Karnataka High Court
Sri Mahalingappa vs State Of Karnataka on 28 January, 2020
Author: K.Somashekar
Bench: K. Somashekar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.1169 OF 2010
BETWEEN
SRI MAHALINGAPPA
S/O LATE SHIVANNA
28 YEARS
R/AT KUNTAMMANATHOTA
TUMKUR.
... APPELLANT
(BY SRI. R SRINIVASA GOWDA, ADVOCATE
APPOINTED AS AMICUS CURIAE, VIDE
COURT ORDER DATED 28.03.2019 )
AND
STATE OF KARNATAKA
TUMKUR RURAL POLICE
REPRESENTED BY
THE LEARNED STATE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI. M. DIWAKAR MADDUR - HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE DATED 26/27.10.2010
PASSED BY THE PRESIDING OFFICER, FTC-I, TUMKUR
IN S.C.NO.136/2008-CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 498(A) AND 304(B)
OF IPC AND SEC.3, 4 AND 6 OF D.P. ACT AND ETC.,
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THIS CRIMINAL APPEAL COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by one Mahalingappa / Accused No.1 in S.C. No. 136/2008, challenging the judgment of conviction and order of sentence dated 26.10.2010, passed by the Presiding Officer, Fast Track Court - I, Tumkur, convicting the accused No.1-appellant herein for offences punishable under Sections 498-A and 304B of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. Thereby Accused No.1 was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- for the offence punishable under Section 498A IPC and in default, to undergo simple imprisonment for a period of six months; to undergo simple imprisonment for a period of seven years for the offence punishable under Section 304B IPC; further to undergo simple imprisonment for a period of five years and to pay a fine of Rs.15,000/- for the offence punishable under Section 3 of the DP Act and in default of payment of fine, to undergo :3: simple imprisonment for a period of one year; further to undergo simple imprisonment for six months and to pay fine of Rs.5,000/- for the offence punishable under Section 4 of the DP Act and in default to undergo simple imprisonment for a period of six months; and to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/- for the offence punishable under Section 6 of the DP Act and in default to undergo simple imprisonment for a period of six months. All the sentences were to run concurrently. However, Accused No.2 was acquitted of all the offences.
2. The factual matrix of the appeal as per the case put forth by the prosecution, is as follows:-
The deceased Smt. Narasamma who was the daughter of PW-1 / Mariyappa and PW-9 / Smt. Gangamma, was given in marriage to accused No.1 on 10.08.2004. Subsequent to her marriage, she was blessed with two female children. It transpires that before marriage, marriage talks were held in the presence of all members of both families and it is stated that during :4: marriage talks, accused No.1 had demanded cash in a sum of Rs.25,000/-, gold chain and ring for himself and a golden mangalya and other ornaments to the bride. PWs 1, 9 and 10 had agreed to pay cash of Rs.8,000/- and provide gold chain and a ring to accused No.1 and gold mangalya chain, ear-rings, hangings, silver anklet and toe rings to the bride. As agreed, it is stated that PWs 1 and 10 had called accused No.1 to their house and had paid him a sum of Rs.8,000/- and had also given him gold chain and a ring during marriage. Further, PW-1 had also given gold earning, hangings, silver anklet and toe rings to Narasamma during marriage but could not provide mangalya chain. However, they had promised to provide gold mangalya chain to Narasamma after a few days of their marriage. Thereafter Narasamma and accused No.1 are said to have led a happy marital life for a period of one year and she became pregnant. Though parents of deceased Narasamma had gone to their house to bring Narasamma to their house for delivery of child, accused no.1 had not sent her one or the other pretext and only after delivery of child in the hospital, she was sent to her :5: parental home, where she stayed for five months. During the said period, deceased Narasamma had complained her parents about the ill-treatment meted by her husband and mother-in-law demanding the mangalya chain from her parents. Hence, Narasamma had requested her parents to provide her a gold mangalya chain and PW-1 had also promised that shortly he would provide her the same. After five months of birth of the first child, she was sent back to her husband's house. It is stated that six months after the birth of the first child of Narasamma, PW-1 sold his landed property and out of the sale proceeds, had purchased a gold mangalya chain and had given it to the accused. After coming to know that PW-1 had sold his land, it is said that accused No.1 started pestering his wife Narasamma to ask her father PW-1 to open a Fixed Deposit of Rs.50,000/- in the name of their daughter. He started forcing her to demand the said amount from her father. Hence, deceased Narasamma had told her parents about the same. But however, her parents namely, PW-1 and PW-9 had expressed their helplessness and inability to deposit the said amount of Rs.50,000/- in her :6: daughter's name. On this pretext, accused had started ill- treating Narasamma. Thereafter, deceased Narasamma is said to have delivered another female child. Accused had not at all sent her to her parental home for delivery. But however, after delivery of second child as well, parents of Narasamma went to hospital and took her to their house and kept her in their house. Accused No.1 had repeatedly called PW-11 on his mobile and asked them to send his wife to their house. Her parents had conveyed that they would send Narasamma after the baby was five months old. Thereafter on day, Accused No.1 had come to the house of PW-1 and quarreled with him for not sending his wife Narasamma to their house. Further, he had told PW-1 that Narasamma cannot give birth to a male child and had demanded PW-1 to deposit Rs.50,000/- each in fixed deposit in the name of his two daughters or otherwise that he would marry another woman. But however, since PW-1 did not have any money, he had told Accused No.1 that he would help them at the time of the marriage of their daughters. Hence, it is stated that accused No.1 was unhappy and continued to harass and :7: ill-treat Narasamma. Deceased Narasamma whenever visited her parents' house, she used to tell them about the harassment and ill-treatment meted out by the accused. Her parents had advised her to bear it since she was to live with accused No.1. It is stated that a day prior to her death, her cousin PW-11 had visited her when she had informed him that she was unable to bear the ill- treatment of accused and requested him to inform her parents to take her back to their house. But it transpires that her parents did not go to the house of the accused to bring their daughter. On the very next day, i.e., on 21.4.2008 at about 9.00 p.m. PWs 1, 9 and 10 had received information from CW-8 Durgaiah that Narasamma had consumed poison and had died. They had immediately rushed to the house of accused wherein they were informed that Narasamma was taken to Siddhartha Medical College Hospital, Tumkur. In front of the said hospital, they saw Narasamma and sister of accused No.1 sitting in autorickshaw. But however on enquiry in hospital, they came to know that Narasamma was brought dead. Thereafter PWs 1 and 10 had taken :8: the dead body of Narasamma to the house of Accused No.1 in the same autorickshaw. Since the death of his daughter had occurred within seven years from the date of her marriage with the accused, on the very next day, i.e., on 22.04.2008, PW-1 is said to have lodged a complaint with the Tumkur Rural Police Station as per Exhibit P1. PW-17 - SHO received the complaint at Exhibit P1 and registered FIR in Crime No.142/2008 as per Exhibit P-18 and submitted it to court. Thereafter, further investigation was taken up by PW-16, the then Dy.S.P of Tumkur Sub-Division, who went to the spot of incident and drew a spot mahazar as per Exhibit P6 and seized MO-5 - a poison bottle. After completion of investigation, a charge sheet was filed against the accused for the offences punishable under Sections 498-A, 304-B, 306 read with Section 34 of IPC besides Sections 3, 4 and 6 of the DP Act, wherein the accused pleaded not guilty to the charge framed and claimed to be tried. In order to prove its case, the prosecution in all examined 17 witnesses as PWs 1 to 17 and got marked 18 documents as at Ex.P.1 to P.18. However, the accused did not choose to lead any :9: defence evidence as contemplated under Section 233 Cr.P.C.. After completion of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C. wherein the accused denied all the incriminating circumstances appearing against them. On an appreciation of the oral and documentary evidence let in by the prosecution, by the impugned judgment of conviction and order of sentence, the Trial Court acquitted accused No.2, the mother-in-law of the deceased for all the charges levelled against her. The accused No.1 also has been acquitted for the offence punishable under Section 306 of IPC. However, the accused No.1 / appellant herein being the husband of the deceased Narasamma has been convicted for the offences punishable under Sections 498-A and 304-B of IPC and Sections 3, 4 and 6 of the DP Act and has been imposed sentence as stated supra. Being aggrieved by the said judgment dated 26.10.2010 in S.C.No.136/2008, the present appeal has been preferred by accused No.1. : 10 :
3. Heard Shri R. Srinivasa Gowda, learned counsel appointed as Amicus Curiae for the appellant - accused and Shri Diwakar Maddur, learned Government Pleader for the State and perused the impugned judgment as well as the material on record.
4. The learned counsel Shri R. Srinivasa Gowda contended that when the Trial Court, based on the evidence let in by the prosecution has acquitted the accused for the offence punishable under Section 306 of IPC. But the State has not chosen to prefer any appeal against the said acquittal judgment rendered by the Trial Court for offence under Section 306 of IPC. The learned counsel contends that the Trial Court has relied upon the evidence of PW-1 and PW-9 being the parents of the deceased Narasamma and PW-10 being the brother of the deceased to convict the appellant under Sections 498-A, 304-B IPC including Sections 3, 4 and 6 of the DP Act while it ought to have acquitted the accused for the offences under the said sections as well by extending benefit of doubt. Therefore, he contends that the trial : 11 : Court has failed to appreciate the evidence on record in a proper perspective and has misdirected itself in convicting the accused.
The learned counsel has taken me through the evidence of PW-1 and PW-9, the parents of the deceased and PW-10, brother of the deceased to contend that though they have given evidence on the part of the prosecution in order to prove the guilt of the accused, their evidence is found to be inconsistent and filled with contradictions in respect of the allegations made in the complaint at Exhibit P1. Specifically, he contends that though it is alleged in the complaint that during marriage, appellant had demanded dowry, gold ornaments and after marriage, again appellant had demanded gold Mangalya chain and was harassing deceased Narasamma to demand her parents to keep Rs.50,000/- each in the names of the two daughters in fixed deposit, the said allegations have not been proved by the prosecution by placing cogent, consistent, corroborative and acceptable evidence. In that, while PW-1 - Mariyappa, father of deceased Narasamma in his evidence has stated that they have paid : 12 : Rs.8,000/- to appellant as dowry at the time of marriage, PW-10 Sri. Narasimha Murthy, brother of deceased Narasamma in his evidence has stated that Rs.25,000/- was paid in cash to the appellant as dowry. PW-1 has further stated in the complaint that the said complaint was written as per the instructions of his son Narasimha Murthy PW-10. The learned counsel contends that if that is so, PW-10 could not have deposed to the effect that they had paid Rs.25,000/- to the appellant as dowry at the time of marriage, when their specific case was that they have paid only Rs.8,000/- at the time of marriage even according to the allegation made in the complaint. While in the complaint PW-1 has not at all stated that appellant demanded Rs.25,000/- at the time of marriage, in his evidence he has averred that appellant had demanded Rs.25,000/-, which is contradictory to the complaint lodged. Moreover, PW-1, PW-9 and PW-10 are all interested witnesses to the case of the prosecution and cannot be believed as a whole. Therefore, the learned counsel contends that their evidence cannot be relied upon to convict the appellant in the absence of : 13 : corroboration by independent witnesses. Hence, he contends that it cannot be said that the prosecution has established the guilt of the accused beyond all reasonable doubt. In the doctrine of criminal justice delivery system, the prosecution is required to prove the guilt of the accused and also establish the ingredients of the offences leveled against the accused with material documents. If not, benefit of doubt shall accrue in favour of the accused.
Further as far as the seizure mahazar Exhibit P8 is concerned regarding seizing of a gold ear stud is concerned, the learned counsel contends that merely because the said mahazar has been conducted, it cannot be said that the mahazar has been established by the prosecution to probabalise that accused had been the cause for the death of his wife Narasamma within a span of seven years from the date of the marriage and that he had meted out physical and mental harassment to her.
The learned counsel further points out to the evidence of PW-2 Smt. Gangamma, mother of the deceased Narasamma to contend that her evidence establishes that the appellant was a loving husband to : 14 : deceased Narasamma. As per her evidence, on one occasion when the deceased Narasamma delivered her second baby, PW-9 had taken her to her house and on the same evening the appellant had telephoned his wife deceased Narasamma asking her to come back to his house or otherwise that he would consume poison. The learned counsel contends that this circumstance establishes that there was no dispute nor any ill- treatment insofar as dowry is concerned. Since there was no cordial relationship between the appellant and the parents of the deceased Narasamma, the learned counsel contends that the parents of the deceased Narasamma and their son have falsely implicated the appellant for the alleged offences. It is also contended that the two female children of the deceased who have already lost the love and affection of their mother, would be put to further hardship if their father's conviction is upheld by this court.
It is the further contention of the learned counsel that it was customary in nature to give away gold ornaments and cash at the time of marriage to the bride : 15 : as well as the bridegroom, which is a prevalent practice in Hindu marriages and the same cannot be termed as dowry in view of the fact that PW-1, PW-9 and PW-10 had provided very minimal jewellery to their daughter. Even the mangalya chain was provided to their daughter only after the birth of the first daughter. When that is the case, the learned counsel contends that the allegation of dowry was baseless and the parents of the deceased Narasamma have foisted a false case to wreck vengeance against him. Further, the evidence led by the prosecution also does not indicate as to the quantity of gold ornaments except stating that they gave a gold chain and ring to the appellant and gold mangalya chain, ear stud, silver anklet and silver toe ring to the deceased Narasamma. Therefore, the learned counsel contends that what exactly was demanded by the appellant at the time of marriage is not at all forthcoming. Under such circumstances, the appellant could not be convicted for any of the offences as alleged by the prosecution.
Further, even according to the evidence of the parents of the deceased Narasamma, the appellant and : 16 : deceased Narasamma led a happy marital life for one year and thereafter she delivered a female child. Thereafter also, they had led a happy marital life and Narasamma had given birth to another female child. Thus, the learned counsel contends that both husband and wife had a good understanding between each other and there was no cause for him to have instigated her to consume poison. Though it is stated that the appellant started insisting her parents to deposit Rs.50,000/- each in the names of their children, there is no material produced to prove the same and it is only a cooked up story to implicate the appellant in the case. Further, her parents have made allegation about demand of dowry, ill-treatment, etc., only after the death of their daughter and not before that. Further, their evidence regarding dowry and ill-treatment is also not supported by the evidence of any independent witnesses. Moreover, the evidence of the father of the deceased and brother of the deceased contradicts each other and there is also no evidence as regards the quantity of gold that was given by the parents of the deceased, to bring those articles within the definition of 'dowry'. Further, there is : 17 : no corroboratory evidence from other independent witnesses. In the absence of such corroboration, the learned counsel contends that their evidence could not be accepted as gospel truth and hence contends that benefit of doubt has to be given to the appellant. Hence, he pleads that the appeal be allowed and the impugned judgment of conviction and sentence be set aside and appellant - accused be acquitted for the offences levelled against him.
5. On the other hand, Shri M. Diwakar Maddur, learned Government Pleader for the State supports the impugned judgment of conviction and judgment rendered by the Trial Court and contends that the harassment meted out to the deceased Narasamma by her husband - appellant herein was inside the four corners of the wall and it cannot be said that the accused had not abetted her to consume poison. Moreover, the demand and acceptance of dowry has also been proved by the evidence of the witnesses. Hence, he submits that the Trial Court, on appreciation of the evidence on record in a proper : 18 : perspective, has rightly convicted the accused for the offences alleged against him and hence, he prays for dismissal of the appeal.
6. On a careful consideration of the contentions advanced by the learned counsel for the parties and on an evaluation of the material on record, it is to be seen that PW-1 - the father of the deceased, PW-9 - mother of the deceased, PW-10 - brother of the deceased and PW-11 - cousin brother of the deceased are material witnesses to the case of prosecution. All the above witnesses have stated in their evidence that the accused had given physical as well as mental harassment to the deceased Narasamma and led her to consume poison. There is no dispute about the death of Narasamma in the house of the deceased by consuming poison. The same is reflected in the post-mortem report at Exhibit P-11 which has been issued by the Doctor who conducted autopsy over the dead body. Based upon the FSL report at Exhibit P-10, the Doctor had opined that the cause of death was due to consumption of poison. It is the case of the prosecution : 19 : that subsequent to Narasamma's marriage while she had been to her matrimonial house in order to lead her marital life with the appellant - accused, he had given physical as well as mental harassment insisting her to bring additional dowry from her parents' house in terms of cash and gold jewellery. But, PW-1 and PW-9 who are the parents of the deceased have not specifically stated in their evidence that anytime in their presence there was any altercation in between Narasamma and the appellant. The allegation is that even prior to her death, accused had insisted her to bring dowry in terms of cash and gold jewellery. But however, no complaint came to be filed either by the parents of the deceased or by deceased Narasamma before the police in order to initiated a criminal case against the accused Mahalingappa or her mother-in-law who is arraigned as Accused No.2. Further, there is also no material placed by the prosecution as regards the offences under Sections 3, 4 and 6 of the DP Act. Though it is alleged by the witnesses that accused had demanded cash of Rs.8,000/- as dowry or Rs.25,000/- as dowry, but however there is no evidence : 20 : as regards the persons who had participated in the said marriage talks to substantiate the case that the appellant had in fact demanded dowry. The Trial Court has convicted the accused for the alleged offences merely because Narasamma had died within seven years from the date of her marriage.
Though PW-1, PW-9, PW-10 and PW-11 have been subjected to thorough cross-examination to prove the guilt of the accused, however, at a cursory glance of the evidence of the prosecution, it is seen that the prosecution has not been able to prove the guilt of Accused No.2 - Hanumakka in respect of offences under Sections 3, 4 and 6 of the DP Act as well as Sections 498-A, 304-B and 306 of IPC. Thus, Accused No.2 was totally acquitted of all the offences. But however, Accused No.1 - appellant herein has been convicted of the offences except under Section 306 IPC. Though it is stated that the appellant had been the cause for the death of Narasamma, no evidence is forthcoming on the part of the part of the prosecution as to how the container containing poison had come into possession of deceased Narasamma, who by consuming : 21 : the same had died. When the co-accused has been acquitted for the alleged offences by extending benefit of doubt, the same benefit of doubt shall accrue in favour of the present appellant as well. Merely because he is the husband of the deceased Narasamma, it cannot be said that he was the cause for her death, since they are said to have led a happy marital life and had also two children to evidence their love.
7. On a re-appreciation of the entire material on record, this Court is of the considered view that the trial Court has committed an error in appreciating the evidence on record in a proper perspective and the learned Judge of the Trial Court was not justified in convicting the accused for the offences alleged against him since the guilt of the accused under Sections 304B IPC besides Sections 3, 4 and 6 of the DP Act has not been proved by the prosecution by producing cogent, consistent, corroborative, positive and acceptable evidence. But however, the sentence as regards the offence under Section 498-A IPC requires to be modified to the extent that the period of imprisonment undergone by the : 22 : accused during the course of trial would be held suffice and imposition of a fine of Rs.1,000/- for the said offence would meet the ends of justice.
Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence dated 26.10.2010 passed by the Presiding Officer, Fast Track Court-I, Tumkur in S.C.No.136/2008, convicting the accused-appellant herein for the offences punishable under Sections 304-B IPC and Sections 3, 4 and 6 of the DP Act is hereby set aside. But however, the sentence for the offence under Section 498-A IPC is hereby modified to the extent that the period of imprisonment of 9 months 24 days undergone by the accused during the course of trial would meet the ends of justice in respect of the offence under Section 498-A IPC. The sentence to pay fine amount under Section 498-A IPC is also modified to hold that instead of Rs.5,000/- held by the Trial Court, the appellant shall pay a fine of Rs.1,000/- for the offence under Section 498-A IPC. The bail bond if any, shall stand cancelled. : 23 :
The fee of Shri R. Srinivasa Gowda, Amicus Curiae is fixed at Rs.10,000/-, which shall be paid by the High Court Legal Services Committee in accordance with law.
Sd/-
JUDGE KS