Karnataka High Court
Sri Mallikarjuna V M vs State Of Karnataka By on 12 July, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRL.A.No.714/2010
BETWEEN:
1. SRI MALLIKARJUNA V M
S/O MALLIKARJUNASWAMY
NOW AGED ABOUT 40 YEARS
2. SMT. DUNDAMMA
W/O MALLIKARJUNASWAMY
NOW AGED ABOUT 60 YEARS
3. SRI MALLIKARJUNASWAMY
S/O LATE HOBALI DAS
NOW AGED ABOUT 69 YEARS
ALL ARE RESIDENT OF No.67
31ST CROSS, 4TH MAIN,
VIDYARANAYAPURAM
MYSORE CITY. ...APPELLANTS
(BY SRI SHIVARUDRA, ADVOCATE)
AND:
STATE OF KARNATAKA BY
MAHILA POLICE STATION. ...RESPONDENT
(BY SRI CHETAN DESAI, HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER OF CONVICTION AND SENTENCE DATED
14/17.06.2010 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSION JUDGE MYSORE IN
S.C.No.158/2006, CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498(A) R/W 34 OF IPC AND SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 2 ½ YEARS
EACH AND PAY A FINE OF RS.5,000/- EACH IN
DEFAULT OF PAYMENT OF FINE THEY SHALL
UNDERGO SIMPLE IMPRISONMENT FOR TWO
MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498(A) R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal is directed against the judgment and sentence passed by the learned V Additional District & Sessions Judge, Mysore, in S.C.No.158/2006 on 14/17.6.2010, wherein, accused No.1 Mallikarjuna V.M., Accused No.2- Dundamma, W/o Mallikarjunaswamy and accused No.3- Mallaikarjunaswamy were found guilty of the offence punishable under Section 498A read with Section 34 IPC and they were sentenced to undergo simple 3 imprisonment for 2 ½ years each and to pay fine of Rs.5,000/- each, in default of payment of fine, to undergo simple imprisonment for two months and they were acquitted of the offences punishable under Section 304(B) read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act read with Section 34 IPC.
2. The substance of the complaint lodged by one Doddaningaiah, father of Jyoti @ Devika is, his elder daughter Jyoti @ Devika was given in marriage to Mallikarjuna, S/o. Mallikarjunaswamy and Dundamma, residing at No.67, 31st Cross, Vidyaranyapuram, Mysore. The marriage was performed during August 2003. At the time of marriage, gold bangles, chain, ear rings to the bride and one gold chain and bracelet to the bridegroom were given by way of dowry. Prior to the complaint, his daughter was harassed and tortured by accused persons. This fact was revealed by Jyoti to the complainant. The accused were demanding 4 Rs.50,000/- as dowry, for the purpose of starting bakery business. This matter was being whispered by his daughter very often. As the complainant performed the marriage of his second daughter previous year, he was in short of money and therefore, he could not pay the said amount. Jyoti was sent by the accused to complainant's house 5 or 6 months prior to the date of complaint as he could not arrange and give the money that was demanded.
3. On 9.2.2006 despite her ill health, Jyoti was brought from her parental house to marital house by the accused.. The complainant wanted to see his daughter. On 22.2.2006 he had come to Mysore to the house of accused and at 5.00 p.m. he left Mysore and gone to Talkadu by 9.00 p.m. He received phone call that Jyoti committed suicide by hanging and this witness was asked to go urgently to Mysore. He along with his wife went to Mysore by 11.00 p.m. and on enquiry, he came to know that his daughter had 5 committed suicide and dead body was taken to K.R. Hospital.
4. He further states because of non meeting the demand of Rs.50,000/- accused persons Mallikarjunaswamy, his wife Dundamma and Mallikarjuna, Mangalamma said to be the sister of the husband of Jyoti and her husband Shivanna have harassed the victim. He lodged a complaint before Vidyaranyapuram Police Station, Mysore. Case was registered and transferred it to Mahila Police Station, Mysore and it was reregistered in Crime No.22/2006 for the offence punishable under Sections 498A, 304B r/w Sec.34 IPC and Sections 3 and 4 of the Dowry Prohibition Act.
5. The usual formalities of inquest mahazar as per Ex.P5 was conducted on 23.2.2006, spot mahazar as per Ex.P2. Postmortem on the dead body of Jyoti was conducted between 3.40 p.m. to 4.40 p.m. in the hospital as per Ex.P13 on 23.2.2006.
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6. Insofar as registering of FIR as per Ex.P12 is concerned, it is filed against five persons namely, Mallikarjunaswamy, Dundamma, Mallikarjuna, Mangalamma, and Shivanna.
Accused Nos.1 and 2 are the parents of accused No.3. Accused No.3 is the husband of Jyoti. Accused No.4 is the sister of Mallikarjuna. Accused No.5 Shivanna is the husband of Accused No.4- Mangalamma.
7. On completion of the investigation, final report came to be filed and same was chargesheeted in CC No.538/2006 for the offences punishable under Sections 498A, 304B read with Section 34 IPC and under Sections 3 and 4 of the Dowry Prohibition Act, against accused Nos. 1, 2 and 3. But Mangalamma and her husband Shivanna were not sent for trial.
8. The learned Trial Judge was accommodated with oral evidence of PWs 1 to 17 including the complainant as PW1, documentary evidence of Exs.P1 7 to P16 including the complaint and PM report and MO.1 one vale. The documents that were exhibited on behalf of the defence were: Exs.D1, D1(a) and (b).
9. The learned Trial Judge after going through the evidence available found the accused guilty of the offence punishable under Section 498A r/w 34 IPC and sentenced them as mentioned above.
10. Among 17 witness examined, PW1- Doddaningaiah is the complainant and the father of Jyoti, the victim. He deposes regarding the marriage of his daughter on 4.8.2003 at Adichunchanagiri Rathostava Bhavan, T. Narasipura. During matrimonial negotiations accused demanded Rs.1.00 lac and gold. However, the complainant stated and gave total amount of Rs.1.00 lac including the gold ornaments like, bangles, necklace, ring and bracelet to accused No.1.
11. The marital house of Jyoti was at Vidyaranyapuram at Mysore in the house belonging to Accused Nos.1 to 3. The marital life was said to be 8 cordial for the first one year. Thereafter, miseries started for Jyoti, as her husband and the other accused started demanding Rs.50,000/- to start bakery business. During the said period, the marriage of the second daughter of the complainant was performed hence, he could not meet the demand. Meanwhile, Jyoti, conceived. The torture and harassment meted out by the accused persons on Jyoti was informed to the complainant by none other than Jyoti herself when she used to come to her parental house. This being the state of affairs, on 9.2.2006 accused took Jyoti to his house promising that he would look after his wife in a proper manner.
12. Again his daughter telephoned to the complainant that her husband is pressing for money and she was feeling depressed. On 22.2.2006, the complainant went to the house of the accused. All of them were present. Complainant sought time to pay money. Thereafter, he came to his place, but before he 9 could reach home, he got the information regarding the death of his daughter. Immediately, complainant, his wife, friends A.G. Venkatesh, Mahadevaswamy went to the house of accused. The complainant and others were informed of death and dead body was in the mortuary at K.R. Hospital. Therefore, he claims that because of the torture of parents- in- law, husband, sister- in- law and her husband to get Rs.50,000/- for starting bakery business, Jyoti committed suicide.
13. He has been cross examined at length. It is elicited from the complainant that at that particular point, he did not feel that any danger may happen to his daughter. There is pre existing friendship between the complainant and the father of the accused. He denies the suggestions made against his version during chief examination.
14. PW2-Yashodamma is the mother of the victim. She reiterates the version of the complainant and also states that the accused demanded 150 gms of 10 gold and cash of Rs.50.000/-. However, the complainant's family including this witness as well, agreed for 150 grams of gold. Further, she tells regarding the demand by the accused for Rs.50,000/- for starting bakery business. Her daughter had come to Gowri festival then also she explained her grievance. 15 days prior to the death of Jyoti, accused No.1 came home and asked the witness to send Jyoti to marital house. Thus, she was taken to marital house. Again, on 22.2.2006, when her husband had gone to the house of the accused, there were talks regarding the money. The next aspect is, on the date of incident, in the night at 9.00 p.m. her husband returned to home and got the news of suicide of Jyoti.
15. She has been cross examined. It is elicited in her cross examination that even after Gowri festival Jyoti was in her parental house 2 to 4 months and she delivered a child. She did not reveal that she had 11 problem in the pre pregnancy period. She admits a suggestion that they agreed only for gold as they did not have the tradition of paying cash.
16. The next aspect is regarding the news of death of Jyoti by committing suicide on 22.2.2006.
PW3- Vishakantaiah is the elder brother of complainant. He tells about the relationship and the matrimonial talks. He asserts that accused demanded cash of Rs.50,000/- and gold of 150 grams. However, the complainant tried to give Rs.50,000/- for getting gold articles i..e chain, bracelet to accused No.1 and 100 grams gold to her daughter, necklace, chain and ring to Jyothi. Thereafter, he was told by his brother and sister- in- law regarding the torture and harassment of the accused persons to Jyoti on her failure to get Rs.50,000/- from her parental house for starting bakery business.
17. PW4- Amruthananda Raj is witness for inquest mahazar Ex.P5.
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18. PW5-Mahadevaiah, is circumstantial witness regarding marriage talks between the complainant and the accused and participation of this witness. But turns hostile and says that no decision was taken by the complainant in his presence.
19. PW6-M.L.Lingarajamma is a person known to the complainant. She says she was present during marriage talks along with others. Accused demanded Rs.50,000/- and gold articles, bracelet, gold ring, mangalya chain and cash for expenditure on marriage. However, it was settled at 100 grams gold. She attended the engagement. Further, version of this witness is of having heard from victim Jyoti regarding the demand and harassment of her husband and in-laws.
She has been cross examined. No significant contradictions were elicited.
20. PW7-Shyalaja is Women Police Sub Inspector has escorted the dead body of Jyoti through to hospital 13 and handing over the dead body after conducting postmortem.
21. PW8- G.Krishnamurthy, is the Police Inspector who has received the complaint, conducted part of investigation, including registering of FIR.
22. PW9-B.R.Padmavathi, is the police constable who has carried FIR and complaint Women Police Station to jurisdictional Magistrate at 3.30 p.m. on 23.2.2006.
23. PW10- Dr.Uday Shankar has conducted post mortem on the dead body of Jyoti between 3.40 and 4.40 p.m. on 23.2.2006. He has opined that the cause of death of Jyoti was due to asphyxia.
24. PW11- Chandrakala is the PSI, CCRB who has received the FIR transferred from Vidyaranyapuram Police station and registered the case in Crime No.22/2006 and sent FIR to the jurisdictional Court. 14
25. PW12-Krishnamurthy was Taluka Executive Magistrate. He has deposed for having conducted inquest mahazar as per Ex.P5 on 23.2.2006.
26. PW13-Mahadevaswamy, is the witness for spot mahazar, Ex.P2. But turns hostile.
27. PW14-H.N.Narayana, is circumstantial witness for matrimonial talks, he deposes regarding demanding of gold articles by the accused and torture to Jyoti for not bringing Rs.50,000/-. His further evidence is that, Jyoti used to tell that accused persons were torturing her for having not brought Rs.50,000/-. Further this witness turns hostile. During cross examination by learned counsel for the accused, he denied the suggestions made against his version in chief.
28. PW15-Puttaswamigowda, is the ACP. He deposes that from 6.1.2006 to 02.7.2007 discharged his duties as Additional Inspector of Women Police Station at Mysore. He has conducted the penultimate stage of investigation, recorded the statements, conducted the 15 mahazar and handed over further investigation to PW17.
29. PW17-C.Krishnappa, Dy.SP who has filed chargesheet against the accused after completion of investigation.
30. The learned Trial Judge considering the evidence available on file, acquitted the accused of the offence punishable under Sections 304(B) r/w section 34 IPC and sections 3 and 4 of Dowry Prohibition Act read with 34 of IPC and convicted found the accused guilty for the offence punishable u/s 498A r/w 34 of IPC and sentenced them as mentioned above.
31. Learned counsel Sri.Shivarudra, appearing for the appellants/accused would submit that, accused never tortured or neglected his wife Jyoti @ Devika. Further accused being living in poverty he understands the life of his wife and the complainant. The allegations are made by the complainant due to frustration over the 16 death of Jyoti @ Devika. Further, there were no grounds to hold him guilty.
32. Learned High Court Government Pleader would submit that, the learned trial Judge has justified in convicting the accused. The accused utterly failed to fulfill his basic duties towards his wife. He rendered the life of his wife miserable and undoubtedly caused tragedy in their life.
33. Criminal case was registered against the accused persons 1 to 5 for the offence punishable under Section 498A and 304B r/w Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, on the strength of the complainant lodged by one Doddaningaiah, PW1, farther of Jyoti, a married lady who is the victim in this case.
34. The relevant evidence of PW-1 is that, he is the father of the Jyoti. Pre existed friendship was there between the complainant and accused 1 and 2. Both families appear to be average class. The marriage of 17 Jyoti, elder daughter of complainant said to have been performed during August 2003. (4.8.2003). All was well for about one year. His daughter gave birth to a male child. According to complainant, the marital life was cordial in the beginning for some period and thereafter, miseries started to Jyoti. Despite, jewels and cash which were given during marriage, she was asked and pressurized to bring Rs.50,000/-for starting bakery business for accused No.1. As the said demand was not met, Jyoti was subjected to torture and harassment. The demand by the accused did not stop when once the complainant told that they were hard pressed for money after having performed the marriage of his second daughter. The accused persons however did not relaxed and were bent upon demanding Rs.50,000/- for starting bakery business. Thus, the instances of cruelty and torture is pressing demand for Rs.50,000/- by accused No.1 for starting a bakery business. In this connection, accused persons also claimed that Jyoti 18 was also interested in bakery business. PW2 wife of PW- 1 supports the version of her husband and states that whenever they used to go to the house of Jyoti, later used to inform this witness that she was subjected to torture and harassment by demanding money of Rs.50,000/-. PW3, brother of the complainant, asserts that accused No.1 placed demand for Rs.50,000/- cash and 150 grams of gold at the time of marriage. However, complainant had agreed for 50 grams of gold in the form of chain, to accused No.1.
35. The learned trial Judge found that there is no evidence against the accused for the offence punishable under Sections 3 and 4 of Dowry Prohibition Act and Section 304 B of IPC and acquitted them for the said offences. The prosecution has not preferred any appeal challenging the acquittal of the accused persons for the offence punishable under Sections 304(B) r/w section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act r/w 34 IPC. 19
36. Insofar as the trial Judge convicting the accused persons for the offence punishable under Section 498A with common intention is concerned, when once common intention is found, absence of individual overtact looses its significance as when an offence is committed in furtherance of common intention, it is the work of all the accused being executed through one or other of the group. The marriage between Mallikarjuna, A1 and Jyoti is not disputed. It was performed during 2003. An amount of Rs.1,00,000 and jewels 150 grams were said to have been demanded, however, the complainant had agreed for Rs.50,000/- plus 50 grams of gold and marriage was performed. The torture or cruelty to a married lady need not be beating or abusing in filthy language. If the life is made to live with apprehension and anxiety of facing negative or serious consequences to a person mostly a married lady it could be stated that it forms cruelty.
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37. Further cruelty also depends on the type of torture and harassment wherein the victim goes on loosing confidence in life and turn towards suicide. A married lady comes afresh from her parental house to marital house having left her people with whom she had acquaintance till marriage and with whom she has developed passion and emotion, under such circumstances, the reception in the marital house though may not be luxurious, at least it should be dignified and answerable to conscience.
38. Learned trial Judge in his wisdom has found the unnatural death of Jyoti is not a dowry death. Still fact remains that, it is unnatural death. It is not a case wherein there should be abrasions or lacerations or contusion on the body and to hold them as cruelty.
39. Insofar as Section 498A IPC is concerned, it has two limbs or two edges. One towards non dowry related and the second one regarding dowry related.
40. Section 498A IPC is as under:
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"498A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of 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
(b) 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.]"
41. The question is, the amount demanded does not represent the quantity that it should be in lacs and 22 millions or crores it would always assessed considering the capacity and status of people from the side of the bride. In the circumstances, the evidence of PWs 1, 2,3,4,5 6 and 14 nodoubt establish that there was a regular and persistent demand in an irritating manner to Jyoti by her husband, accused No.1. The learned trial Judge has convicted accused Nos.1 2 and 3 who are parents-in-laws and husband of Jyoti. There are no complaints of insanity, immorality, serious health disorder, contagious diseases suffered by Jyoti. Even accused No.1 specifically should have stated what he knew regarding his wife and the extreme step taken by her. More particularly, in the light of Section 106 of Evidence Act.
42. The corroborated and the common factor from the oral evidence of the witnesses is, Jyoti was harassed and humiliated for not having brought Rs.50,000/- from her parental house and when she could not arrange the amount, again, it was demanded 23 for the second time and third time. On every renewal of demand, she was harassed. But except the allegation in the complaint regarding the involvement of parents of Mallikarjuna, accused No.1, who are appellants 2 and 3 herein, there is no specific or precise allegation or incriminating substance against them for having tortured or harassed or for having posed cruelty on Jyoti for not having brought the amount of Rs.50.000/-. Thus, I find learned trial Judge erred in holding appellant Nos. 2 and 3, parents of appellant No.1 guilty of offence punishable under Section 498A read with Section 34 IPC (the element of common intention is not established above). However, I agree with the finding of learned trial Judge holding accused No.1, Mallikarjuna, S/o. Mallikarjunaswamy guilty for having committed the offence punishable under Section 498A IPC.
43. Hence, I proceed to pass the following:
ORDER Appeal is allowed in part.24
The judgment dated 14.6.2010 passed in S.C.NO.158/2006 by the V Additional District Judge, Mysore, convicting and sentencing accused Nos. 2 and 3 (appellant Nos. 2 and 3) for the offence punishable under Section 498A read with Section 34 of IPC is hereby set aside.
The amount of fine if any deposited by them shall be refunded to the appellant Nos. 2 and 3. Their bail bonds stands cancelled.
However, judgment convicting the appellant No.1/ husband of Jyoti for the offence punishable under Section 498A IPC is hereby confirmed.
At this stage, learned counsel for appellant Sri. Shivarudra, would submit that the appellant No.1 is having son who is studying in 8th Standard and has huge responsibility ahead and requests for a lenient view regarding sentence.
However, learned Government Pleader opposes for the same.25
In the context and circumstances, it is just and proper to reduce the sentence from 2 ½ years to one year for the offence punishable under Section 498A r/w Section 34 IPC. However, fine of Rs.5,000/- imposed is maintained.
The accused/appellant No.1 be given the benefit of Section 428 Cr.P.C.
Sd/-
JUDGE tsn*