IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA BETWEEN NAGARAJU CRIMINAL APPEAL NO.212 OF 2012 S/O RAJE SHETTY AGE 28 YEARS, MADIVALASHETTARU OCC:KOLI R/O SOUTHGALLI VILLAGE, MYSORE SOUTH TALUK MYSORE (By Sri: VENKATESH P DALWAI, ADVOCATE) ... APPELLANT AND:
STATE OF KARNATAKA BY MYSORE SOUTH TALUK POLICE ... RESPONDENT (By Sri: K.NAGESHWARAPPA, HCGP) THIS CRL.A IS FILED U/S. 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 9/11/2011 PASSED BY THE LEARNED 5TH ADDL. DISTRICT AND SESSIONS JUDGE, MYSORE IN S.C. No.14 OF 2010 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S.498(A) & 304(B) OF IPC & SEC. 3 & 4 OF DOWRY PROHIBITION ACT. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR A PERIOD OF 5 YEARS AND TO PAY A FINE OF RS.15,000/- AND IN DEFAULT OF PAYMENT OF FINE, TO UNDERGO IMPRISONMENT FOR ONE YEAR, FOR THE OFFENCE P/U/S.3 OF D.P. ACT. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS AND TO PAY A FINE OF RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE, TO UNDERGO S.I. FOR 2 MONTHS, FOR THE OFFENCE P/U/S.4 OF D.P. ACT. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 7 YEARS AND TO PAY A FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT OF FINE, TO UNDERGO S.I. FOR ONE YEAR, FOR THE OFFENCE P/U/S.304(B) OF IPC. THE APPELLANT PRAYS THAT HE BE ACQUITTED.
***** THIS CRL.A COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment dated 09.11.2011 passed by the V Addl. District & Sessions Judge, Mysore in S.C.No.14 of 2010 convicting the appellant for the offences punishable under sections 304-
B, 498-A Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
2. The undisputed facts are that the appellant married deceased Mangala on 03.03.2016. After the marriage, they were residing together at Saathagalli village, Mysore Taluk. In the wedlock, two children were born to them. According to the prosecution, on 24.09.2009, at 9.00 p.m., the deceased committed suicide by hanging in her matrimonial house. It is alleged that at the time of the marriage, the accused demanded a sum of Rs.20,000/- by way of dowry and since the said amount was not paid, he was ill-treating and harassing the deceased and hence the deceased was driven to commit suicide on 24.09.2009.
3. Criminal action was initiated against the accused on the basis of the complaint lodged by the father of the deceased on 24.09.2009. In the complaint, it was averred that at the time of the marriage, the father of the deceased had given a pair of gold earrings and jumki to the deceased and a watch and clothes to the accused and by sharing the expenses, the marriage was performed. The only allegation made in the complaint was that three months prior to the incident, the accused started making a demand for `15,000/- for purchase of a scooter and the said amount was also given to the accused, but even thereafter, the accused started pestering the deceased to bring money from her parents’ house, she being unable to bear the cruelty and ill-treatment, committed suicide in the matrimonial house.
4. After investigation, charge sheet was laid against the accused under sections 498-A, 304-B, 306 Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act. Upon hearing the learned counsel for the accused and the learned Public Prosecutor, the trial court framed charges for the above offences. The accused having denied the charges, in proof thereof, the prosecution examined as many as 24 witnesses and produced in evidence 33 documents marked as Exs-P1 to P33 and the material objects viz., yarn rope(Noolina Hagga) as M.O.1. During the course of cross-examination of the prosecution witnesses, the defence got marked Exs- D1 to D4. The accused denied all the incriminating circumstances appearing in the prosecution evidence, but did not choose to examine any witnesses on his behalf. On hearing the accused and the learned High Court Government Pleader, by the impugned judgment, the trial court convicted the accused for the offences punishable under sections 498-A, 304-B of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act and acquitted him of the offence under section 6 of the Dowry Prohibition Act.
5. I have heard the learned counsel for the appellant Sri. Venkatesh P. Dalwai and Sri. K.Nageshwarappa, learned HCGP and have carefully examined the records.
6. The prosecution has sought to substantiate the charges mainly on the evidence of the parents and other relatives of the deceased. They have deposed in conformity with the prosecution case and on appreciating this evidence, the trial court has recorded a finding that soon before the incident, a sum of Rs.12,000/- was paid by the father of the deceased against the demand of the accused and consequently, the trial court has come to the conclusion that the accused has committed the offences charged against him.
7. On going through the evidence of the parents as well as close relatives of the deceased, I find that the conclusion arrived at by the trial court is contrary to the evidence on record. Firstly, the specific charge against the accused is that he demanded a sum of Rs.20,000/- by way of dowry at the time of marriage and on account of non- payment of the said dowry, the accused subjected the deceased to cruelty and ill-treatment in the matrimonial home which drove her to commit suicide. But the evidence of PW-6, who is a relative of the deceased who had fixed the marriage alliance goes to show that during the marriage talks, the accused party demanded a sum of Rs.70,000/- cash and gold ornaments, but, PW-1-father of the deceased agreed to pay only a cash of Rs.20,000/- and refused to give any gold ornaments as he could not afford it.
8. PW-1-father of the deceased has stated in his evidence, that after the marriage, till the birth of the second child, deceased and the accused were living cordially and there were no differences whatsoever against them. Further, he has stated that about 1½ years earlier to the incident, he paid a sum of Rs.20,000/- demanded by the accused. Thus it stand established that the demand made by the accused by way of dowry has been satisfied 1½ years prior to the date of the incident. Even the evidence of PW-3-mother of the deceased as well as her brother PW-2 and the brother of PW-1 – PW-4 and the uncle of the deceased-PW-5 and other relatives viz., PWs-
6, 7 and 8 indicate that there was demand of only a cash of Rs.20,000/- which was agreed to, during the talks. However, the trial court has recorded a finding that a sum of Rs.12,000/- was demanded and the same was due to be paid is opposed to the very case of the prosecution and the evidence of the witnesses referred above.
9. Be that as it may, there are no allegations whatsoever in the complaint that on account of the non- payment of Rs.20,000/-, the deceased was driven to commit suicide. A reading of the complaint indicates that about three months prior to the incident, the accused was demanding Rs.15,000/- from PW-1 for purchase of a scooter. This demand cannot be said to be falling within the purview of either Section 3 of the Dowry Prohibition Act or Section 304-B of Indian Penal Code. Section 304-B IPC in unmistakable terms states that where the death of a women takes place 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 of dowry, such death shall be called “dowry death” and such husband or relative shall have to be deemed to have caused her death. The evidence discussed above clearly indicate that whatever demand that was made by the accused in connection with dowry was satisfied about 1½ years prior to the date of the incident. Therefore, it cannot be said that soon before her death, the deceased was subjected to cruelty or harassment in connection with the demand for dowry as sought to be contended by the prosecution.
10. It is important to note that the contents of the complaint and the evidence of the above witnesses as already discussed indicate that differences between the parties cropped up only because of demand of money for purchase of a scooter and on account of some untoward incident that had taken place in the house for not sending the deceased to her parents’ house. This evidence, even if accepted, would not bring the case within the purview of Section 304-B Indian Penal Code. Therefore, in my considered opinion, the conviction recorded by the trial court under Section 304-B Indian Penal Code cannot be sustained and is liable to be set-aside.
11. Insofar as other charges are concerned, in my view, the evidence of the above witnesses satisfy the ingredients of Section 498-A Indian Penal Code as well as Sections 3 and 4 of the Dowry Prohibition Act. As already stated above, PW-1- the father of the deceased has unequivocally deposed that pursuant to the demand made by the accused towards dowry, a sum of Rs.20,000/- was paid about 1½ years earlier to the incident. This evidence is suitably corroborated by the testimony of PW-2 as well as the other witnesses mentioned above. The accused has not been able to falsify this fact in the cross-examination. Therefore, the evidence of these witnesses with regard to demand and payment of Rs.20,000/- by way of dowry requires to be accepted. The above evidence is also sufficient to hold that the deceased was subjected to cruelty and ill-treatment in the matrimonial house thereby attracting the offences punishable under sections 498-A of Indian Penal Code and 3 and 4 of the Dowry Prohibition Act. Consequently the findings recorded by the trial court on these counts deserve to be confirmed.
12. Hence, the following order:-
The appeal is allowed-in-part. The conviction of the appellant/accused for the offence under 304-B Indian Penal Code is set-aside. The conviction of the appellant/accused under section 498-A Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act is confirmed.
Insofar as the sentence is concerned, Section 3 of the Dowry Prohibition Act prescribes a minimum sentence of five years. However, the proviso to the said section empowers the court to impose a sentence for a lesser term for special reasons recorded in the judgment. In the instant case, it is relevant to note that there were no differences whatsoever between the couple until the birth of the second child. The parents of the deceased as well as their relatives have reiterated in their evidence that the couple were living cordially till then. The only difference appears to have been arisen between the parties was on account of the demand made by the accused for purchase of scooter and other squabbles leading to quarrel between the family members. The accused alone cannot be held responsible for the said events. The quantum of demand made by the accused is so small that it cannot be said that solely on account of the said demand, the entire incident has taken place.
It is noticed that the accused has already undergone three years, seven months and six days of imprisonment. Having regard to the circumstances of the case and the inter-se relationship between the parties and the circumstances in which the alleged incident has taken place, in the absence of any previous instance of ill-will or complaints against the accused either by the deceased or by her parents, in my view, it would be appropriate to sentence the accused to the period of imprisonment already undergone by him.
For the above reasons, the appeal is allowed-in-part. The conviction of the accused/appellant under Section 304-B of Indian Penal Code and the consequent sentence is set aside.
The conviction of the accused/appellant for the offences punishable under Section 498-A Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act, is confirmed. In modification of the sentence awarded by the Court below for these offences, the accused/appellant is hereby sentenced to the period of imprisonment already undergone in this case subject to payment of the fine as imposed by the trial court.
The learned counsel for the appellant submits that the appellant would deposit the fine amount within four weeks from the date of this order. If the fine amount is not deposited, the appellant shall serve the default sentence as ordered by the trial court.
Sd/- JUDGE *mn/-