Govindaraju vs State Of Karnataka

Govindaraju .... Appellant

Versus

State of Karnataka .... Respondent

JUDGMENT

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.

3

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;

May 29, 2009 15

Digital Performa

Case No. : Criminal Appeal No. 570 OF 2003

Date of Decision : 29.05.2009

C.A.V. on : 21.5.2009

Cause Title : Govindaraju Versus State of Karnataka

Coram : Hon'ble Mr. Justice V.S. Sirpurkar Hon'ble Mr. Justice R.M. Lodha

Judgment delivered by : Hon'ble Mr. Justice V.S. Sirpurkar

Nature of Judgment : Reportable