Sunil Sulothra vs The State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as accused No. 1) along with his parents namely accused No. 2-Jayaram and accused No. 4-Suma @ Nagamani and his younger brother namely accused No. 3-Arun were tried for offences punishable under Sections 498A, 304B IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act.

The learned Sessions acquitted accused No. 2 to 4 and convicted accused No. 1 for offences punishable under Sections 498A, 304B IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. Therefore, the appellant (accused No. 1) is before this court.

I have heard Sri. S.G. Bhagavan, learned counsel for accused and the learned State Public Prosecutor for the State.

The learned SPP would submit that judgment of acquittal of accused No. 2 to 4 for offences punishable under Sections 498A, 304B IPC and also for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act has not been challenged by the State.

The points that would arise for determination are:

1) Whether the prosecution has proved that accused No. 1 has demanded and accepted dowry of Rs. 10,000/-, one gold Bracelet, Pulsar Motorcycle, 18 items of silver articles from the parents of deceased Smitha in connection with marriage of accused No. 1 and deceased Smitha, thereby committed offences punishable under Sections 3 and 4 of the Dowry Prohibition Act?

2) Whether the prosecution has proved that after the marriage of accused No. 1 with deceased Smitha on 16.06.2003, when the deceased was living in the house of accused, accused No. 1 harassed the deceased with a view to coerce her to meet unlawful demand for property or valuable security and the conduct of accused was of such nature and was likely to drive the deceased to commit suicide, thereby accused No. 1 committed an offence punishable u/s 498A IPC?

3) Whether the prosecution has proved that deceased Smitha not being able to bear the cruelty meted to her committed suicide on 28.02.2004, soon before her death, accused No. 1 had subjected the deceased to cruelty in connection with dowry demand, thereby committed any offence punishable u/s 304B IPC?

4) Whether the learned trial judge has properly appreciated the evidence on record?

5) To what order?

Before appreciating the evidence and adverting to submissions made at the Bar, it is necessary to state certain facts, which are not in dispute.

Accused No. 1 is the son of accused No. 2 and 4; accused No. 3 is the son of accused No. 2 and 4. The deceased Smitha is the daughter of P.W. 1-Srinivasaiah; P.W. 3-Vijaya Srinivas is the wife of P.W. 1 and the mother of deceased; P.W. 4-Veerasena is the brother of P.W. 1; P.W. 5-Vinay is the elder brother of deceased; P.W. 7-Narayanaswamy is the nephew of P.W. 1; P.W. 6-Srinivas is a close relative of P.W. 1; P.W. 10-Jayashree Kulkarni is the neighbor of P.W. 1.

The marriage of first accused and deceased Smitha was performed on 16.06.2003. The betrothal was performed on 18.05.2003. After; the marriage, the deceased was living in the house of accused. During the end of January'' 2004, the deceased had been admitted to Maharaja Agrasen Hospital situated at Padmanabhanagar, Bangalore. After discharge, she was residing in the house of her parents. On 28.02.2004 at about 4.00 p.m., the deceased committed suicide by hanging in her parental house.

It is the case of prosecution that accused had demanded and accepted dowry in connection with the marriage of accused No. 1 and deceased. In order to prove this fact, the prosecution has relied on evidence of the parents and close relatives of deceased.

P.W. 1-Srinivasaiah (the father of deceased) has deposed; that marriage engagement was performed on 18.05.2003 in Srirama Temple at N.R. Colony, Bangalore. During marriage engagement, it was agreed that he shall give a sum of Rs. 50,000/- cash, one motorcycle, clothes, a gold bracelet to bridegroom. It was also agreed that they should give gold jewels to his daughter, 5 to 6 Kgs Silver articles such as Plate, Bindige and Deepada Kamba.

During marriage engagement, P.W. 1 gave a sum of Rs 10,000/-, Pulsar Motorcycle, one gold bracelet and clothes. During marriage, they gave one gold chain to the bridegroom and gold ornaments to their daughter. They also gave Silver Bindige, Deepada Kamba and silver idol of Krishna.

At this juncture, it is relevant to state that P.W. 1 has not deposed that accused No. 1 had demanded dowry from P.W. 1. The evidence of P.W. 1 does not reveal the names of persons who had demanded dowry from him. The absence. of specific evidence against accused No. 1 assumes importance in view of the fact that accused No. 2 to 4 against whom similar allegations were made, have been acquitted by the trial court.

P.W. 1 has deposed; that he had gone to bring his daughter to Deepavali festival. The fourth accused told P.W. 1 that they should give gold chain weighing 25 grams to the first accused. When P.W. 1 enquired the first accused, he told him to listen to his mother.

The evidence on record does not reveal that accused No. 1 had demanded gold chain from P.W. 1. Accused No. 4 who had allegedly demanded gold chain from P.W. 1 has been acquitted by the trial court. Therefore, evidence of P.W. 1 relating to demand and acceptance of dowry before the marriage and after the marriage cannot be accepted. The prosecution has relied on the contents of photograph marked as Ex. P4 to contend that accused had demanded and accepted dowry. As could be seen from the photograph marked as Ex. P4, the photograph was taken during marriage engagement.

P.W. 1 has deposed; that during marriage engagement, he gave a sum of Rs. 10,000/-, Pulsar Motorcycle and a, gold bracelet however, he has not deposed to whom these articles were given. It is seen from the photograph (marked as per Ex. P4) that the Archak while performing ceremonies of marriage engagement has handed over a steel plate containing the cloths and certain amount to accused No. 1. It is difficult to conceive that accused No. 1 had demanded and accepted this dowry within public vision more particularly when this event of acceptance of clothes and money was being photographed. Therefore, the case of prosecution that evidence of P.W. 1 finds corroboration from the photograph marked as per Ex. P4 cannot be accepted.

P.W. 3-Vijaya Srinivas (mother of the deceased) has deposed; that at the time of marriage negotiations, there was demand for dowry of Rs. 50,000/-, one motorcycle, gold ornaments and silver articles. The evidence of P.W. 3 is vague.

P.W. 3 has deposed; that at the time of marriage engagement i.e., on 16.05.2003, about 800 persons had gathered. The younger brother of fourth accused namely Surendranath Babu mediated the terms between parties. P.W. 3 has not stated that accused No. 1 had demanded dowry. As already stated, accused No. 2 to 4 who were charged for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act on the basis of same evidence, have been acquitted.

During cross-examination, P.W. 3 has admitted that silver articles were given as per customs prevailing in their community. She has also admitted, it is customary in their community to give gold chain, bracelet and ring to the bridegroom. P.W. 3 has not deposed that first accused had demanded and accepted dowry. P.W. 3 has deposed; that she had given gold chain to the first accused on Deepavali festival however, she has admitted that it was given as customary present, there was no demand for gold chain from the first accused.

It is the case of prosecution that accused No. 1 had demanded and accepted Pulsar motorcycle as dowry from P.W. 1. P.W. 1 has not deposed that accused had demanded Pulsar motorcycle as dowry in connection with the marriage of accused No. 1 with deceased Smitha.

The evidence on record does not disclose that P.W. 1 had given Pulsar Motorcycle to the accused. On the other hand, P.W. 3 has admitted that Pulsar Motorcycle was being used by her son P.W. 5-Vinay in the month of February'' 2004. We also see from the records that P.W. 1 had purchased the Pulsar Motorcycle on 13.05.2003 under Hire Purchase Scheme. The contents of bill marked as per Ex. P33 would reveal that, as on 11.09.2003, the motorcycle was in possession of P.W. 5-Vinay. The evidence on record does not reveal that Pulsar Motorcycle was given to the accused either at the time of marriage or after the marriage. In fact, the motorcycle was in possession of P.W. 5 on 28.02.2004 (the date on which deceased committed suicide). Therefore, the prosecution has failed to prove that accused No. 1 had demanded and accepted Pulsar Motorcycle as dowry in connection with the marriage of accused No. 1 and the deceased.

The learned trial judge without proper appreciation of evidence has held accused No. 1 guilty of offences punishable under Sections 3 and 4 of the Dowry Prohibition Act.

At this juncture, it is relevant to state that the learned trial judge has disbelieved the same evidence (evidence of P.W. 1 and P.W. 3) and acquitted accused No. 2 to 4 for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and also of an offence punishable u/s 498A IPC.

It is not in dispute that accused No. 1 had married the deceased on 16.06.2003. Thereafter, she was living in the house of accused. It is the case of prosecution that accused No. 1 was subjecting the deceased to cruelty in relation to dowry demand. P.W. 1 has not deposed that accused No. 1 was demanding his wife (deceased) to bring dowry from her parental house.

In the discussion made supra, I have held that accused No. 4 who is alleged to have demanded gold chain when P.W. 1 and 3 had been to invite their daughter to celebrate Deepavali festival, has been acquitted of an offence punishable u/s 498A IPC. Therefore, on the basis of same evidence, accused No. 1 cannot be convicted for an offence punishable u/s 498A IPC.

During cross-examination, P.W. 1 has admitted that his daughter (deceased) was suffering from Migraine and Anemia, she had been admitted to hospital and she was discharged from the hospital on 02.02.2004. P.W. 1 has admitted that in the month of January'' 2004 accused got appointment in Reliance Company at Chennai. During the last week of January'' 2004, accused had taken the deceased to Chennai and other places. The deceased was suffering from Anemia. On 29.01.2004, accused No. 1 admitted her in Maharaja Agrasen Hospital at Padmanabhanagar. Accused No. 1 had to go to Chennai to report for his appointment in Reliance company at Chennai. The deceased was discharged from the hospital and she was staying in her parental house.

P.W. 3 has admitted that deceased was suffering from Migraine even before the marriage and she was treated by Dr. Shivanand and Dr. Mrutyunjay. She has also admitted that deceased had menstrual problems. On 15.09.2003, she was treated in KIMS Hospital. P.W. 3 has admitted that after marriage reception the deceased had. fallen unconscious. There was interruption of marriage reception for a period of 15 minutes. Thereafter, the reception continued. She has also admitted that after marriage, the deceased was suffering from menstrual problems, therefore, Honeymoon of accused no. 1 and deceased was postponed.

P.W. 3 has admitted that the first accused got admitted the deceased in Maharaja Agrasen Hospital and left to Chennai. The deceased was discharged from the hospital on 02.02.2004 and she was staying in her parental house. When P.W. 3 was specifically questioned as to whether deceased and accused No. 1 were cordial, she has pleaded her ignorance. At this juncture, it is relevant to state that P.W. 3 is the mother of deceased. In the normal circumstances, she would know whether the accused and deceased were cordial. It is obvious that P.W. 3 has given an evasive answer.

P.W. 1 and P.W. 3 have also come out with a version that accused had demanded a site. The evidence on record does not disclose that accused No. 1 had demanded a site from P.W. 1. Even otherwise, accused No. 2 and 4 against whom similar allegations were made have been acquitted on appreciation of evidence of P.W. 1 and P.W. 3.

P.W. 4-Veerasena is the younger brother of P.W. 1. P.W. 4 has deposed; that the deceased was suffering from Anemia, she had been admitted to hospital. The deceased did not make any complaint against the accused. P.W. 4 has been declared as hostile witness. Even during cross-examination by the learned Public Prosecutor, P.W. 4 has denied that accused had demanded dowry from P.W. 1 and P.W. 3 and they were subjecting the deceased to cruelty. P.W. 4 is the younger brother of P.W. 1. The evidence on record does not disclose that he had any reasons to support the accused.

P.W. 5-Vinay is the elder brother of deceased. P.W. 5 has deposed; that the deceased used to contact him over the phone and complain to him that accused were ill-treating and assaulting her. P.W. 5 has deposed; that deceased was suffering from Anemia. Therefore, accuse No. 1 admitted her to the hospital and thereafter P.W. 1 and P.W. 3 (parents of the deceased) got her discharged from the hospital and she was staying in her parental house. P.W. 5 has admitted that, after the marriage, deceased was pursuing in Master Degree in Arts under Distance Education Scheme. She was attending the Evening College in United Missionary Compound at Bangalore. She was also working in a Marriage Bureau. Thus, we find that deceased was not confined to household work.

P.W. 5 has admitted that during the first week of January'' 2004, first accused had taken the deceased to Chennai and thereafter to Kanchipuram. He has admitted that in the month of December'' 2003, first accused and deceased had gone to Belgaum. P.W. 5 has admitted that he has been in possession of Pulsar Motorcycle from the month of February'' 2004.

P.W. 6-Srinivasa is the maternal cousin of P.W. 1. P.W. 6 has come out with a story that accused No. 1 was demanding a site from P.W. 1. which is not the evidence of P.W. 1. P.W. 6 has admitted that deceased was admitted to Maharaja Agrasen Hospital on 06.02.2004. She was suffering from Anemia. He has admitted that in the month of January'' 2004 first accused was employed in Reliance Company at Chennai.

P.W. 7-Narayanaswamy has deposed; that P.W. 1-Srinivasaiah is the son of his elder sister. P.W. 7 has admitted that deceased was admitted to Maharaja Agrasen Hospital. The first accused got appointment in Reliance Company at Chennai.

PW-7 has admitted that there were differences between the family members of accused and deceased after the deceased was admitted to hospital.

Thus, from the evidence of close relatives of deceased, we find that when the deceased was staying in the house of accused, she was pursuing Post Graduation under Distant Education Scheme. She was attending evening college. She was also working in a marriage bureau. The deceased was suffering from migraine. She had menstrual problems. She had developed anemia and. she was frequently hospitalized in the month of January, 2004. The accused had taken the deceased to Chennai after he had got appointment in Reliance Company at Chennai. As per the contents of Ex. D3 (the appointment order issued by Reliance Petro Marketing Private Limited), the accused was appointed as Truck Stop Manager (Junior Management Grade) on annual salary of Rs. 3,l0,000/-. He was directed to report to his duties on or before 1102.2004 at Chennai. Before that he had to complete other formalities.

Thus, it can be safely inferred, from January, 2004, accused No. 1 was busy in connection with his new appointment in Reliance Petro Marketing Pvt. Ltd., at Chennai. The deceased was staying in her parental house.

Before that she had been treated in Agrasen hospital. The deceased committed suicide on 28.02.2004 in the house of her parents. During the relevant period, accused No. 1 was staying at Chennai. The evidence on record does not disclose that accused No. 1 had subjected the deceased to cruelty in relation to dowry demand at any point of time, after the marriage, in particular, soon before the death of deceased. In the circumstances, the learned trial Judge was not justified in holding that accused No. 1 was subjecting the deceased to cruelty and he was coercing her to meet unlawful demand of dowry and accused had subjected the deceased to cruelty soon before her death.

In a decision reported in Bhagirath Vs. State of Madhya Pradesh, , the Supreme Court has held thus:--

It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis.

Thus, from whatever angle the matter may be looked at, the prosecution had miserably failed to make out a case against the appellant. When the substratum of the evidence given by the eyewitness examined by the prosecution was found to be false, the only prudent course, in the circumstances of this case, left to the court was to throw out the prosecution case in its entirety against all the accused.

In the case on hand, the trial court on appreciation of evidence, has acquitted accused Nos. 2 to 4 for offences punishable under Sections 498A, 304B IPC and also Sections 3 and 4 of D.P. Act. The trial court has failed to notice the material discrepancies in the evidence of close relatives of deceased. On careful consideration of the evidence adduced by the prosecution, I find the evidence adduced against accused No. 1, does not differ from evidence adduced against accused Nos. 2 to 4.

In the discussion made supra, I have held that prosecution has failed to prove that accused No. 1 had demanded and accepted dowry. I have held that the prosecution has failed to prove that accused No. 1 was harassing the deceased in relation to dowry demand. In the discussion made supra, I have held that the prosecution has failed to prove that accused No. 1 had subjected the deceased to cruelty in relation to dowry demand soon before her death.

In a decision reported in Sakhi Mandalani Vs. State of Bihar and Others, , the Supreme Court has held thus:--

These sections make out independent offences, but in the instant case, it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge u/s 304B was not found established, it was not possible to record conviction under Sections 3 and 4 of the Dowry Prohibition Act.

The learned trial Judge without proper appreciation of evidence in the background of facts and circumstances of the case and the events that had taken place before and after the marriage and duration of marriage, has convicted accused No. 1 for offences punishable under Sections 498A and 304B IPC. In the discussion made supra, I held that accused No. 1 was busy with his new appointment from January 2004. The deceased had been hospitalized in the last week of January and February 2004. After discharge from the hospital, she was taking rest in her parental house. During the relevant period, accused No. 1 was staying at Chennai. The deceased had committed suicide on 28.02.2004 in her parental house. In the circumstances, it is difficult to accept that accused No. 1 had subjected the deceased to dowry demand soon before her death. In view of the acquittal of accused for an offence punishable u/s 304B IPC, it is not possible to record conviction for offences punishable under Sections 3 and 4 of the D.P. Act. Therefore, I pass the following:--

ORDER

(i) The appeal is accepted.

(ii) The impugned judgment as it relates to conviction of accused No. 1 for offences punishable under Sections 498A and 304B IPC and also for offences punishable under Sections 3 and 4 of the D.P. Act is set aside.

(iii) Accused No. 1 is acquitted of offences punishable under Sections 498A and 304B IPC and also for offences punishable under Sections 3 and 4 of the D.P. Act is set aside

(iv) The bail bonds executed by accused shall stands cancelled.

(v) If accused No. 1 has deposited the fine amount, same shall be refunded to him.