H.N. Aravind Bushan S/O Late H V ... vs The State Of Karnataka on 2 August, 2012
Equivalent citations: 2012 (4) AIR KAR R 197, (2012) 4 KCCR 2934
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.268/2011
BETWEEN:
H.N. Aravind Bushan,
S/o. late H.V.Nagabhushan,
Aged 25 years, R/at No.115,
17th Cross, I.T.I. Layout,
H.B.S. Colony, Chandra layout,
Bangalore.
... PETITIONER
(By Sri Vinayaka S.Koti for Sri S.S.Koti, Adv.)
AND:
1. The State of Karnataka,
By S.P.P. for Chandra Layout,
Police Station,
Bangalore.
2. Chandrashekar
S/o. P. Dyavegowda,
Aged about 57 years,
Residing at No.576(7/33),
2
Near Land army office,
Vidya Nagar,
Hassan.
... RESPONDENTS
(By Sri Vijayakumar Majage, HCGP for R1;
Sri S.Shankarappa, Adv. for R2)
This Crl.R.P. is filed under Section 397(2) r/w 401
Cr.P.C. praying to set aside the order dated 22.12.2010
passed by the FTC-VI, Bangalore in S.C.No.160/2009
thereby rejecting the application filed by the petitioner for
discharge under S.227 of Crl.P.C. and allow the application
filed by the petitioner (A3) for discharge for the above said
offences.
This Crl.R.P. coming on for hearing this day, the
Court made the following:
ORDER
Petitioner, a Software Engineer is accused No.3 ('A3' for short) in S.C.No.160/2009 pending in the Court of City Fast Track (Sessions), Bangalore City (FTC-VI). This petition has been filed to set aside an order dated 22.12.2010 passed in the said case, rejecting an application filed by petitioner/A3, for discharge under S.227 Cr.P.C.
2. Material facts of the case are:
Avinash Bhushan/A1 is the elder brother of petitioner/A3. Avinash Bhushan married one Sowmya Chandra, daughter of respondent No.2 herein. Their marriage took place on 9.5.2008. Both Avinash Bhushan and Sowmya Chandra were working as Software Engineers. At the relevant point of time, petitioner was residing with his mother/A3, his brother/A1 and Smt.Sowmya Chandra (deceased). On the intervening night of 30/31.7.2008, at about 12.30, Smt.Sowmya Chandra, wife of Avinash Bhushan (A1), committed suicide inside the bed room. Her father/respondent No.2 herein/CW1, filed a complaint at 12.40 p.m. on 31.7.2008, alleging that, the accused picked up quarrel with his daughter Sowmya Chandra in the matter of bringing dowry from her parents, assaulted and abused her and on account of un-tolerable physical and mental strain, Smt.Sowmya Chandra committed suicide on the intervening night of 30/31.7.2008 at about 12.30 mid night, in her marital home and the accused abetted the commission of suicide. Inquest was fat drawn between 2 and 4 p.m. on 31.7.2008 and CW.1 and his wife CW.2 i.e., parents of Sowmya Chandra, made statements before the Executive Magistrate. Police recorded further statement of CW1 on 4.8.2008. Police recorded the statements of neighbours of deceased Sowmya Chandra i.e., CWs.13 and 14 on 31.7.2008. After completion of investigation, police filed the charge sheet for the offences, noticed supra, wherein petitioner has been shown as A3.
3. Petitioner filed an application under S.227 Cr.P.C. seeking discharge from the case, on the ground that, there is no material collected by the prosecution and placed on record to proceed against him for the alleged offences. Learned Trial Judge having considered the record and finding that the applicant/A3 is the younger brother of A1 and all the accused were residing together in the same house since the date of marriage of A1 and in the complaint, it is specifically stated that all the accused ill- treated the deceased and CWs.13 and 14, neighbours, have also stated regarding the incident, having formed the opinion that, there are materials against A3 to proceed by framing charge for the offences under S.498A and 304B of IPC r/w Ss.3 and 4 of Dowry Prohibition Act, the application was dismissed. Feeling aggrieved, A3 has filed this Criminal Revision Petition.
4. Sri Vinayaka S.Koti, learned counsel, firstly, contended that the entire material collected during investigation reflects two sets of versions which run contrary to each other and thereby, condemn one another, on account of which there being no prima facie case, application for discharge is required to be allowed. Secondly, complaint contains general and omnibus allegations and there is no tangible material exhibiting overt act of petitioner in the matter of alleged harassment. Thirdly, CWs.13 and 14 have only stated that, they heard screams of the deceased and after some time, they saw A3 helping A1, in taking Sowmya Chandra in a vehicle. He submitted that, said material cannot be considered in isolation, to hold that there is prima facie case against petitioner. Fourthly, further statement dated 4.8.2008 of the CW.1, does not make even a mention of the involvement of A3. He further submitted that the learned Trial Judge has failed to sift and weigh the material to find out, whether prima facie case has been made out. He submitted that at the most the material having given rise to mere suspicion and not a grave suspicion, petitioner be discharged from the case by setting aside the impugned order. Reliance was placed on the decision in the case of P.Vijayan Vs. State of Kerala and another, reported in 2010 AIR SCW 886.
5. Sri Vijayakumar Majage, learned HCGP and Sri S.Shankarappa, learned counsel for the respondents, supported the view taken by the learned Trial Judge and sought dismissal of the Criminal Revision Petition.
6. It is trite that, at the stage of framing of charge, the Court is required to evaluate the material and documents on record, with a view to finding out, if the facts emerging therefrom, taken at their face value, disclose the existence of the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is, whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.
7. In the case of Sajjan Kumar Vs. Central Bureau of Investigation, reported in (2010) 9 SCC 368, Apex Court, having surveyed its decisions, with regard to the exercise of jurisdiction and the scope of Ss.227 and 228 of Cr.P.C., the principles which have emerged has been indicated as under:
i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, if can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
8. Keeping in view the guidelines noticed supra, while deciding, whether or not, a charge against the accused is to be framed, it is necessary to advert to the facts of the case, to decide, whether on the basis of the material placed before the Trial Court, it can be reasonably held that a case for framing of charges against petitioner for the offences under Ss.498A, 304B of IPC r/w Ss.3 and 4 of Dowry Prohibition Act exists.
9. S.498A IPC was introduced to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. The term "cruelty", which has been made punishable under S.498A IPC has been defined in the Explanation appended to the said section to mean:
(i) any willful conduct which is of a such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or
(ii) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Therefore, the consequences of "cruelty", which are either likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman or the harassment of the woman, where such harassment is with a view to coercing her or any person related to her, to meet any unlawful demand is required to be shown in order to frame charge against the accused, under S.498A IPC.
10. The conditions precedent for framing charge for an offence under S.304B IPC are:
(a) that a married woman has died otherwise than under normal circumstances;
(b) such death was within 7 years of her marriage;
and
(c) the prosecution record indicates that there was cruelty and harassment in connection with demand for dowry soon before her death.
11. S.3 of Dowry Act deals with penalty for giving and taking of dowry. S.4 deals with penalty for demanding dowry directly or indirectly, from the parents or other relatives of a bride or bridegroom.
12. In the instant case, a plain reading of the complaint made at 12.45 p.m., on 31.7.2008 by the father of deceased Sowmya Chandra/CW.1, makes it clear that, petitioner was present when the demand for dowry was made prior to the marriage, i.e., in December, 2007 and a week after the marriage, when a demand was made for payment of balance dowry amount of `4,00,000/- for purchase of a car. Complaint contains statement regarding demand and acceptance of dowry on 20.1.2008 and 9.5.2008. Complainant has stated that the deceased informed him of the harassment meted out to her by her husband, mother-in-law and brother-in-law i.e., the petitioner. He has stated that the deceased Sowmya Chandra, unable to tolerate the harassment which was with a view to coercing her to meet unlawful demands, might have strangulated herself on the mid night of 30/31.7.2008 and died.
13. CWs.13 and 14 who are the neighbours of the accused, have stated that, between 11.30 p.m., and 12.30 a.m., on the night of 30/31.7.2008, they heard the screams and Sowmya shouting "leave me to live, I will go back to my parents' house and do not harass me," and that, after 20 minutes, there was no sound and they heard the sound of gate of the house being opened and when they came out, they having seen A1 and A2 carrying Sowmya in a car and on the morning of 31.7.2008, they having come to know of Sowmya's death, on account of hanging in the house. They have stated that, Sowmya appears to have died on account of the cruel treatment meted out to her at her marital home by her husband, mother-in-law and brother-in-law.
14. Statements of CWs.1 and 2 and the inquest statement shows that, there was demand and acceptance of dowry by the accused and that there was acts of coercion to meet further demand. According to CW.1, on account of cruel acts meted out to deceased Sowmya, she was driven to the act of committing suicide.
15. At the stage of framing of charge, consideration is limited for sifting the evidence, to decide, if, the facts emerging from the record constitute the offence which the accused is charged. The Court has to see at this stage, whether the materials brought on record would reasonably connect the accused with the crime. At this stage, probative value of the materials on record cannot be gone into and the materials brought on record by the prosecution has to be presumed as true.
16. From the material placed on record by the prosecution, briefly noticed supra, petitioner can be reasonably connected with the crime. Presence of petitioner inside the house, when the incident occurred on the mid night of 30/31.7.2008 has been spoken to by CWs.13 and 14. There is unnatural death of Sowmy Chandra in her marital home. Marriage took place on 9.5.2008 and Sowmya Chandra has died otherwise than in the normal circumstances, in less than two months period from the date of her marriage. Thus, there is a prima facie case for framing of charge for the offences under S.498A, 304B IPC r/w Ss. 3 and 4 of Dowry Prohibition Act.
17. The appellant P. Vijayan in P. Vijayan case (supra), filed a petition under Section 227 of the Code on 17.5.2007 for discharge on various grounds including on the ground of delay. The Trial Judge, by order dated 8.6.2007, dismissed the said petition and passed an order for framing charge for offences under Sections 302 and 34 IPC. Aggrieved by the aforesaid order, the appellant Vijayan filed Criminal Revision Petition No.2455 of 2007 before the High Court of Kerala. By an order dated 4.7.2007, the learned Single Judge of the High Court dismissed his criminal revision petition. The said order was challenged by Mr. P.Vijayan in the Apex Court. Taking note of all the ingredients in Section 227 of the Criminal Procedure Code and the materials placed by the prosecution and the reasons assigned by the Trial Judge for dismissing the discharge petition filed under Section 227, Apex Court confirmed the order of the Trial Judge as well as the order of the High Court. The decision has no application to the instant case.
18. In the light of the statements, which the Investigation Officer has recorded and the inquest statement and the documents placed on record, in my view, there is a grave suspicion about the involvement of the petitioner in the crime in question. Learned Trial Judge is justified in dismissing the application filed by the A3, seeking discharge from the case.
19. It is clarified that, the observations made herein are limited for consideration of prima facie case and availability of sufficient material for framing of the charge. The finding and observations shall not be construed as an expression of opinion on the merits of claim made by both the parties. It is for the prosecution to establish, in accordance with law, its charge against the accused. Learned Trial Judge is at liberty to analyze and arrive at an appropriate conclusion after conclusion of the trial, uninfluenced by the observations made herein above.
In the result, the Criminal Revision Petition is dismissed.