Karnataka High Court
State Of Karnataka vs Shatrugna Krishnappa Chinnkatti on 23 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
Criminal Appeal No.2790/2013
connected with
Criminal Appeal No.2584/2013 AND
Criminal Appeal No.2601/2013
Criminal Appeal No.2790/2013:
Between
State of Karnataka
Represented by the Police Sub Inspector
Mudalagi, Through the Addl.
State Public Prosecutor
Advocate General Office
High Court of Karnataka
Dharwad Bench.
... Appellant
(By Shri V.M.Banakar, Additional
State Public Prosecutor)
And
Shatrugna Krishnappa Chinnakatti
Age: 25 Years,
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R/o. Patagundi, Tq: Gokak
Dist: Belgaum
... Respondent
(By Shri M.B.Gundwade, Advocate)
This Criminal Appeal is filed under Section 377 of the
Code of Criminal Procedure seeking to set aside the sentence
passed under Section 304-B of the Indian Penal Code, by the
Trial Court in Sessions Case No.123/2012 dated 27.02.2013,
against the accused No.1 and sentence the respondent/accused
No.1 as provided under Section 304-B of the Indian Penal
Code.
Criminal Appeal No.2584/2013:
Between
Shatrughna S/o Krishnappa Chinnakatti,
Age: 25 Years, Occ: Student,
R/o: Patagundi, Tq: Gokak,
Dist: Belgaum.
... Appellant
(By Shri M.B.Gundawade and
Shri Bahubali N. Kanabargi, Advocates)
And
State of Karnataka,
Represented By its Public
Prosecutor, High Court
Building, Dharwad.
... Respondent
(By Shri V.M.Banakar, Additional
State Public Prosecutor)
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure seeking to set aside the order of the
Presiding Officer, Fast Track Court-IV, Belgaum in Sessions
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Case No.123/2012, dated 27.02.2013 so far as it relates to
convicting the appellant under Sections 304(B), 498-(A) of the
Indian Penal Code and Sections 3 and 4 of the Dowry
Prohibition Act.
Criminal Appeal No.2601/2013:
Between
Maruti Kadappa Pujari
Age: 25 Years, Occ: Agriculture
R/O. Konnuri, Tq: Gokak,
Dist: Belgaum
... Appellant
(By Shri Vijay K. Naik, Advocate)
And
1. The State of Karnataka
Rep. by Addl. State P.P.
High Court Circuit Bench
Dharwad
2. Laxman Krishnappa Chinnakatti
Age: 37 Years, Occupation.
R/o. Patagundi, Tq: Gokak,
Dist: Belgaum
3. Dundawwa W/o. Laxman Chinnakatti
Age: 34 Years, Occupation.
R/o. Patagundi, Tq: Gokak,
Dist: Belgaum
4. Krishnappa Laxman Chinnakatti
Age: 66 Years, Occupation.
R/o. Patagundi, Tq: Gokak,
Dist: Belgaum
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5. Ratnawwa W/o. Krishnappa Chinnakatti
Age: 61 Years, Occupation.
R/o. Patagundi, Tq: Gokak,
Dist: Belgaum
6. Anjana Shivappa Yallatti
Age: 41 Years, Occupation.
R/o. Shiragooru, Now At: Patagundi,
Tq: Gokak, Dist: Belgaum
... Respondents
(By Shri V.M.Banakar, Additional
State Public Prosecutor for R1,
Shri Bahubali N. Kanabargi, Advocate for R2 to R6)
This Criminal Appeal is filed under Section 372 of the
Code of Criminal Procedure seeking to set aside the impugned
judgment of acquittal passed by the Presiding Officer, Fast
Track Court-IV, Belgaum in Sessions Case No.123/2012, dated
27.02.2013 only insofar as respondent No.2 to 6 are concerned
and convict the respondent Nos.2 to 6 for the offences
punishable under Sections 143, 147, 498-(A), 304(B), 306 read
with Section 149 of the Indian Penal Code and Sections 3 and 4
of Dowry Prohibition Act.
These Criminal Appeals coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondents in Criminal Appeal No.2584/2013. This appeal is filed by the accused No.1 against his conviction for offences punishable under Section 304B of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', :5: for brevity), as well as Section 498A of the IPC and Section 4 of the Dowry Prohibition, Act, 1961 (hereinafter referred to as 'D.P. Act', for brevity). Whereas, the appeal in Criminal Appeal No.2790/2013 is filed by the State seeking enhancement of the punishment imposed on accused No.1 and the Criminal Appeal No.2601/2013 is filed by the de facto complainant, questioning the acquittal of accused Nos.2 to 6.
2. The facts of the case, as stated by the prosecution, are that:
The complainant one Maruti Kadappa Pujari, a resident of Konnur Village, Gokak Taluk had stated that his younger sister, Shobha was married to accused No.1, Shatrughna on 24.01.2011. That at the time of marriage, dowry had been provided through accused No.2, the elder brother of accused No.1. It was claimed that accused No.1 had made this an issue and constantly complained that the dowry paid in a sum of Rs.20,000/- to accused No.2 had never reached his hand and he was now demanding a sum of Rs.1,00,000/- along with a motorcycle, as additional dowry. Accused Nos.4 and 5 were the :6: parents of accused No.1 and accused No.3, was the sister-in-law of accused No.1, and the wife of accused No.2. Accused No.6 was the sister of accused Nos.1 and 2. It was alleged that all the accused had been constantly harassing Shobha, from the inception of her marriage and apart from ill-treating her, both physically and mentally, the demand for dowry had turned into a serious matter, where Shobha was further harassed and tortured on her family not being able to meet the demand for the dowry as claimed.
3. It is further claimed in the complaint that Shobha had regularly informed the complainant and his family about such harassment and ill-treatment and she was extremely distraught on account of such cruelty meted out to her which she disclosed at every meeting especially when she visited her parental home during festivals. It is further stated that the complainant along with the others had visited Pattangudi Village, where the accused were living and had requested to treat Shobha with compassion and not to ill-treat her. But inspite of which, it is stated that the state of affairs continued :7: and on 10.11.2011, it is claimed that Shobha had telephoned her friend Shanavva, P.W.3, and informed her that her husband and his family members were planning to kill her and Shanavva had conveyed the said information to the complainant. On the same day, accused No.1 is said to have made a telephone call and demanded that the complainant immediately settle the demand for dowry.
4. On the next day, the complainant along with the other prosecution witnesses, P.Ws.4 and 5 had proceeded to Pattangudi Village, it is there, that they are said to have learnt that Shobha had fallen into a well and had died.
5. It is in this background that a Police complaint was lodged, alleging that the accused were the cause for the death of Shobha which was registered as Crime No.140/2011 and the fact Shobha had died within ten months from the date of her marriage. A requisition was said to have been sent to the Tahasildar to conduct inquest panchanama and that the Police Inspector visited the spot and had taken further steps. It is in :8: this background that the appellants were charge sheeted and later committed to the Trial Court, where the accused had pleaded not guilty and claimed to be tried, pursuant to which charges were framed and evidence tendered for the prosecution, on the basis of which, the Trial Court has now convicted accused No.1 and had acquitted accused Nos.2 to 6. Therefore, these three appeals, seeking relief as already stated.
6. It is only in the event that the appeal filed by the accused being dismissed that the question of considering the appeal by the State would arise and insofar as the appeal by the de facto, complainant, insofar as the acquittal of the accused Nos.2 to 6 is concerned, it would depend on the view taken by this Court as to the reasoning of the Trial Court in dealing with the said accused.
7. The learned counsel for the appellant, accused No.1, would point out that the evidence on record which has been relied upon by the Court below to hold that the allegation of the accused having meted out cruelty to the deceased and the :9: cruelty being of such a degree as had driven her to commit suicide would make out an offence punishable under Sections 498A and 304B of IPC as well as Section 4 of the DP Act, rests entirely on the evidence of P.Ws.2, 4, 5, 12 and 13. These witnesses have at best supported the case of the prosecution to claim that there were demands made by the accused for dowry and beyond this, it cannot be said that the evidence of these witnesses would disclose the alleged cruelty meted out to the deceased. In the absence of which, there was no substance and basis for the Trial Court to have held that the charges were proved to make out offences punishable, as aforesaid.
8. In this regard, the learned counsel would take us through the evidence on record to point out that P.W.2 was the complainant who has merely stated that accused No.1 had been demanding dowry over a period of time. The learned counsel would submit that dowry, as defined under Section 2 of the DP Act, is dowry that is demanded and agreed upon before the marriage or at the time of the marriage. In the instant case, the Trial Court has itself held that the dowry which was demanded : 10 : prior to the marriage, is in terms of Ex.P-5, which is a vardhi, which is known as 'yadi pe shaadi' and the amount paid is the customary amount which the Trial Court itself found could not be treated as dowry for purposes of Section 2 of the DP Act. In which event, any amount that is said to have been demanded after the marriage, could not be treated as dowry and seeks to lay emphasis on the definition found under Section 2 of the DP Act.
9. It is further pointed out that P.W.2, therefore has only spoken about such demand being made which in itself, would not establish the cruelty meted out to her. Though he has claimed that his sister, Shobha was occasionally informing them of the cruelty with which she was being treated, that by itself would not clinch the case of the prosecution, in the absence of the said witnesses having actually seen and heard the cruel language or the cruelty meted out to her, both physically and mentally, as claimed in the complaint. Therefore, it could not be said that offences punishable under Sections 498A and : 11 : 304B of the IPC were established, let alone the offence punishable under Section 4 of the DP Act.
10. Similarly, P.W.3, who is said to be a friend of Shobha who has sought to reiterate the evidence of P.W.2. In that witness, again claiming that she was being informed by Shobha time and again of ill-treatment to her and she having informed the complainant, P.W.2 of being informed by Shobha that her husband and his family were threatening to kill her. This had been intimated to the complainant on the same day and by the time, the complainant and others had gone there to enquire, as to the state of affairs, Shobha is said to have been found dead. This witness again, as pointed out by the learned counsel for the appellant, has candidly admitted that she never visited the home of Shobha and it is her claim that Shobha had on occasion, spoken to her about such ill-treatment. This evidence, again is pointed by the learned counsel for the appellant would be akin to the evidence tendered by the de facto, complainant and cannot sustain the case of the prosecution, as claimed.
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11. P.W.4, was an acquaintance of P.W.2 and P.Ws.5, 12 and 13 are also of the same village, as the complainant who have all sought to support the claim of the complainant that there were demands for dowry being made by the accused for a sum of Rs.1,00,000/- and a motorcycle. Therefore, the learned counsel for the appellant would only seek to project a case of demand for dowry and not for offences punishable, as alleged and seeks the acquittal of the accused.
12. On the other hand, the learned Additional State Public Prosecutor appearing for the State in the connected appeal as well as the de facto, complainant, who has filed the other connected appeal seeks to urge that the Court below has treated the appellant with extreme generosity and has not addressed the seriousness of the offences committed by the accused and the accused was to be visited with much greater punishment, in order to meet the ends of justice. For it is apparent that the continuous demand for dowry as endorsed by a series of witnesses, was the cause for the deceased to have committed suicide and the object of the law is evident that : 13 : when such death occurs within 10 months from the date of marriage, the presumption is of a dowry death. In the present case on hand, the overwhelming evidence which is available on record, definitely attracted greater punishment, against the accused No.1 and it would result in a travesty of justice and the very object of the law being defeated, if the judgment of the Trial Court is sustained and therefore, seeks that the judgment be modified in imposing more stringent punishment on the accused, since the provision prescribes minimum punishment, the Court had no choice but to impose the minimum punishment of imprisonment of seven years under Section 304B of the IPC. This has been overlooked by the Trial Court and therefore warrants interference by this Court.
13. The learned counsel for the appellant, complainant would strongly contend that the accusation being common against all the accused, there was no justification in the Trial Court having found the charges, having been proved only against the accused No.1 and having acquitted the other accused. If the reasoning of the Trial Court insofar as accused : 14 : No.1 is to be sustained, it would stand to reason that the charges against accused Nos.2 to 6 ipso facto stand proved and they also ought to have been punished. It is also contended that the punishment imposed on accused No.1 is itself not commensurate with the serious offences committed by the accused and would support the case of the State that the punishment ought to be enhanced substantially well beyond the minimum punishment prescribed in law and that the sentence and conviction should extend to accused Nos.2 to 6 as well and seeks to draw attention to the record to indicate that the case which stands proved against the accused No.1 would clearly apply to accused Nos.2 to 6 as well.
14. In the above background, on a close examination of record, as rightly pointed by the learned counsel for the accused No.1, the only evidence on which the Court below has placed reliance is that of P.Ws.2, 3, 4, 5, 12, and 13. Though PWs.12 and 13 had turned hostile, the conjoint reading of the evidence of these witnesses would at best indicate that there was a constant demand for dowry after the marriage. The Trial : 15 : Court having found that the demand made for dowry prior to the marriage was in the nature of 'varopachara' which is a customary amount which is paid and which the law does not frown upon and that the contention as to the amount paid after the marriage not being able to be characterized, as dowry is an argument that cannot be accepted. For it is settled position of law, as interpreted by the Supreme Court, namely that the definition of dowry is not restricted to an agreement or demand for payment of dowry before and at the time of marriage, but also includes demands made subsequent to the marriage, as held in the case of State of Andhra Pradesh vs. Raj Gopal Asawa, AIR 2004 SCW 1566.
15. In that view of the matter, the argument of the counsel that any amount demanded after the marriage would not amount to dowry and further, the demand having been made has been fairly established by the evidence of P.W.2, on whom the demand has been made which is supported by P.W.3, again who has been informed of such demand being made by the complainant herself and this evidence being reiterated by : 16 : P.Ws.4 and 5 would only advance the case of the prosecution to establish that there was a demand of dowry, which would at best attract the punishment prescribed under Section 4 of the DP Act. It cannot be said that this evidence would also establish the case of the prosecution as to the deceased being treated with inhuman cruelty which had driven her to commit suicide. Therefore, the invocation of Sections 304B or 498A of the IPC was misconceived. The Trial Court could not have proceeded on the basis and punishment imposed under Section 304B of the IPC. The minimum punishment as pointed out by the learned Additional State Public Prosecutor was imprisonment of seven years and not as imposed by the Trial Court. Therefore, to impose such a punishment, evidence of greater acceptability is necessary or otherwise, it results in a miscarriage of justice, in the accused being visited with extreme punishment in the absence of cogent and categorical evidence. In this regard, there is no eyewitness, of any such physical and mental cruelty meted out to the deceased and it is only the second hand information said to have been provided by the : 17 : deceased to the complainant which is on record. That by itself, would not be sufficient to visit the accused with such serious punishment.
16. Insofar as accused Nos.2 to 6 are concerned, there is no evidence whatsoever of any demand for dowry or other evidence of cruelty having meted out by them to the deceased.
17. In that view of the matter, the appeal by the accused No.1 is allowed in part. The conviction and sentence passed by the Trial Court insofar as offences punishable under Sections 304B and 498A of the IPC are set aside and the punishment imposed under Section 4 of the DP Act is sustained. The appeal filed by the State in Criminal Appeal No.2790/2013 by the de facto, complainant in Criminal Appeal No.2601/2013 stand dismissed.
The fine imposed as well is set aside.
Insofar as the offence punishable under Section 4 of the DP Act is upheld. The fine amount in deposit be refunded to the accused insofar as the offences punishable under Sections 304B : 18 : and 498A of the IPC. Since accused has already spent nine months in prison, the punishment imposed under Section 4 of the DP Act is restricted to the period already spent in prison and he shall be set at liberty. The bail bonds stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE Rsh