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2016 DIGILAW 28 (KAR)

Muniraju v. State of Karnataka

2016-01-07

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

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JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order dated 8.11.2011 passed by the Principal Sessions Judge, Kolar in SC No. 49/2010 is the subject matter of these two Appeals. By the impugned judgment, the Trial Court acquitted the accused for the offence punishable under Section 304B of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. By the very judgment, the Trial Court has convicted the accused for the offence punishable under Section 498A and 306 of IPC. 2. The Crl. Appeal No. 1192/2011 is filed by the convicted accused challenging the order of conviction passed against him for the offences punishable under Sections 498A and 306 of IPC. The accused has sought for an order of acquittal in the said appeal. Criminal Appeal No. 293/2012 is filed by the State questioning the judgment and order passed by the Trial Court acquitting the accused for the offence punishable under Section 304B of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. Both the appeals are heard together and decided together by this common order. 3. The case of the prosecution in brief is that the deceased Janaki is the daughter of the complainant Perumalappa. The marriage between the accused and the deceased was solemnized at Kotilingeshwara Temple, Bethamangala on 20.6.2003. Prior to the marriage, the accused demanded dowry of Rs. 30,000/- apart from gold ornaments; after negotiations the accused agreed to accept dowry of Rs. 10,000/- apart from gold ornaments; the parents of the deceased paid an amount of Rs. 10,000/- towards dowry apart from certain gold ornaments to the accused; complainant being the father of the deceased incurred marriage expenses also. The female child is born in the month of July, 2006. During the interregnum, the accused started ill-treating the deceased, asking her to bring dowry from her parents; the accused never worked and never earned money; the family of the accused had to rely upon the paltry sum from doing coolie work of father of accused; since the accused was not working, the deceased started working as coolie and started earning to a limited extent; since the demands of the accused relating to additional amount of dowry remained unabated, panchayats were convened at Rayasandra and Doddakanthahalli village. Even after panchayats, the accused continued his habit of demanding additional amount of dowry and harassing the victim. Even after panchayats, the accused continued his habit of demanding additional amount of dowry and harassing the victim. The accused started demanding two wheeler from the father of the deceased. In order to save the situation, PW-7 purchased a Hero Honda motorcycle and gave it to the accused with an advice that he should look after the deceased well. However, since the accused continued to ill-treat the deceased, since the accused was not earning and working; since the accused started torturing both physically and mentally, the deceased committed suicide by hanging in the matrimonial house of Rayasandra on 14.7.2009. 4. Complaint came to be lodged by PW-7 as per Ex. P-9 before Masthi Police Station which came to be registered in Crime No. 93/2009. After investigation, charge sheet came to be filed against the accused for the offences punishable under Sections 498A, 304B of IPC and u/ss. 3, 4 and 6 of DP Act. 5. In order to prove its case, the prosecution in all examined 13 witnesses and got marked 23 documents and two MOs. On behalf of the defence, no witness is examined and no documents are marked. The defence of the accused is one of total denial. The accused also did not choose to lead any evidence on his behalf. The Trial Court on re-evaluation of the materials on record and after hearing, acquitted the accused for the offence punishable under Section 302 of IPC and Sections 3, 4 and 5 of the Dowry Prohibition Act by acquitting that the materials on record is not sufficient to convict the accused for the said offences. However, the Trial Court convicted the accused for the offence punishable under Sections 302, 306 and 498A of IPC. 6. Learned Advocates on either side argued in support of their cases. We have perused the records meticulously. 7. PWs. 1 to 5 have turned hostile to the case of the prosecution. Their evidence is of no use either to the prosecution or to the defence. PW-6 Doctor who conducted his Post Mortem examination, issued autopsy report as per Ex. P-6 and the final opinions rendered by the doctor is at Exs. P-7 and P-8. PW-7 Perumalappa is the complainant and the father of the deceased. Complaint is at Ex. P-9. PW-8 Narayanaswamy is the cousin of PW-7. He has deposed that marriage talks are held at his house. P-6 and the final opinions rendered by the doctor is at Exs. P-7 and P-8. PW-7 Perumalappa is the complainant and the father of the deceased. Complaint is at Ex. P-9. PW-8 Narayanaswamy is the cousin of PW-7. He has deposed that marriage talks are held at his house. According to him, the family of the deceased has got good social status in the society. PW-9 Ganeshkumar attended the marriage. His evidence must not be much useful to the case of the prosecution though he has deposed regarding ill-treatment given by the accused. Looking to the entire evidence, it is clear that his evidence is an hearsay witness. PW-10 Merry Shailaja is the Investigating Officer, who after completion of the investigation, has filed the charge sheet. PW-11 Sangappa Chalavadi is the Deputy Superintendent of Police. He participated during the course of investigation at an initial stage. PW-12 Narayanaswamy is the neighbour of PW-7 Perumalappa. PW-13 K. Shivashankar is the Sub-Inspector of police who received the complaint Ex. P-9 and sent FIR Ex. P-26 to the jurisdictional Magistrate. 8. In the matter on hand, there is no dispute that the deceased Janaki had committed suicide. Even otherwise, we find from the evidence of the doctor that the death of the deceased was due to asphyxia as a result of hanging. Ex. P-7 Opinion of the doctor discloses that the death is due to asphyxia as a result of hanging. The medical evidence has remained unchallenged. Therefore, it is clear that it is a case of suicidal death. 9. According to PW-7 Perumalappa, the father of the deceased, the marriage talks were held in his house. Few days prior to the date of marriage, at the time of marriage talks, the accused, complainant and his wife and other relatives apart from one Govindarama were present; at that point of time, the accused demanded a sum of Rs. 30,000/- apart from necklace, ring and ornaments to Janaki as dowry. Complainant agreed to give Rs. 10,000/- along with gold chain, ring to the accused and certain gold ornaments to Janaki. About ten days prior to the marriage, the accused received Rs. 10,000 from PW-7 in the presence of PW-8 and PW-7. He also received gold necklace, ring and two pair of clothes. Complainant agreed to give Rs. 10,000/- along with gold chain, ring to the accused and certain gold ornaments to Janaki. About ten days prior to the marriage, the accused received Rs. 10,000 from PW-7 in the presence of PW-8 and PW-7. He also received gold necklace, ring and two pair of clothes. The further case of the prosecution is that, the accused started torturing the victim since demands were not satisfied by the parents of the deceased; in order to save the situation, PW-7 gave Rs. 5,000/- to the deceased for the purpose of purchasing sewing machine. The accused continued harassment by pressurizing the victim to sell all the ornaments given to her and to him. In the month of August 2007, when PW-7 went to see Janaki, at that time, accused and deceased were living separately. The Deceased told that she is not getting anything from her husband and it is very difficult for her to lead her life and that she is doing coolie work for livelihood. She has further informed that the residential house needs to be repaired to certain extent and that the accused is ill-treating her to bring money from her parents. She has also informed about the accused being drunkard and he used to drink liquor from out of the amount earned by the deceased as a coolie. It is the further evidence of PW-7 that though a motorcycle was provided to the accused, the same was taken back from the accused since the panchayatdars decided to take back the vehicle from the accused. Inasmuch as panchayatdars felt that two wheeler also will be sold by the accused. 10. Looking to the totality of the facts and circumstances of the case, it is clear that an amount of Rs. 10,000/- is paid by PW-7, the father of the deceased to the accused apart from gold ring and a neck chain. It is not uncommon in this part of the State to provide certain amount for purchase of clothes and so also it is not uncommon for giving a gold ring, chain etc., to both bride and bridegroom by the respective in-laws. 11. The prosecution has to prove its case with regard to payment and receipt of dowry beyond all reasonable doubt. 11. The prosecution has to prove its case with regard to payment and receipt of dowry beyond all reasonable doubt. Merely because an amount is paid for purchase of dresses as per the custom and merely because certain gold ornaments are exchanged between the bridegroom and bride which is customary in nature, it cannot be said that the accused being the bridegroom has received dowry. The evidence of PW-7 states that the marriage talks were held in the house of PW-8 whereas it is the case of the prosecution that the marriage talks were held in the house of PW-7. PW-8 also admits that the marriage talks were held in his house at Masthi and at that time, the parents of the deceased and Govindaram were present on behalf of the complainant and Ramakrishna, appajappa and others were present on behalf of the accused. It is admitted by PW-7 that he had totally five children including the deceased. Out of five children, four are daughters and one son. Deceased was the eldest child to PW-7. He was getting a meager income from his Masonary work and it is very difficult to maintain his family. Therefore, the marriage of the deceased with accused was performed in a temple and not in a choultry or in any other place. PW-8 has admitted that PW-7 is poor. In this context, the Trial Court in its discussion, at paragraph 18 concluded that the accused was not in a position to pay a sum of Rs. 10,000/- as dowry apart from gold ornaments. It is not the case of the prosecution that any of the family members of PW-7 was working. PW-7 has admitted in the cross examination that he was getting a meager income from his work and he is finding very difficult to maintain family. More over, the amount and gold ornaments were demanded by the father of the accused. Father of the accused has not been implicated as accused in this case. PW-12 Narayanaswamy in his examination in chief itself has deposed that at the time of marriage talks, the accused was not present. The father of the accused and 3 or 4 persons had come on their own by bus and that he does not know their names. Thus, it is clear that the accused was not at all present at the time of marriage talks. The father of the accused and 3 or 4 persons had come on their own by bus and that he does not know their names. Thus, it is clear that the accused was not at all present at the time of marriage talks. It is specifically deposed by PW-2 that the father of the accused demanded dowry and not the accused. All these facts would clearly reveal that PW-7 was not in a financially good position to pay dowry as put forth by the prosecution. More over, exchange of certain gold ornaments and dresses in between bride's family and bridegroom's family as per the custom, does not amount to payment or receipt of dowry. The material on record was also not sufficient to conclude that it was the accused who demanded and accepted dowry. In view of the same, the Trial Court is right and justified in holding that the prosecution has not proved its case with regard to the demand and payment of dowry. So also, the prosecution has failed to prove that the deceased committed suicide because of the dowry demand. However, ample material is found to show that the accused used to harass the victim on regular basis on one pretext or the other including for getting amounts from the parents of the deceased for one pretext or the other. The evidence of PWs. 7, 8 and 9 if read homogeneously and jointly, it is clear that they are consistently and cogently deposed that the accused was not doing any work; he was totally depending on his wife for livelihood and he was addicted to drinking liquor. He used to beat and ill-treat the victim on one pretext or the other. Even the panchayats were convened and the elders in the panchayat advised the accused properly. Despite the same, the accused did not mend his conduct, but continued his illegal activities as mentioned supra. Since the accused was not doing any work and as he was totally dependent upon the meager amount earned by the deceased by way of coolie work, as the accused cultivated the habit of consuming liquor on daily basis and as he would harass the victim both physically and mentally, the accused must have become intolerant and must have become depressed. The conduct of the accused was of such nature as was likely to drive the deceased to commit suicide. The conduct of the accused was of such nature as was likely to drive the deceased to commit suicide. Looking to the evidence of PWs. 7 to 9, it is clear that there is sufficient evidence on record to conclude that the accused has not committed the offences punishable u/ss. 3, 4 and 6 of Dowry Prohibition Act and 304-B of IPC. Even on re-appreciating the material on record, we do not find any ground to interfere with the judgment and order passed by the Trial Court. In our considered opinion, the Trial Court is justified in acquitting the accused for the offences punishable under Section 304-B of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act. So also, the conclusion reached by the Trial Court that the accused is liable to be punished for the offence punishable under Section 498A and 306 of IPC is just and proper. Since the State has not preferred any appeal praying for enhancement of sentence in respect of the offences punishable u/s. 498A and 306 of IPC, the sentence imposed on the accused by the Trial Court is not interfered. The view taken by the Trial Court while acquitting the accused for the offence punishable under Section 304B of IPC is one of the possible views under the facts and circumstances of the. Hence, no interference is called for. Appeals fail and accordingly, the same stand dismissed.