Acquited in 304B and 498A – Vague allegations, Marriage expenses, Cutomary gifts are not dowry.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 23 DAY OF JUNE, 2014

PRESENT

THE HON’BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR AND THE HON’BLE MR.JUSTICE C.R.KUMARASWAMY

CRIMINAL APPEAL NO.698/2010

BETWEEN :
The State of Karnataka
By Yelahanka Police Bangalore ..Appellant
(By Sri B. Visweshwaraiah, Adv.,)

AND :

1. Narendra Babu
Aged 28 years
S/o R.Venkataramana
R/o No.27,Fort Road, Yelahanka,Bangalore.

2. Smt. Shanthamma
Aged 55 years
W/o R. Venkataramana
R/o No.27,Fort Road, Yelahanka,Bangalore.

3. R. Subramani
Aged 26 years
S/o R.Venkataramana
R/o No.27,Fort Road, Yelahanka,Bangalore.

4. R.Venkataramana
Aged 58 years
S/o R.Venkataswamy
R/o No.27,Fort Road, Yelahanka,Bangalore…Respondents

(By Sri Hashmath Pasha, Adv.,)

This Appeal is filed under Section 378(1) (3) Cr.P.C
by the State Public Prosecutor for the state praying to grant
leave to file an appeal against the Judgment of acquittal
dated 30.01.2010 passed by the P.O. FTC-IX, Bangalore in
S.C.No.504/2003 acquitting the respondents/accused for
the offence punishable under section 498-A and 304-B of
Indian Penal Code and Section 3 and 4 of Dowry Prohibition
Act.

This Appeal coming on for final hearing, this day,MOHAN .M. SHANTANAGOUDAR, J., delivered the following:-

JUDGMENT

The judgment and order of acquittal passed by the Fast Track Court in SC.No.504/2003 is called in question in this appeal by the State. The accused- respondents were tried for the offences punishable under Section 498A, 304B r/w. Section 34 of IPC.

2. The case of the prosecution, in brief, is that deceased Saritha is the daughter of PW.7 born through Smt.Kumari; PW.7 has two wives, namely Smt.Padmavathi (PW.3) and Smt.Kumari; Padmavathi as well as Smt.Kumari got children out of their wedlock with PW.7; accused No.1 is the husband of the deceased; accused No.2 is the mother of accused No.1; accused No.3 is the brother of accused No.1; accused No.4 is the father of accused No.1; marriage of the deceased and accused No.1 was performed on 25.11.2001 as per Hindu Rites and Customs; accused No.1 and deceased lived happily in the matrimonial house for 3 to 4 months; thereafter all the accused started harassing the deceased by forcing her to bring additional amount of dowry; at the time of marriage, accused were provided with an amount of Rs.4 lakhs as dowry apart from 200 grams of gold ornaments; since deceased could not tolerate the torture of the accused, she came to her parents’ house and committed suicide during mid night intervening between 5.5.2003 and 6.5.2003. Complaint came to be lodged by PW.7- father of the deceased before Yelahanka Police Station at 10.30 a.m. on 6.5.2003 as per Ex.P10. The complaint came to be registered by the SHO of Yelahanka Police Station (PW.13) in Crime No.160/2003 for the offences punishable under Section 498A and 304B of IPC and Sections 3 and 4 of Dowry Prohibition Act. The police after investigation laid the charge sheet.

3. In order to prove its case, the prosecution in all examined 18 witnesses and got marked 20 Exhibits and 23 Material Objects. On behalf of the defence, 5 witnesses were examined and 6 Exhibits were got marked. The Trial Court on evaluation of the material on record and on hearing, acquitted all the accused by giving benefit of doubt in their favour.

4. Learned Government Pleader appearing for the State taking us through the material on record including the judgment of the Trial Court, contended that the Trial Court has not appreciated the evidence on record and it has merely proceeded on assumptions. The consistent evidence of PWs.1, 2, 3, 4, 7, 9 would amply go to show that all the accused demanded and accepted the dowry of Rs.4 lakhs apart from gold ornaments prior to the marriage; being not satisfied with such amount of dowry already paid, the accused started harassing the deceased by pressurizing her to bring additional amount of dowry; even on the date of the incident at about 10.30 p.m. or 11.00 p.m. the accused tortured the deceased by assaulting her; accused left the deceased in front of the house of PW.7 after assaulting her at about 11.00 p.m.; the deceased thereafter went inside her father’s house and slept. In the morning it was found that she committed suicide by hanging. Thus, according to the learned Government Pleader, prosecution has proved its case beyond reasonable doubt regarding demand and acceptance of dowry, so also harassment by the accused after the marriage by demanding additional amount of dowry. He further submits that presumption is in favour of the prosecution inasmuch as the death has taken place within seven years of marriage.

Per contra, Sri Hasmath Pasha, learned advocate appearing for the accused-respondents argued in support of the judgment of the Court below by contending that the Trial Court is justified in acquitting all the accused, inasmuch as the material on record bristles with contradictions, improvements and omissions; the prosecution witnesses have tried toimprove their case from time to time; no amount was paid in the hands of the accused by PW.7 or his family members relating to the marriage; PW.7-the father of the deceased wanted to perform marriage by spending his money; since he was not in a position to perform marriage ceremony inasmuch as he was not supported by his other family members, he requested PWs.1, 2 and DW.2 to perform the marriage at his expenses. Accordingly, the money was paid by PW.7 in the hands of PWs.1, 2 and DW.2 to be spent for marriage expenses; the gold ornaments given by PW.7 to accused No.1 as well as the deceased were customary in nature. On these among other grounds, he prays for dismissal of the appeal.

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5. PW.1 is the relative of the complainant and accused. He knows the complainant as well as the accused very well. He has deposed about demand and payment of dowry before the marriage; PW.2 is another relative of accused and deceased and he also deposed on par with PW.1 relating to demand and payment of dowry. He went to the Police Station along with PW.7 at the time of lodging complaint; PW.3 is the step mother of the deceased. She also deposed about demand and payment of dowry at the time of marriage and regarding demand of additional dowry after the marriage; PW.4 is the brother of the deceased. His version is also on par with the evidence of PW.3; PW.5 is the Taluka Executive Magistrate, who conducted inquest panchanama at Ex.P9. During inquest, statements of certain persons were recorded; PW.6 is the witness for inquest panchanama; PW.7 is the father of the deceased who lodged the complaint at Ex.P10. His evidence is on par with the evidence of his wife-PW.3; PW.8 is the witness for seizure mahazar (Ex.P11) under which clothes of the deceased were seized; PW.9 is the sister of the deceased. She has also deposed about the demand and payment of dowry prior to the marriage as also demand of additional dowry after the marriage; PW.10 has deposed about the marriage between accused No.1 and the deceased which was held on 25.11.2001 and he has also deposed about demand of dowry; PW.11 has deposed that the accused have returned MO.Nos.7 to 23 the gold ornaments of the deceased under mahazar at Ex.P12 before the Police Station; PW.12 is another panch witness for mahazar at Ex.P12; PW.13 is the SHO of Yelahanka Police Station, who received the complaint lodged by PW.7 as per Ex.P10 and registered the complaint in Crime No.160/2003. He conducted part of the investigation; PWs.14, 15 and 16 are the Police Constables who participated in the investigation either by carrying first information report to the jurisdictional Magistrate or by apprehending the accused or by transporting the dead body for postmortem examination, etc; PW.14 is the doctor who conducted the postmortem examination over the dead body of the deceased. Postmortem report is at Ex.P17. He is of the opinion that death is due to asphyxia as a result of hanging; PW.18 is the Investigating Officer who completed the investigation and laid the charge sheet.

6. DWs.1 to 5 are all relatives of the accused as well as the deceased. They reside near the house of the accused. DW.1 is the neighbour of the accused. She is the elder sister of the complainant. DW.3 is another neighbour of accused and his house is situated behind the house of the accused. As aforementioned, DWs.1 to 5 are all relatives of both accused and the deceased. DW.2-Sarvajna Murthy took active role to perform the marriage of the deceased and accused No.1 inasmuch as the money was said to have been paid in his hands along with PWs.1 and 2 by PW.7 for performance of the marriage.

7. In the cross-examination PW.1 has clearly given go-bye to the case of the prosecution. He has admitted that the complainant is his close relative. He also has business relationship with the complainant. He has admitted that he proposed the marriage of deceased with accused No.1; at the time of marriage, none of the accused demanded dowry; accused No.4 agreed to perform the marriage between the deceased and accused No.1; betrothal ceremony (engagement ceremony) was not held; none of the accused came to the house of PW.7 for marriage talks; complainant himself admitted that he would get the marriage performed at his expenses; since the complainant was alone and was not supported by his relatives for performance of marriage, he requested PWs.1, 2 and DW.2 for getting the marriage performed; even after fixing the date of marriage, none of the accused demanded for dowry; complainant also did not tell that he would be paying dowry to the accused; however, the complainant suggested PWs.1, 2 and DW.2 that many people will come for the marriage function from his side and they should be treated well; people from accused’s side themselves performed the marriage. DW.2 further admits that complainant has not given any amount in the hands of the accused either at the time of marriage or after the marriage; the marriage expenses were not borne by the complainant; accused did not demand the gold ornaments at the time of marriage and they did not insist for any quantity of gold ornaments; the complainant gave the gold ornaments to his daughter in the marriage on his own and with all happiness as per custom prevailing in the community; so also accused No.1 was given a bracelet, a wrist watch, a gold chain and a ring as per the custom, by PW.7; none of the accused had asked for gold ornaments; even after the marriage, PW.7 used to meet all the accused and used to go to their house and at that that point of time accused and deceased were very well; neither the accused nor the deceased asked for additional amount of dowry after the marriage; the complainant has not paid any amount to the accused after the marriage towards dowry. PW.1 further admits that there were no talks with regard to demand of dowry or payment of dowry at the time of marriage or thereafter.

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8. It is specifically admitted by PW.1 that the accused had not demanded dowry and that the complainant had not paid the dowry. Thus, it is clear that PW.1 who had taken active role on behalf of PW.7 for performing marriage has specifically admitted that there was no demand of dowry by the accused at any point of time and consequently there was no payment of dowry by PW.7 at the time of marriage or even thereafter.

So also, the evidence of PW.2 is almost on par with the evidence of PW.1 He has withstood in his cross-examination by denying all the suggestions made by the defence. He is a close relative of PW.7. The daughter of PW.2 is married to the son of PW.7 and consequently the matrimonial house of daughter of PW.2 is the house of PW.7, inasmuch as she is the daughter-in-law of PW.7. Therefore, it is but natural for PW.2 to support the case of PW.7 inasmuch as he is feared of his daughter’s future in case if he deposed against the prosecution’s case. In the cross- examination, PW.2 has admitted that the management of marriage was done by PW.2 and DW.2; the expenses for the marriage was borne by DW.2; however, there is no record to show that how much amount was spent for the marriage; DW.2 however has given a list containing all the expenses made by him for the marriage and such list is with him; at the time of marriage, there was no dispute at all between the accused and the complainant; even after the marriage, PW.2 used to go to the house of accused at least once in a week and accused also used to come to the house of PW.2; he does not know as to when accused demanded additional amount of dowry after the marriage; when he and PW.7 asked the accused about the demand of additional dowry, they have stated that they have not demanded any amount of dowry and that the accused had not demanded dowry from PW.7 till the death of the deceased. PW.2 has specifically admitted that, to his knowledge accused

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had not demanded the dowry amount from PW.7. He has further admitted that he has gone to the Police Station along with PW.7 for lodging the complaint. His statement was not recorded in the Police Station. He was present at the time of inquest panchanama conducted by Taluka Executive Magistrate. Even at that point of time, his statement was not recorded by the Taluka Executive Magistrate. His statement was recorded after two days after the incident. He has also further admitted that when he visited the house of the accused a number of times, the relationship between accused No.1 and deceased was cordial. Accused No.1 was well placed.

9. PW.3 is the step mother of the deceased. In the cross-examination she has admitted that the mother of the deceased did not attend the marriage; she was not even invited for the marriage either by PW.7 or by PW.3; PWs.3 and 7 had given 200 grams of gold ornaments at the time of marriage of another

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daughter Shobha and such gold ornaments were given by them happily as per the custom; even at the time of marriage of the deceased, or at the time of marriage preparation there were no talks relating to dowry; the marriage expenses were borne by the accused themselves; accused themselves had agreed to get the marriage performed; the talks relating to manner in which the marriage was to be performed were held by PWs.1, 2, 7 and DW.2; at the time of marriage, financial condition of the accused was good; prior to marriage, accused did not come to the house of PW.7 and demand the dowry amount; PWs.3 and 7 and their relatives had gone to the house of the accused prior to the marriage; the accused had constructed a house by then and at that time all accused were living in the newly constructed house; the relationship between the deceased and accused No.1 was very well; accused did not demand the dowry from PWs.3 and PW.7; even when the accused came to the house of PWs.3 and 7, they did not ask for money. PW.3 further

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admits that there is a custom in their society that parents of bride would give certain gold ornaments to both bride and bridegroom in the marriage and as such the gold ornaments were given to the bride as well as bridegroom in the marriage as the customary offerings. She further admits that prior to the marriage, none of the accused came to their house and demanded money. There were no direct talks between them prior to the marriage. Accused did not demand dowry at all prior to the marriage and consequently the family members of PW.3 did not tell the accused that they will be paying dowry amount. However, PW.3 admits that for marriage expenses, they had paid amount in the hands of PWs.1, 2 and DW2.

10. PW.4 is the brother of the deceased. PW.7 is the father of the deceased. PW.9 is the sister of the deceased. Evidence of these witnesses is on par with the evidence of PW.3. In the examination-in-chief, they deposed about demand of dowry by the accused

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and payment of dowry by PW.7 prior to the marriage, and they have deposed that the accused started troubling the deceased by pressurizing her to bring additional amount of dowry. But, in the cross- examination, they have clearly admitted that there was no such demand by the accused either prior to the marriage or after the marriage. Independent witnesses PWs.1 and 2 virtually have given go-bye to the case of the prosecution.

11. Looking to the totality of the facts and circumstances of the case and the material on record, we find that the evidence of the prosecution relating to demand and payment of dowry as well as harassment is shaky and it is unsafe to rely upon such evidence to convict the accused. More over, only vague allegations are found against all the accused. As aforementioned, even mother of the deceased admits that the gold ornaments given to the bride as well as bridegroom at the time of marriage were as per the custom and such

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ornaments were given by them with all happiness. It is also admitted by all the prosecution witnesses more particularly mother of the deceased that amount if any paid in the hands of PW.2 is towards the amount spent by him for marriage expenses. It is also admitted by PW.3 and other witnesses that marriage expenses were borne by the accused. Thus, prima facie it is clear that accused as well as PW.7 had shared the marriage expenses and his part of amount was paid by PW.7 in the hands of PWs.1, 2 and DW.2, inasmuch as PW.7 was not in a position to perform the marriage on his own.

Since the gold ornaments given to the deceased as well as to accused No.1 were as per the custom, the same cannot be treated as dowry. In the absence of any material to show specifically that the amount was paid to the hands of the accused and there was demand by the accused, the Trial Court is justified in acquitting the accused.

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12. The material on record, more particularly evidence of PWs.3 and 7 disclose that PW.7 had two wives, namely Smt.Padmavathi and Smt.Kumari. Children were born to both wives through PW.7. However, it seems, Smt.Kumari is staying away from PW.7 inasmuch as there was no cordial relationship between them. Children of Smt.Kumari do not live along with her. Consequently, it seems there is misunderstanding between PW.3 and her children on one side and children born to Smt.Kumari on the other. Deceased was the daughter born through Smt.Kumari. None of the family members of PW.7 were ready to co- operate to perform the marriage of the deceased and consequently, PW.7 requested PWs.1, 2 and DW.2 for getting marriage performed. The material on record also clearly states that one day prior to the incident in question, the deceased had come to the house of PW.7 and requested PW.7 to get the contact lens fixed to her eyes. However, the contact lenses were not fixed. In

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that context, the defence has argued that since the deceased was not treated well by her parents, more particularly PW.3, she was fed up in life. Her genitive mother was not living with her and therefore being frustrated, she committed suicide.

Be that as it may, the material on record is not sufficient to convict the accused. On rereading the entire material on record, we find that the judgment and order passed by the Trial Court is just and proper. We also find that the view taken by the Trial Court is one of the possible views taken under the facts and circumstances of the case.

Hence, no interference is called for. Accordingly, appeal fails and the same stands dismissed.

Sd/-

JUDGE Sd/-

JUDGE *ck/-

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