Chandrashekhara Sreeshylappa Kinagi vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order dated 15th December, 2007 passed by Additional Sessions Court, Bangalore City in S.C. No. 860/2005 is the subject-matter of these appeals. By the said judgment and order, accused No. 2 Sreeshylappa is acquitted and accused No. 1 Chandrashekhara, S/o. Sreeshylappa is convicted for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act and 498-A of IPC and Section 304-B of IPC.

Crl.A. No. 206/2008 is filed by the convicted accused No. 1. Crl.A. No. 595/2008 is filed by the State questioning the order of acquittal acquitting accused No. 2.

The case of the prosecution in brief is that accused No. 1 married deceased Kusuma on 12.10.2003 at Bangalore; PW-12 is the father of the deceased; accused No. 2 is the father of accused No. 1; both the accused demanded a sum of Rs. 50,000/- apart from a motor cycle, a site and gold ornaments as dowry from the father of the bride; all the demands made by the accused were met by PW-12 -father of the deceased; at the time of betrothal ceremony, gold ornaments as well as Rs. 50,000/- cash were paid to accused No. 1 by PW-12; the motor cycle was booked in the name of deceased Kusuma and the same was also provided to accused No. 1; accused No. 1 and deceased lived happily for about 3 to 4 months; thereafter accused No. 1 started demanding additional amount of dowry from PW-12; he used to pressurize the deceased to bring 1.00 lakh of rupees from her father so as to have a bigger house on mortgage. On the date of incident i.e., on 25.6.2005, accused No. 1 came along with deceased to the house of PW-12 and asked for 1.00 lakh of rupees for taking a bigger house; but the said demand was not met by PW-12, on the ground that he did not have money; PW-12 pacified accused No. 1 and the deceased that he would arrange for money in due course; however at about 8.00 p.m. on 25.6.2005, the deceased committed suicide by hanging herself to the ceiling fan in the matrimonial house; immediately thereafter, the message was sent by accused No. 1 to PW-12 and others; PW-12 and his relatives rushed to the spot; immediately the victim was moved to Maruthi Nursing Home; however the Doctors at Maruthi Nursing Home advised accused No. 1 and others to take the victim to higher medical centre; by the time the victim was taken to KIMS hospital, Bangalore, she had breathed her last.

The first information was lodged by PW-12 at Ex-P11 at 9.00 p.m. on 26.6.2005 before Chandralayout police station; PW-5 the Inspector of police attached to Chandralayout police station registered Crime No. 133/2005 and sent First information report to the jurisdictional Magistrate as per Ex-P23. Ultimately, PW-16-Police Officer completed the investigation and laid the charge-sheet.

In order to prove its case, the prosecution in all examined 17 witnesses and got marked 24 exhibits and six material objects. On behalf of the defence, one exhibit was got marked in the statement of PW-10. The Trial Court, as aforementioned, acquitted accused No. 2 and convicted accused No. 1 for the offences with which he was charged.

Sri. B.T. Venkatesh, learned Addl. SPP and Sri. K.A. Chandrashekara, learned counsel for the defence argued in support of their respective cases. Both of them have taken us through the entire material on record and the judgment of the Court below. We have re-appreciated the entire material on record.

PW-1 is the witness for scene of panchnama Ex-P1. PW-2 was suppose to depose about the marriage talks. He has turned hostile. PW-3 is the landlord of the matrimonial house, wherein accused No. 1 and deceased resided. He has turned hostile. PW-5 is the elder sister of the deceased. PW-6 is the matrimonial uncle of the deceased. PW-7 is the brother of the deceased. PW-8 is the father-in-law of PW-7. PWs-4 to 8 have deposed about the marriage talks, demand of dowry and payment of dowry as well as subsequent demand by accused No. 1 of Rs. 1.00 lakh for getting a bigger house. PW-9 is the President of Basaveshwara Co-operative Society. He has deposed that accused No. 1 and deceased together availed loan of Rs. 40,000/- + Rs. 45,000/- totaling to Rs. 85,000/- on 17.4.2004; the amounts were repaid by accused to certain extent. PW- 10 is the Doctor at Maruthi Nursing Home. He gave first aid and referred the victim for higher treatment. PW-11 is the head-constable, who participated during the course of investigation. PW-12 is the father of the deceased. He has lodged the first information as per Ex-P11 before the Inspector PW-15, who inturn registered the crime. He has deposed about the marriage talks, demand of dowry and payment of dowry and subsequent demand also by accused No. 1. PW-13 is the pancha for inquest panchanama Ex-P21. PW-14 is the Doctor, who conducted the post-mortem examination and the postmortem report at Ex-P22. PW-15 is the Inspector of Police, who registered the case in Cr. No. 133/2005. He investigated the case in part. PW-16 completed the investigation and laid the charge-sheet. PW-17 is the Taluka Executive Magistrate. He held the inquest proceedings as per Ex-P 21.

Thus important witnesses are PWs-4, 5, 6, 7, 8 and 12. Out of them, PW-12 is the father of the deceased and he was having knowledge of the day-to-day affairs. PW-7 though is the brother of the deceased was residing at Mettur in Tamil Nadu State. PW-4 is the elder sister of the deceased. She is married and she is living in her matrimonial house along with her husband.

Thus important witness who was having knowledge of the day-to-day affairs is PW-12.

We have studied through the entire evidence, more particularly of PW-12 and PWs-4 to 8.

The first information Ex-P11, as aforementioned, is given at 9.00 a.m. on 26.6.2005, i.e., on the next date of the death of the deceased. It is admitted by PW-4 elder sister of the deceased that she and PW-12 apart from other relatives rushed to the spot immediately after hearing the news at about 8.00 p.m. She admitted in her evidence that accused No. 1 was present along with them in the house of PW-12 throughout night till lodging of the first information with the police by PW-12. The records also reveal that the dead-body was found hanging to the ceiling fan and the same was un-tied and was laid on the bed in the bedroom. Immediately thereafter, the victim was taken to Maruthi Nursing Home and thereafter to KIMS hospital, wherein, she was declared dead. The prosecution witnesses, more particularly, the family members were present when the victim was taken to the hospital. After being declared dead by KIMS hospital authorities, the dead-body was taken to the house of PW-12 and was kept there till morning i.e., next day. Throughout night, accused No. 1 was present in the house itself along with all family members of the deceased in the house of PW-12. Neither PW-12 nor anybody who lodged the complaint made allegations against accused No. 1 till 9.00 a.m. on the next date.

Though the first information was lodged after about 12 hours of the incident, it merely makes specific allegation of demand of dowry by the accused and payment of dowry by PW-12. It is specified in the complaint that during the marriage talks, the family members of the bridegroom asked for a suiting, clothing and Rs. 50,000/-. It is also mentioned that the entire demand was met by PW-12. It is further mentioned in the first information mat accused No. 1 used to torture the victim both physically and mentally and the accused''s need used to be satisfied by PW-12 by paying certain sums of money whenever demanded. On the date of the incident i.e., on 25.6.2005 also, accused No. 1 and deceased came to the house of PW-12 at 4.00 p.m. and asked for some amount for getting a bigger house. However, such demand was not met by PW-12. Accused No. 1 and the deceased were present in the house of PW-12 up to 7.00 p.m. from 4.00 p.m. and thereafter they went back to the matrimonial house. The incident has occurred at 8.00 p.m. in the matrimonial house, which means, incident took place within one hour after they left the house of PW-12.

The post-mortem report Ex-P22 and the evidence of the Doctor PW-14 who conducted the post-mortem examination makes it amply clear that the deceased was not pregnant; the death was due to asphyxia as a result of hanging. There were no injury over the body; Thyroid cartilage and Thyroid bone were intact.

From the aforementioned, it is clear that the death of the deceased was due to hanging and mere were no external injuries over the dead-body, which means, the deceased was not subjected to assault as stated in the complaint and as deposed by PW-12 in his evidence. PW-4 elder sister of the deceased has gone one step ahead to depose that as the deceased was two months pregnant, in order to terminate the pregnancy, she was killed by accused No. 1. Such theory as put forth by me prosecution falls to the ground because of the medical records. The medical records make it clear mat the deceased neither had any external injury nor she was pregnant. Moreover, the records further clarify that the room in which the deceased committed suicide was bolted from inside. Thus, nobody could have been inside the room or could have entered the room. Therefore, it is a clear case of suicide. Consequently, the Trial Court has rightly not framed charge for the offence punishable under Section 302 of IPC, but has framed charge for the offence punishable under Section 304-B of IPC.

Before the Court, PW-12 has not specifically deposed that the victim was being harassed on one or the other reason by accused No. 1. However, his evidence merely makes it clear that accused No. 1 was demanding Rs. 1.00 lakh from him for having a bigger house to live. Except the said allegation of demand of Rs. 1.00 lakh for having a bigger house, no other major allegation is found from the evidence of PW-12 as against accused No. 1. Even in his cross-examination, PW-12 has reiterated on the date of the incident i.e., one hour prior to the death of the deceased, deceased and accused No. 1 had requested him to pay Rs. 1.00 lakh, but said demand was not met by PW-12. Even assuming that deceased and accused No. 1 had requested PW-12 an elderly person to provide them with Rs. 1.00 lakh, the same cannot be treated as demand of dowry by accused No. 1. It is not uncommon in our society for a son-in-law to pray for certain financial help from his inlaws in case of need. The evidence of PW-9-President of a Co-operative Society further makes is clear that deceased and accused No. 1 had obtained a loan of Rs. 85,000/- and with the help of that money of Rs. 85,000/-, they had already got a house in their favour by way of mortgage. Since they had already got a house on mortgage having one bedroom, a hall, kitchen and toilet etc., there could not have arisen a need for accused No. 1 or deceased for a bigger house. As aforementioned, even assuming that the deceased and accused No. 1 together had asked for one more Rs. 1.00 lakh from PW-12, the same cannot be connected or linked as a demand of dowry by accused No. 1. Admittedly, it is the case of the prosecution that deceased also came along with accused No. 1 asking for money. PW-12 further admits in his cross-examination that when deceased and accused No. 1 had come to his house on the date of the incident i.e., one hour prior to the incident in question, he had talked to them lovingly and pacified them; he had cut jokes and the couple left the house happily. These factors clearly reveal that there was no demand of additional dowry by accused No. 1 or by anybody on his behalf. The demand, if any, made by accused No. 1 cannot be equated to as additional demand of dowry. On the other hand, it may be considered (even assuming the case of the prosecution as true) as request for payment of money because of need to have a bigger house.

However, there is ample material to show that accused No. 1 had demanded Rs. 50,000/-at the time of marriage. He had also demanded a motor cycle in his favour. The material on record, more particularly, the photographs-Ex-P12 which is not disputed by the defence clearly goes to show that about four to five bundles of currency notes were handed over by PW-12 in favour of the uncle of accused No. 1. It is properly explained by the prosecution as to why the bundle of notes were handed over to the uncle of accused No. 1 and not to the father of accused No. 1. Since the father of the accused No. 1 was widower during the relevant time, he could not have participated actively in marriage talks as per their custom. Ex-P17 is the passbook of PW-12, wherein it shows Rs. 50,000/- was drawn during the relevant period and same were handed over to accused No. 1 through his uncle. Since accused No. 2 was a widower, he could not have received the amount from PW-12 as per the custom and hence the amount was handed over to aunt and uncle of accused No. 1, who performed the marriage of accused No. 1 with the deceased standing in the place of parents of accused No. 1. The Trial Court, in our considered opinion, on evaluation of the material on record has correctly concluded that the prosecution has proved its case under Sections 3 and 4 of Dowry Prohibition Act. Even on re-appreciation of the material on record, this Court does not find any ground to interfere with the said finding of fact arrived at by the Trial Court, more particularly when conclusion reached is based on the records.

However, as aforementioned, the Trial Court is not justified in convicting accused No. 1 for the offences either under Section 498-A or 304-B of IPC. Firstly, there is no adequate material to show that accused No. 1 had demanded for Rs. 1.00 lakh from the father of the deceased; secondly even assuming that accused No. 1 and deceased had made request for payment of Rs. 1.00 lakh in their favour for getting a bigger house, such demand or prayer cannot be equated for demand of dowry by accused No. 1. It is not uncommon in our society for a daughter to request her father for money in case of need. So also, accused No. 1 being son-in-law might have asked for financial help for getting a bigger house. Therefore, the same cannot be treated as demand for dowry. In view of the same, in our considered opinion, the Trial Court is not justified in convicting accused No. 1 for the offences punishable under Sections 498-A of IPC and 304-B of IPC. We hasten to add that the Trial Court is justified in convicting accused No. 1 for the offences punishable under Section 3 and 4 of Dowry Prohibition Act.

We do not find any ground to reverse the conclusion reached by the Trial Court relating to acquittal of accused No. 2. Accused No. 2 all through was residing at Gokak i.e., his native place which is about 500 kilometers from Bangalore. Accused No. 1 was living at Bangalore since he had a job at Bangalore. The material on record shows that accused No. 1 demanded dowry and he has received an amount of Rs. 50,000/- and motor cycle from PW-12. Though the motor cycle was booked in the name of the deceased, obviously it is meant for accused No. 1 only. Therefore, since accused No. 1 is the beneficiary of dowry, he is rightly punished and not accused No. 2. Even photograph Ex-P12 reveals that the amount was not paid in the hands of accused No. 2. Therefore, in our considered opinion, the Trial Court is justified in acquitting accused No. 2.

Heard learned counsel on the point of sentence.

It is brought to the notice of the Court by Sri. K.A. Chandrashekara, learned counsel for the defence that accused No. 1 has lost his job because of his incarceration. He has already suffered for about three years in the prison; his sister is a widow and is living with him; his age-old father is also dependent on him and hence leniency may be shown. Accepting the said cause assigned by the counsel for the defence, the following order is made:--

"a. Crl.A. No. 595/2008 filed by the State stands dismissed. The judgment and order of acquittal dated: 15.12.2007 passed in S.C. No. 860/2005 by Addl. Sessions Court, Bangalore acquitting accused No. 2 stands confirmed.

b. Crl.A. No. 206/2008 filed by accused No. 1 is allowed-in-part. He is acquitted of the offences punishable under Section 498A and 304-B of IPC. However, the judgment and order of conviction convicting him for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act stands confirmed.

c. Accused No. 1 is sentenced to undergo imprisonment for a period of 2 1/2 years and to pay fine of Rs. 30,000/- for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act."

The period already undergone by accused No. 1 shall be given set off. Since accused No. 1 has already undergone more than two years, 11 months of imprisonment, he need not be taken into custody once again. In case of default of payment of fine, accused No. 1 shall undergo further imprisonment for one year for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. If the fine is recovered from accused No. 1, the entire amount of fine shall be disbursed in favour of PW-12-Sri. R. Shettappa as compensation.