Govindaraju was
convicted for the offence under Section 304B, IPC and was sentenced to undergo
rigorous imprisonment for seven years. That is how the accused is before us in
this appeal.
3.
The
prosecution case was that Susheela was married to the present appellant on
25.05.1986. The original accused Nos. 2 and 3 were parents of the present
appellant, while A-4, with whom we are not concerned, was his brother. Susheela
died due to burn injuries in her matrimonial home on the night of 28/29
January, 1987. She had no father. Hence, her matrimonial uncle, Ram Krishan had
celebrated her marriage. After he came to know about the death of Susheela, he
filed a complaint at 9:30 a.m. on 29.01.1987 on the basis of which the further
investigation was started and the charge-sheet was filed against the four
accused persons.
Even before that,
A-2, Krishnaiah expired and hence the charges were framed against accused Nos.
1, 3 and 4 for the offence under Section 302, 304B, 201 read with Section 34,
IPC.
4.
After
the charges were framed, A-3 Eramma @ Marimadamma also expired and, therefore,
the evidence was recorded only against the appellant/original accused No.1
Govindaraju and his brother A-4, Vasu.
The prosecution case
initially was that at the time of marriage the accused had demanded the dowry
of Rs.5,000/- and even thereafter during the subsistence of marriage he kept on
pestering Susheela and her uncle for dowry. At the time when Susheela expired
she was pregnant. She was treated by her in-laws in a cruel manner and ultimately
murdered, or as the case may be, she committed suicide due to the cruel
treatment of her in- laws and her husband. As a result of this, she died barely
within a few months of her marriage. In support of the prosecution case number
of witnesses came to be examined including PW-1, her matrimonial uncle, PW-2,
her brother, PW-3 another elderly relative and her mother as also some other
relations including PW-4 along with other witnesses on investigation and the
medical aspect.
5.
Initially,
the 1st Additional Sessions Judge, Mysore acquitted all the accused persons
which acquittal was challenged before the High Court which set aside the
judgment of the Sessions Judge insofar as the present appellant is concerned
and convicted him for the offence under Section 304-B.
6.
The
Learned Counsel, appearing on behalf of the appellant, vehemently contended
that the High Court had erred in upsetting the 4 judgment of acquittal passed
by the Trial Court. In that, the High Court had not found specifically that the
findings on acquittal recorded by the Trial Court were in any manner perverse.
He further pointed out that the case of the prosecution was initially to the
effect that all the accused persons had committed murder of Susheela and the
charge under Section 304-B IPC was also be framed against the accused persons.
The charge under Section 302 having failed and not having been accepted by the
Trial Court, the very basis of the prosecution case was knocked down. This
aspect has not been considered by the High Court. Further, the Learned Counsel
urged that the story that this accused (appellant herein) in particular and all
the other accused in general, meted out cruel treatment to deceased Susheela,
was a myth, as there is no evidence, whatsoever, to suggest that Susheela was,
in any manner, physically tortured or ill- treated. The Learned Counsel pointed
out that there was no necessity on the part of the appellant/accused to claim
dowry from the family members of Susheela, who he knew, were the poor lot. This
was apart from the fact that he himself was earning quite well being a Cashier
in a Bank. The Learned Counsel pointed out that even at the time of marriage,
the husband had not insisted on any dowry. It is further pointed out that the
appellant/accused loved his wife and was a caring husband, particularly because
she was pregnant. It was missed by the High Court that the appellant/accused
had taken the deceased for a picnic at a place called Balamoori, barely a
couple of days prior to the incident. It was lastly 5 suggested that the
evidence of PWs 1, 2, 3, 4, 6 and 18 was not trustworthy and the witnesses were
given to exaggerations. According to the Learned Counsel, the Sessions Judge
had taken a possible view of the matter and, therefore, the High Court should
have given due weight to the judgment of acquittal.
7.
The
Learned Counsel, appearing on behalf of the prosecution, however, supported the
judgment and invited our attention to the evidence of PW-1 Ramakrishna, PW-2
Doreswamy, PW-3 Chikkaputtaiah, PW-4 Mariyamma, PW-6 Shankaranarayana, as also,
PW-18 Puttasiddamma, who is the mother of the deceased. The Learned prosecutor
also invited our attention to the fact that the first three witnesses and more
particularly, the mother had spoken specifically about the demands of dowry by
the accused and there was very little or no cross-examination on the issue of
dowry. Further, all the four witnesses have spoken about the complaint of
ill-treatment being given by the appellant/accused and his parents.
According to the
Counsel, the death of Susheela being unnatural death within seven years of the
marriage and she having been treated cruelly, there is a presumption under
Section 113-B of the Evidence Act, which would nail the accused. Our attention
was also invited to the evidence of Doctors.
8.
We
have seen the judgment of the Trial Court, as well as, the High Court closely.
In his judgment, the Sessions Judge was almost convinced 6 that this was a
case of murder. He pointed out that there was no explanation on the part of the
accused persons as to how Susheela got burnt and who was the person who threw
water on the body of Susheela, as the body was found wet when the witnesses
reached the spot. The Sessions Judge also expressed, though in a halting
manner, that though when the outsiders reached the house of the accused where
the deceased died, the door was closed from inside, the said door could be
locked from inside by putting hand through the window, which had the enough
space and, therefore, the Sessions Judge expressed his suspicion. He also
pointed out that the case that the deceased had committed suicide and had died
at 7' O clock in the morning, was also not convincing. However, the Sessions
Judge gave a benefit of doubt to discard the theory of murder, on the ground
that the door was locked from inside and was closed and had to be broken by all
the persons, who came there. The Sessions Judge had noted that there were no
soot particles found either in the respiratory passage or inside the lungs of
the deceased and, therefore, a theory could be propounded that she died first
and then was burnt.
However, the Sessions
Judge also found that the Doctor, in his evidence, had fixed the time of death
between 18 to 24 hours prior to the post mortem, which took place on 29.1.1987.
The Sessions Judge had also discussed in details the fact that there were no
struggle marks on the dead body of Susheela, which was a circumstance in favour
of the accused to rule out the theory of murder. Be that as it may, the Sessions
judge, 7 however, has in the clearest possible terms, come to the conclusion
that Susheela had died as she had committed suicide.
9.
It
was then that the Sessions Judge went on to examine as to whether the suicide
was on account of the cruel treatment having been given to the deceased
Susheela and on that backdrop, the Trial Court examined the evidence and came
to the conclusion that indeed Susheela was in the advance stage of pregnancy
and, therefore, it was unlikely that she would commit suicide for no reason.
This finding was criticized as an inferential finding by the defence, but in
our opinion, it would not be so.
For this purpose, the
evidence of PWs, who were the relations would be extremely relevant.
10.
In
his evidence, PW-1 Ramakrishna spoke about the demand of Rs.5,000/- on account
of dowry at the time of marriage, which he could not arrange and, therefore,
had promised the appellant/accused that he would pay later on and that he
actually paid Rs.2,000/- before the death of Susheela. It was pointed out by
the defence that there was some contradiction in the evidence of PW-1 and PW-18
on this issue on payment of Rs.2,000/-. However, in our opinion, that
contradiction is minor, considering the fact that PW-18 is an illiterate
person. When we see the evidence of PW-1, who was extensively cross-examined,
we find that his claim about the demand of dowry remains unshaken in his cross-
examination. Here was a poor man, who had to take loans for arranging 8 the
marriage of his sister's daughter though he himself hardly had any income. He
specifically claimed that he took loans from the Society and was paying the
installments on account of that. He also specifically stated that Susheela
complained to him on 2-3 occasions when she had come to his place, where her
mother also stayed, that she was in trouble on account of the non-payment of
Rs.5,000/-, which this witness had agreed to pay at the time of marriage. He
claimed that the accused persons were harassing Susheela for not bringing the
balance amount of dowry and that every time, he had to pacify. He also asserted
that the accused were not sending Susheela to his house at the time of
festivals and that they had sent Susheela to his house only twice after the
marriage. At this juncture, it must be observed that there was hardly any
distance between the house of this witness and Susheela's matrimonial house.
Susheela's house was in the other street, which was near the house of the
witness. It is strange that a newly married girl like Susheela could be sent to
her parental house, which is so near only on 2-3 occasions. That is also the
claim of the other witnesses like PWs 2, 3 and 18. PW-1 also pointed out that a
day prior to death, Susheela was not taking any food and, therefore, he and his
elder brother's son Doreswamy (PW-2) went to the house of accused situated in
the 6th Cross, Ashokapuram, Mysore in the evening and at that time, the
appellant/accused was not present in his house and Susheela cried on his being
asked as to why she is not having any food and had expressed that she was
afraid to continue to live in her husband's house, as the husband 9 and his
relatives were harassing and that she could be taken to her parental house.
11.
The
witness further asserted that when at his instance, Susheela had started taking
her food, the appellant/accused came there and got angry as to how she was
having food and he was not called. At that time also, when the witness wanted
to take Susheela along with him, the appellant/accused expressed that she
should remove her Thali (an ornament worn by a married lady) and then alone she
could leave the house. If this was the treatment received by Susheela and that
too before her maternal uncle, it could be imagined what could be the state of
affairs otherwise. Thereafter, the witness saw only the dead body of the girl.
All these assertions could not be shaken in the cross-examination in any
manner. Beyond giving the suggestions that there were no demands from
bridegroom's side for dowry, there was hardly anything in his cross-
examination. True it is that he admitted that he had not stated about the
demand of the accused about Rs.5,000/- during the marriage talks.
However, he explained
that the talk of dowry did not take place at the time of marriage talks and it
was only later that the demand was made. Some stray suggestions were given like
Susheela used to come to his house often or that he himself was pestering
Susheela for money on account of the expenditure that he had incurred for her
marriage, which the witness had refuted. The most important part is a wild
suggestion given to the 10 witness that Susheela used to move about and that
she had an affair with one Shridhara, who was the son of PW-3 Chikkaputtaiah
and that the appellant/accused had asked the wife not to go to the house of
PW-3 Chikkaputtaiah. A suggestion was thrown that Susheela wanted to marry
Shridhara. Naturally, the suggestion was refuted.
12.
This
was almost an imaginary case invented by the defence that Susheela had a love
affair with Shridhara and out of frustration, she committed suicide. There is
absolutely no basis for this theory. We have examined evidence of PW-3
Chikkaputtaiah very closely on this aspect.
Even he refuted all
the suggestions in this behalf. It must be remembered here that the distance
between the house of the accused and the Susheela's maternal uncle's house
could be covered within five to ten minutes. Even the house of PW-3
Chikkaputtaiah was near the house of PW-1. Under such circumstances, if
Susheela had an affair and used to move about with Shridhara prior to her
marriage, it was impossible that the appellant/accused would not know about
such a liaison. That theory seems to have been invented only to add colour to
Susheela's suicide and was rightly rejected by the Appellate Court. The fact
that Susheela did not take food for two days prior to her death, itself goes on
to prove the mental torture that she suffered and as if it was not sufficient,
she was chided by the appellant/accused a day prior to her death on the trifle
issue that she had taken the food earlier to him and he was not called for and
that she 11 could go to her house only after removing her Thali (ornament worn
by a married lady).
13.
There
can be no doubt that in the evening, the appellant/accused was not present. The
High Court has appreciated the evidence very deeply and in our opinion, the
Sessions Judge had gravely erred in not accepting the evidence of this witness
without any justifiable reason. It is a basic principle that the evidence of
witness has to be appreciated as a whole, when the evidence of an ordinary
witness, who is not much educated and comes from a poor strata of society not
having the advantage of education. The Court has to keep in mind all these
aspects.
The witness is not
expected to remember every small thing, more particularly when he faces the
shock of the untimely death of his near relative. The finding reached by the
Sessions Judge in his judgment that there was no payment of dowry appears to be
a totally incorrect finding tending to be perverse. The main reason for this
appears to be contradiction in the evidence of PW-1 and PW-18, completely
ignoring the fact that PW-18 was an illiterate woman and could not be expected
to remember the details regarding the date on which the amount of Rs.2,000/-
was paid to the appellant. In returning the finding that there was no dowry
harassment to Susheela by the accused persons, the Sessions Judge had
completely ignored the evidence of PW-3, which remained absolutely unshaken on
that issue. In fact, even PW-5 B.
12 Puttaiah had
supported the case of the dowry harassment and so did PW- 6 Shankaranarayana,
who is the immediate neighbour of appellant/A-1. Of course, PW-6
Shankaranarayana was declared hostile in his cross- examination. However, even
he had admitted that there used to be quarrels in the house of the accused
persons. The fantastic theory of Susheela's love affair with Shridhara was also
denied by this witness in his cross-examination by the accused. PW-3 and PW-5
had specifically referred about the ill treatment of dowry and there was
absolutely no cross- examination on the payment of dowry, as also the
complaints made by Susheela against the accused persons that she was ill
treated on account of non-payment of Rs.5,000/- The finding recorded that there
was no continuous onslaught, cruelty or harassment was clearly an incorrect
finding, without even bothering to realize that there was no cross- examination
of the witnesses like PWs-1, 3 and 5 on that issue, though they had very
specifically asserted that Susheela was being ill treated on account of dowry.
14.
The
learned counsel seriously criticized the judgment of the High Court contending
that the High Court had not given due weightage to the findings of acquittal as
recorded by the Trail Court. When we see the judgment of the High Court, it is
clear that the High court has not only considered the whole prosecution
evidence closely but has also considered the defence evidence. The criticism is
not correct. The High 13 Court has relied on the judgment of this Court
reported as Dhanna Etc. v. State of Madhya Pradesh [1996 (10) SCC 79] to show
that the High Court has full power to review the evidence and to arrive at its
own independent conclusion whether the appeal is against conviction or
acquittal. The High Court was also alive to the situation that it was
considering an acquittal judgment wherein, firstly, there was a general
presumption in favour of innocence of the person accused in a criminal case, which
presumption was strengthened by the acquittal, and further, that every accused
is entitled to the benefit of reasonable doubt regarding his guilt and that if
the High Court acquitted such accused, he would still retain that benefit in
the appellate Court also. The High Court has also relied on the ruling reported
as Allarakha K. Mansuri v. State Of Gujarat [2002 (3) SCC 57] to the effect
that the paramount consideration of the Court would be to avoid miscarriage of
justice arising from acquittal of guilty. One other judgment rightly relied on
by the High Court is Betal Singh v. State of Madhya Pradesh reported in 1996
(8) SCC 205 to the effect that the appellate Court can come to its own
conclusion about the credibility of the witnesses, if such credibility depends
on factors other than the demeanor of witnesses. From the way the evidence has
been appreciated by the High Court, it is clear that the High Court has
disapproved of the findings given by the Trial Court and has done the whole
exercise of appreciation of evidence independently. The High Court has given a
clear finding in para 28 of its judgment that the Trial Court was 14 palpably
wrong in holding that the prosecution had failed to prove the guilt of the
accused, more particularly, under Section 304B, IPC. Here was a case which was
completely covered by the presumption under Section 113B of the Indian Evidence
Act since all the aspects such as the cruelty meted out to Susheela, her
unnatural death within the time span of seven years and constant demands of
dowry were proved to the hilt.
15.
We
have no doubt that the there were many things than what meets the eye in the
death of Susheela who died in her own bedroom of burn injuries. We would have
expected some explanation on that count. It was clear that she died in the wee
hours and yet there was nothing, even suggestive, of any explanation. The High
Court has severally commented on all these aspects and we do not find anything
wrong with the High Court's judgment.
16.
In
that view, we hold that the judgment convicting the accused of the offence
under Section 304B, IPC is correct and the appeal has no merits.
It is accordingly
dismissed.
......................................J.
[V.S. SIRPURKAR]
......................................J.
[R.M.LODHA]
New
Delhi;
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