Prakash vs State of Karnataka

The appellant has challenged his conviction and sentence for the offence punishable under Sections 498-A and 304-8 IPC and under Sections 3 and 4 of the Dowry Prohibition Act [hereinafter referred to as "the Act" for short] on a trial held by the Fast Track Court, Tumkur.

Sans unnecessary details, the prosecution version, unfolded during the trial is as under:

P.W.1-Shivanandappa and P.W. 2-Nagarathnamma are the parents of Roopa [deceased], who was the wife of the appellant herein [accused No.1] before the trial Court. The marriage of Roopa [deceased] with the 1st accused was performed on 24.05.2000. After the marriage, she went to the residence of the accused and lead happy married life for 3 months. Initially, they were staying at Tumkur and later they shifted to Kalluboranahalli, the native place of the 1st accused. The prosecution claims that accused Nos.1 and 2 are the brothers and accused No.3 is the wife of accused No.2. There was illicit relationship between accused Nos.1 and 3. This was made known to Roopa [deceased] i.e., the wife of accused No.1. Because of this illicit relationship, Roopa [deceased] subjected to cruelty and harassment at the hands of accused No. 1. He used to abuse and assault her At the time of the marriage negotiations, there was demand for dowry and the marriage negotiations took place in the presence of accused Nos.1 and 2 and their father. Apart from cash, a motorcycle and other golden jewellery were demanded and said to have been given by P.Ws.1 and 2 to accused No.1. Because of the illicit relationship of accused No.1 with accused No. 3, Roopa [deceased] was subjected to mental cruelty and in addition was harassed by accused No.1 i.e., her husband and in such circumstances, it is on 06.03.2001 that she consumed pesticide and died due to the same.

A complaint of this incident was given by P.W.1 on 07.03.2001 at about 6.30 p.m. and it came to be registered in Crime No.11/2001 for the offence punishable under Sections 498-A, 304-B, 306 r/w. 34 IPC and under Sections 3 and 4 of the Act. During the investigation, the pesticide bottle-M.O.1 was seized under mahazar-Ex.P5 in the presence of P.W.12, inquest-Ex.P4 was held on the body of Roopa [deceased] in the presence of P.Ws.8 and 9, the dead body was entrusted for post-mortem examination, viscera taken was sent for the opinion of the forensic experts, who confirmed that the death of Roopa was due to consumption of pesticide. The Investigating Officer recorded the statement of the witnesses and after collecting the relevant documents, filed charge-sheet against accused Nos. 1 to 3 for the aforesaid offence.

During the trial, the prosecution examined P.Ws.1 to 18, got marked the documents Exs.P1 to 18 and M.Os.1 and 1(a). The statements of the accused were recorded u/s 313 Cr.P.C. They took the defence of total denial and no defence evidence was led. The trial Court after hearing the parties and on appreciation of the material on record, convicted accused No.1 for the aforesaid offences and acquitted accused Nos.2 and 3 and ordered sentence of imprisonment and fine for each of the offences, for which accused No.1 was convicted. Aggrieved by the conviction and sentence, the present appeal has been filed.

I have heard the learned counsel for the appellant and also the learned Government Pleader.

The point that arises for my consideration is;

Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offence punishable under Sections 498-A and 304-B IPC and under Sections 3 and 4 of the Act?

It is the submission of the learned counsel for the appellant that P.Ws.5 to 7 are the independent witnesses and they have turned hostile to the prosecution. Except interested version of P.Ws.1 to 4, there is no material on record to prove the cruelty, harassment, demand of dowry, etc., and therefore he submits that the conviction ordered by the trial court, is illegal and erroneous. It is also his submission that Roopa [deceased] was not willing to stay with her husband and was not ready to prepare food in the house as she has not liked her husband. Therefore, accused No.1 had no option but to go to his native place as there were no person/s at Tumkur to cook food for him. Therefore, it is his contention that Roopa [deceased] was not adjusted, with the village environment and being a sensitive lady might have committed suicide and her husband is not responsible for her death.

Per contra, the learned Government Pleader submits that accused No.1 had illicit relationship with accused No. 3 i.e., his brother''s wife and this was known to Roopa [deceased] and thereby she was subjected to mental cruelty in addition to harassment by her husband. So, also it is his contention that the witnesses P.Ws.1, 2, 4 and 11 have stated about the demand of dowry by the accused and therefore, he claims that the trial Court was justified in awarding conviction and sentence for the aforesaid charges.

P.Ws.5 and 6 are neighbours. They have not supported the case of the prosecution. P.Ws.1 to 4 are the parents, aunts of Roopa the deceased and the prosecution entirely depends upon the evidence of these witnesses. P.Ws.7, 10 and 11 took participation in the negotiation and P.W.7 has turned hostile to the prosecution whereas the remaining witnesses have partly supported the prosecution.

To consider the question whether there was demand of dowry, it is relevant to note that P.Ws.1 and 4 state in their evidence that it is accused No.1 who made demand for cash, motorcycle and jewellary during the negotiation and as could be seen from the evidence of P.W-2 mother of the deceased, she states that the accused made a demand for dowry including A-2 their father. So, there is no consistency in the evidence of the prosecution witnesses as to who actually made a demand for dowry during negotiation. Apart from this, PW 11 states in his evidence that it is the accused who made demand of dowry. P.Ws.1 and 4 at one stretch state that it is all the accused who made such a demand. So when there are divergent versions in the evidence of the prosecution, a doubt arises as to the genuiness of the case of the prosecution. This doubt has to go to the benefit of accused. Even as could be seen from the allegations in the complaint at Ex.P-1, it is stated chat the persons on the side of the bride made a demand for Rs.35,000/- cash, motor cycle and golden jewellary. So when Accused No. 2 has been acquitted of the charge despite the fact that one version of the prosecution includes accused No.2 as well as the persons who made demand, I think it is not proper to award conviction to A-1 on the basis of another version of the prosecution which comes from the mouth of P.Ws. 1 and 4. Therefore, I am of the opinion that the appellant is entitled for an order of acquittal so far as the offence under Secs. 3 and 4 of the D.P.Act.

Though it is in the evidence that Roopa the deceased was not cooKing food while she was at Tumkur with accused No.1 and because of which reason they shifted to Kalluboranahalli village. This cannot be a cause for Roopa the deceased to commit suicide. Though she was not adjusted with the village environment, none of the witnesses state that she committed suicide as she was made to stay in the village.

It is in the evidence of P.Ws.1 to 4 that accused No.1 had developed illicit relationship with his brother''s wife accused No.3. PWs.1 to 4 state in their evidence that this fact was told to them by Poopa the deceased whenever she used to meet them. Though the learned counsel contended that the evidence of these interested witnesses cannot be accepted, it is relevant to note that so far as the illicit relationship with a member of the family, practically it is impossible to expect independent witnesses at the most it is a member. of the family who may have the knowledge as to what happened in the house. Accused No.2 may even had no knowledge as he used to go for work. So it is only accused No.1, the deceased Roopa and accused No. 3 who must be aware of this illicit relationship. we cannot expect admission from accused No.1 or accused No. 3, and left with the deceased, there were no persons to know about this illicit relationship. In the circumstances, the statements of the deceased made to her parents and aunts have to be accepted. In fact, Roopa the deceased had no grudge against her husband to falsely implicate him as the person having illicit relationship with accused No.3. So when accused No.1 the husband of Roopa had illicit relationship with accused No. 3, naturally he loses love and affection for the wife. P.Ws, 1 to 4 also state that due to this illicit relationship, accused No.1 was subjecting the deceased to cruelty and harassment. I do not think that there is anything to disbelieve this version of the prosecution brought on record from the evidence of P. Ws. 1 to 4. The mental suffering that Roopa had and the harassment she was subjected at the hands of the accused No.1, in my opinion falls within the purview of Sec. 498A IPC.

So far as the demand of additional dowry is concerned, there is nothing in the complaint Ex.P-l filed by P.W-1. A casual reference has been made in the evidence of P.Ws.1 to 4 that some amount was demanded by accused No. 1 but the evidence is unreliable as the statement made therein is vague and general. Therefore, the provisions of Sec. 304B are not attracted.

It is relevant to note that the material placed on record reveals illicit relationship of accused No.1 with his brother''s wife (accused No.3) though it is immoral. Both A-l and A-3 must have been attracted against each other and this cannot be said to be the wilful conduct of A-l causing mental cruelty likely to drive the deceased to commit suicide. In my considered opinion, this conduct and the harassment that was meted out by Roopa the deceased was not sufficient to instigate the deceased to commit suicide. Hence, the material placed on record is insufficient to include even the offence under Sec. 306 IPC thereby the appellant will have to be acquitted of the charge except for the offence under Sec. 498A IPC.

In that view of the matter, I answer the point partly in the affirmative and partly in the negative and proceed to pass the following:

ORDER

The appeal is allowed in part. The conviction and sentence ordered against the appellant for the charge under Secs. 3, 4 of the D.P.Act and Sec. 304B IPC are set aside. The appellant is acquitted of the said charges. His conviction for the offence under Sec. 498A IPC is confirmed. He is ordered to undergo rigorous imprisonment for one year and six months and to pay a fine of Rs.5000/- in default to undergo simple imprisonment for three months. The fine amount, if any deposited in respect of the charge acquitted, shall be refunded to the appellant. His bail bonds are cancelled.

The Trial Court is directed to secure the presence of the appellant (accused No.1) to undergo sentence.