IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.1000 OF 2013 BETWEEN:
STATE OF KARNATAKA REPRESENTED BY TOWN POLICE CHICKBALLAPUR. ... APPELLANT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:
1. NARASIMHA @ NARASIMHAMURTHY SON OF NARASIMHAIAH AGED ABOUT 33 YEARS HINDU, BALAJIGA K.I.E.T. COLLEGE MANAGER, NAGARBHAVI 2ND STAGE, NO.623 2ND MAIN, 11TH BLOCK BENGALURU-560 072.
2. SRI. D.K. NARASIMHAIAH SON OF D.N. KRISHNAPPA AGED ABOUT 59 YEARS LAB ASSISTANT IN BMS COLLEGE, RES.NO.623 2ND ‘A’ MAIN ROAD 11TH BLOCK NAGARBHAVI 2ND STAGE BENGALURU.
3. SMT. K.V. CHANDRAKALA WIFE OF NARASIMHAIAH AGED ABOUT 58 YEARS HEAD MASTER IN LALBAGH SIDDAPUR GOVERNMENT HIGHER PRIMARY SCHOOL RES.NO.623 2ND ‘A’ MAIN ROAD 11TH BLOCK NAGARBHAVI 2ND STAGE BENGALURU. ... RESPONDENTS (BY SRI. RAKSHITH R., ADVOCATE FOR SRI. S. SHANKARAPPA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 27.04.2013 PASSED BY FAST TRACK COURT-I, CHICKBALLAPUR IN SESSIONS CASE NO.60 OF 2010 – ACQUITTING THE RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A, 304-B, 306, 506 READ WITH SECTION 34 OF INDIAN PENAL CODE AND SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT AND ETC., THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.09.2019, COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:
JUDGMENT This appeal is filed by the State challenging the judgment and order of acquittal dated 27.04.2013 passed by the learned Ad-hoc District and Sessions Judge, Fast Track Court-I, Chickballapur in Sessions Case No.60/2010 acquitting the accused/respondents for the offences punishable under Sections 498-A, 304-B, 306, 506 read with Section 34 of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act.
2. Brief facts of the case :-
The case of the prosecution is that the marriage of complainant’s daughter by name Smt.Aruna Kumari was solemnized on 20.09.2009 with accused No.1 at Lakshmamma Doddamuniyappa Kalyana Mantapa, Chickballapur as per the Hindu Customs. It is also the case of the prosecution that the parents of the deceased gave 200 grams of gold ornaments and Rs.2,00,000/- cash to the accused as dowry and gold ornaments worth Rs.4,00,000/- to the deceased at the time of her marriage. After the marriage, the deceased was harassed by the accused both physically and mentally to bring the additional dowry from her parents. On 16.12.2009, the accused persons have threatened the deceased to bring additional dowry and thrown her out from their house. The parents of the deceased held panchayath and advised the accused persons not to harass the deceased. Thereafter, the deceased was living in the house of the accused. In spite of the advise given by the elders, the accused continued giving harassment to the deceased demanding for additional dowry. On 17.01.2010, accused No.1 came to the house of the complainant and at that time, both accused No.1 and the deceased were together in the said house. The accused No.1 on the said night again demanded her for the additional dowry of Rs.5,00,000/- and threatened her that if she fails to bring the said dowry, he would take away her life. Due to the unbearable torture, the deceased committed suicide on 18.01.2010 at about 4.45 p.m. with the help of her saree in the house of the complainant. The accused persons have not returned the gold ornaments and also the cash given at the time of her marriage. The complainant, who is the father of the deceased had lodged a complaint and police have registered a case in Crime No.11/2010 and conducted the investigation and filed the charge sheet against the accused persons for the offences punishable under Sections 498A, 304B, 306 and 506 read with Section 34 of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act.
3. The accused persons were secured and they did not plead guilty and claims the trial.
4. The prosecution, in order to prove its case has examined P.W.1 to P.W.23 and got marked the documents Ex.P.1 to Ex.P.18 and also marked M.O.1 to M.O.13. On behalf of the defense, they examined D.W.1 and D.W.2 and got marked the documents Ex.D.1 to Ex.D.19. The statements of the accused were recorded under Section 313 of the Code of Criminal Procedure and they had also filed written statement under Section 313 of the Code of Criminal Procedure.
5. The Court below, after hearing both the prosecution and also the defense, considering the materials on record acquitted the accused persons. Hence, the present appeal is filed before this Court.
6. In the appeal the main contention of the State is that P.Ws.1 and 2 are the parents, P.W.3 is the brother and P.W.4 is the uncle of the deceased. The evidence of the P.W.1 corroborates with the evidence of other witnesses with regard to the marriage negotiations, demand and acceptance of dowry and performing the marriage in a luxurious manner. The evidence of P.W.1 reveals that the accused persons had subjected the deceased for both mental and physical harassment. In this regard, the panchayath was also held. In spite of the advise given by the elders, the accused persons continued to harass the deceased and they had also demanded additional dowry of Rs.5,00,000/-. When the deceased was unable to bear the torture, she committed suicide by taking extreme steps.
7. The prosecution has also examined P.Ws.5 to 7 who are the neighbours. Their evidence also reveals regarding the payment of dowry and so also the evidence of P.Ws.8 and 9, which discloses the background of harassment given by the accused persons. P.W.10, who is also the relative of the deceased has deposed about the demand and acceptance of dowry amount. P.W.12 is the jewelry shop owner, who prepared the gold articles to the bride. P.Ws.15, 16 and 21 are the panch witnesses for seizure of the gold ornaments from the house of the accused.
8. The Court below, in spite of these materials available on record, fails to consider the evidence in right perspective and has erroneously passed the judgment of acquittal. The evidence of the Doctor P.W.17, who conducted the post-mortem examination clearly establishes the cause of death of the deceased as per Ex.P.12. The Court below has not only ignored the evidence of demand and acceptance of dowry but also the additional demand of dowry and subjecting the deceased for both mental and physical harassment, which has resulted in substantial miscarriage of justice. Hence, prayed the Court to set aside the judgment of acquittal.
9. Learned High Court Government Pleader appearing for the State would submit that the Court below disbelieved the evidence of P.W.1 and other witnesses and also fails to take note of the fact that the death had occurred within 4 months of the marriage. P.Ws.2, 3, 4 and 5 are the mother, brother, uncle and aunt of the deceased. The evidence of these witnesses has not been considered by the Court below. P.Ws.6 and 7 are the neighbours. P.W.10 states with regard to the demand and acceptance of dowry. The other witnesses particularly P.Ws.4 and 5 are the who mediated the marriage. The Court below has ignored the evidence of all these witnesses. It is the specific case of the complainant and other witnesses that the deceased was driven out from the matrimonial house and the same has not been appreciated properly. Hence, it requires interference of this Court.
10. Per contra, learned counsel appearing for the accused/respondents has vehemently contended in his arguments that the Court has to take note of the fact that suicide was committed in the house of the parents of the deceased. There was no proximity to the alleged cause of harassment and taking the extreme step of committing the suicide, but the reason for committing the suicide is best known to the deceased. The materials available before the Court do not suggest anything about the harassment meted out to the deceased. The Court below, taking note of the statements of all the accused persons recorded under Section 313 of the Code of Criminal Procedure and also the materials available on record, has given its anxious consideration to both the oral and documentary evidence by rightly coming to the conclusion that there was no demand and acceptance of dowry and also the deceased was not subjected to any harassment at the hands of the accused persons and there are no grounds to interfere with the order of the trial Court. Hence, the appeal is liable to be dismissed.
11. Having heard the arguments of High Court Government Pleader for the appellant/State and the learned counsel appearing for the accused/respondents, the points that arise for consideration of this Court are as follows:-
1. Whether the Court below has committed an error in acquitting the accused persons for the charges leveled against them for the offences punishable under Sections 498-A, 304-B, 306, 506 read with Section 34 of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act and it requires interference of this Court?
2. What order ?
12. Points No.1 and 2:- The case of the prosecution in nutshell is that the accused persons have demanded dowry and accepted the same during the time of the marriage and thereafter, they also subjected the deceased for harassment on the guise of demanding the additional dowry and hence, due to unbearable torture, the deceased has committed suicide by taking extreme steps.
13. The prosecution relies upon the evidence of the prosecution witnesses i.e., P.Ws.1 to 23. We would like to consider the evidence of P.Ws.1 to 10, who speaks about the demand and acceptance of dowry and also about the continuous harassment to the deceased after marriage. The evidence of P.Ws.1 to 5, who are the parents, brother, uncle and aunt of the deceased and P.W.7 speaks with regard to the demand of additional dowry. P.W.8 is also the aunt of deceased. P.W.9 and P.W.10 claim that they have participated in the marriage talks.
14. First we would like to take up the evidence of P.Ws.1 to 5. Their evidence is similar and they state that the marriage talks were held in the house of P.Ws.1 and 2. P.Ws.4 and 5 have mediated the said marriage. The evidence of all these witnesses are similar in nature with regard to the marriage talks, demand and acceptance of dowry and also subjecting the deceased for harassment. It is also important to note that P.Ws.4 and 5-husband and wife are also the relatives of the accused persons. This Court has to consider their evidence in toto. P.W.1 and other witnesses have stated that the accused persons had demanded the dowry of Rs.5,00,000/- cash and 500 grams of gold and the parents of the deceased agreed to give Rs.2,00,000/- cash and 500 grams of gold to both bride and bridegroom. An amount of Rs.1,00,000/- was given to the father of the accused on the date of marriage talks held in the house of P.Ws.1 and 2 and it was decided to give the remaining amount of Rs.1,00,000/- at the time of the marriage. Within two months of the negotiation talks, the marriage was solemnized. P.W.1 claims that he has given another Rs.1,00,000/- in the marriage hall to accused No.2. All the witnesses state that they had participated in the customary functions held after their marriage.
15. In the cross-examination of P.W.1, it is elicited that before performing the marriage, they had enquired about the family status and also the avocation of the accused Nos.1 to 3 and after being satisfied with their relationship only, they had come forward to solemnize the marriage of the accused and the deceased. The relatives of the accused persons have also been enquired and after coming to know that they are all good, the marriage was performed. It is also elicited that he was aware that accused No.1 was working as a Manager. It is further elicited that accused No.1 used to visit his house to see his daughter. He further admits that after coming to know the behaviour of the accused persons and their status, they have performed the marriage. It is also elicited that after visiting the house of the accused persons, they did not find it good to make the alliance, but the accused persons came forward and forced them to perform the marriage since they liked the bride and they also stated that they do not want any dowry. When they forced and insisted to perform the marriage stating that they do not want any dowry, P.W.1 and his wife agreed to perform the marriage on the insistence of P.Ws.4 and 5. It is also elicited that while giving complaint, he did not give any details of the gold ornaments which they had given to the accused persons. He also admitted in his evidence that when the accused demanded the additional dowry, they have not conducted any panchayath and so also the second panchayath. It is suggested that accused No.1 sent a message to his wife wishing her for Sankranthi Festival and the same was denied. It is elicited that on 26.12.2009, his son-in-law was having examination work at Bengaluru. It is elicited that accused No.1 took leave from 05.10.2009 to 13.10.2009 and so also from 14.11.2009 to 20.11.2009 and those documents are marked as Exs.D.2 and 3. It is elicited that when they were in hospital itself, they have been informed about the death of their daughter. No complaint was given on the same day, but they lodged the complaint on the next day. He also admitted in his evidence that when his daughter passed away, all her gold ornaments were taken. He also further admitted that for having given the gold ornaments and an amount of Rs.1,00,000/- to the accused persons, the same was not video graphed. It is further admitted by P.W.1 that his daughter was very cordial with the accused persons. It is suggested that she was not subjected to any harassment and the same was denied. It is elicited that he cannot tell in which period she was subjected to the harassment by the accused persons. It is also elicited that his daughter used to be alone in the house of the accused from morning till evening since other persons are working in different Departments. P.W.1 also admits that the said alliance was arranged by P.W.4. He also claims that he saved his money for the purpose of giving dowry. He further admits that he was not having any documents to show that he had sold the property and out of the said sale proceeds, he has given the dowry amount. It is suggested that his daughter was not having any interest to marry the accused and the said marriage was performed against her wish and the same was denied.
16. In the cross-examination of P.W.2, the mother of the deceased, it is elicited that after one month of the marriage, she was sent to matrimonial house. It is elicited that they had taken back the gold ornaments and clothes belonging to the deceased and other utensils given to her daughter and the same were not produced before the Court. They have not produced any photo for having made galata in the marriage reception and for having paid the amount of Rs.1,00,000/- to accused No.2. P.W.2 admits in her evidence that after selling the property, they have performed the marriage, but she cannot tell the sale consideration of the said sale transaction. It is also elicited that on 13.12.2009, her sisters have called her daughter and son-in-law to Chickballapur. It is elicited that they did not question their son-in-law when the galata had taken place on 17.01.2010 and she claims that her husband was not in the house at that time. It is also elicited that she did not take her daughter to the hospital when her son-in-law subjected her to assault in the previous night. But she claims that she informed the same to her husband. It is elicited that the accused requested her to send his wife immediately after the Sankranthi festival.
17. In the cross-examination of P.W.3, who is the brother of deceased, it is elicited that the property was sold prior to the marriage of his sister and he cannot tell how his father arranged the amount of Rs.1,00,000/- to pay towards dowry. He has also admitted in his evidence that at the time of marriage and reception, photos were taken and also entire function was video graphed but he does not know whether giving dowry and gold ornaments were video graphed or not. It is elicited that the marriage was solemnized on 20.09.2009 and after the marriage, both of them went to the parental house of her mother and again after 15 days of the marriage, the customary function was arranged in their house. They also visited some of the temples. The customary function was organized in the month of October and they all have participated in the said function. It is further elicited that from 14.11.2009 to 22.11.2009 both his sister and brother-in-law went to Kodaikanal and Madumalai Forest but he cannot tell the date. He also admits that from 28.11.2009 to 30.11.2009, both the families went to Sri Dharmasthala and Kukke Subramanya temples. He also admits that on 13.12.2009, both of the husband and wife were invited as a customary practice to the house of Rajalakshmi and Shashikala who are his aunts and both of them have participated in the same. He also admits that his sister came alone to Shankaranthi Festival to their house. It is elicited that he did not enquire his sister and brother-in-law when galata had taken place in the house. He claims that he demanded Rs.5,00,000/- with his parents and he comes to know the same only through his parents. He cannot tell who took the gold ornaments which were on the body of his sister. He admits that his brother- in-law had sent a message to his sister wishing her for Sankranthi Festival and the same is marked as Ex.D.4. It is also elicited that other accused Naveen Kumar was not staying in the house of his sister and brother-in-law and he was staying separately at Basavanagudi. He further admits that accused No.1 was unable to come to Sankranthi Festival and hence, he has sent a message to his wife.
18. P.Ws.4 and 5, husband and wife in their evidence have deposed with regard to the marriage talks and demand and acceptance of dowry. In the cross- examination P.W.4, he admits that earlier the accused persons were staying at Basavanagudi and after the construction of the new house at Nagarbhavi, they were staying in the said house. He cannot tell the denominations of notes of Rs.1,00,000/- which was given to the accused and there was no any evidence or video graph of the same. He admits that at the time of the engagement, ring was exchanged and he further admits that all the events of the function are video graphed and photos were taken and he also states that photos were taken while exchanging the gold articles. He admits that during the course of the marriage as per Hindu Customs, they used to give gold ornaments to both bride and bridegroom. He admits that the bride parents used to spend money in the marriage as per the customs. However, he claims that he spoke to the deceased about her marital life, but he was not able to tell how many times he spoke to her. He claims that the property was sold during the time of her marriage. He claims that he was present at the time of giving Rs.1,00,000/- to the father of the accused. He also admits that they had called both the husband and wife prior to Dhanurmasa. He came to know about sending of the deceased from the matrimonial house through his wife over the phone. He also admits that accused and all the family members of the accused have participated in the cremation. He admits that he did not enquire the relationship between the husband and wife till the death of the deceased. P.W.5-wife of P.W.4 in the cross examination admits that they brought all the belongings of the deceased immediately after her death while conducting mahazar in terms of Ex.P.3. She cannot tell how P.W.1 adjusted the amount to give dowry of Rs.1,00,000/- on the date of marriage talks. It is elicited that she does not know about the payment of Rs.1,00,000/- at the time of the marriage.
19. Having considered the oral and documentary evidence available before the Court, P.W.1 has categorically admitted that when they went and saw the house of the accused persons, they were not willing to perform the marriage but the accused persons have forced them stating that they liked the bride and they do not demand for any dowry and they requested them only to perform the marriage and this answer is elicited from the mouth of P.W.1. The very case of the prosecution that they demanded dowry amount and also the gold ornaments falsifies the evidence of all these witnesses P.Ws.1 to 5. It is important to note that though P.W.1 denies that at the time of Sankranthi Festival, the husband has sent the message to his wife wishing her over the mobile phone since he could not attend the Sankranthi Festival, P.W.3 - brother of the deceased categorically admits the same that he has sent a message. The same is also marked as Ex.D.4. Hence, it is clear that there was no strained relationship between the accused No.1 and also the deceased. It is the case of the prosecution that on 17.01.2009, accused No.1 had visited the house of his wife and galata had taken place between the husband and wife at that night. It is elicited from the mouth of P.Ws.1 to 3 that they did not question accused No.1 when the galata had taken place between accused No.1 and the deceased. It is pertinent to note that P.Ws.1 to 3 have deposed that the eyes of the deceased was red and she was subjected to assault, but they did not take the deceased to hospital. If really the deceased was subjected to assault by the husband on the previous day, they could have taken her to hospital but no effort has been made either by the parents or by her brother. It is also important to note that P.Ws.4 and 5 speak about the demand and acceptance of dowry and the evidence of P.W.1 falsifies that there was no demand and only on the insistence of the accused persons, they have performed the marriage. Hence, the evidence of P.Ws.1 to 5 did not come to the aid of the prosecution in proving its case of demanding dowry and subjecting the deceased for both mental and physical harassment.
20. It is pertinent to note that during the end of the month of November, respective family members have visited Dharamasthala and Kukke Subramanya temples and also it has been categorically admitted in the evidence of P.W.3 that both the families have visited the temples and also accused No.1 took his wife to Kodaikanal and Madumalai Forest in the month of November. Hence, the very case of the prosecution that the mother of the accused made galata at the time of reception itself regarding dowry and subsequently they started harassment cannot be accepted. It is elicited from the mouth of the witnesses that both the families have participated in the customary functions and also it is evident from the records that both the husband and wife were invited to their relatives house after the marriage and it is the custom that the relatives invite the newly married couples to their house after the marriage. The same has been continued till November and December. All these materials disclose that there was no harassment meted out to the deceased. It is also important to note that two days prior to the death of the deceased, Sankrati Festival was celebrated. It is also further elicited from the mouth of P.W.2 that accused had requested them to send her immediately after the Sankranthi Festival and when such being the case, the case of harassment attributed by the prosecution cannot be accepted.
21. Other witnesses who are P.Ws.7 to 10 speak about the demand and acceptance of dowry and subjecting the deceased for harassment. When the evidence of P.Ws.1 to 5 who are the parents, brother, uncle and aunt who mediated the marriage does not inspire the confidence of the Court, the evidence of other witnesses P.Ws.7 to 10 also does not inspire the confidence of the Court that there was a demand and acceptance of dowry and subjecting her for harassment. In the cross examination of P.W.7, he categorically admits that he did not participate in the engagement but he only attended the reception. These witnesses are the neighbours. P.W.7 also categorically admits that they did not make any list about giving dowry. It is also emerged in the evidence that the marriage of the deceased was fixed with some other boy prior to this marriage and it is also to be noted that after the break down of the said alliance, this marriage proposal was initiated. The marriage talks were held in the month of April itself and the marriage was performed in the month of September. P.W.8, who is also the relative of the deceased has categorically admitted that he did not participated in the marriage talks. In the cross examination of P.Ws.9 and 10, they claim that they had participated in the marriage talks. P.W.9 has categorically stated that he did not weigh the gold ornaments and he also did not speak anything about the designs of the gold ornaments and further admits that as per the customs, the parents of the deceased had given gold to the bride. It is elicited that property was sold 4 to 5 months prior to the marriage. In the cross-examination of P.W.10, he has also categorically admitted that the deceased had come to Sankranthi Festival to her parents house. Hence she was driven out from the house of matrimonial home on 26.12.2009 itself cannot be accepted. It is elicited that the husband was having examination duty at Bengaluru in the month of December 2009.
22. Having considered the evidence of other neighbouring witnesses and also the participants of the marriage talks, their evidence does not inspire the confidence of the Court. P.W.12, who prepared the gold ornaments deposed with regard to the preparation of gold ornaments which was the usual practice while performing the marriage on order for preparing the same. Both the families used to give gold ornaments to both the bride as well as the bridegroom. When such being the case, when the customary practice was followed and marriage was solemnized, in the absence of any evidence for having demanded and accepted dowry and subjected the deceased for harassment, the Court below has rightly appreciated the evidence available on record and the answers elicited from the mouth of P.Ws.1 to 10. The other witnesses are only the formal witnesses i.e., Police and other mahazar witnesses. There is also no dispute with regard to cause of death of the deceased and she died due to asphyxia. In the absence of any material evidence with regard to the demand and acceptance of dowry and also subjecting the deceased for harassment, this Court cannot reverse the findings of the trial Court, when trial Court has given anxious consideration to the evidence of prosecution witnesses. The very contention of the State that the Court below has ignored the material evidence available on record cannot be accepted. No doubt the death has taken place within 4 months from the date of marriage and mere fact that death has taken place within 4 months cannot be a ground to reverse the findings. No doubt there is a presumption under Section 113B of the Indian Evidence Act to presume that if death has taken place within 7 years of the marriage, the Court has to presume it as a dowry death. In order to presume the same also, there are no possible materials before the Court to show that they demanded and accepted dowry and subjected her to mental cruelty. In the absence of same, when the evidence of the prosecution witnesses does not inspire the confidence of the Court, it is the duty cast upon the Court to acquit the accused persons for the charges leveled against them.
23. In view of the discussion made above, we do not find any reason to reverse the findings of the trial Court. The Court below has not committed any error in accepting both the oral and documentary evidence. Both the husband and the family members of the accused were in cordial terms with the deceased. Considering the admission of the prosecution witnesses elicited in the cross examination , the death has taken place in the house of the parents of the deceased. There was no proximity for cause of her death and it is an admitted fact that the deceased had visited the house of her parents to attend Sankranthi Festival and husband had wished his wife when he could not make it to attend the festival. We do not find any merit in the appeal. Hence, we pass the following:-
ORDER The appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE PYR