Karnataka High Court
Sri. Sukresha vs State Of Karnataka on 14 December, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.1709/2017
BETWEEN:
SRI. SUKRESHA,
S/O RAMALINGEGOWDA @
RAMAKRISHNEGOWDA,
AGED ABOUT 38 YEARS,
PERMANENT R/O GERAHALLI VILLAGE,
SATHANUR HOBLI,
KANAKAPURA TALUK-562 126.
...APPELLANT
(BY SRI MOHAN KUMAR D., ADVOCATE)
AND:
STATE OF KARNATAKA
BY SATHANUR POLICE STATION,
CHANNAPATNA SUB DIVISION,
CHANNAPATNA,
RAMANAGARAM DISTRICT,
REPRESENTED BY STATE PUBIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
...RESPONDENT
(BY SRI S.RACHAIAH, HIGH COURT GOVERNMENT PLEADER)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE DATED 29.08.2017 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, RAMANAGARA SITTING AT
KANAKAPURA IN S.C.No.136/2012, CONSEQUENTLY ACQUIT THE
APPELLANT FROM THE CHARGES LEVELLED AGAINST HIM AND
PASS SUCH OTHER ORDERS WHICH ARE DEEMED FIT IN THE
NATURE AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The accused/appellant, husband of the deceased filed the present Criminal Appeal against the impugned judgment of conviction and order of sentence dated 29.08.2017 made in S.C. No.136/2012 on the file of the II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura, convicting the accused for the offences punishable under Sections 498A, 302, 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, sentencing the accused to undergo simple imprisonment for 1 year and to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for 1 month for the offence punishable under Section 498A of the Indian Penal Code; to undergo rigorous imprisonment 3 for life and to pay fine of Rs.20,000/-, in default, to undergo rigorous imprisonment for 1 year for the offence punishable under Section 302 of the Indian Penal Code; to undergo rigorous imprisonment for 7 years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for 3 months for the offence punishable under Section 304B of the Indian Penal Code; and to undergo simple imprisonment for 1 year and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for 3 months for the offence punishable under Section 3 of the Dowry Prohibition Act; and to undergo simple imprisonment for six months and to pay fine of Rs.2,000/-, in default, to undergo simple imprisonment for 1 month for the offence punishable under Section 4 of the Dowry Prohibition Act.
2. The Sathanur Police through Assistant Superintendent of Police, Channapatna Sub-Division, Channapatna, filed Charge Sheet against the accused/appellant for the offences punishable under Sections 498A, 302, 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. It is the case of the prosecution that on 07.05.2007, accused/appellant married Suma/deceased at 4 Sathanuru village Rural High School premises. At the time of the marriage, the accused received one Hero Honda Motor cycle and 135 grams of golden ornaments as dowry and lived happily. Out of the wedlock, one female child was born. Later, accused started harassing the deceased physically and mentally by consuming alcohol and started demanding further dowry of Rs.50,000/- and received the said amount. Being not satisfied with the same, he again started demanding dowry and subjected the deceased to cruelty by causing bodily injuries and on 23.05.2012, at 11.00 am, by tying veil to the neck of Suma, hanged her and committed murder, the deceased died within seven years of her marriage which amounts to dowry death. The jurisdictional police registered a case for the aforesaid offences.
3. The Additional Civil Judge and JMFC, Kanakapura, committed the case to the Court of Sessions. The learned Sessions Judge framed the Charge against the accused for the aforesaid offences, read it over and explained to the accused who pleaded not guilty and claimed to be tried.
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4. In order to prove its case, the prosecution examined 19 witnesses as P.Ws.1 to 19, marked the documents Exs.P.1 to 27 and the material objects M.Os.1 to 5. After completion of the evidence of prosecution witnesses, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating evidence adduced against him by the prosecution and did not chose to lead any defence evidence.
5. The learned Sessions Judge, considering the entire material on record, formulated five points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that on 23.05.2012, the accused caused the homicidal death of his wife Suma; at the time of marriage, the accused received one Hero Honda Motorcycle, 135 gms of gold as dowry and lead happy married life for two years, got one female child and thereafter, harassed and subjected his wife-Suma to physical and mental cruelty and committed an offence punishable under Section 498A of the Indian Penal Code; further, the 6 prosecution proved beyond reasonable doubt that in continuation of the same, the accused caused bodily injuries, subjected the deceased to cruelty soon before her death with an intention to murder her and on 23.05.2012, at about 11.00 am, tied her neck with veil, strangulated, hanged and murdered her which amounts to dowry death and committed the offences punishable under Sections 302, 304B of the Indian Penal Code; further, the prosecution proved beyond reasonable doubt that the accused, prior to marriage had made negotiations, put demand of cash, motor cycle and golden ornaments as dowry and committed an offence punishable under Section 3 of the Dowry Prohibition Act and that after the marriage, the accused, by consuming alcohol induced deceased to bring dowry of Rs.50,000/-, so also, pledged the golden ornaments of deceased Suma into SBI Sathanur Branch and committed an offence punishable under Section 4 of the Dowry Prohibition Act. Accordingly, the learned Sessions Judge, by the impugned judgment, convicted the accused for the aforesaid offences. Hence, the present Criminal Appeal is filed.
6. We have heard the learned counsel for the parties. 7
7. Sri Mohan Kumar.D, learned counsel for the appellant/ accused contended with vehemence that the impugned judgment and order of conviction passed by the learned Sessions Judge is erroneous and contrary to the material on record and cannot be sustained. Learned counsel further contended that the learned Sessions Judge failed to notice the discrepancies and contradictions in the evidence of prosecution witnesses, in particular, the cross- examination of the prosecution witnesses and there is no material to convict the accused for the offence punishable under Sections 304B and 302 of the Indian Penal Code. The accused committed murder of his wife for a dowry of Rs.50,000/- is a bald allegation. No iota of ingredients is available on record to show that soon before the incident, the injuries were meted out by the deceased and was subjected to cruelty. The learned Sessions Judge failed to notice that the father of the deceased examined as P.W.7 has deposed that the accused and the deceased were living happily for more than two years and there was no demand for dowry. The other portion of the evidence of P.W.7 is fully contradictory and there are omissions which are against the accused and the evidence 8 has not been considered in favour of the accused. P.Ws.1 to 6 are the neighbours of the accused who turned hostile. P.W.12 is the Doctor who stated on oath that the cause of death was as a result of asphyxia due to handing. Further, Ex.P.3 depicts that the room was locked from inside and the dead body of the deceased was found hanging. Absolutely there is no material against the accused to implicate any homicidal death. Therefore, he sought to allow the Criminal Appeal.
8. Per contra, Sri S.Rachaiah, learned High Court Government Pleader, while justifying the impugned judgment and order of conviction, contended that, admittedly, the marriage of the deceased with the accused was performed on 07.05.2007 and the incident occurred on 23.05.2012, within seven years of the marriage and presumption has to be drawn under Section 113B of the Indian Evidence Act. P.W.7, father of the deceased deposed about the harassment, assault and cruelty meted out to the deceased by the accused and supported the prosecution case. There are injuries on the body of the deceased, as spoken to by P.W.13-Tahsildar in the inquest panchanama-Ex.P.8. The same has 9 been considered by the learned Sessions Judge in proper perspective. The material evidence on record clearly depicts that the death occurred within seven years of marriage and therefore, the provisions of Section 304B of the Indian Penal Code attracts which clearly indicates that the wife of the accused died due to the dowry harassment meted out to her by the accused. Therefore, he sought to dismiss the Criminal Appeal.
9. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration are:
(i) Whether the prosecution has made out a case to interfere with the impugned judgment and order of conviction convicting the accused for the offence punishable under Section 302 of the Indian Penal Code?
(ii) Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 498A, 304B, of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, in the facts and circumstances of the case?"10
10. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original records, carefully.
11. In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
(i) P.W.1-Puttatayamma, P.W.2-Sukanya, P.W.3-
Nandeesha, P.W.4-Shivanna, P.W.5-Angadi Ramanna, P.W.6-Mayigegowda, the neighbours of deceased-Suma have turned hostile and not supported the case of the prosecution.
(ii) P.W.7-Basavegowda, father of the deceased, partly supported the prosecution case and deposed that the accused used to harass his daughter demanding additional dowry and infact, after the marriage, he had paid Rs.50,000/- as additional dowry to the accused, and at the time of the marriage, he had given 135 gms of gold and one Hero Honda motorcycle as dowry.
Inspite of the same, her daughter was subjected to cruelty by the accused and there are bodily 11 injuries on the dead body. He supported the case of the prosecution.
(iii) P.W.8-Kumar, witness to the inquest panchanama
-Ex.P.8 supported the case of the prosecution.
(iv) P.W.9-Shivamma, mother of the deceased deposed on par with P.W.7 and supported the case of the prosecution.
(v) P.W.10-Chikkaswamy, witness to Ex.P.8-inquest panchanama, supported the case of the prosecution.
(vi) P.W.11-Mahesh, Assistant Engineer who prepared the spot sketch as per Ex.P.9 supported the case of the prosecution.
(vii) P.W.12-Dr.Anand P.Rayamane, deposed that he conducted postmortem on the dead body of the deceased, it was a suicidal death by hanging and issued Exs.P.10 and 11 and opined that the cause of the death was asphyxia due to hanging, and supported the prosecution case.
(viii) P.W.13-Dr.Drakshayani, Tahsildar, deposed that she conducted the inquest panchanama as 12 per Ex.P.8 and supported the case of the prosecution.
(ix) P.W.14-Krishna, witness to the seizure mahazar-
Ex.P.12 turned hostile.
(x) P.W.15-Raju, witness to the spot mahazar-
Ex.P.13 supported the prosecution case.
(xi) P.W.16-Dasegowda, panch witness to Ex.P.12 turned hostile.
(xii) P.W.17-Raveendra Hiremath, witness to Ex.P.14 deposed about pledging of gold ornaments pertaining to the deceased, by the accused.
(xiii) P.W.18-Shanthanu Sinha, the Investigating Officer, investigated the matter and filed final report.
(xiv) P.W.19-Govindaiah, ASI, deposed that he received complaint from P.W.7 and registered FIR against the accused.
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12. Based on the aforesaid material documents, the learned Sessions Judge proceeded to convict the accused for the offences made out in the Charge.
13. On perusal of the above said evidence on record, it is not in dispute that the marriage of the accused with the deceased was performed on 07.05.2007 and out of the wedlock, one female child was born. It is alleged by P.W.7 in the complaint-Ex.P.7 that at the time of the marriage, the accused received one Hero Honda Motorcycle and 135 gms gold as dowry. Later, the accused started demanding additional dowry of Rs.50,000/- and harass the deceased mentally and physically by consuming alcohol. He paid the said money to the accused. It is further alleged that on 23.05.2012, i.e., within seven years of the marriage, the accused assaulted his daughter, caused bodily injuries, hanged her and committed the murder.
14. P.W.12-Doctor in the cross-examination deposed that the death was due to asphyxia as a result of hanging and there is possibility of hanging using M.O.1-veil. There were no external 14 injuries or abrasions on the dead body. In the Postmortem report, Ex.P.10 issued by P.W.12, it is mentioned as under:
Other relevant observations:
Ligature material: Allegedly used for act is brought separately, yellowish cream color whale of size 248x90 cms. Noose and know absent. Width of ligature mark corresponds to width of ligature material and ligature material bears the weight of body.
-Above mentioned injury No.1 is ante mortem in nature and age of injury is fresh.
-Time since death is within 24 hours prior to post mortem examination.
In the column regarding opinion as to cause of death, it is mentioned that the opinion reserved pending for chemical analysis report. In Ex.P.11, it is mentioned that the final cause of death is asphyxia due to hanging. Ex.P.24 issued by the Scientific Officer, Forensic Science Laboratory, depicts that, Residues of volatile poisons, pesticides, barbiturates, Benzodiazepine group of drugs, toxic metal ions and anions were not detected in all the above stated exhibits.15
15. In Ex.P.25-issued by the Assistant Professor, Forensic Science Laboratory, dated 30.08.2012 it is stated that, "since no other ante mortem injuries found either externally or internally except ligature mark over neck and poison was not detected in blood or viscera sent for chemical analysis-FSL, death could be caused by asphyxia due to hanging. In Ex.P.26 dated 07.09.2012 issued by the Assistant Professor, Forensic Science Laboratory, it is stated that:
"final cause of death is 'asphyxia due to hanging', however, the manner of death has to be ascertained by scene of crime and postmortem findings. In the scene of crime the presence of knot over beam, the type of knot over the body (around neck), suspension of body and surrounding objects has to be examined. In this particular case, scene of crime has been disturbed. So based upon only post mortem findings the manner of death cannot be opined by the autopsy surgeon, it depends upon investigating officer."
16. In Ex.P.13-spot panchanama dated 24.05.2012 it is stated that on 23.05.2012 at 6.00 pm, the room's door was closed and the door was not opened since 11.00 am till 6.00 pm and Suma had not 16 come out of the house and the door was not opened though knocked. It is specifically stated that the door was locked from inside the house.
17. Though the death of the deceased took place within seven years of the marriage, except total denial, the accused has not stated anything in the statement recorded under Section 313 of the Code of Criminal Procedure. Except stating that he is taking care of his child and providing her education, nothing has come on record to show that the accused was not present during death/incident and at the scene of occurrence at the relevant point of time.
18. P.Ws.1 to 6, 14 and 16 have turned hostile and there is contradictory evidence from the mouth of P.Ws.7, 15, 17 and 19. There is no sufficient medical evidence to prove that it was a homicidal death. But the evidence of P.W.12 and the documents Exs.P.10, 11, 13, 24, 25 and 26 clearly depicts that it is a case of suicide by hanging after assault, cruelty and harassment meted out to the deceased.
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19. P.W.7-father and P.W.9-mother of the deceased have categorically stated on oath that at the time of marriage, they have given a Hero Honda motorcycle and 135 gms of gold to the accused. Thereafter, due to repeated physical and mental harassment given by the accused to their daughter, they further gave him Rs.50,000/-. The accused was addicted to alcohol. The accused started harassing the deceased for further dowry. The P.W.17-Manager of the State Bank of India has deposed that the accused had pledged the ornaments with their bank as detailed in Ex.P.14 which clearly depicts that there was constant harassment/ cruelty by the accused to the deceased soon prior to death, so as to attract the provisions of Section 304B of the Indian Penal Code, which reads as under:
"Section 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 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 18 "dowry death", and such husband or relative shall be deemed to have caused her death.
20. A careful perusal of the aforesaid provision makes it clear that the unnatural death of a woman occurred within seven years of her marriage because of the cruelty or harassment by her husband in connection with demand for dowry and such death shall be called as 'dowry death' and the husband shall be deemed to have caused the dowry death. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Hira Lal -vs- State (Government of NCT of Delhi) reported in (2003)8 SCC 80 para-8, with regard to the expression "soon before death" used in Section 304B of the Indian Penal Code and Section 113 of the Indian Evidence Act, which reads as under:
"8. Section 304B of the Indian Penal Code 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 before her death she was subjected to 19 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 order to attract application of Section 304B IPC, the essential ingredients are as follows:20
(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.
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 (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 21 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- 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 22 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."
21. The Hon'ble Supreme Court, while considering the provisions of Section 304B of the Indian Penal Code, in the case of State of Karnataka vs. Dattaraj and others reported in (2016)12 SCC 331, at paragraphs 18 and 19, held as under:
"18. On a perusal of the statement of Tukkubai, PW 1, the mother of Savita, it is apparent that the monetary gifts given to Dattaraj and his family members, were in the nature of customary gifts exchanged during different ceremonies. But what is of extreme significance is the fact, that even the family of Dattaraj, the husband of Savita, had given four tonnes of sugarcane seeds and a bag of jowar to her family, when the family of Savita visited her matrimonial house, on the occasion of the birth of a female child. It is acknowledged by Tukkubai, PW 1, that the aforesaid gifts were taken by the family members of Savita to their own village, by hiring a "tum-tum" (a horse-drawn cart). This return gift by the family of Dattaraj was also in conformity with the customary tradition for such 23 occasions. It seems that the two families celebrated all festivities in the spirit of their customary obligations.
Both families engaged in offering gifts to each other, in accord with the prevailing practice and tradition. For this reason, the judgment rendered by this Court in Rajinder Singh case [Rajinder Singh v. State of Punjab, (2015) 6 SCC 477 : (2015) 3 SCC (Cri) 225] , which was strongly relied upon by the learned counsel for the appellant, in our considered view, would be of no avail in the determination of the projection canvassed.
19. Insofar as the demand of Rs.20,000 for the purchase of agricultural land is concerned, it is apparent that the same was allegedly made when Dattaraj was in Dubai. The said demand was allegedly made by Ningesh (respondent-Accused 2), the father of Dattaraj, when he had gone to leave Savita at her maternal home. Dattaraj is stated to have returned to India from Dubai eight to ten months, after the above demand. A female child was born to Savita about a year after the return of Dattaraj to India. After the birth of the female child, Savita had remained in her maternal house, for about four to five months. Therefore, even if the above oral allegation is accepted as correct, it was a demand made about two years before the occurrence. The same was too remote to the occurrence, and therefore, would not satisfy the requirement of "soon before her death" 24
contemplated under Section 304-B(1) of the Penal Code.
22. The Hon'ble Supreme Court while considering the provisions of Section 304B of the Indian Penal Code, in the case of Bobbili Ramakrishna Raja Yadad and others vs. State of Andhra Pradesh reported in (2016)3 SCC 309, at paragraphs 12 and 13, it is held as under:
12. In the light of the well-settled principles, it is to be seen whether the allegations in the complaint in the present case and other materials accompanying the complaint disclose the offence punishable under Section 6 of the Dowry Prohibition Act. Marriage of the first appellant and Syamala Rani was solemnised in Vizianagaram on 4-5-2007 and the couple was living in Bangalore. Appellants 2 to 6, the parents and sisters of Appellant 1 were living in Vizianagaram. It is the contention of the appellants that there are no allegations in the complaint that the "stridhana articles"
were given to Appellants 2 to 6 and that they failed to return the same to Syamala Rani. In Paras 3 and 4 of the complaint filed by the second respondent, it is alleged that he paid the dowry amount "to the accused and some 'stridhana articles' like double cot and other 25 furniture and utensils required to set up a family". In the complaint, it is vaguely alleged that even after the death of the deceased Syamala Rani, the accused started threatening the complainant and that the accused offered to pay an amount of Rs.10,000 towards full and final settlement. The relevant averments in the complaint in Paras 5 and 6 read as under:
"5. The complainant submits that even after the death of the deceased the accused by keeping the dead body on one side, started threatening the complainant and his family members that if they give any report to the police, they will be killed then and there only and they offered to pay an amount of Rs.10,000 towards full and final settlement. There the complainant, who was in deep shock at the death of his daughter could not answer anything but gave a report to the police.
6. The complainant submits that he led several mediations with the accused through his colleagues, whose names are mentioned below for return of the dowry, but the accused did not return the amount and other amounts, given under different 26 heads. A duty was cast upon the accused to return those articles and amount, which were presented as dowry on demand made by the accused. The complainant reserves his right to file a fresh complaint against all the accused for return of the dowry."
By a reading of the above, it is seen that there are no specific allegations against Appellants 2 to 6 that the dowry articles were entrusted to them and that they have not returned the dowry amount and the articles to Syamala Rani. Equally, there are no allegations that those dowry articles were kept in Vizianagaram and used by Appellants 2 to 6 who were separately living away from the couple in Bangalore. Even though the complainant has alleged that the dowry amount was paid at the house of the accused at Gajapathinagaram, there are no specific allegations of entrustment of the dowry amount and articles to Appellants 2 to 6.
13. Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in- law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and the 27 first appellant were living in Bangalore at their matrimonial house. In respect of "stridhana articles"
given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house. It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when Appellants 2 to 6 have been residing separately in Vizianagaram, it cannot be said that the dowry was given to them and that they were duty-bound to return the same to Syamala Rani. Facts and circumstances of the case and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibition Act against Appellants 2 to 6 and there is no sufficient ground for proceeding against Appellants 2 to 6. Be it noted that Appellants 2 to 6 are also facing criminal prosecution for the offences under Sections 498-A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the criminal proceeding under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of the Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to Appellants 2 to 6, in our view, continuation of the 28 criminal proceeding against Appellants 2 to 6 is not just and proper and the same is liable to be quashed.
23. Considering the aforesaid material on record and principles laid down in the above said case, we hold that the prosecution has proved the charge beyond reasonable doubt that the accused harassed the deceased mentally and physically and caused her death within seven years of marriage. Therefore, the accused is guilty of offences punishable under Sections 498A, 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act are proved beyond reasonable doubt.
24. However, the material on record clearly depicts that after the marriage, the couple lived together happily for two years, as stated by P.W.7 and out of the wedlock, a female child was born. Thereafter, the accused started physical and mental harassment to the deceased demanding dowry. It is also on record that Rs.50,000/- was paid to the accused after the marriage and thereafter, due to constant harassment, the deceased might have fed up with the torture and harassment given by accused who was in the habit of consuming alcohol and thereafter, pledged the 29 golden ornaments given during marriage as per Ex.P.14, as spoken by P.W.17-Manager of the Bank. Thereafter, the deceased, hanged herself in a veil as stated by the doctor-P.W.12 and material documents stated supra. Both medical and scientific evidence depicts that it was suicidal hanging. Therefore, the learned Sessions Judge is not justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code holding that it was homicidal hanging. Hence the same is liable to be set-aside.
25. The material on record clearly depicts that the prosecution proved beyond reasonable doubt that the accused committed the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, but not proved the alleged murder of the deceased by the accused and no material evidence is produced before the Court to show the involvement of the accused though accused has not discharged his initial duty under Section 106 of the Indian Evidence Act that he was not present at the spot on the date of the incident. However, the fact remains that the death caused within seven years of 30 marriage and it is an unnatural death and due to constant harassment by the accused to the deceased, she might have committed suicide. Therefore, the case does not fall under Section 302 of the Indian Penal Code. Absolutely no material is placed on record to prove that the accused has murdered the deceased and hanged her. As can be seen from the evidence of P.W.12 who stated that there are no external injuries on the body of the deceased and medical evidence depicts that the death was as a result of asphyxia due to hanging. Therefore, it is a clear case which attracts the provisions of Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
26. It is also not in dispute that the learned Sessions Judge sentenced the accused to undergo simple imprisonment for one year and to pay fine of Rs.5,000/-, in default, to undergo further simple imprisonment for three months for the offence punishable under Section 3 of the Dowry Prohibition Act. The provisions of Section 3 of the Dowry Prohibition Act stipulates that if the Charge under said Section is proved, the punishment shall be imprisonment for not less than 5 years with fine not less than Rs.15,000/-. 31 Unfortunately, the State has not filed any appeal against the said inadequate punishment.
27. Considering the entire material on record, it is clear that while convicting the accused under Section 304B of the Indian Penal Code, though the learned Sessions Judge is justified in awarding minimum sentence of 7 years, but is not justified in convicting the accused under Section 302 of the Indian Penal Code, without there being any material. The learned Sessions Judge proceeded to convict the accused under Section 302 of the Indian Penal Code only on the basis of assumption and presumption without any material evidence on record. The evidence of P.W.12 and material documents Exs.P.10, 11, 13, 24, 25, 26 clearly indicates that the death was due to hanging. Therefore, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge for the offence punishable under Section 302 of the Indian Penal Code is required to be set-aside. The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge for the offences under Sections 498A and 304B of the Indian 32 Penal Code and Sections 3 and 4 of the Dowry Prohibition Act requires to be confirmed.
28. For the reasons stated above, the first point raised for consideration in the present Criminal Appeal is answered in the affirmative holding that the accused has made out a case to interfere with the impugned judgment convicting the accused under Section 302 of the Indian Penal Code. The second point has to be answered in the affirmative holding that the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
29. For the reasons stated above, the Criminal Appeal is allowed in part.
30. The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offence punishable under Section 302 of the Indian Penal Code is hereby set-aside. The impugned judgment of conviction passed by the learned Sessions Judge convicting the accused for the 33 offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act is hereby confirmed.
31. All the sentences to run concurrently.
32. The accused is entitled to set off under Section 428 of the Code of Criminal Procedure.
Sd/-
JUDGE Sd/-
JUDGE kcm