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2002 DIGILAW 14 (KAR)

STATE OF KARNATAKA v. MOORTHY

2002-01-04

M.F.SALDANHA, N.K.PATIL

body2002
SALDANHA, J. ( 1 ) THIS appeal raises a slightly unusual fact of criminal law, viz. , the question as to whether a husband who want only disregards his basic duty of providing the elementary essentials to the wife and infant child and thereby pushes them to suicide can be held liable for the act of cruelty punishable under Sec. 498-A, IPC. There is an allied question under the provisions of the Dowry Prohibition Act which again raises the subtle question as to whether a conviction would be maintainable under Sec. 3 of the Act wherein the receipt of the dowry amount simpliciter is established without the prosecution having conclusively established the acts of demand and giving of the dowry. We need to record at this stage that the learned SPP had addressed his arguments in support of the appeal and that the respondent-accused though represented by two learned advocates, found himself stranded before the Court because neither of the two advocates has appeared on any of the dates so far. The appeal was heard by the earlier Benches several times and adjourned for this reason and the same situation continued when it was taken up for hearing before us. This is an appeal of the year 1995 which is virtually seven years old and we see no reason why the hearing of the appeal should be adjourned any further and consequently, we requested one of the young and competent learned advocates on the criminal side Mr. Sandesh Chouta to appear as amicus curiae. The learned advocate willingly agreed, went through the records, did the requisite research and has argued the case very admirably. ( 2 ) THE distressing facts of this appeal are hardly in dispute. The original accused Moorthy alias Pungi is a coolie belonging to the weaker sections of the society and at the relevant time he was a resident of Kadukothanahalli village. It was alleged that the accused was married to deceased Puttalingamma on 23-6-1988. About 11/2 years had passed and her elder brother P. W. 1 Ningaiah lodged a complaint with the police on 14-12-1990 to the effect that the body of Puttalingamma and her infant daughter were found in the V. C. Channel on 12-12-1990. From the condition of the bodies it was clear that they had died of drowning and there was nothing to suggest that it was an accident. From the condition of the bodies it was clear that they had died of drowning and there was nothing to suggest that it was an accident. The investigation revealed that the deceased wife was being harassed by the husband to bring some more dowry of Rs. 500/- even though he had received an amount of Rs. 2,500/- and some small ornaments at the time of the marriage. More importantly, the evidence very clearly indicated that the accused was an inveterate gambler, that he was also given to various vices, that he used to dissipate and spend whatever litle he earned on these activities and that all the problems between the husband and wife arose because of the fact that he would not even provide money for the most basic and most bare necessities. The prosecution led evidence to this effect in order to support the theory that it was because of this persistent cruelty inflicted on the deceased that she finally went over the brink and was pushed to commit suicide. The accused was charged for having committed offence punishable under Sections 498-A, IPC, 304-B, IPC, 306, IPC and under Sections 3 and 7 of the Dowry Prohibition Act. The learned Trial Judge after consideration of the prosecution evidence recorded the verdict that none of the offences have been established and acquitted the accused. The State has assailed the correctness of this order through the present appeal. ( 3 ) THE learned SPP who appeared in support of the appeal has taken us through the evidence in detail. He has just concentrated on the evidence of the family members, namely, the brother and mother who are PWs. 1, 2 and PW. 3 who is the cousin who is alleged to have handed over the dowry amount and PW 4 who is one of the other relatives. He demonstrates from this evidence which is hardly refuted, that it is very clearly established that the father of the accused had demanded a sum of Rs. 2,500/- as dowry and P. W. 3 states that he had handed over this amount at the time of the marriage to the accused. There is also evidence that some clothes and other small items were also given by the bride's side. 2,500/- as dowry and P. W. 3 states that he had handed over this amount at the time of the marriage to the accused. There is also evidence that some clothes and other small items were also given by the bride's side. The learned GA submits that this evidence clearly establishes a demand for dowry and that it also establishes the receipt of the dowry and he submits that even if the persons responsible for the demand have not been prosecuted that this would not exonerate the accused from the offence under Sec. 3 of the Dowry Prohibition Act of receiving the dowry amount. Consequently, he has submitted that the learned Trial Judge was clearly in error in having recorded the order of acquittal under Sec. 3 of the said Act. ( 4 ) AN interesting submission has been canvassed by the respondent's learned advocate who first submitted that the entire concept of receipt of dowry which is the gravamen of any charge under the Act is inextricably linked to the social vice, namely demand for dowry what Mr. Chouta vehemently submitted was that normally, it would be essential that the party who has committed the offence, viz. , one who has received the dowry would necessarily have to also be guilty of the offence of demanding the dowry or in other words asking for it. He has made this rather suttle distinction because he seeks to point out that the evidence is silent on the question as to whether the accused at any time made any demand and at the very highest, the evidence discloses the demand as having emanated from the father who is not an accused before the Court. Is further submission is that if the prosecution has only established the bare receipt of some amount that it can be for any number of reasons, the most important being the wedding expenses or anything else and unless the evidence indicates that the accused received it pursuant to a demand for dowry that it would not be proper for the Court to convict the accused merely because it is shown that the money or property has reached him. We have very carefully considered the scope of the law and we are of the view that upholding such an interpretation would frustrate the legislative intent of the Dowry Prohibition Act. We have very carefully considered the scope of the law and we are of the view that upholding such an interpretation would frustrate the legislative intent of the Dowry Prohibition Act. The Court is required to take judicial notice of the prevailing situation and the Court is required to take judicial notice of the modus operandi that is prevalent. In the majority cases or perhaps all of them, where the antisocial practice of making demands for dowry precedes the weeding, there is little doubt about the fact that these demands come from quarters other than the young couple or to put it more clearly, the demands invariably emanate from the parents, relatives or other persons such as the negotiators or match-makers and if one were to uphold the plea that absence of demand from the bridegroom himself would exonerate him from the act of receiving the dowry, every prosecution under this Act would possibly have to fail. In our considered view, the Court has to assess the entire process in its continuity and in its entirety and one cannot delink the premarital negotiations from what subsequently transpires. The accused in this case receiving the dowry cannot be isolated or dissected from the demand that was made earlier because in our considered view without such a demand there would not have been any such payment. Under the circumstances, in the absence of the accused putting forward the plea and establishing to the satisfaction of the Court that the amount received by him was for purposes other than the dowry, that the present evidence establishes that the amount of Rs. 2000/- received by him was pursuant to the negotiations, the offence would stand established in so far as the Court would have to uphold the finding that it was pursuant to the demands made by the family that the dowry was paid. In law, the fact that dowry is received by the bridegroom dehors demands made by him would not exonerate him from the rigors of Sec. 3. We have given our findings with regard to the law points as they were argued by the two learned counsel but we need to record in this case that we are refraining from recording a conviction against the accused under Sec. 3 of the Act because in criminal proceedings the facts have to be established beyond reasonable doubt and Mr. We have given our findings with regard to the law points as they were argued by the two learned counsel but we need to record in this case that we are refraining from recording a conviction against the accused under Sec. 3 of the Act because in criminal proceedings the facts have to be established beyond reasonable doubt and Mr. Chouta is right when he points out that the overall quality of the evidence of P. Ws. 1, 2 and 3 is not of the sufficient caliber on facts to sustain a conviction. Under these circumstances, we uphold the acquittal order of the trial Court under Secs. 3 and 4 of the Dowry Prohibition Act. ( 5 ) AS regards the charge under Sec. 306 IPC is concerned, again we are required to give the benefit of doubt to the accused. Learned SPP was adamant in his submission that if he is able to satisfy the Court that the charge under Sec. 498a has been established that ipso facto the conviction under Sec. 306 IPC must follow as a matter of course. We do not dispute the fact that in matrimonial offences these sections are closely interlinked but what we cannot overlook is the fact that this is one of those cases where the prosecution has led next to no evidence. It is true that cruelty has been established, but there should have been a little more evidence in order to link the death with the acts of cruelty that are attributed to the accused and it is very important for us to lay down that in such serious instances where the offences carry heavy sentences such as under Sec. 304b IPC and 304 IPC that a Court has to be very circumspect before recording a conviction under these sections in the absence of all the ingredients having been established. All that the prosecution has established is that the two bodies were found in the channel but there is not even an iota of evidence to indicate the circumstances under which the deaths took place. For want of this material link, we refrain from reversing the order of acquittal under Sec. 304b IPC and 306 IPC. All that the prosecution has established is that the two bodies were found in the channel but there is not even an iota of evidence to indicate the circumstances under which the deaths took place. For want of this material link, we refrain from reversing the order of acquittal under Sec. 304b IPC and 306 IPC. ( 6 ) COMING however to the all important aspect of Sec. 498a IPC, we find that this is a case where the instances of cruelty are unusual or other than the traditional ones where the wife is beaten or otherwise physically ill-treated or where the wife is subjected to other intense forms of mental cruelty which are of a gravity that could drive her to suicide. The stark question that stares one in the face is as to whether Sec. 498a IPC would cover an accused where a husband want only disregards his basic duty to provide the wife and infant child with the elementary means of sustenance. This is not a case where the accused was unable to do so because the evidence suggest that he was working and that he had some income even though he might have been a relatively poor person. These earnings ought to have been earmarked towards providing the basic necessities of life such as food and shelter to the wife and infant child and where it is demonstrated that the accused deliberately and irresponsibly squandered his earnings on gambling and other vices and virtually starved his wife and infant child to death, in our considered view such conduct would squarely be covered by the definition of the offence under Sec. 498a IPC. Omission to do something fundamental and basic which the law casts a duty on to the husband would be tantamount to the commission of the offence of matrimonial cruelty as defined under Sec. 498a IPC. Mr. Chouta did try to defend the position by submitting that despite these allegations, the Court may have to look at a very distressing angle, namely, that the accused appears to be so poor that he was unable to provide basic sustenance. Mr. Chouta did try to defend the position by submitting that despite these allegations, the Court may have to look at a very distressing angle, namely, that the accused appears to be so poor that he was unable to provide basic sustenance. Had that been the position we would certainly not have convicted him but we have taken cognisance of the opposite position namely, that he was earning and that those earnings were squandered and dissipated on vice instead of being earmarked for the areas of providing the minimum means of sustenance to the wife and child. It is this aspect of the law which is highlighted in this case and which we need to hold against the accused. Accordingly, the order of acquittal under Sec. 498a IPC is set aside. The accused is convicted of the offence u/s. 498a IPC and it is directed that he shall undergo RI for two years. The accused shall be entitled to set off of the period already undergone by him. In awarding this sentence we have taken cognisance of the fact that the conduct of the accused was gross and that it has resulted in the death of his wife and infant child. ( 7 ) IN the result, the appeal partially succeeds. The order of acquittal in favour of the accused under the remaining sections as indicated by us earlier is upheld. As far as Sec. 498a IPC is concerned the order of acquittal is set aside and the accused is convicted for the offence under Sec. 498a and sentence to RI for two years. The appeal to stand disposed off. The bail bond of the accused to stand cancelled. #8. We direct the office to pay a sum of Rs. 1000/- as professional charges to the learned advocate who has appeared amicus curiae on behalf of the accused. Appeal partly allowed. --- *** --- .