Karnataka High Court
Madamma W/O Late Ningaiah vs State Of Karnataka on 12 June, 2013
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N THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.1051 OF 2006
BETWEEN:
1. MADAMMA
AGED ABOUT 67 YEARS
W/O LATE NINGAIAH
2. JAYARAM
AGED ABOUT 41 YEARS
S/O LATE NINGAIAH
3. NAGESH
AGED ABOUT 33 YEARS
S/O LATE NINGAIAH
4. RAJA
MAJOR
S/O MAHADEVAIAH
ALL ARE RESIDENTS OF
KALKUNI VILLAGE
KIRUGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
.. APPELLANTS
(BY SRI P. NATARAJU, ADV., FOR
M/S. P. NATARAJU ASSOCIATES, ADVS.)
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AND:
STATE OF KARNATAKA
BY KIRUGAVALU POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE
.. RESPONDENT
(BY SRI. G.M. SRINIVASA REDDY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (4) CR.P.C. AGAINST THE JUDGMETN
DATED 28.03.2006 PASSED BY THE ADDITIONAL S.J.,
MANDYA IN S.C. No.161/04 CONVICTING THE
APPELLANT/ACCUSED Nos.1 TO 3 AND 5 FOR THE
OFFENCE P/U/S 498-A R/W SEC. 34 OF IPC AND
FUTHER CONVICTING TE APPELALNT/ACCUSED Nos.
1 TO 3 FOR THE OFFENCE P/U/S 304B IPC R/W
SEC.34 OF IPC AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT MADE
THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment dated 28.03.2006 passed by the Additional Sessions Judge, Mandya, in S.C.No.161/2004 convicting the appellants for the offence punishable under Sections 498-A and 304B IPC and under Sections 3,4 and 6 of the Dowry Prohibition Act ('D.P.Act' for short) and 3 sentencing appellants 1 to 3 to undergo imprisonment for 7 years for the offence punishable under section 304B r/w Section 34 IPC and sentencing all the four appellants to undergo SI for six months and to pay a fine of Rs.2,000/- each, in default, to suffer SI for one month, for offence punishable under Section 498-A r/w Section 34 of IPC and further sentencing appellant Nos. 2 and 4 to undergo SI for one year and to pay a fine of Rs.15,000/- each, in default, to undergo SI for one month for the offence punishable under Section 3 of D.P.Act r/w Section 34 of IPC and further sentencing appellants 1 to 4 to undergo SI for 2 months and to pay a fine of Rs.1,000/- each, in default, to undergo SI for one month for the offence punishable under Section 4 of D.P. Act r/w Section 34 of IPC and also further sentencing the appellants 2 and 4 to undergo SI for six months for the offence punishable under Section 6 of D.P. Act r/w Section 34 of IPC.
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2. It is the case of the prosecution that the appellant No.4 Raja had married Smt. Rekha, D/o complainant Maraiah on 19.05.2003 and prior to the said marriage, the appellants 2 and 4 demanded and received gold chain of 12gms as dowry and after the marriage, all the appellants with a common intention started beating and ill-treating Smt. Rekha demanding a gold ring, a watch for appellant No.4 and also jewels. On 23.04.2003 at about 7 PM all the accused quarreled with the mother of the deceased Smt. Rekha demanding additional dowry and being unable to bear the cruelty and harassment meeted out to her, Rekha poured kerosene on herself at about 7 AM on 24.04.2004 and set herself on fire, as a result of which Rekha died, thereby all the appellants committed an offence punishable under Section 304B r/w Section 34 of IPC.
3. It is the further case of the prosecution that in furtherance of their common intention, the appellants after the marriage of Smt. Rekha with the appellant No.4 Raja, started beating and ill-treating the said 5 Smt.Rekha demanding dowry and caused cruelty to her. Thereby all the appellants committed the offence punishable under Section 498A r/w Section 34 of IPC.
4. It is further charged against the appellant that appellant Nos. 2 and 4 demanded and received gold chain as dowry from the father of the Smt. Rekha at the time of marriage and also they had abutted for taking dowry thereby appellant No. 2 and 4 committed an offence under Section 3 of Dowry Prohibition Act r/w Section 34 of IPC.
5. It is further charged that all the appellants in furtherance of their common intention after the marriage of Smt. Rekha with the appellant No.4, demanded gold ring, watch and jewels as dowry and also quarreled with the mother of Smt. Rekha demanding excess dowry, thereby all of them are alleged to have committed an offence under Section 4 of the D.P. Act r/w Section 34 of IPC.
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6. It is also further charged against the appellants that appellant Nos. 2 and 4 after receiving the dowry as aforesaid, failed to return the gold chain received as dowry thereby appellant Nos. 2 and 4 committed an offence under Section 6 of D.P. Act r/w Section 34 of IPC.
7. The prosecution in order to prove the case against the appellants has examined in all 18 witnesses and got marked Exs. P1 to P19 and produced MOs 1 to
6. The defence of the accused/appellants was one of total denial. They have got marked Ex. D1- portion of the statement of PW6 before police.
8. The learned Sessions Judge after considering the evidence on record and also the defence of the accused found the accused/appellants guilty of the offences mentioned above and sentenced them accordingly. It this judgment of conviction and sentence that has been challenged by the accused in this appeal.
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9. The Station House Officer, Kirugavalu Police Station received a complaint on 24.04.2004 at about 10.00 AM from one Maraiah. It is stated by the said Maraiah that his daughter by name Rekha was married to one Raja S/o Mahadev after loving him. The marriage had taken place about one year prior to the date of complaint. At the time of marriage he had given one gold chain weighing 12 gms and one vole and jumki to his daughter. After the marriage, his daughter Rekha and son-in-law Raja were residing in their house in the same village along with their brother and sisters. Since his daughter had loved Raja and married, the relatives of Raja by name Madamma, his grandmother, uncle Jayaram and another uncle by name Nagesha and also the wife of Jayaram, Mahadevi were ill-treating her. His son-in-law was also not looking after his daughter properly. All the aforesaid 4 persons were insisting that his (complainant's) daughter should bring money from her parent's house and in this connection they were 8 giving ill-treatment to her. His son-in-law Raja was listening to his grandmother and uncles and about 20 days prior to the complaint, Raja had left his daughter in his house and had gone and resided in the house of his brother-in-law Basavaraju. On 24.04.2004 the date complaint at about 7.00 AM the accused by name Madamma, Jayaram, Nagesh and Mahadevi had poured kerosene on his daughter and they killed her. On that day, his wife who was in the house of the accused and by the time his wife went for nature's call, the accused had set his daughter on fire and thereafter his wife Lakshmamma shouted and invited the attention of neighboring people, the complainant and others reached the house and observed that deceased was burnt and had died.
10. It is stated in the complaint that his daughter has been set fire to by her grandmother Madamma, brothers-in-law Jayaram and Nagesh and the wife Jayaram by name Mahadevi in connection with demand for more dowry and hence requested for action 9 against the appellants. It is also stated in the said complaint that the said incident has happened due to the instigation of appellant Raja, and his brother-in-law, Basavaraju.
11. PW10, Gangalingaiah was the Police Sub- Inspector in the Kirugavalu Police station on the date of incident and he has received the said complaint Ex.P1 from the father of the deceased and registered it as Crime No. 27/2004 for offence under Section 143, 147, 114, 498-A, 302, 304(B) r/w Section 149 IPC against these persons and transmitted the FIR to court. PW10 thereafter visited the scene of occurrence and gave a requisition to Tahsildar, Malavalli Taluk to hold inquest Mahazar on the dead body. PW10 Muniyappa, Tahsildar came to the spot and conducted inquest Mahazar as per Ex. P9 and thereafter the dead body was subjected to post mortem examination. PW10 thereafter handed over the investigation to the PW17 Dy.SP, Malavalli Sub-division. PW17, thereafter on receipt of orders handed over the investigation to the 10 COD. PW18, Smt. B. Rukmini was the inspector of Police, COD, Bangalore. She took-over investigation of this case on 30.04.2004 and visited Kirugavalu police station on 05.05.2004 and thereafter she visited the place of incident and recorded the statement of certain relevant witnesses. She summoned PWD Engineer PW16, Puttaraju and obtained the sketch of the scene of occurrence marked as Ex. P13. She also obtained the extract of the demand register from the municipal office and the same is marked as Ex. P14. After securing negative and positive photographs taken out during the investigation and after obtaining the report from the medical officer, PW18 filed charge sheet against the accused for offences mentioned above.
12. PW1 Maraiah is the father of the deceased. He has stated as per the version found in the FIR. He has specifically stated that at the time of marriage, it was decided to give gold chain weighing 12gms as dowry to appellant No.4/Accused No5 and vole and jumki to the girl. Instead of 12 gms of gold chain, he brought a 11 chain weighing 8 gms to the appellant No.4 for which the accused did not agree to perform the mahurtham and thereafter the accused insisted that the difference of 4 gms of gold shall be paid by way of cash and he paid Rs.2,000/- in the hands of one Basavaraju bother- in-law of appellant No.4. It is in the evidence of PW1 that after the marriage, his daughter went to the house of the accused, all the accused were residing together. After about 2 to 3 months, accused started harassing his daughter by demanding a gold ring, watch and cash. It is also in the evidence of PW1 that the accused made arrangements for second marriage of Accused No.5 if they would not give the gold articles and cash. This fact was mentioned to PW1 and PW2 by his daughter. Eight days prior to his daughter's death, PW1's wife went and brought Rekha to their house since the accused were ill- treating and harassing their daughter. At that time, deceased informed them that the accused are ill-treating her by demanding further dowry. Thereafter he sent his daughter back to the house of the accused. It is stated 12 by him that the house of the accused is opposite to his house in the village. About four days thereafter, he was informed that accused have murdered his daughter by pouring kerosene and by setting her on fire. When he went and saw the dead body, he learnt that accused had killed his daughter by pouring kerosene and hence he has given complaint to the police. In the cross- examination, he has stated that his house is situated far away from the house of his son-in-law. It is also stated by PW1 that accused Nos. 2 and 3 are living along with their respective families separately and appellant Nos.1 and 4 were living along with the deceased. Thus, there were three families in the same building adjacent to each other. They were having separate mess. It is also admitted by PW1 that on the date of death of his daughter, the appellant No.4, her husband was not in the house.
13. PW2 Lakshmamma is the mother of deceased Rekha and wife of PW1. In her evidence, she states that the distance between their house and the 13 house of the accused is about 2KMs in the same village. After the marriage accused took her daughter to their house and after six months when her daughter came to her house for ashada, she informed that the accused are looking after her well and she also told them to give a watch and a ring to her husband. After three days, she went to leave her daughter to the house of the accused. Whenever she went to the house of her daughter, her daughter used to say that accused are looking after her well. It is also stated by PW2 in the evidence that thereafter the accused were making preparations for the second marriage of the appellant No.4 and they were demanding dowry by way of cash, ring and a watch. PW2 informed the deceased Rekha that the said demands would be met by doing some coolie work. When her daughter Mangala went to see Rekha, it was observed by Mangala that the deceased was ill-treated in the house of the accused. PW2 has further stated when her daughter came to their house, deceased was having giddiness and she was vomiting, 14 but she was not treated by any doctor. Accused No.1 abused her daughter as to whey deceased did not go back to her house. Thereafter Accused No.3 came to take her daughter but she herself took her daughter to the house of the accused. On the next day, she was informed by a boy of the village that her daughter is being beaten since she had taken their money to the house of PW2. Then PW2 again went to the house of her daughter. At that time, deceased informed that she is unable to bear the ill-treatment of the accused and requested her to inform the same to the elders of the village. She informed this fact to her husband and since there was election in the village, a panchayat was scheduled after the election. Thereafter she came to know that her daughter has committed suicide. In the cross-examination it is suggested that she is deposing falsely at the instance of PW1. However it is suggested that the deceased daughter had died by accidentally getting fire while cooking using kerosene. The said suggestion has been denied by PW2. She has admitted 15 that people were talking that the incident of fire has happened accidentally in the house of the accused.
14. PW3 Dr. Renuka Devi, is the medical officer, Primary Health Center, Kalkuni, Malavalli Village. She has conducted the post mortem examination on the dead body of the deceased Rekha and has opined that Rekha has suffered ante mortem burns to the extent of 90 to 92% and has died as a result of shock due to the burns. She has stated that she cannot say whether the death is suicidal or homicidal and has replied the investigating officer accordingly.
15. PW4 Shivakumar the brother of the deceased, his version of the incident is also similar to that of PWs 1 and 2. However, he has further stated that deceased was telling him that the accused were demanding dowry of Rs.15,000/- and accused No.1 had poured hot food (ganji) on her foot and that her husband accused No.5 was taking drinks and was burning her by using cigarette on her chest. PW5- 16 Eraiah, PW6-Nanjundaiah, PW-7- Jayanna, PW8- Mallikarjuna, PW11- Shivahanakar, PW12- Kumara and PW14 - Mahadeva have turned hostile to the case of the prosecution. They have not supported the case of PWs 1, 2 and 4. PW5 in his evidence has stated that Appellant No.1 demanded gold chain for Appellant No.4 and a pair of vole and jumki for the girl and also on the date of marriage since the chain was weighing 8 gms, appellant No.4 refused to stand for the marriage on that ground and only after payment of Rs.2,000/- in cash he agreed to marry the deceased. PW9 is the attestor of inquest Ex. P9. PW10 is the Police Sub-Inspector who has registered the FIR in this case. PW13, Muniyappa is the Tahsildar, who conducted the inquest proceedings as per Ex. P9. PW15 is the police constable who has taken care of the dead body. PW16 is the Junior Engineer who has prepared the sketch of the scene of occurrence at the instance of IO. PW17 and PW18 are the investigating officials whose evidence has been discussed in the earlier part of the judgment. 17
16. It is from the above evidence of the prosecution witnesses and the materials on record, that the learned Sessions Judge has found the accused guilty and convicted them as aforesaid.
17. Heard Sri. Nataraju, learned counsel for the appellants and Sri. G.M. Srinivasa Reddy, learned High Court Government Pleader for the state.
18. Learned counsel for the appellants submits that the case of the prosecution is that the deceased was subjected to harassment and ill-treatment for demand of dowry from the parents of the deceased. Admittedly, the marriage between the deceased Smt. Rekha and appellant No.4 is a love marriage and therefore, there was no question of demanding any articles or cash as dowry. The complaint is also silent regarding demand of dowry prior to the date of marriage. Hence learned Sessions judge has erroneously convicted the appellants for the offence 18 under Section 3 of the D.P. Act. It is also further submitted by him that PW1 in his complaint does not state that the accused were harassing the deceased for the purpose of additional dowry as there was no fixation of dowry at the time of marriage and therefore the evidence regarding ill-treatment and harassment after the marriage is also not convincing. The learned Sessions Judge has also erred himself in holding that the deceased was subjected to ill-treatment and harassment for demanding dowry. It is his submission that in view of the fact that no dowry at all has been paid, neither any articles are given to the deceased at the time of marriage, the question of invoking section 6 of the D.P. Act does not arise and therefore the conviction on the said account also is bad in law.
19. It is further submitted by him that PWs 1 and 2 have admitted that there were three portions in the house of the accused. Appellant Nos 2 and 3 being married persons, they were living separately in the portion belonging to their house and they were 19 separately cooking. They had their own independent family. The appellant No.4 being an orphan, both his parents having died, appellant No.1 grandmother was looking after appellant No.4. Appellant No.1, appellant No.4 and the deceased Rekha were living in a separate portion of the house and on the date of incident, admittedly, appellant No.4 was not in the house and that he had been to the house of one Basavaraju which was 15KMs away from the scene of occurrence. PW1 in his complaint states that 15 days prior to the date of incident, appellant No.4 had gone to the house of his brother-in-law Basavaraju and hence, at no stretch of imagination it could be held that appellant No.4 has instigated or is a cause for the deceased to commit suicide. Hence he submits that the conviction of appellant Nos. 2, 3 and 4 is erroneous and not based on the evidence on record. Further appellant Nos. 2 and 3 being the uncles of Appellant No.4, had nothing to do with the family of appellant No.4 or his wife, the deceased Rekha. It is also submitted by the learned 20 counsel for the appellants that except PW1, PW2 and PW4 who are the parents and brother of the deceased respectively, none of the witnesses have supported the case of the prosecution. There are no independent witnesses supporting the case of the PWs 1 and 2 regarding harassment. The evidence of PW4 is discrepant and does not corroborate the evidence of PWs 1 and 2. Hence he submits that the order of conviction and sentence either for offence under Section 304 B or for offence under Section 498 A is liable to be set aside and prays that the appeal may be allowed and accused may be acquitted.
20. Sri. G.M. Srinivasa Reddy, learned HCGP on the other had submits that PWs 1 and 2 being the parents of the deceased have clearly stated that after the marriage, their daughter Rekha was living in the house of accused and Accused No.1 being the grandmother of accused No.5 was harassing and ill- treating the deceased Rekha. She was also subjecting the deceased to ill-treatment and was forcing the 21 deceased to bring dowry. It is also submitted by the learned HCGP that appellant No.4 did not agree to stand for the Mahurtham after noticing that the chain promised to be given to him weighed 8 gms instead of 12 gms and that only after he was paid Rs.2,000/- being the cost of differential weight of 4 gms of gold, appellant No.4 came forward to tie the knot. This itself indicates the greed of the appellant No.4 for money from the parents of the deceased. It is submitted that PW5 Eraiah has also corroborated the version of PWs 1 and 2 in this aspect. The learned Sessions judge has rightly convicted appellants for demanding dowry at the time of marriage punishable under Section 3 of D.P. Act r/w Section 34 of IPC. It is also submitted by him that the marriage of the deceased took place on 19.05.2003 and she committed suicide on 24.04.2004 i.e., within one year from the date of marriage. Appellant No.4 being the husband ought to have come forward with an explanation as to why his wife committed suicide. However in his 313 statement before the court, he has 22 not stated any reasons as to why his wife has committed suicide and hence he submits that the prosecution has proved that it is because of the ill- treatment and harassment meeted out to the deceased, she has committed suicide and the learned Sessions Judge has rightly found them guilty hence he submits that appeal may be dismissed.
21. I have gone through the evidence on record. I have also scrutinized the materials including the documents produced in this case.
22. PW1's case is that his daughter married after loving appellant No.4. The complaint indicates that at the time of marriage, accused was given gold chain. Nowhere in the complaint it is stated that the accused has demanded/taken money or gold but the same was given by PW1 to his daughter and son-in-law. In view of the said averments in the complaint the conviction for offence under Section 3 of the D.P. Act is erroneous. 23 The accused are entitled for an order of acquittal on the said ground.
23. So far as the demand of money after marriage, it is stated in the complaint that since the appellant No.4 had married the deceased against their will and by loving the deceased, the accused namely Madamma, Jayaram, Nagesha and Mahadevi were ill- treating her. Therefore the ill-treatment is not for the purpose of bringing dowry but because the appellant No.4 had married the deceased out of love. So far as further averments in the complaint that accused were asking the deceased to bring money from her parents' house, the evidence adduced before the court is discrepant. No reason is mentioned as to why the accused were in need of money to be brought from the house of the parents of the deceased.
24. It is not the case of the prosecution that at the time of marriage there was any promise to pay any amount on any future date and therefore though there 24 is statement by PWs 1 and 2 that deceased was informing them regarding demand of accused, the financial condition of PWs 1 and 2 as presented before the court did not warrant demand of money, since both PWs1 and 2 have stated that they are eking their livelihood by coolie work. PW1 is aged 65 years as on the date of his deposition before court and when the deceased came and asked for additional gold, it was replied that they would pool the money by coolie work and thereafter they will give the money. It is not in the normal course of conduct of human beings that the accused would have expected any money from the hands of PWs 1 and 2 who are coolies so as to lay a demand on the said money. Despite the evidence on this aspect being discrepant, the said evidence is not convincing so as to inspire the mind of this court to hold that the accused would have demanded money from the parents of the deceased. I am of the considered opinion that the accused are entitled for benefit of doubt on this ground also.
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25. Sofar as the offence under Section 6 of the D.P. Act is concerned, no evidence has been placed on record to show that the accused have failed to return the articles belonging to the deceased to her legal heirs and therefore it is needless to say that there is no convincing evidence to show as to what articles were exactly given to the deceased by her parents by looking into the financial background of the PWs 1 and 2. Under the circumstances, offences under Section 4 of the D.P. act r/w Section 34 of IPC cannot be held to be proved beyond reasonable doubt and the conviction for the said offence is also not based on the evidence on record and they are entitled for an order of acquittal.
26. From what has been discussed above, it is seen that the prosecution has not proved that the deceased was subjected to ill-treatment or cruelty for want of dowry or money soon before her death and therefore the ingredients of Section 304-B have not been clearly made out by the prosecution witnesses. Except 26 PWs 1, 2 and 4 who are the parents and brother of the deceased no independent witnesses have been examined to show that deceased was subjected to ill-treatment or harassment for bringing dowry soon before her death. Hence the conviction of the appellants for offence under Section 304B of IPC is misconceived and the appellants are entitled for an order of acquittal for the aid offence also.
27. So far as the offence under section 498A is concerned, there is evidence that accused No.1, grandmother, was ill-treating the deceased and that she was harassing the deceased in connection with the domestic affairs. However, when it is looked at very broadly, the said behaviour of mother-in-law and the granddaughter-in-law would be of insignificant nature that it cannot be termed as a willful conduct on the part of the appellant No.1. PW4 has stated that appellant No.1 has once dropped hot food on the legs/foot of the deceased. This might be by accident or at the time when there was some domestic altercation between the 27 grandmother and granddaughter-in-law. It is not out of context to observe that appellant No.1 was aged about 65 years when charge sheet was filed, necessarily there is going to be some generation gap between the younger people like deceased and the appellant No.1 and secondly there may be some misgivings between them. This cannot be termed as a willful conduct to attract the definition of "cruelty" under Section 498A of IPC so as to warrant judgment of conviction against her.
From what has been discussed above, I am of the considered opinion that the prosecution has not proved any of the offences alleged against the appellants beyond reasonable doubt and that appellants are entitled for an order of acquittal. Accordingly the following ORDER
i) The appeal is allowed.
ii) The order of conviction and the
sentence passed by the learned
Sessions Judge for the offences levelled 28 against the appellants is hereby set aside and the appellants are acquitted of the said offence.
iii) Bail bonds if any executed by them are hereby discharged. Fine amount if any deposited by them shall be refunded.
Sd/-
JUDGE Bsv