In the case ''State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)'', it was held that ''A suicide note written found in the clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act''. -1
What is equally curious was that the rejection of Ex. P. 3-suicide note by the Trial Court on the ground that identification of the handwriting of the deceased by the father and other relations was not sufficient, since they are interested witnesses. Who else could identify the daughter's signature better than the father? Equally erroneous was the reasoning of the Trial Court that the suicide note cannot be accepted because it was written on the reverse side of Electrol card and written in red ink. We asked ourselves the question where was the need for the Trial Court to reject Ex. P. 3 merely because it was in red ink or on the reverse of a electral card. The Trial Court conveniently forgot that if the suicide note was fabricated there would have been allegations with respect to the dowry. All that Ex. P. 3 states is that certain people owe monies to her and her husband was the main cause for her suicide. The deceased further states in the suicide note that the difficulty she had faced should not come to anybody else. A prayer in anguish on brink of death cannot be rejected for flippant reasons. The Trial Court hurt the memory of the deceased by giving such insensitive reasons.
15-A. We have no hesitation in coming to the conclusion that Ex. P. 3 which was identified by the relations of the deceased is a genuine document found in the clothes of the deceased and was undoubtedly in the nature of a dying declaration which was perfectly admissible in evidence under Section 32 of the Evidence Act.1
Karnataka High Court
State By Kamakshipalya Police, ... vs Maregowda And Ors. on 27 August, 2001
Equivalent citations: 2001 CriLJ 4491, I (2002) DMC 458, ILR 2001 KAR 4657
Bench: K Rajaratnam, V Sabhahit
1. This is an appeal against acquittal preferred by the State.
2. The respondents-accused have been acquitted for offences under Sections 3, 4 and 6(2) of the Dowry Prohibition Act and under Sections 498A and 304B of the Indian Penal Code. The State being aggrieved by the judgment passed by the XXII Additional Sessions Judge, Bangalore City in S.C. No. 199 of 1993 has preferred this appeal.
3. Deceased-Shanthamma was given in marriage to the first accused. A. 2 is the father of A. 1 and A. 3 is the mother of A. 1.
4. A. 1 married the deceased on 1-6-1986. The deceased committed suicide on 23-11-1992 by hanging herself.
5. The prosecution case briefly according to P.W. 1-the father of the deceased is that the accused demanded before the marriage a sum of Rs. 35,000/- as dowry and gold ornaments. After negotiation P.W. 1 paid Rs. 25,000/- to the 2nd and 3rd accused and the marriage was performed.
6. After the marriage the deceased used to complain that A. 2 and A. 3 were demanding more money and were harassing her. A. 1 and the deceased were living separately at Kamakshipalya. Even there, A. 1 is said to have assaulted the deceased and also ill-treated her. P.W. 1-the father of the deceased sent Rs. 3,0007- and Rs. 2,0007- to A. 1 through his daughter. After about 20 days thereafter the owner of the house where the deceased was living informed then that Shanthamma-the deceased had committed suicide by hanging.
7. P.W. 2-the elder sister of the deceased supported the evidence of P.W. 1. P.W. 3-the younger brother of P.W. 1 also spoke about the cruelty meted out to the deceased by the accused. P.W. 4-a close relation of P.W. 1 also spoke about the cruelty meted out by the accused to the deceased. P.W. 4-a close relation of P.W. 1 also corroborated the evidence of P.Ws. 1 to 4 with regard to the deceased being subject to cruelty.
8. P.W. 9-Doctor, who conducted the post-mortem examination as per Ex. P. 6 opined that the death was due to Asphyxia as a result of hanging. The Trial Court in a cavaliar fashion rejected the evidence of P.Ws. 1 to 5. The Trial Court held erroneously that P.W. 1 could have produced atleast a promissory note or some other documents to prove that P.W. 1 had the money to pay (Rs. 25,000/-). In the words of the Trial Court "there is no piece of paper to show that he has Rs. 25,000/- at the time of marriage negotiation. It only demonstrates that P.W. 1 is not capable of paying Rs. 25,000/- dowry to accused 2 and 3". The Trial Court further held that "a parrot like" evidence given in favour of P.W. 1 by the other witnesses with respect to the dowry are all interested witnesses and close relations of P.W. 1 and therefore they are not worthy of acceptance.
9. In a case which involves personal negotiation between the accused and the parents of the deceased, the most competent witnesses are the parents of the deceased and the Trial Court ought to have known that in normal circumstances the parents do not keep records of payments of dowry or pronotes in anticipation that their daughter will commit suicide. It is incredible that the Trial Court has rejected the entire testimony of the father of the deceased on the ground that there was no documentary record to show that the money was borrowed and paid to the accused.
10. Be that as it may, we shall now deal with Ex. P. 3-the suicide note found in the jacket of the deceased at the time of the inquest. The note Ex. P. 3 which is in the handwriting of the deceased was recovered by P.W. 10-the Tahsildar who conducted the inquest proceedings. He found the suicide note Ex. P. 3 in the jacket of the deceased. He seized Ex. P. 3 during inquest. The suicide note is a tragic manifestation of the sorry state to which the deceased was thrown to by the accused.
11. The translation of Ex. P. 3-the suicide note reads as follows.--
"Nanji has to pay chit amount. Laxmamma has to pay chit amount. Mangalamma has to pay chit amount. Chandrappa has to pay chit amount.
My husband is the main cause for my committing suicide by hanging. Do not leave him for any reason. Get half share to my child from him. Do not trouble her for any reason. The difficulty which I have faced, should not come to anybody else".
12. In the suicide note the deceased clearly implicates her husband as the main cause for her committing suicide by hanging. The deceased further poignantly states that the difficulty that she faced should not come to anybody else. She also pleads that her daughter should not be troubled and half share should go to her daughter.
13. Now let us deal with the reasoning given by the Trial Court in rejecting the suicide note which was recovered by P.W. 10-the Tahsildar at the time of inquest from the jacket of the deceased. The Trial Court states that the suicide note was recovered under the mysterious circumstances. The Trial Court further states without any justification that there was every possibility of implanting such a suicide note in the jacket of the deceased. According to the Trial Court the sucide note was a creation just to give credence to the case of the prosecution at the instance of P.W. 10 with the help of blood relatives. The Trial Court's reasoning with respect to the genuineness of the document Ex. P. 3 is quite incredible. The Trial Court states as follows.-
"Therefore, Ex. P. 3 does not carries much weight. The contents of which though suggests that accused 1 was responsible for deceased Shanthamma's untimely death, the spirit of that letter has lost all credibility due to its existence and therefore much to connect the alleged guilt of the accused. Further it does/not bear the signature of deceased. Further, the handwriting in Ex. P. 3 is not referred to handwriting expert. Further to compare the handwriting in Ex. P. 3 no exercise book in which Shanthamma has written any notes or any previous writing is produced or any postal letters written by Shanthamma is not produced to compare her handwriting with Ex. P. 3. Of course, P.W. 5 has spoken about handwriting of deceased-Shanthamma and stated that Ex. P. 3 is her handwriting. But he is an interested witness, being a close relative of P.W. 1. Therefore, his evidence does not carry much weight to arrive at a conclusion that Ex. P. 3 is in the handwriting of deceased Shanthamma. Further, the contents of Ex. P. 3 shows that it is written in red ink in a electral card. How this deceased could get the blank electral card to write a suicide note? More so, what was the necessity far her to write it in a red ink. These two strong circumstances throws a doubt regarding its contents. The police are there near the dead body before Tahsildar arrived at the scene. Red ink and electral card were freely available for them. Under such circumstances, Ex. P. 3 is shrouded with suspicion and therefore, the conviction of accused cannot be based upon such a doubtful material like Ex, P. 3, suicide note".
14. We have extracted the reasoning of the Trial Court for rejecting Ex. P. 3 only to satisfy ourselves as to how manifestly erroneous such a reasoning is. The Tahsildar-P.W. 10, who conducted the inquest had undoubtedly no reason to be a party to falsely implicate the accused at the instance of the family of the deceased.
15. What is equally curious was that the rejection of Ex. P. 3-suicide note by the Trial Court on the ground that identification of the handwriting of the deceased by the father and other relations was not sufficient, since they are interested witnesses. Who else could identify the daughter's signature better than the father? Equally erroneous was the reasoning of the Trial Court that the suicide note cannot be accepted because it was written on the reverse side of Electrol card and written in red ink. We asked ourselves the question where was the need for the Trial Court to reject Ex. P. 3 merely because it was in red ink or on the reverse of a electral card. The Trial Court conveniently forgot that if the suicide note was fabricated there would have been allegations with respect to the dowry. All that Ex. P. 3 states is that certain people owe monies to her and her husband was the main cause for her suicide. The deceased further states in the suicide note that the difficulty she had faced should not come to anybody else. A prayer in anguish on brink of death cannot be rejected for flippant reasons. The Trial Court hurt the memory of the deceased by giving such insensitive reasons.
15-A. We have no hesitation in coming to the conclusion that Ex. P. 3 which was identified by the relations of the deceased is a genuine document found in the clothes of the deceased and was undoubtedly in the nature of a dying declaration which was perfectly admissible in evidence under Section 32 of the Evidence Act.
16. If we place reliance on the suicide note, Ex. P. 3 a clear case is made out against A. 1 for an offence under Section 498A of the Indian Penal Code and since no mention is made of A. 2 and A. 3 in the suicide note, Ex. P. 3 they would be entitled to the benefit of doubt. This is particularly so since the deceased and A. 1 were living separately for some time.
17. This leaves us with the offence under Section 498A of the Indian Penal Code as against A. 1.
18. The Supreme Court in the case of State of Karnataka v H.S. Srinivasa, defined "cruelty" as follows.-
"The expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. To decide the question of cruelty the relevant factors are the matrimonial relationship between the husband and wife, their cultural and temperamental state of life, state of health and their interaction in daily life".
19. The definition of "cruelty" is much wider and is not confined for dowry harassment. The evidence of P.W. 1-the father of the deceased clearly indicates that A, 1 assaulted and ill-treated the deceased. P.W. 2 is the sister. She also states in her evidence that the deceased was tortured by her husband, A. 1. P.W. 3 clearly states that the A. 1 used to come drunk and harass the deceased. P.W. 4 states in his evidence that the deceased informed him that A. 1 was torturing the deceased. P.W. 5 also confirms that the deceased was tortured by A. 1. The evidence of these witnesses clearly indicate that the deceased was subjected (o cruelty by A. 1.
20. The most clinching evidence in this case is Ex. P. 3 which has been referred to earlier. Ex. P. 3 can never be discounted as was done by the Trial Court since it clearly states that A. 1 is the main cause for the deceased committing suicide. In Ex. P. 3 the deceased has stated that the difficulty which she has faced should not come to anybody else. In Ex. P. 3 she has further stated that her daughter should get half share in the property of A. 1. The handwriting of the deceased has been identified by the father and other relations. There is no reason whatsoever to disbelieve these witnesses. Further, P.W. 10-the Tahsildar states that Ex. P. 3-the suicide note or dying declaration was seized from the jacket of the deceased during inquest. All these clearly leave no room for doubt that A. 1 has caused cruelty to the deceased.
21. We are conscious of the fact that we are dealing with an appeal against acquittal and if two views are possible the benefit of doubt would go to the accused. However, the Supreme Court in State of Uttar Pradesk v Krishna Gopal and Another, has held that a reasonable doubt is not an imaginary, trivial or a merely possible doubt but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. Forensic probability must in the last analysis rest on a robust commonsense and ultimately on the trained intuitions of the Judge.
22. Having regard to the above said principles in an appeal against acquittal, we have no hesitation to hold that the judgment of the Trial Court is palpably erroneous and contrary to law. We find A. 1 guilty for an offence under Section 498A of the Indian Penal Code.
23. We heard the learned Counsel for the accused on the question of sentence.
24. Considering that the occurrence is alleged to have taken place on 23-11-1992 - nine years ago and taking into account that A. 1 has a child we convict A. 1 under Section 498A of the Indian Penal Code and sentence him to undergo R.I. for two years and direct him to pay a fine of Rs. 5,000/- in default to undergo S.I. for six months.
25. The fine amount shall be paid within four weeks from the date of receipt of this order in the Trial Court. The Trial Court shall disburse this amount as compensation to P.W. 1-the father of the deceased.
26. We do not wish to interfere with the acquittal of A. 2 and A. 3 since the suicide note implicates only A. 1.
27. We accordingly allow the appeal preferred by the State against A. 1 for an offence under Section 498A of the Indian Penal Code only and sentence the accused 1 for a period of two years R.I. and also sentence him to pay a fine of Rs. 5,000/- in default to undergo S.I. for six months. A. 1 shall surrender and undergo the remaining period of sentence and A. 1 will be entitled to set off under Section 428 of the Criminal Procedure Code.
28. In passing we would like to state that to avoid any miscarriage of justice it would be proper for the prosecution agency and for the Trial Court to frame alternative charges both under Sections 304B and 306 of the IPC since both charges involve the element of presumption under Sections 113B and 113A of the Evidence Act respectively (Shamnsaheb M. Multtani v State of Karnataka).
29. Accordingly the State appeal against A. 1 is allowed in part and the State appeal against A. 2 and A. 3 is dismissed as indicated above.
No comments:
Post a Comment