Karnataka High Court
U. Krishnappa vs M. N. Devaraj on 11 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.1608 OF 2016
BETWEEN:
U. KRISHNAPPA,
S/O. LATE MUNIYAPPA,
AGED ABOUT 67 YEARS,
R/O KALLAHALLI VILLAGE,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT - 561 114.
... APPELLANT
(BY SRI. A.N. RADHAKRISHNA, ADVOCATE)
AND:
1. M.N. DEVARAJ,
S/O. NANEPPA,
AGED ABOUT 35 YEARS,
MASHENAHALLI VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT - 563 125.
2
2. STATE OF KARNATAKA,
BY CHINTAMANI POLICE,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI VEERANNA G. TIGADI, ADVOCATE FOR R1:
SRI VIJAYAKUMAR MAJAGE ADDL.SPP FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 372 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF ACQUITTAL PASED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA
(SITTING AT CHINTAMANI) IN S.C.NO.74/2013 DATED
18.02.2016 ACQUITTING THE RESPONDENT
NO.1/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498(A) AND 304(B) OF IPC AND SECTIONS 3
AND 4 OF THE DOWRY PROHIBITION ACT AND
CONVICT THE RESPONDENT NO.1/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 498(A) AND
304(B) OF IPC AND SECTIONS 3 AND 4 OF THE DOWRY
PROHIBITION ACT.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J, DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal is filed by the complainant who is the father of the deceased against the impugned judgment and order of acquittal dated 18.02.2016 made in SC 3 No.74/2013 on the file of the II Addl. District and Sessions Judge, Chikkaballapura, sitting at Chintamani, acquitting the accused under the provisions of Sections 498A, 304B, 306 of IPC and read with Sections 3 and 4 of the Dowry Prohibition Act. But in the operative portion, the wrong provisions are mentioned.
2. It is the case of the prosecution that PW6 - Krishnappa who is the resident of Kallahalli Village, Hosakote Taluk lodged a complaint as per Ex.P3 on 12.08.2012 at about 5.00 p.m., alleging that his second daughter Munilakshmamma has given in marriage to one Devaraju - accused - resident of Mastenahalli Village and their marriage was performed on 24.02.2012 at Doddakunte Anjaneya Swamy Temple of Kaiwar. At the time of marriage, he has given 42 grams long chain, 40 grams necklace, 6 grams ring and 12 grams hangings to his daughter Munilakshmamma as gift and given 25 grams neck chain, 8 grams finger ring and Rs.1,20,000/- to Devaraju as dowry and marriage 4 has been performed by the parents of the accused at their own cost.
3. It is the further case of the prosecution that from the date of marriage, his daughter was residing with her husband. After five months of her marriage, the husband (son-in-law and his parents) started harassing her daughter to bring additional dowry and in this regard sent his daughter 4 to 5 times to his house and advised about 20 days prior to the date of incident and the accused asked the complainant to give amount to dug a bore well and that he will return the same. At that time, he borrowed loan and gave to the accused a sum of Rs.25,000/- and further the accused has dug the bore well and got the water and he has got the documents regarding the ornaments given to the accused Devaraju. It is further case of the prosecution that on 12.08.2010 at about 9.00 a.m., accused called him and informed that his daughter Munilakshmamma at about 7.00 a.m., got set the fire and she was in a 5 position to die and taking her to the hospital. When he came to the village of the accused, he enquired with the neighbours and came to know that his daughter was died and Devaraju and his family members left his daughter in the house and ran away, thereby lodged a complaint to the jurisdictional police as per Ex.P3. The jurisdictional police registered a case in Crime No.173/2012 under Section 498A, 304B read with Sections 3 and 4 of the Dowry Prohibition Act. The jurisdictional police after investigation, filed charge sheet against the accused.
4. After the committal of the matter to the learned Sessions Judge, the learned Sessions judge secured the presence of the accused and framed the charges, explained to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
6
5. In order to prove the case of the prosecution, the prosecution examined in all 13 witnesses as PWs.1 to P13 and marked documents at Exs.P1 to P14. After considering the both oral and documentary evidence on record, the learned Sessions Judge framed three points for consideration. Considering the both oral and documentary evidence on record, the learned Sessions Judge has answered Points No.1 and 2 in 'negative' and Point No.3 in 'affirmative' holding that the prosecution failed to prove that the parents of the deceased have given 25 grams neck chain, 8 grams finger ring and Rs.1,20,000/- as dowry. The accused has caused physical and mental harassment in order to bring dowry, thereby committed the offence under the provisions of Section 498A of IPC read with Sections 3 and 4 of the Dowry Prohibition Act. Further recorded the finding that the prosecution has failed to prove beyond reasonable doubt that the accused caused physical and mental harassment in order to bring dowry from the 7 matrimonial house in addition to the cash and ornaments given at the time of marriage. Thereby, Munilakshmamma poured kerosene on herself and got set the fire, thereby committed an offence under the provisions of Section 304-B of IPC and thereby the learned Sessions Judge answered Point No.3 in the 'affirmative' and acquitted the accused for the aforesaid offence. Hence, the present appeal is filed.
6. We have heard the learned counsel for the parties.
7. Sri. A.N. Radhakrishna, learned counsel for the complainant contended with vehemence that the impugned judgment and order of acquittal passed by the trial court acquitting the accused is erroneous and contrary to the material on record, cannot be sustained and liable to be set aside. He would further contend that it is the specific case of the complainant - PW6 that his daughter Munilakshmamma was given married to the 8 accused and a sum of Rs.1,20,000/- cash, gold ring and long chain and necklace was given to his daughter - deceased Munilakshmamma at the time of marriage. The said material fact has not been considered by the trial court, thereby proceeded to acquit erroneously.
8. He would further contend that after three months of the marriage, the accused came to the house of the complainant and demanded Rs.50,000/- to dig a bore well and accordingly, PW6 - father of the deceased has borrowed loan a sum of Rs.25,000/- from his brother-in-law Sri. Anjanappa - PW7 and paid the said amount to the accused. The said material has not been considered in a proper perspective. He would further contend that PW6 - the complainant has stated in his cross-examination that his daughter was subjected to ill-treatment since one month, which clearly depicts that the accused was demanding dowry and giving harassment after the marriage. The said evidence has not been considered before passing the acquittal order. Therefore, the impugned judgment and order of 9 acquittal cannot be sustained. He would further contend that the learned Sessions Judge proceeded to acquit the accused mainly on the basis of the presumptions and assumptions ignoring the fact of payment of dowry by way of cash and golden ornaments and presumption, has to be drawn under the provisions of Section 113B of the Indian Evidence Act as the deceased died within 7 years after the marriage. Therefore, he sought to allow the appeal.
9. Per contra Sri. Veeranna G. Thigadi, learned counsel for accused/respondent No.1 while justifying the impugned judgment and order of acquittal passed by the trial court and sought to dismiss the appeal.
10. Per contra, Shri. Vijayakumar Majage, learned SPP for respondent No.2/State submits that the trial court considering both the oral and documentary evidence on record, has come to the conclusion that it was only the customary gift, it cannot be considered as 10 dowry harassment and nothing has been produced before the court to prove that it was a dowry harassment, thereby sought to dismiss the appeal. Sri. Vijay Kumar Majage, learned SPP for respondent No.2/State fairly submits that the State has not filed any appeal against the order of acquittal. But he supported the contentions urged by the learned counsel for the appellant/complainant and south to allow the appeal.
11. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration is:
"Whether the complainant has made out a case to interfere with the impugned judgment and order of acquittal passed by the trial court acquitting the accused under the provision of Sections 498-A, 304-B and 306 of IPC and read with Sections 3 and 4 of the Dowry Prohibition Act?"11
12. We have given our anxious consideration to the arguments addressed by the learned counsel for the parties and perused the entire material on record carefully.
13. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and material documents relied upon:
(a) PW1 - Manjunath - Panchayath Development Officer issued the House Demand Extract as per Ex.P2 along with Ex.P1 - letter, supported the case of the prosecution.
(b) PW2 - Sri. S.L. Krishna Murthy who registered the case on the basis of the complaint lodged by PW6 as per Ex.P3, supported the case of prosecution.
(c) PW3 - K. Bhavya who is the own sister of the deceased and daughter of the complainant also 12 deposed about demanding dowry, causing harassment to the deceased and deposed that the accused told that he intended to marry her as a 2nd wife. She supported the case of prosecution.
(d) PW4 - Somashekar is an independent witness who deposed about the demand of dowry and causing physical and mental harassment to the deceased and turned hostile.
(e) Sri. K.L. Babu who is the panch witness to the Inquest mahazar and turned hostile.
(f) PW6 - Krishnappa who is the complainant and father of the deceased who stated on oath regarding the complaint averments stated on oath that he has given Rs.1,20,000/-, neck chain, finger ring to the accused and long chain, one necklace, finger ring and hangings to his daughter as customary gifts at the time of marriage and he was taking care of his daughter. 13 Thereafter both his daughter and son-in-law came to him, requested for an amount of Rs.50,000/- and told that he will return the same. Thereafter PW6 borrowed a sum of Rs.25,000/- from his brother-in-law PW7 - Anjanappa and given to him. In the cross-examination, he has admitted that from the date of marriage till the accused died, the accused and his family members were harassing his daughter, but has not lodged any complaint to the jurisdictional police. He has further admitted in the cross-examination that he has given Rs.1,20,000/- cash, neck chain and finger ring to his son-in-law as varopachara (customary gift) and he has given gold ornaments to his daughter as gifts.
(g) PW8 - Kaluram and PW10 - Shankar who deposed about purchase of golden articles by PW7 under Ex.P9, supported the case of the prosecution. PW9 - Patalappa was also present at the time of negotiation before the marriage and he was also present in the marriage, supported the case of prosecution. PW11 - 14 Anjineyareddy is the panch witness to the spot mahazar, supported the case of prosecution.
(h) PW12 - B. Ramesh - Investigating Officer, who investigated the case and filed charge sheet.
(i) PW13 - Nagaraj who is the evidence to the Inquest Panchanama-Ex.P8 supported the case of prosecution.
14. On careful reading of the complaint - Ex.P3, on 12.08.2013, though according to the complaint, the accused and his parents harassed, assaulted and abused the deceased and sent her to her parents' house 4 to 5 times, her father has not lodged any complaint. He further stated that he has paid a sum of Rs.25,000/- to the accused for digging of bore-well 20 days prior to the unfortunate incident, but no material produced in whose presence he has paid a sum of Rs.25,000/- to the accused. Neither produced any material to show 15 that the father of the accused has dug the bore well and got the water nor receipt to that effect. In the cross- examination, he has admitted that whatever amount paid and ornaments given to the accused as customary gifts as well as to his daughter, he has also admitted in the cross-examination, he has not lodged any complaint to the jurisdictional police. Even though the accused sent his daughter 4 to 5 times to bring the additional dowry, he has not lodged the complaint. Admittedly, in the present case, the prosecution has not examined any neighbours to prove the alleged ill-treatment or harassment of dowry given to the deceased. PW6 - complainant has admitted in the cross-examination that whatever the cash and gold ornaments given to the accused and his daughter at the time of marriage was customary gifts and he has admitted that the marriage was performed by the accused and his parents.
15. The evidence of PWs.3, 6, 7 clearly depicts that PW6 has given customary gifts to the accused and 16 his daughter at the time of marriage, which does not amounts to dowry and the same is admitted by PW6 in his cross-examination that the gifts given to the accused and his daughter are customary gifts to the newly married couple.
16. Under the Provisions of Sections 3(2)(a) and
(b) of the D.P. Act, depicts the presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf) and presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf) will not comply to sub section (1) after commencement of the Act - imprisonment, penalty for giving or taking dowry. PW6 who has given the cash and gold ornaments has admitted in the categorical terms that it was a customary gifts to both bride and bride grooms i.e., for newly wedded couple given at the time of marriage, thereby the prosecution has failed to 17 prove the provision of Sections 3 and 4 of the Dowry Prohibition Act, 1961.
17. In order to prove the harassment under Section 498-A of IPC, absolutely there is no material produced by the prosecution about the harassment as admitted by PW6 in the cross-examination that though the accused and his parents demanded for dowry and sent the deceased to her parents' house 4 to 5 times, the complainant has not lodged any complaint and admittedly either none of the witnesses have deposed about the constant harassment or assault on the deceased by the accused or his parents and no complaint is lodged to that effect, as admitted by PW6 nor it is evident from any of the neighbours or owner of the house where deceased and accused were residing to prove the harassment. There is no material to prove the physical and mental harassment in order to bring dowry, to attract Section 498-A of IPC. 18
18. In order to attract Section 304-B of IPC, presumption could be raised only on the following five aspects :
(a) death took place within 7 years one month from the date of marriage.
(b) Such death took place in normal
circumstance.
(c) Woman subject to cruelty by husband or
relatives.
(d) Such cruelty, harassment was for or in
connection with any demand of dowry and
(e) Such cruelty, harassment was soon before her death.
19. In the present case, it could be seen from Ex.P3 - complaint and evidence of PW6 - father of the deceased, the death took place within seven years from the date of marriage by deceased herself poured kerosene oil on her and set the fire and the deceased was not subjected to the cruelty or harassment by the 19 husband or his relatives and such cruelty, harassment was not for or in connection with any demand of dowry as alleged by the prosecution and such cruelty or harassment was not soon before her death.
20. Admittedly, the deceased was not subjected to any cruelty or harassment. There is no complaint either by the deceased or by her parents as admitted by PW6 in the cross-examination. The expression 'soon before her death' used in the substantive Sections 304B IPC and 113B of the Evidence Act was considered by the Hon'ble Supreme Court in the case of Hira Lal -vs- State (Government of NCT of Delhi) reported in (2003)8 SCC 80, wherein at paragraph-8 it is held as under:
8. Section 304B IPC which deals with dowry death, reads as follows:
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon 20 before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub- section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In 21 order to attract application of Section 304B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
21. The Provisions of Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition 22 (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Penal Code, 1860."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10- 8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre- existing law in securing evidence to prove dowry- 23 related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death.
22. Though the learned counsel for the complainant/appellant contended with vehemence that 24 the evidence of PWs.3, 6 and 7 is consistent with the demand of dowry, in the cross-examination of PW6 who is the complainant - father of the deceased in categorical terms has admitted that whatever cash, ornaments given to both bride and bride grooms at the time of marriage was customary gifts, thereby the provisions of either Section 498-A and 304-B of IPC or Sections 3 and 4 of the Dowry Prohibition Act was not proved by the prosecution beyond reasonable doubt. In the absence of any oral and documentary evidence with regard to the involvement of the accused, the trial court is justified in acquitting the accused for the aforesaid offences made out under Section 498A and 304B of IPC and Sections 3 and 4 of the Dowry Prohibition Act.
23. The material on record clearly depicts that the prosecution failed to prove beyond reasonable doubt the payment of Rs.1,20,000/- and gold ornaments to the accused as dowry and physical and mental harassment given to the deceased was dowry 25 harassment as contemplated under the provision of Section 498-A, 304-B of IPC and Sections 3 and 4 of the Dowry Prohibition Act, thereby the learned Session Judge considering the entire material on record, has rightly recorded the finding that the prosecution failed to prove beyond reasonable doubt the allegations against the accused. Paragraphs 27, 28 and 29 of the judgment of the trial court reads as under ;
"Para 27 - There is no evidence and material placed by the prosecution to prove that after the marriage, there was demand of dowry by the accused or even prior to the marriage or as on date of marriage negotiation. The PW 6 and 9 have deposed that they have given amount and gold ornaments to the accused as Varopachara. The said varopachara is not a dowry as same reported in 2011 Crl.reports page 183 KAR as referred on. Under circumstances the prosecution has failed to prove that the accused demanded the dowry in connection with the marriage and PW 6 has paid the samed. As already discussed above there was no demand of dowry. He had demanded amount in order to dig the borewell for better cultivation and good yield. In other words it is for the development of agriculture. There fore it is not demand of dowry.26
Para 28 - Even there is no specific evidence and sufficient material that the accused demanded and expressed his intention to marry PW 3 Bhavya during the life time of deceased and caused physical and mental harassment to the deceased in this regard.
Para 29 - No doubt the document shows that he has purchased the ornaments as per Ex.P9 in the name of PW 7. PW6 has stated in his complainant Ex.P3 that he has got document for purchase of golden ornaments. These documents shows that golden ornaments purchased in the name of PW 7 Anjinappa, who is the brother in law of PW 6. These documents are not in the name of PW 6 Krishnappa. No doubt PW 7 is the brother-in-law of PW 6, he might have purchased the these ornaments. But it is not the case of prosecution that the entire amount paid by PW 6 to purchase these ornaments. No doubt PW 7 Anjinappa might have assisted to purchase these articles. He ought have get the bills in the name of Pw 6 Krishnappa. Even assuming that these articles purchased by PW 6 through PW 7, the prosecution has failed to prove that the accused has demanded dowry in connection with and prior to the marriage or at the time of negotiation of the marriage. Under the circumstances the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Hence prosecution has failed to prove that soon before the death of deceased there was physical and mental 27 harassment in connection with demand of dowry and there fore the deceased committed suicide."
24. After re-assessing the oral and documentary evidence on record, we are of the considered opinion that the impugned judgment and order of acquittal passed by the trial court acquitting the accused for the offence punishable under Sections 498A, 304B and 306 of IPC and Sections 3 and 4 of the Dowry Prohibition Act is sound and reasonable. The scope of appeal filed by the complainant is very limited unless this court while considering the material on record finds that the findings of the learned Sessions judge are perverse. The Appellate Court has power to review and re-appreciate the entire evidence on record. This court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. This court cannot interfere with the judgment and order of acquittal passed by the trial court. On the basis of the evidence on record, this court should not 28 disturb the finding of the trial court recorded. In the present case the reasons assigned and conclusion of the trial court are sound and proper. Our view is fortified with the dictum of the Hon'ble Supreme Court in the case of Arulvelu and Another vs. State represented by the Public Prosecutor and another reported in 2009 (10) SCC 206 as held as under ;
"Para 40 - Unquestionably, the Appellate Court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallized by aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court."29
25. On re-appreciation of the entire oral and documentary evidence on record and in the light of the dictum of the Hon'ble Supreme Court stated supra, we find no ground to interfere with the impugned judgment and order of acquittal, in the peculiar facts and circumstances of the case.
26. For the reasons stated above, the point raised in this appeal is answered in the 'negative' holding that the appellant/complainant has not made out any ground to interfere with the impugned judgment and order of acquittal of the accused under the provisions of Sections 498-A and 304-B of IPC read with Sections 3 and 4 of the Dowry Prohibition Act in exercising the power conferred under Section 372 of Cr.P.C.
27. In view of the above, we pass the following: 30
ORDER
(i) Criminal Appeal filed by the complainant/PW6 is hereby dismissed as devoid of merits.
(ii) The impugned judgment and order of acquittal dated 18.02.2016 made in SC No.74/2013 on the file of the II Addl.
District and Sessions Judge,
Chikkaballapura, sitting at Chintamani,
acquitting the accused under the provisions of Sections 498A, 304B, 306 of IPC read with Sections 3 and 4 of the Dowry Prohibition Act is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE SNC