Karnataka High Court
Raju vs State Of Karnataka on 14 February, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.140/2008
BETWEEN:
RAJU
S/O BASAPPA, 32 YEARS
TAILOR
R/O KABBALI VILLAGE
KADUR TALUK. ... APPELLANT
(BY SRI A H BHAGAVAN, ADV.)
AND:
STATE OF KARNATAKA
BY SAKHARAYAPATNA POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 01. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 31.12.2007 & 04.01.2008 IN
S.C.NO.6/2006, ON THE FILE OF THE PRINCIPAL SESSIONS
JUDGE AT CHIKMAGALUR - CONVICTING THE APPELLANT/
ACCUSED NO.1 FOR OFFENCES PUNISHABLE UNDER
SECTIONS 3 AND 4 OF D.P ACT AND UNDER SECTIONS 498-A,
AND 304-B IPC & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The appellant (accused no.1) was tried and convicted for offences punishable under Sections 498-A, 304-B IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. The learned trial judge has acquitted accused no.2 and 3 (parents of accused no.1) for the aforestated offences. Therefore, accused no.1 is before this court.
2. I have heard Sri.A.H.Bhagawan, learned counsel for accused and learned Government Advocate for the State.
3. The learned Government Advocate would submit that the State has not filed any appeal against acquittal of accused no.2 and 3 for the aforestated offences. Therefore, following points would arise for determination:
1) Whether the prosecution has proved that accused no.1 had demanded dowry of Rs.50,000/-, 80 grams of gold and a motorcycle in connection with marriage of accused and deceased Meenakshi, thereby committed 3 an offence punishable under Section 4 of the Dowry Prohibition Act ?
2) Whether the prosecution has proved that accused no.1 received a sum of Rs.50,000/-, a gold chain and gold ring as dowry from the parents of deceased Meenakshi, thereby committed an offence punishable under Section 3 of the Dowry Prohibition Act ?
3) Whether the prosecution has proved that after marriage, when the deceased Meenakshi was living in the house of accused, he was harassing the deceased with a view to coerce her to meet unlawful demand for a gold bracelet and motorcycle, thereby committed an offence punishable under Section 498-A IPC ?
4) Whether the prosecution has proved that soon before the suicidal death of deceased Meenakshi on 05.10.2005, accused had subjected the deceased to cruelty in connection with demand for dowry, thereby committed an offence punishable under Section 304-B IPC ?4
4. The prosecution has relied on evidence of parents and close relatives of the deceased and neighbours of deceased and also on recovery of gold bracelet on the information volunteered by accused and from the possession of accused no.1.
5. PW.1-Mohan is the younger brother of deceased; PW.2-Sulochana and PW.3-Mahalingappa are the parents of deceased. PW.5-Madamma is the cousin of PW.2.
6. PW.1-Mohan, the younger brother of deceased and PW.2-Sulochana and PW.3-Mahalingappa (parents of deceased) have consistently deposed; that at the time of marriage, accused had demanded dowry of Rs.50,000/-. They had given a gold chain and gold ring to accused no.1 and a pair of earstuds, a gold chain and gold ring to deceased. About one week after the marriage negotiations, accused no.1 had received a sum of Rs.10,000/- from PW's.2 and 3. PW.12-Vishwanath (maternal uncle of deceased) had given a sum of Rs.40,000/- to accused no.3 (father of accused no.1) in his house at Kabballi. The marriage 5 expenditure including the amount paid to accused no.1 was accumulated by contribution from different sources. The marriage of accused no.1 and deceased Meenakshi was performed near the house of grand mother of first accused in Jodihochihalli village. The entire marriage expenditure was borne by the accused. The mother of deceased has admitted that a gold chain and gold ring given to accused no.1 were customary presents.
Accused no.3 who is alleged to have received a sum of Rs.40,000/- from PW.12 has been acquitted. It is the evidence of this witness that a sum of Rs.10,000/- was paid to accused no.1. The evidence of PW's.1 to 3 is not clear whether the amount was paid towards marriage expenditure or towards dowry. Even if it is accepted that accused no.1 had received a sum of Rs.10,000/- from the parents of deceased, that cannot be treated as dowry in view of the fact that entire marriage expenditure was borne by the accused.
7. The learned trial judge without noticing these material discrepancies in the evidence adduced by 6 prosecution witnesses and the purpose for which the amount was paid to accused no.1 has held the accused guilty of offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. The learned trial judge has held that accused no.1 had demanded a motorcycle and gold bracelet after the marriage, therefore, he is guilty of offences punishable under Sections 3 and 4 of the Dowry Prohibition Act.
8. In order to prove offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, the prosecution has to prove demand and acceptance of dowry in connection with the marriage of deceased and accused. If there is unlawful demand for payment of money or valuable security or property after the marriage, that would fall within the meaning of cruelty under Explanation (b) to Section 498-A IPC. The learned trial judge instead of considering the unlawful demand for motorcycle and gold bracelet which according to the prosecution took place after one year from the date of marriage, under Section 498-A IPC, has held the accused guilty of offences punishable under Sections 3 and 4 7 of the Dowry Prohibition Act. Therefore, the impugned judgment as it relates to conviction of accused for offences under Sections 3 and 4 of the Dowry Prohibition Act cannot be sustained.
9. The next point for determination is:
Whether accused no.1 was harassing the deceased with a view to coerce her to meet his unlawful demand of gold bracelet and motorcycle?
PW's.1 to 3 have consistently deposed that after a period of one year from the date of marriage, accused no.1 had demanded the deceased to get gold bracelet from her parents. The deceased inturn informed the same to her parents. Her father (PW.3) had brought a gold bracelet after one year from the date of marriage and gave the same to accused through deceased. After the arrest of accused, his voluntary statement was recorded pursuant to which a gold bracelet was recovered from his possession. The gold bracelet has been marked as MO.7. It is not the case of accused that gold bracelet belonged to him. 8
10. The leaned counsel for accused no.1 would submit that gold bracelet could be treated as customary present. The evidence on record does not reveal that the parents of deceased had agreed to give a gold bracelet as a customary present at the time of marriage negotiations. The customary presents even if there were to be any would be presented at the time of marriage or before the marriage. There cannot be demand for customary presents after the marriage. The customary presents will be given by the parents of bride on their volition to observe the custom, if any prevailing.
11. The evidence of parents and younger brother of deceased that accused no.1 was harassing the deceased to get a gold bracelet from her parents and the father of deceased brought and gave a gold bracelet to accused through the deceased cannot be suspected.
12. The investigation officer has deposed that after the arrest, accused gave voluntary statement pursuant to which one gold bracelet (marked as MO.7) was recovered from his 9 house from the possession of accused. The evidence of investigation officer cannot be suspected. Above all, it is not the case of accused no.1 that the investigation officer or the parents of deceased had planted this gold bracelet to create evidence against the accused no.1.
Therefore, the evidence of parents and younger brother of deceased is sufficient to hold that accused no.1 was harassing the deceased with a view to coerce her to meet unlawful demand for gold bracelet. The younger brother of deceased and the parents of deceased have deposed that after one year of the marriage, accused no.1 was also demanding the deceased to get a motorcycle from her parents. Though there is no satisfactory evidence regarding purchase and delivery of motorcycle to accused no.1, yet the fact remains that evidence of parents and younger brother of deceased relating to demand made by the accused is consistent and credible.
In addition to the above, the accused has adduced defence evidence to prove that deceased had pre-marital 10 relationship with one Sathisha and he had visited not only the parental house of deceased but also matrimonial home of the deceased. On behalf of accused, DW.1-Gangadharappa was examined to prove this fact. The evidence of DW.1 is as vague as it could be.
13. DW.1-Gangadharappa has deposed; that in the year 2001-02, he was a vegetable vendor at Bangalore; he was residing in Bangalore and his wife was working in a Garment factory at Bangalore; during the relevant period, deceased Meenakshi was also working in a garment factory at Bangalore and she was his neighbor; one Sathisha was residing with her; they were living together in the same room.
14. At this juncture, it is relevant to notice that DW.1 has not stated the locality in which he was residing at Bangalore. His evidence that he was residing in Bangalore and the deceased was his neighbour and his wife was also working in a garment factory at Bangalore is as vague as it could be. DW.1 has not even given the location or area in 11 which DW.1 was residing. Therefore, evidence of DW.1 that he was residing in Bangalore and he had seen the deceased Sathisha living in the same room cannot be accepted.
DW.1 has further deposed; deceased Meenakshi was interested in marriage with above said Sathisha however, her parents were not willing.
During cross-examination, DW.1 has admitted that he was a vegetable hawker; he used to leave the house at 6.00 a.m., and return back after selling the vegetables. He has admitted that he does not have personal relationship with the above said Sathisha and the deceased but he has volunteered that they were living as husband and wife and they were sharing the cot as if he had seen the house and articles in the house.
In my considered opinion, DW.1 is a got up witness examined by the accused to justify his defence that soon before the deceased committed suicide, above said Sathisha 12 had visited the house of accused no.1 and accused no.3 had seen deceased in the company of above said Sathisha.
15. Thus from the above, it is clear that accused no.1 was also suspecting the character of his wife. The evidence adduced by defence that deceased had intimacy with Sathisha and their intimacy continued even after the marriage of deceased is sufficient to hold that accused no.1 was subjecting the deceased to cruelty. Therefore, the learned trial judge was justified in convicting the accused for an offence punishable under Section 498-A IPC.
16. It is not disputed that deceased committed suicide on 05.10.2005 at about 4.00 p.m., in the house of accused. The evidence on record does not reveal that soon before her death, the deceased was subjected to cruelty.
17. In the discussion made supra, I have held that the prosecution has failed to prove that accused had demanded and accepted dowry in connection with the marriage of accused and deceased. In the discussion made supra, I have held that demand for motorcycle and gold bracelet after a 13 period of one year from the date of marriage does not fall within the definition of dowry under the Dowry Prohibition Act.
18. In order to prove an offence punishable under Section 304-B IPC, the prosecution has to prove that deceased was being harassed in relation to dowry which was agreed to be paid at the time of marriage or before the marriage and that deceased had been subjected to cruelty soon before her death. The evidence on record is hardly sufficient to hold that there was demand for dowry and the deceased had been subjected to dowry related cruelty soon before her death. Therefore, accused cannot be held guilty of an offence punishable under Section 304-B IPC.
19. The learned trial judge without critical analysis of evidence has held the accused guilty of offences punishable under Sections 498-A, 304-B IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. Therefore, the impugned judgment as it relates to conviction of accused for offences punishable under Sections 14 3 and 4 of the Dowry Prohibition Act and Section 304-B IPC, cannot be sustained.
20. The learned counsel for accused submits that sentence imposed for an offence punishable under Section 498-A may be reduced.
21. In the discussion made supra, I have referred to the cruelty meted to deceased. The marriage between the accused and deceased was performed on 12.05.2003 and the deceased committed suicide on 05.10.2005. The married life did not extend beyond 1 ½ years. There are no mitigating circumstances to reduce the sentence.
22. In the result, I pass the following:
ORDER The appeal is accepted in part. The impugned judgment as it relates to conviction of accused for an offence punishable under Section 304-B IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act is set aside. The accused is acquitted of an offence punishable under Section 304-B IPC and also for offences 15 punishable under Sections 3 and 4 of the Dowry Prohibition Act.
The impugned judgment as it relates to conviction of accused for an offence punishable under Section 498-A IPC and sentence imposed thereon are confirmed.
The period of detention undergone by the accused during trial is given set off as provided under Section 428 Cr.P.C.
Sd/-
JUDGE Np/-