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Karnataka High Court · body

2011 DIGILAW 8 (KAR)

Shivanna v. State of Karnataka

2011-01-03

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—These two appeals are filed challenging the judgment, of conviction dated 20.10.2003 passed by the 1st Addl. Sessions Judge at Mysore in S.C. No. 70/96. The parties are referred to their rank before the Trial Court. 2. Six persons who are accused Nos. 1 to 6 before the Trial Court were tried for offences under Sections 498A and 304B IPC and Sections 4 and 6 of the Dowry Prohibition Act, 1961 (for short D.P. Act) on the allegation that A1 Shivarma having married Bhagyajyothi the deceased, on 19.8.1995 at Sathegala village and other accused being the close relatives of A1 demanded dowry of Rs. 25,000/- and gold ornaments earlier to the marriage, thereby they are alleged to have committed an offence under Section 4 of the D.P. Act. It is further alleged that on 19.8.1995 A1 married Bhagyajyothi in the same village and thereafter, he has treated Bhagyajyothi with cruelty in order to meet the demand of dowry thereby he is alleged to have committed an offence under Section 498A IPC. It is further alleged that in view of ill-treatment meted out to the deceased Bhagyajyothi between 19.8.1995 and 24.9.1995 in connection with the demand of dowry, the said Bhagyajyothi committed suicide on 25.9.1995 by hanging at the residence of A1 thereby all the accused are alleged to have committed an offence under Section 304B IPC. 3. After securing the presence of the accused, the learned Sessions Judge framed charge for the above said offences. Thereafter, the prosecution has examined in all 13 witnesses and got marked Ex. P1 to P11 and produced M.Os. 1 to 6. The defence of the accused was one of total denial and they have got marked as Ex. D1 being the portion of the statement, of P.W. 5. After hearing the prosecution and defence, the learned Sessions Judge was pleased to hold that Al is guilty of offence under Sections 498A and 304B IPC and Section 4 of the D.P. Act and further held that A2 and A3 are guilty of offence under Section 4 of the D.P. Act and acquitted the accused No. 4 and 6 of all the offences and also A2 and A3 of the offence under Section 498A and 304B read with 34 IPC. A5 has been reported dead and hence the case against him has been abated. 4. A5 has been reported dead and hence the case against him has been abated. 4. The learned Sessions Judge was pleased to sentence A1 to Rigorous Imprisonment for one year for the offence under Section 498A I.P.C. and to pay a fine of Rs. 2,000/- in default to undergo S.I. for one month and to Rigorous Imprisonment for 7 years for the offence under Section 304B IPC and also to undergo Simple Imprisonment for six months and to pay a fine of Rs. 500/- for the offence under Section 4 of the D.P. Act in default to undergo Simple Imprisonment for 10 days. 5. Accused No. 1 has preferred Crl. A. 1833/03 and A2 and A3 preferred Cr. A. No. 1699/2003. Since both the appeals are connected and arise out of the same judgment, both are taken up together for the purpose of final disposal. Heard Sri Hashmath Pasha, learned counsel for the appellants in both the appeals and Sri Raja Subramanya Bhat, learned HCGP for State and perused the materials on record. 6. The learned counsel for the accused submits that the period of living together as husband and wife, A1 and the deceased is only one month and six days and the prosecution has failed to bring any material to show that during the relevant time there was any no ill-treatment or harassment meted out to the deceased Bhagyajyothi. He has further submitted that neither P.W. 1 has gone to the house of the accused nor the accused or the deceased had come to the house of P.W. 1 during intervening period of one month and six days to inform P.W. 1 or his parents that while being the wife of Al she has been meted out to cruelty or harassment. Therefore, the prosecution has not succeeded in establishing the offence under Section 498A IPC. Therefore, the prosecution has not succeeded in establishing the offence under Section 498A IPC. He has further submitted that since this was love marriage and A1 and the deceased were in love for more than 2 years as on the date of marriage and marriage was brought about by the village elders, in view of missing of the deceased from her house and joining the house of accused without a marriage, the question of accepting and demanding dowry does not arise and, therefore, the prosecution theory that there was demand and acceptance of dowry by Al or any other accused is an after-thought and does not take the place of proof in this case. He has further submitted that at the out set the case has been treated as U.D.R. under Section 174 Cr. P.C. and in the complaint given by M. Vijaya which, is part of UDR, there is no allegation of payment of any dowry or any demand or acceptance of any dowry on behalf of the accused or the deceased and his family. The only reason that appears to be for the incident is that the deceased was having a photograph taken alongwith A1 before marriage and the accused had come to collect the photograph and in that regard the incident has happened. He, therefore, submits that the offence under Section 304B IPC which essentially involves harassment or ill-treatment in consideration of payment of dowry soon before the death has not been brought out in this case by the prosecution and, therefore, the prosecution has failed to prove the said offence also. Therefore, he submits that the order of conviction be set aside and the appeals may be allowed. 7. Sri Rajasubramanya Bhat, learned HCGP submits that from the evidence of the prosecution witnesses, viz., P.W. 1 M. Vijaya, P.W. 2 to P.W. 6 it is seen that the deceased was subjected to ill-treatment prior to her death while living as wife of A1 and there is ample evidence to show that A1 and others have demanded and accepted dowry from the hands of parents of the deceased and, therefore, the offence under Section 304B IPC clearly made out. He further submits that from the date of marriage within one month and six days, the deceased committed suicide and in view of evidence of the witnesses on record, the order of conviction passed against the appellants is based on material evidence on record and, therefore, he submits that the appeals may be dismissed. He further submits that P.W. 5 is an eye-witnesses to the incident in which the deceased was assaulted with chappals by A1. Under the circumstances, he submits that the appeals may be dismissed. 8. After going through the submissions made on either side, the points that arise for consideration are: 1. Whether the judgment dated 20th October, 2003 passed by learned Sessions Judge, convicting the appellants for the offence under Sections 498A and 304B IPC and Section 4 of the D.P. Act is justified? 2. What order? My answer to Point No. 1 In the negative Point No. 2 As per the final order, for the following: Reasons: The prosecution in this case commenced with the filing of a complaint given by M. Vijaya P.W. 1 before Kollegal Rural Police Station. In the said complaint, it has been stated by P.W. 1 that, his sister by name Bhagyajyothi was having friendship with A1 since about 2 years and that the house people of the complainant came to know this about 3 months before the date of the complaint. When the marriage talks were held, they have refused to pay any dowry but since the friendship of his sister continued with A1, and his sister was holding a joint photograph of herself with Al and being afraid of this joint photograph thinking that they would attempt to approach the police and coerce them for registered marriage. A1 came to the house when his sister was alone in the house and asked for photograph for which his sister refused. Then his sister had closed the door on seeing A1 entering into the house and thereafter A1 had gone to the roof of the house and removed tiles and ran away from the house. This matter had come to the knowledge of the village elders and, therefore, they held a panchayath one week prior to marriage. They had decided to have the marriage at Anjaneya temple, Muttathi village between A1 and the deceased and accordingly on 19.8.1995 the marriage took place in the presence of the village elders. This matter had come to the knowledge of the village elders and, therefore, they held a panchayath one week prior to marriage. They had decided to have the marriage at Anjaneya temple, Muttathi village between A1 and the deceased and accordingly on 19.8.1995 the marriage took place in the presence of the village elders. However, during the marriage A1 had refused to pose himself for photograph and on his behalf A3 to A5 are witnesses for the marriage. It is further mentioned in the said complaint that on 25.9.1995, mother of A1 and A2 came to the street and abused them. He had been to the house of the accused and asked A1 as to why they had abused on the street for which accused took exception. However, quarrel was pacified by the street people. About half an hour thereafter he came to know that his sister had died and her dead body was placed on the floor by removing the same from the roof where it was hanging. Hence, he has requested for taking action. 9. The PSI Kollegal Police Station has received the said complaint on 25.9.1995 at about 7 p.m., and registered it as UDR 24/95 under Section 174 of Cr. P.C. and conducted further enquiry into the matter. On 27.9.1995 the case was registered in Kollegal Police Station in Crime No. 142/95 on the basis of the complaint filed by the Tahsildar, Kollegal addressed to the Sub-Inspector of Police, Kollegal Rural Police Station alleging an offence under Section 498A and 304B IPC. On the basis of the said complaint, investigation was commenced against six persons and charge-sheet was filed. After trial, the Trial Court has convicted A1 while acquitting other accused. 10. P.W. 1 is the brother of the deceased. He has stated before the Court that his sister died about 6 years back in the house of A1 and about one month and six days prior to her death, she was married to A1 at Anjaneya temple of Muttathi village. About 2 years prior to the said marriage, his sister was in love with A1 and they had decided between themselves to marry each other and taken out a joint photograph and the said photograph was in possession of his sister. He had been to coolie work one week prior to the date of marriage and his sister was alone in the house. He had been to coolie work one week prior to the date of marriage and his sister was alone in the house. A1 had come to their house to take the said joint photograph and searched for if entering the house. Being afraid of A1, his sister has closed the door. At that time. A1 climbed the roof and ran away by breaking the tiles. Knowing about this, he approached the elders of the village and with the intervention of the elders, it was decided to celebrate marriage of his sister with A1. Since P.W. 1 and his family were poor, A1 was trying to many some other girl and thinking that photograph found in the possession of his sister would be an obstruction, he has tried to take away the said photograph from his sister. He has further stated before the Court that in the panchayath they had agreed, to give cash of Rs. 25,000/- to A1 and one gold chain, gold ring and one pair of ‘vole’ and ‘jumki’ to his sister at the time of marriage. A1 has also demanded for the said articles. Since they were poor, panchayath members told to A1 that he should marry his sister without any demand and, therefore, though A1 did not agree for the said marriage, it was promised that articles as demanded by him would be given by them after the sale of the property, A1 agreed for the marriage for which complainant also agreed and the marriage took place. P.W. 1 has further stated in the evidence that A1 has not allowed himself to pose for photo during the marriage alongwith deceased. When there was exchange of garland, A1 threw the garland without allowing the deceased to put it on him. Thereafter at the instance of elder people of the village and Yajman. A1 tied ‘tali’ to the deceased and thereafter A1 took the deceased to his house. About one month after the marriage, they could not sell the property and have not paid the cash and golden ornaments to the accused since there was no proper offer to the property. He came to know A4 to A6 instigated A1 to A3 to cause ill-treatment and harassment to the deceased Bhagyajyothi on the ground that she has not brought anything from her parents house. This fact was informed to him by the villagers. He came to know A4 to A6 instigated A1 to A3 to cause ill-treatment and harassment to the deceased Bhagyajyothi on the ground that she has not brought anything from her parents house. This fact was informed to him by the villagers. The accused was not giving proper food to the deceased and she had no freedom in the house. On 25.9.1995 the accused had sent Bhagyajyothi to her parents house at about 2 p.m., from their house and Bhagyajyothi told her difficulties and since no cash and gold was given to her, her husband was not allowing to live and if she did not take cash and gold with her, people of her house will not allow her to live and they will kill her, so, saying she was weeping. At that time, A1 came to the house. 11. He held the plait of his sister and asked her as to why she came there and assaulted her with chappals. This incident happened on the street and thereafter A1 took the deceased to his house. About half an hour thereafter, the deceased had committed suicide. This witness has been thoroughly cross examined by the defence. The complaint given by him under UDR is at Ex. P6 which is in his handwriting. In the cross examination, it is elicited that between the houses of the accused and the complainant, there is a distance of 150 to 200 feet. Before marriage, there was no close contact between the accused and the complainant or their house. About one year prior to the marriage, they came to know about the love affair. Even prior to coming to know of their love affair, he was not aware that Bhagyajyothi was visiting the house of A1 often. However, A1 was not coming to their house. It is suggested to him that in their community no marriage will be celebrated on Tuesday or Saturday. However, he has denied that no marriage will he celebrated on Saturday and he has also denied that his sister’s marriage took place on a Saturday. He has further denied that on coming to know about the love affair; their parents prevented the deceased from going to the house of the accused. However, he has denied that no marriage will he celebrated on Saturday and he has also denied that his sister’s marriage took place on a Saturday. He has further denied that on coming to know about the love affair; their parents prevented the deceased from going to the house of the accused. It is further elicited that in view of joint photograph, complaint has been lodged before the police but he does not know on which date it is lodged nor any receipt is issued by the police. It is suggested that regarding the demand of dowry of Rs. 25,000/- in cash he is deposing falsely before the Court which suggestion has been denied by him. 12. P.W. 2 Somanna is a member of Panchayath. He has stated regarding marriage talks. However, it has been elicited in the cross examination that there was love affair between the deceased and A1 and it was known to the village people. It is elicited that he was present during the marriage of the deceased with A1. However, so far as demand of any amount from the deceased family, he has turned hostile to the case of the prosecution. 13. P.W. 3 Nanjundamurthy is another member of Panchayath who has also stated as per the evidence of P.W. 2 regarding arrangement of marriage between the deceased and A1. P.W. 4 is a relative of the accused and deceased. It is elicited in his evidence that the accused had demanded a sum of Rs. 25,000/- and one gold chain, gold ring and one pair of new dress as dowry and, however, since the deceased and his family was poor, the said amount was not given at the time of marriage. It is elicited in the chief-examination of this witness that the accused has refused to pose for photograph immediately after tieing tali and that he has thrown the garland attempted to be put by the deceased during the marriage. When a question was asked whether in his house, marriage will be celebrated on Tuesday or Saturday, this witness has refused to answer. 14. P.W. 5 Giriyaiah is a relative of P.W. 1, It is in his evidence that on the date of the incident at about 2 p.m., A1 was found assaulting his wife, the deceased with chappals. Himself and C.W. 13 had separated A1 and the deceased. 14. P.W. 5 Giriyaiah is a relative of P.W. 1, It is in his evidence that on the date of the incident at about 2 p.m., A1 was found assaulting his wife, the deceased with chappals. Himself and C.W. 13 had separated A1 and the deceased. Thereafter, A1 took his wife to his house. About half an hour thereafter he came to know that the deceased had died. 15. P.W. 6 Nataraj was present at the time of marriage and he is a panehayathdar. He also stated regarding the presence of photograph in possession of the deceased and A1 attempted to snatch the said photograph from the deceased by coming to the house of the deceased. He has stated that the complainant P.W. 1 is his neighbour and he is not a relative. 16. P.W. 7 Gurumallu is cook on the date of the marriage of A1 with deceased. He has stated regarding the dispute taken place during the photo session in the marriage hall. He was in the kitchen and by the time he came to the marriage hall, the incident was closed. However, his other evidence is a hearsay. 17. P.W. 8 Srinivas is a Priest in the temple who has conducted the marriage of A1 with deceased. P.W. 9-Dr. Rajashekar has conducted post-mortem examination on the dead body of the deceased and has issued report as per Ex. P7. He has stated that the death was due to asphyxia and could have been caused by hanging. He has identified M.O. 6 the rope which was used for the commission of offence by the deceased. P.W. 10 Doddathayamma is the mother of the deceased. She has also stated in the evidence regarding demand of Rs. 25,000/- and one gold chain, one gold ring by the accused and the fact that since they were not able to give the same, the marriage took place without giving the said article. She has stated that the deceased was residing with A1 to A3 after marriage. However, there is no evidence that after marriage whether she has gone to the house of the accused. 18. She has stated that the deceased was residing with A1 to A3 after marriage. However, there is no evidence that after marriage whether she has gone to the house of the accused. 18. It is in her evidence when the deceased had come near well, about three days prior to her death, she told that the accused were harassing her for demand of dowry and she had pacified her daughter saying that the said demand will be met out in the near future. In the cross examination, she has stated that she is not aware about love affair of her daughter with A1. However, she has stated so before the police. 19. P.W. 11 S. Suresh is the Tahsildar who has conducted inquest proceedings and on the basis of the statements recorded by him, he has sent report as per Ex. P9 to the police, on the basis of which case has been registered and investigation commenced. P.W. 12 M.M. Mahadevaiah is the Circle Inspector of Police during the relevant time in Kollegal Circle. He has conducted investigation in this case. P.W. 13 H.R. Radhamani is the Police Inspector, COD Bangalore. He has continued the investigation and recorded the statement of certain witnesses and filed charge-sheet in this case. 20. It is from the evidence of the above witnesses that the learned Sessions Judge has found that the accused are guilty of the offence and has convicted them as aforementioned. I have given my anxious consideration to the material on record and also the submissions made by either side. I have also gone through the judgment of the Trial Court. It is seen that the deceased had lived with A-l and others for brief period of one month six days. It is in the evidence that there was no contact at all between the deceased and the complainant or his mother during that period. Therefore, there was absolutely no chance for the deceased to inform about ill-treatment of the accused after marriage. In the UDR report which was registered at the instance of P.W. 1 Vijaya there is no whisper about the demand of dowry nor there is any whisper of payment or promise to pay dowry in consideration of marriage. Therefore, there was absolutely no chance for the deceased to inform about ill-treatment of the accused after marriage. In the UDR report which was registered at the instance of P.W. 1 Vijaya there is no whisper about the demand of dowry nor there is any whisper of payment or promise to pay dowry in consideration of marriage. The Police in their wisdom being unable to fathom any crime, act or intent on the part of the accused persons have registered an U.D.R. when a report was made to them regarding unnatural death of the deceased Bhagyajyothi. Under the circumstances, the situation as on the death of the deceased was that there were no allegations of either payment of dowry or ill-treatment in connection with dowry or harassment to the deceased at the time she lived as wife of A1, For the first time the criminal intent and act is identified by Tahsildar while conducting inquest report and it is his report that has been the basis of the investigation in this case. Under the circumstances, I am of the opinion that the averments made in the second complaint or report of the Tahsildar is an afterthought and is an improved version made to the case of the prosecution. Further it is an admitted fact that the deceased and Al were having love affair and that the deceased had gone to the house of A1 and was living with him. It is only thereafter with the intervention of the village elders, the marriage was celebrated. Therefore, it cannot be imagined or inferred that prior to the marriage, there was any idea or notice for Al to demand dowry or gold. Further there is no evidence except the statement of P.W. 5 that the accused was beating the deceased on the street. It is stated in the evidence that the deceased had come to the house of the complainant and this had enraged A1. Nowhere while describing this incident, the question of dowry has figured in the evidence of any of the witnesses. It is stated in the evidence that the deceased had come to the house of the complainant and this had enraged A1. Nowhere while describing this incident, the question of dowry has figured in the evidence of any of the witnesses. The fact is that people gathered when there was a fight as usual between the husband and the wife and, therefore, this solicitary incident cannot be taken as cruelty within the meaning of Section 498A nor the same can be attached to hold the accused guilty under Section 304B IPC for which cruelty in connection with demand of dowry soon before the death is the essential ingredient. Therefore, I answer the point No. 1 in the negative. 21. Under the circumstances, I am of the opinion that the judgment of conviction passed by the learned Sessions Judge cannot be sustained and, therefore, I hold that the prosecution has not proved the case beyond reasonable doubt and consequently, these appeals are entitled to succeed and accordingly, both the appeals are allowed. The judgment of conviction and sentence passed against the accused are set aside. The accused are acquitted for the offence under Section 498A and 304B IPC and Section 4 of the D.P. Act. Bail bonds, if any, executed by the accused are cancelled. Fine amount, if any, deposited by the accused shall be refunded to them. Appeals allowed.