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2013 DIGILAW 666 (KAR)

DILIP v. STATE OF KARNATAKA

2013-06-11

RAVI MALIMATH

body2013
JUDGMENT RAVI MALIMATH, J.-Aggrieved by the judgment of conviction dated 27.03.2008 passed by the Addl. District and Sessions Judge, Bidar in Sessions Case No. 143/2005 for the offences punishable under Sections 498(A), 304(B) read with Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961, the accused have filed the present appeal. 2. The case of the prosecution is that on 11.05.2005 accused No. 3 married the deceased Saroja, the daughter of PW.2. At the time of marriage negotiation, these accused demanded Rs. 60,000/- in cash, two tolas of gold but it was settled at Rs. 35,000/-in cash and two tolas of gold. After marriage when the deceased came to her husband's house she led her marital life peacefully for some time. Thereafter, accused No. 3 namely her husband and accused Nos. 1 and 2 namely the father and mother of accused No. 3 demanded additional dowry of Rs. 25,000/- and five tolas of gold. They ill-treated her and subjected her to cruelty. She was always being harassed to bring an additional dowry. That she was subjected to cruelty for the same. Unable to bear the cruelty, she jumped into a well on 14.07.2005 and died. The father the deceased-PW.2 lodged a complaint against the accused and a charge sheet was filed against them for the offences punishable under Sections 498(A) and 304(B) read with Section 34 of the Indian Penal Code and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. The accused pleaded not guilty and claimed to be tried. 3. In support of its case, the prosecution examined 29 witnesses and marked Exs.P.1 to P.38. The material objects MOs.1 to 47 were also marked. The accused in defence marked Exs.D.1 to D.23. On contest, the Trial Court by the impugned judgment, convicted the accused for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961 and Sections 498(A) and 304(B) read with Section 34 of the Indian Penal Code. They were sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs. 20,000/- each, in default, to undergo a further simple imprisonment for a period of one year for the offence punishable under Section 3 of the Dowry Prohibition Act. They were sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs. 20,000/- each, in default, to undergo a further simple imprisonment for a period of one year for the offence punishable under Section 3 of the Dowry Prohibition Act. They were sentenced to undergo imprisonment for a period of six months and to pay fineof Rs. 10,000/- each, in default, to undergo a further imprisonment for a period of one year for the offence punishable under Section 4 of the Dowry Prohibition Act. They were sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs. 10,000/- each, in default, to undergo simple imprisonment for a period of six months for the offence punishable under Section 498(A) of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304(B) of the Indian Penal Code. Hence, the present appeal by the accused. 4. Sri. Mahantesh Desai, the learned counsel appearing for the appellants contends that the impugned judgment of conviction and sentence of the Trial Court is erroneous and requires to be set aside. The appellants are innocent of the offences alleged against them. There are inconsistencies in the evidence of the prosecution witnesses. That such inconsistencies have not been properly appreciated by the Trial Court. He contends that the case made out by the complainant is far different from the subsequent improvements that he has made in his evidence. The evidence on record is not sufficient to establish that the deceased was subjected to cruelty. The plea for additional dowry is not substantiated by the evidence on record. 5. It is his further case that the deceased succumbed to her death on her own will. That she did not intend to marry accused No. 3 at all and she was forced by her parents. Therefore, she was a reluctant wife. The prosecution has falsely capitalized on this aspect of the matter. There is no case of cruelty or harassment. That the incident having taken place within two months would justify the defence theory. In the absence of proof of cruelty and on the other hand, the death having occurred due to the reasons stated are not relatable to the accused. 6. There is no case of cruelty or harassment. That the incident having taken place within two months would justify the defence theory. In the absence of proof of cruelty and on the other hand, the death having occurred due to the reasons stated are not relatable to the accused. 6. On the other hand, the learned High Court Government Pleader supports the impugned judgment of conviction and sentence. He contends that the evidence on record clearly establishes the guilt of the appellants. The prosecution has established their case beyond reasonable doubt. The contention of the appellants with regard to the contrary evidence is misplaced. The evidence on record are cogent and reliable. In respect to the cross examination, nothing worthwhile has been elicited, that would disbelieve the case of the prosecution case. 7. He further contends that the defence theory cannot be accepted. The accused is deemed to have committed the offences punishable under Section 304(B) of the Indian Penal Code. It is on the accused to discharge the burden. That the prosecution need not establish its case beyond all reasonable doubt so far as the offence punishable under Section 304(B) of the Indian Penal Code is concerned. Hence, he pleades that the appeal be dismissed. 8. Heard learned counsels and examined the records. 9. PW 1 is the punch witness to the scene of offence. PW 2 is the father of the deceased and the complainant. PW 3 is the son of PW 2 and the brother of the deceased. PW 4 is the son-in-law of the complainant. PW 5 is the relative of the complainant. PW 6,7,8, and 9 are the neighbours of the complainant. PW 10 to 16 are the neighbours of the accused. PW 17 is the neighbour of the complainant. PW 18 is the photographer. PW 19 is the goldsmith. PW 20 is another neighbour of the accused. PW 21 is the neighbour of the complainant. PW 22 is the Junior Engineer who drew the sketch of scene of offence. PW 23 is the Investigating Officer. PW 24 is the doctor who prepared the post mortem report in terms of Ex.P-32. PW 25 is the PSI. PW 26 is the Investigating officer. PW 27 is another witness who speaks about the demand for dowry. PW 28 is the Tahasildar who conducted the inquest. PW 29 is the Dy.S.P. who filed the charge-sheet. PW 24 is the doctor who prepared the post mortem report in terms of Ex.P-32. PW 25 is the PSI. PW 26 is the Investigating officer. PW 27 is another witness who speaks about the demand for dowry. PW 28 is the Tahasildar who conducted the inquest. PW 29 is the Dy.S.P. who filed the charge-sheet. PW 9 to 16 have turned hostile and were cross examined by the prosecution. 10. Therefore, the evidence of PW 2 to 8 is what the prosecution relies upon in support of its case. PW 2 is the complainant and the father of the deceased. In the complaint vide Ex.P-2, he narrates that on 11.5.2005 the marriage of his daughter was performed with accused No. 3. At the time of the marriage, Rs. 35,000/- and 2 tolas gold were given to the accused as a dowry. She was in her matrimonial house for about one month. Thereafter she came back to her house. She narrated that there was a demand for additional dowry. She narrated the same to the complainant namely her father. That on 9.5.2005 the accused No. 1 took his daughter alongwith him to their house. On 13.7.2005 PW 3 namely the brother of the deceased informed that the accused were harassing the deceased by demanding additional dowry. That on 14.7.2005 Hanmantharao Patil telephoned to the complainant and informed that Saroja has jumped into the well and committed suicide. During the course of evidence the complainant PW 2 has stated that during the marriage negotiations the accused demanded Rs. 60,000/- and 2 tolas of gold. Since he was unable to pay the same, it was agreed that he has to pay a sum of Rs. 35,000/- and 2 tolas of gold and the same was given to them eight days prior to the marriage. 2 tolas of gold was given in the form of "boramala" namely a necklace and 3 tolas of gold as a "jumaki" namely, earrings. She lived happily for a period of about one month. Later on she came to her parental house and informed her father and everyone at home that there is an additional demand of Rs. 20,000/- and 5 tolas gold. That she has been subjected to harassment by the accused. Her father stated that he was unable to pay the same. She was taken back to her matrimonial home. Later on she came to her parental house and informed her father and everyone at home that there is an additional demand of Rs. 20,000/- and 5 tolas gold. That she has been subjected to harassment by the accused. Her father stated that he was unable to pay the same. She was taken back to her matrimonial home. After a lapse of four days accused No. 1 came to his house to take back Saroja to her matrimonial house. Four days thereafter he sent the son of the complainant to the house of the accused. PW 3 returned on the same day and informed that the accused are demanding Rs. 20,000/- cash and 5 tolas of gold. That they are harassing his sister for the same. On the very next day a phone call was received stating that Saroja had died. He filed a complaint and a case was registered. 11. PW 3, the son of the complainant and brother of the deceased has stated that at the time of marriage the accused demanded Rs. 60,000/- and 2 tolas of gold and on negotiations it was agreed that the complainant will pay Rs. 35,000/- cash and 2 tolas gold and the same was paid before the marriage took place. His sister went to her matrimonial home. One month thereafter she came back and informed them that eight days after she gone to her matrimonial house, the accused snatched away the earrings and demanded an additional dowry of Rs. 20,000/- and 5 tolas of gold. Thereafter accused No. 1 namely father-in-law came and took Saroja. The accused demanded Rs. 20,000/- cash and 5 tolas gold as dowry. After a lapse of four days PW 3 went to the house of the accused and he has informed that the accused snatched away the necklace and demanded Rs. 20,000/- cash and 5 tolas gold. He returned to the house and informed the same to his father. On the very next day he received a phone call informing that Saroja was dead. 12. PW 4 is the son-in-law of the complainant. The evidence of the son-in-law is not a direct evidence. The same is based on hearsay. He has stated that he was informed that a demand of additional dowry was made by the accused. PW 5 is the relative of the complainant. He too has narrated the facts in the same manner. PW 4 is the son-in-law of the complainant. The evidence of the son-in-law is not a direct evidence. The same is based on hearsay. He has stated that he was informed that a demand of additional dowry was made by the accused. PW 5 is the relative of the complainant. He too has narrated the facts in the same manner. He does not have any direct knowledge about the harassment or otherwise meted out to the deceased. PW 6,7,8 are the neighbours of the deceased. They have spoken about the demand for dowry at the time of marriage. They have also stated about the harassment meted out to the deceased. PW 5 to 8 are the independent witnesses. They are neither related to the complainant nor the accused. They have supported the case of the prosecution with regard to the demand and receipt of dowry by the accused and the cruelty meted out to the deceased. That all the events were informed by the parents of the deceased to them. PWs 9 to 16 namely the neighbours of the complainant and the accused have turned hostile. Hence their evidence cannot be relied upon by the prosecution. So also the evidence of PW 20, the neighbour of the accused. PW 21is the neighbour of the complainant and PW 27 is a witness for demand for dowry. They also speak about the demand of dowry as told to them by PW 2. 13. The Trial Court while considering the evidence on record was of the view that the prosecution has established its case beyond all reasonable doubt. It did not give any credence to the suggestions made by the defence that the deceased was not willing to marry accused No. 3. It was of the view that the marriage was settled and celebrated and when the deceased was a well educated girl, the suggestion made that she was unhappy with the accused cannot be accepted. Therefore, the attempt of the defence to rebut the presumption in terms of Section 304-B of Indian Penal Code was negated by the Trial Court. It was of the view that the statement made by the complainant in terms of Ex.P-2 and the evidence let in by him as well as his son are sufficient to establish the charges levelled against the accused. It was of the view that the statement made by the complainant in terms of Ex.P-2 and the evidence let in by him as well as his son are sufficient to establish the charges levelled against the accused. Under these circumstances the Trial Court convicted the accused for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and Sections 498-A and 304-B read with Section 34 of the Indian Penal Code. 14. Sri Mahantesh Desai, the learned counsel for the appellants strenuously contends that there are contradictions in the evidence of the complainant. That nowhere in the complaint is it stated that there was a demand of dowry. That only in his evidence before the Court that he has stated with regard to the demand of dowry and it was paid. Therefore, the same would amount to an improvement by the complainant. Therefore, he pleads that the provisions of Sections 3 and 4 of the Dowry Prohibition Act are not attracted. On considering the same I' am of the view that the contention requires to be rejected. Dowry has been defined in terms of Section 2 of the Dowry Prohibition Act, 1961 which means any property or valuable security given or agreed to be given either directly or indirectly etc. The contention that there was no mention of any demand in the complaint which was added in the evidence of the complainant and therefore, it does not constitute dowry cannot be accepted. The demand of dowry is absent in its very definition. The definition will imply any valuable security given or agreed to be given. The valuable security given or agreed to be given by one party to a marriage to the other party to the marriage. Hence it satisfies the definition of dowry. Therefore, the contention of the appellants cannot be accepted. 15. The father of the complainant has stated with regard to the harassment meted out to his daughter. That being so, dowry was paid in the presence of witnesses to the accused and a subsequent demand was made for additional dowry in the form of cash and gold. Since he was unable to satisfy the demand of the accused, his daughter was harassed. However, in para 6 of his cross examination he has stated that he is not aware that the demand of Rs. Since he was unable to satisfy the demand of the accused, his daughter was harassed. However, in para 6 of his cross examination he has stated that he is not aware that the demand of Rs. 20,000/- and 5 tolas gold was made and because of such harassment his daughter committed suicide. This statement made by the complainant-father would necessarily show that he is not aware that the demand of dowry alone has resulted in the death of his daughter. The answer to the suggestion being put to him is very clear. When in the complaint as well as in his examination in chief he has stated that there has been a harassment meted out to his daughter for demand of additional dowry, but however, in this part of the cross examination, he states the contrary. He answers by saying that he is not aware that the death was caused due to harassment on account of dowry. In the earlier part of the cross examination at para 5 a suggestion was made that his daughter in the matrimonial home was not speaking to anybody, she was not eating food properly, was denied by him. Therefore, the plea of the defence that the conduct of the deceased cannot be said to be relatable to the direct issue of a demand of dowry or harassment relatable to cruelty, is to discharge their burden under Section 304-B of the Indian Penal Code. The specific case of the defence would appear to be that the death was not caused due to the harassment on account of dowry, but for the reasons other than that. A suggestion which the complainant has answered even with regard to the mental state of his daughter pertaining to the performance of the marriage was denied by PW 2. It was suggested that she was not at all happy with marrying accused No. 3. Since she was forced by the parents to marry, which resulted in a situation where she was not talking to anybody or was not eating food etc in her matrimonial home. Weighed with this background is the assertion made by PW 2 and PW 3 that eight days after the marriage the accused took away her earrings. That when her brother PW 3 came and met her a month later, they took away her necklace. Taking the jewellary of the deceased cannot constitute mental harassment. Weighed with this background is the assertion made by PW 2 and PW 3 that eight days after the marriage the accused took away her earrings. That when her brother PW 3 came and met her a month later, they took away her necklace. Taking the jewellary of the deceased cannot constitute mental harassment. Therefore, the case of the prosecution that the earrings of the deceased having been taken away and the subsequent demand for dowry being made, would constitute a mental harassment to the deceased and therefore, the conviction is justified would be difficult to accept. So far as PW 2 and 3 are concerned, namely father and brother of the deceased, have in very categorical terms state that at the time of marriage a demand of dowry was made. PW 2 has stated that after the marriage his daughter complained with regard to the harassment meted out to her in order to bring additional dowry. PW 3 also narrates the same. The evidence of PW 2 and 3 corroborates one another. In spite of the cross examination, nothing worthwhile has been elicited from these two witnesses insofar as it relates to the payment of dowry prior to the marriage, the demand of dowry subsequent to the marriage and the harassment meted out to the deceased. In the background of the evidence of PW 2 and PW 3 and the suggestions put-forth by the defence, with regard to the cause of the death as to whether the harassment and cruelty meted out to the deceased would be to such an extent that would drive her to commit suicide would have to be considered. 16. The marriage took place on 11.5.2005. She died on 5.7.2005. A month after the marriage she returned back to her parental home and a week later, her father-in-law comes and takes her back to the matrimonial home. Thereafter the brother also visits the deceased in her matrimonial home. In the intervening period the harassment is said to have occurred. Hence it should have taken place in a much shorter duration than a month. The case of the prosecution is that there was constant demand for the additional dowry which resulted in cruelty and harassment to the deceased. It is not their case that any physical torture was meted out to her. Hence it should have taken place in a much shorter duration than a month. The case of the prosecution is that there was constant demand for the additional dowry which resulted in cruelty and harassment to the deceased. It is not their case that any physical torture was meted out to her. Therefore, the absence of any marks of torture in the PM report in terms of Ex.P-32 becomes insignificant. The existence or absence of any signs of torture becomes irrelevant to the case of the prosecution. Backed by the statement of PW 2 and PW 3, that the deceased was subjected to mental harassment, various suggestions were made by the defence with reference to the deceased. Suggestions were made to PW 2 that the deceased was not happy with the marriage. That the marriage was performed against her will. It is for that reason alone that she was unhappy with the marriage. She did not communicate with anybody, did not take any food etc. That even though there is evidence that an additional dowry was demanded, such a demand for dowry is not relatable to the harassment meted out to her. Even according to the prosecution case it could not be a sole reason for her to end her life. The suggestions to PW 2 would clearly discharge the accused of his burden in terms of Section 304-B of the Indian Penal Code. The evidence of PW 2 and PW 3 would also narrate that after the deceased came to her parental home, her father-in-law came there to take her back. If the case of the prosecution is to be accepted that there has been an additional demand of dowry, that she was subjected to cruelty and was told that unless dowry was satisfied she could not live with them, in that event there is no reason for the father-in-law to come to the house of the complainant to take the deceased back. The action of the accused No. 1 which is stated even by PW 2 and PW 3 will create a doubt in the case of the prosecution. If the demand for dowry was to such an extent that would compel a woman to commit suicide, in that event the question of the accused No. 1 coming and taking her back to the matrimonial home would not arise for consideration at all. If the demand for dowry was to such an extent that would compel a woman to commit suicide, in that event the question of the accused No. 1 coming and taking her back to the matrimonial home would not arise for consideration at all. Therefore, the plea of the prosecution that the cruelty and harassment pertaining to dowry was to such an extent that drove her to commit suicide cannot be accepted. Therefore, in the considered view of this Court, the requirements of Section 304-B of Indian Penal Code are not satisfied. Even if is to be held that the payment of demand of dowry has been proved and that the deceased has been harassed for bringing such dowry, there is no material evidence to show that such harassment or cruelty is the sole cause for her death. The inter linking crucial evidence between harassment and death has not been established. It is that one link which is not supported by the evidence of any of the witnesses for the prosecution. It is the requirement of Section 304-B of Indian Penal Code. This is so, especially in view of the suggestions made by the accused in the discharge of their burden under Section 304-B of Indian Penal Code with regard to the unhappiness in the marriage. There is sufficient material to show that she was depressed. She would not speak to anyone and eat food. Hence this could also be a reason. Under these circumstances, the prosecution has failed to show that the death occurred solely due to cruelty and harassment in connection with dowry. Therefore, the serious doubt in the prosecution case, that the death cannot be attributed solely and directly relatable only to dowry, resulting for such harassment. 17. There is yet another crucial aspect to this case. The mother of the deceased has not been examined. PW 2 is the father and PW 3 is the brother. On being specifically asked, the learned HCGP on verifying the records submits that there is no apparent reason as to why the mother has not been examined. That she was hale and healthy and capable of giving evidence. He very fairly submits that non examination of the mother would be a suspicious circumstances in the case of the prosecution. Whenever harassment and cruelty are meted out, it is but natural that the victim would inform her parents and close relatives. That she was hale and healthy and capable of giving evidence. He very fairly submits that non examination of the mother would be a suspicious circumstances in the case of the prosecution. Whenever harassment and cruelty are meted out, it is but natural that the victim would inform her parents and close relatives. The evidence of PW 2 and PW 3 would show that she informed about the cruelty and harassment to all the members of the family which included the mother. There is no evidence to show that she was not available or that she was incapable of giving her evidence. Under these circumstances, the evidence of the mother would have been extremely crucial to the case of the prosecution. She could have narrated the cruelty and harassment as mentioned by her daughter. Therefore the non-examination of the mother creates a substantial doubt in the case of the prosecution. Such a non examination has not been explained by the prosecution. Therefore, this crucial aspect of the matter is also required to be weighed, while testing the case of the prosecution. 18. Therefore, this Court is of the considered view that the reasoning of the learned trial Judge while convicting the accused under Section 304-B of the Indian Penal Code is unsustainable. It is perverse. The Trial Court has misread the evidence, so far as the offence punishable under Section 304-B of the Indian Penal Code is concerned. The prosecution has failed to prove its case beyond all reasonable doubt for the offence punishable under Section 304-B of the Indian Penal Code. In order to attract Section 304(B) of the Indian Penal Code, if the death of a woman is caused by any burns or bodily injury or 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 which shall be 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. Only when all these situations are proved, the provisions of Section 304(B) of the Indian Penal Code are attracted. As held herein above, the prosecution has failed to show that the cruelty or harassment was in connection with the demand for dowry. Only when all these situations are proved, the provisions of Section 304(B) of the Indian Penal Code are attracted. As held herein above, the prosecution has failed to show that the cruelty or harassment was in connection with the demand for dowry. It was an unnatural death within the seven years of her marriage. Only cruelty or harassment within seven years of marriage cannot constitute an offence punishable under Section 304(B) of the Indian Penal Code. This aspect of the matter has not been considered by the Trial Court. Merely because the death has occurred within seven years of the marriage, that there is a demand of dowry, there is harassment and therefore a conviction would lie, is improper. The nexus between harassment, dowry and the death will have to be established. Under these circumstances I' am of the considered view that the conviction of the accused under Section 304-B of the Indian Penal Code is improper. 19. The evidence and material would show, as has been detailed herein above, that there was a demand and payment of dowry just before marriage. The evidence would also show that a subsequent demand was made by the accused after the marriage. The evidence as let in by the prosecution would show that cruelty and harassment were meted out to the deceased. But there is no nexus with the death. It could also be as a result of her unhappy and forced marriage. Therefore, the prosecution has failed to establish its case under Section 304-B of the Indian Penal Code. No conviction could lie under Section 304-B of the Indian Penal Code. Under these circumstances the conviction of the accused so far as Sections 3 and 4 of the Dowry Prohibition Act and Section 498-A read with Section 34 of the Indian Penal Code would stand justified. The reasonings assigned by the Trial Court on all these offences are just and proper. Therefore, the conviction and sentence imposed on the accused is just and proper. The provisions of Section 498-A of the Indian Penal Code with regard to subjecting a woman to cruelty has been established as herein above narrated. 20. For the aforesaid reasons the following: ORDER (1) The Appeal is partly allowed. (2) The appellants are acquitted of the offence punishable under Section 304-B read with Section 34 of the Indian Penal Code. The provisions of Section 498-A of the Indian Penal Code with regard to subjecting a woman to cruelty has been established as herein above narrated. 20. For the aforesaid reasons the following: ORDER (1) The Appeal is partly allowed. (2) The appellants are acquitted of the offence punishable under Section 304-B read with Section 34 of the Indian Penal Code. (3) The conviction of the accused and the sentence imposed on them for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961 and Section 498-A read with Section 34 of the Indian Penal Code are sustained. (4) The appellants are entitled for set off. Ordered accordingly.