Karnataka High Court
Mr.Manjunatha @ Mr K M Puttaswamy vs State Of Karnataka on 20 June, 2014
1 Crl.A 1400/12
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20th DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1400/2012
BETWEEN
Manjunatha,
@ Mr. K.M.Puttaswamy,
S/o Malluraiah,
Aged 37 years,
Residing behind Shri Shaneshwara Temple,
Dantaramakki,
Chikmagalur-577101. ... APPELLANT
[BY Sri.A.H. Bhagavan, Adv.]
AND:
State of Karnataka,
By Town Police
Chickmagalur,
Through the
State Public Prosecutor,
High Court Building,
Bangalore. ... RESPONDENT
[BY Sri.K. Nageshwarappa, HCGP.]
* * *
This Crl.A. filed U/S.374(2) Cr.P.C. praying
to set aside the order dated 6.12.12 passed by the
Prl.S.J., Chikmagalur in S.C. No.133/2010
2 Crl.A 1400/12
convicting the appellant/accused for the offence
P/U/S 304-B of IPC and U/Ss 3,4 of D.P. Act and
the appellant/accused is sentenced to undergo S.I.
for ten years for the offence P/U/S 304-B of IPC
and etc.
This appeal coming on for Hearing this day,
the Court delivered the following:
JUDGMENT
The appellant has challenged his conviction and sentence for the offence punishable under Section 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act [hereinafter referred to as "the D.P. Act" for short], on a trial held by the learned Sessions Judge, Chikmagalur.
2. The facts relevant for the purpose of this appeal are as under:
Savitha [deceased] is the daughter of PW5 Shivappa and sister of PW1-Kalaiah. Her marriage with the accused [appellant herein] was held on
03.03.2010. At the time of the marriage, it is said that a sum of Rs.30,000-00 in cash and 3 Crl.A 1400/12 jewelry was given. The appellant and deceased Savitha stayed in the house of PW5 for a period of one month. Thereafter she started staying with the appellant/accused in his house. The prosecution alleges that the appellant started demanding another sum of Rs.25,000-00 on the ground that if he had married any other girl he would have got much more dowry and started subjecting her to mental and physical cruelty. Unable to bear the mental and physical cruelty, on 16.06.2010 at about 2.00 p.m. Savitha consumed poison. At that time, the appellant was at his work place, the other family members had been to attend a marriage and the deceased was alone. When the appellant returned home she told that she had consumed poison. The appellant took her to the hospital for treatment and at about 4.00 p.m. she died in the hospital. Information of her death was given by the appellant/accused to deceased Savitha's parents and they came over to see her body in the mortuary. On the next day i.e., on 4 Crl.A 1400/12 17.06.2010, PW5 submitted the complaint-Ex.P5 to PW-13-Chandrakala H. Hosamani, Women Police Sub- Inspector and it came to be registered in Crime No.120/2010 by Chikmagalur town Police Station. Thereafter, spot Mahazar-Ex.P1 was held in the presence of PW1 and another, inquest of the body was conducted by PW10 in the presence of PW4 and others. Ornaments M.Os.1 to 6 were recovered from the house of the accused and were seized as per Ex.P3. Body was subjected to post-mortem examination and the doctor issued the post-mortem report as per Ex.P7. Statements of the witnesses were recorded. Photographs of the body of the deceased were taken. Marriage invitation card, property extracts, Sketch of the scene of occurrence were collected. Seized articles were sent to FSL lab and Ex.P14-FSL report was secured. On completion of the investigation, charge-sheet was filed against the accused for the offences punishable under Section 304-B and under Sections 3 and 4 of the D.P. Act.
5 Crl.A 1400/12
During the trial, the prosecution examined PWs.1 to 14 and in their evidence, got marked the documents Exs.P1 to P14 and MOs.1 to 6. Statement of the appellant/accused was recorded under Section 313 Cr.P.C. The appellant took the defence of total denial but, no defense evidence was led.
The trial court after hearing the counsel for the parties and on appreciation of the material on record, convicted the appellant for the offence punishable under Section 304-B IPC and under Sections 3 and 4 of the D.P. Act and ordered him to undergo simple imprisonment for 10 years for the offence punishable under Section 304-B IPC and sentenced to undergo simple imprisonment for 7 years and to pay a fine of Rs.30,000-00, in default to undergo further simple imprisonment for a period of one year for the offence punishable under Section 3 of the D.P. Act and further sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.10,000-00, in 6 Crl.A 1400/12 default to undergo further simple imprisonment for a period of 6 months for offence punishable under Section 4 of the D.P. Act. Aggrieved by the conviction and sentence, the present appeal has been filed.
3. I have heard learned counsel for the appellant and also learned High Court Government pleader.
4. The point that arise for my consideration is;
Whether the appellant has made out any grounds to interference in his conviction and sentence for the offences punishable under Sections 304-B IPC and under Sections 3 and 4 of the D.P. Act?
5. Learned counsel for the appellant has taken me through the evidence led by the prosecution and the scrutiny would reveal that P.W.1-Kalaiah is the attesting witness for the spot mahazar-Ex.P1, P.W.2-Harish is the brother of 7 Crl.A 1400/12 the deceased, P.W.3-Shivaraju is the attesting witness to the recovery mahazar-Ex.P3, P.W.4- Chandrashekar is an attesting witness for the inquest-Ex.P4. P.W.5 is the father of the deceased, whereas P.W.8 is his friend. P.W.6 is a neighbour of the accused and he has turned hostile and P.W.7 is the owner of the garage, in which the accused was working as an employee. P.W.9 is the doctor, who held the autopsy on the body of the deceased as per Ex.P7. P.W.10 is the Tahsildar, who held the inquest on the body of the deceased. P.W.11 is the Engineer, who drawn the sketch of scene of occurrence-Ex.P8 and P.W.12, issued the certificate-Ex.P9, relating to the house property, in which the dead body was found. P.W.13 is the PSI., who registered the complaint-Ex.P5, whereas P.W.14 is the Investigating Officer.
6. The scrutiny of the evidence would indicate that P.Ws.2, 5 and 8, who speak to the facts relating to the charges against the 8 Crl.A 1400/12 appellant. The appellant has not disputed the marriage and the death of Savitha by consuming poison. As per the version of the appellant, deceased Savitha was intending to marry one Chandrashekar and her parents were opposing it. It is under the said circumstances, she was forced to marry the appellant and he defends stating it to be the cause for her death. Except denial of the evidence of the prosecution witnesses, in fact there is no material worth acceptable, on record.
7. The complaint of this incident was filed on 17.06.2010 as per Ex.P5. It is a typed complaint, drafted by a Law Student and there is a delay of one day in filing the complaint. Though, Savitha died on 16.06.2010 at 4.30 p.m. and though P.W.5 had seen the dead body, he submitted his complaint to the Police on the next day. The reason for this delay is not explained. Anyhow, as could be seen from the contents of the complaint, the allegation against the appellant 9 Crl.A 1400/12 his parents, brother and others was that even after receiving a sum of Rs.30,000-00 as dowry and other jewelry including the household articles at the time of the marriage, he alleges that the aforesaid persons were subjecting the deceased to physical and mental cruelty and made her to consume poison and for the aforesaid reason she died on the day.
8. So far as the cruelty and harassment is concerned, except omnibus statement, the nature of the cruelty has not been stated in the complaint. That apart, it was against all the members of the family against whom the complaint was filed, but later, when the statement of P.W.5 was recorded on 12.07.2010 i.e., after lapse of 25 days of the complaint, P.W.5 changed his version and put-forth a plea that the appellant i.e., the husband of the deceased alone was responsible for her death and he was demanding a sum of Rs.25,000-00 subsequent to the marriage. This demand of Rs.25,000-00 as 10 Crl.A 1400/12 stated by P.W.5 is for the first time before the Court and does not find a place in the complaint- Ex.P5.
That apart, as admitted by P.W.5, deceased Savitha and the appellant stayed in his house for about a month after the marriage. At that time, the relationship was cordial. So, whatever cruelty or harassment that is said to have been meted out by the deceased was in the next two months before her death when she was in the house of the appellant. It is also admitted by P.W.5 in the evidence that on 2 or 3 occasions within the aforesaid period of 2 months, both the spouses had come to his house. He states that at that time, the deceased was complaining about the demand of Rs.25,000-00 and the consequent cruelty and harassment. He states that he questioned the accused at that time, but the appellant did not answer anything. This version of P.W.5 appears to be unacceptable. It is relevant to note that it 11 Crl.A 1400/12 is for the first time that on 12.07.2010 that P.W.5 came with subsequent version with regard to demand of Rs.25,000-00, cruelty and harassment by the appellant alone giving up his allegations against the parents of the appellant and his brother and brother-in-law. As to why he made such an allegation against all the members of the family and later excluded the parents and relatives is not explained by P.W.5.
9. Furthermore, though the Investigating Officer had registered the complaint on 17.06.2010, no explanation has been offered by the Investigating Officer for the delay in recording the statement. The delay in lodging the complaint and the omnibus version of the complainant in his complaint creates a serious doubt with regard to the complicity of the accused so far as the cruelty and harassment and demand of Rs.25,000-00 are concerned. It is relevant to note that P.Ws.2 and 5 are none other than the brother and father 12 Crl.A 1400/12 of the deceased. Except these interested witnesses, no other witness have come forward to support the prosecution version. The prosecution also examined P.W.6, a neighbour of the accused and he has turned hostile and even as could be seen from the cross-examination, nothing is elicited about cruelty and harassment. Furthermore, it is P.W.8-friend of P.W.5, who speaks about the marriage negotiations and demand of Rs.25,000-00 as dowry and what he states is that P.W.5, who told him about the demand of Rs.25,000-00 and the cruelty and harassment in that regard by the accused. So, this version of P.W.8 is a hearsay evidence and cannot be accepted in law. Therefore, the evidence of P.Ws.2 and 5 only is available for the prosecution to prove the guilty and harassment.
10. When both the deceased and the appellant were happy for about a month while they were in the house of P.W.5, rather it is unnatural and 13 Crl.A 1400/12 improper to expect that there would be such a severe demand for dowry and cruelty in a short period of month or two.
That apart, both the deceased and the appellant went to the house of P.W.5 on two or three occasions and he having not made any grievance before anybody other than P.Ws.2 and 5. So, to accept the version of P.Ws.2 and 5 alone would be rather hazardous to award conviction for the offence punishable under Section 304-B IPC when the complaint is silent about the demand of Rs.25,000-00 and when there was an omnibus allegation against all the members of the family which was later given up, rather his evidence on this aspect of the matter cannot be relied upon to award conviction for the offence punishable under Section 304-B IPC.
11. So far as the demand of dowry of Rs.30,000-00 in the complaint is concerned, P.W.5 states this fact. So also it is stated by P.W.8- 14 Crl.A 1400/12 friend of P.W.5, P.Ws.2 and 5 have consistently state about demand of Rs.30,000-00 as dowry at the time of the marriage. So far as the demand of this amount in two instalments i.e., Rs.10,000-00 and Rs.20,000-00 is concerned, though does not appear in the complaint, this improvement is not an impediment to disbelieve the version of P.Ws.2, 5 and 8. But, when it is stated by these witnesses that a sum of Rs.30,000-00 has been paid as dowry, as to whom the payment was made by them, though stated for the first time in the evidence of these witnesses is itself insufficient to reject the version of the prosecution so far as the payment of Rs.30,000-00 as a dowry at the time of the marriage.
12. Furthermore, on the date of the incident, the parents of the appellant and other family members had gone to attend a marriage, the appellant was in his work place when the deceased consumed the poison. It is relevant to note that 15 Crl.A 1400/12 except the deceased, there were no other members of the family at the time when she consumed the poison. This may be for the reason that she did not desire to live with the appellant for the reason that has been put-forth in the defence by the appellant in relation to her willingness for somebody other than the appellant and compulsion to marry the appellant, therefore, though the defence that has been put-forth is not probablized, the lacuna that arises on the prosecution remains unexplained by the prosecution so far as the cause of her death is concerned.
13. Furthermore, so far as the demand of dowry is concerned, in fact, as could be seen from the complaint itself, it is only for the demand of dowry which has been stated by P.W.5 and no-where in the complaint it is stated that the accused demanded a sum of Rs.30,000-00. The improvement by the prosecution in the evidence of P.Ws.2, 5 16 Crl.A 1400/12 and 8 itself is insufficient to reject the case for the offence under Section 4 of the D.P. Act.
14. There is a delay in lodging the complaint. Furthermore, there is a delay of 25 days in recording the statement of the witnesses and this delay having not been explained by the prosecution. There are lot of improvements in the course of the trial and the statement in the complaint is omnibus as against all the members of the family. This version of the complainant is changed subsequently, without any explanation and that itself would indicate his anxiety to implicate all the members of the family. This was not a true version of the complainant and in this context, even to accept his version, his evidence regarding cruelty and harassment is unreliable. Taking into consideration that P.Ws.2 and 5 are the interested witnesses as they are the brother and father of the deceased and as their evidence is not corroborated by any material particulars so 17 Crl.A 1400/12 far as the cruelty and harassment is concerned and the other circumstances referred to.
Hence, I am of the opinion that the conviction ordered by the trial Court for the
offence punishable under Section 304-B IPC and under Section 4 of the D.P. Act cannot be sustained. So far as the offence under Section 3 of the D.P. Act is concerned, as there is a consistent version in the evidence of the aforesaid witnesses, the appellant is liable for the offence under Section 3 of the D.P. Act. So far as the sentence is concerned, learned counsel submits that as there was no demand and the payment of Rs.30,000-00 is voluntary, in such circumstances, the sentence of 5 years has to be reduced.
15. Taking into consideration the aforesaid facts and circumstances, I am of the opinion that a reasonable sentence has to be awarded. For the 18 Crl.A 1400/12 reasons stated above, I answer the point in partly affirmative and partly negative.
Consequently, the appeal is allowed in part. The conviction of the appellant for the offence under Section 304-B IPC and under Section 4 of the D.P. Act are set aside. He is acquitted of the said charges. He is ordered to undergo simple imprisonment for 2 [two] years and to pay a fine of Rs.30,000-00, in default to undergo simple imprisonment for 6 [six] months. He is entitled to set off under Section 428 Cr.P.C. Out of the fine amount, Rs.25,000-00 shall be paid to the father of the deceased and the remaining amount shall be credited to the State.
Sd/-
JUDGE.
HR/Ksm*