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Harish T R vs The State Of Karnataka on 18 November, 2019

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18TH DAY OF NOVEMBER, 2019

BEFORE

THE HON’BLE MR.JUSTICE B.A. PATIL

CRIMINAL REVISION PETITION NO.88/2019

BETWEEN:

1. Harish T.R.
S/o late Rangaswamy
Aged about 34 years

2. Smt. Nalluramma
W/o late Rangaswamy
Aged about 58 years

3. Mr. Rajeev S/o late Rangaswamy
Aged about 37 years

4. Smt. Mamatha W/o Rajeev
Aged about 32 years

Petitioners 1 to 4 are
R/o at No.33, 7th Main,
9th Cross, Srinivasanagar,
Bengaluru-560 050.

5. Smt. Sumana @ Sumathi
W/o Somashekara
Aged about 30 years
R/o. at No.1160/A,
Nagarabhavi II Stage, 9th Block,
Bengaluru-560 072.
-2-

6. Venkatesh
S/o late Rangaswamy
Aged about 36 years
R/at No.152, Paduka mandirr Road,
B.H.C.S. layout, Uttarahally,
Bengaluru-560 061.

7. Somashekar @ Somanna
S/o Rangaiah
Aged about 38 years
R/o at No.1160/A,
Nagarabhavi II Stage, 9th Block,
Bengaluru-560 072.
…Petitioners
(By Smt.Gayathri M., Advocate)

AND:
The State of Karnataka
by Hanumanthanagar Police,
Bengaluru City
Represented by State Public Prosecutor
High Court Buildings
Bengaluru-560 001.
…Respondent
(By Sri M.Divakar Maddur, HCGP)

This Criminal Revision Petition is filed under
Section 397 r/w. 401 of SectionCr.P.C praying to set aside the
order dated 26.09.2018 in the said case and discharge
the petitioners from the offences punishable under
Sections 498(A) and Section304(B) of IPC and Sections 3, Section4 and
Section6 of Dowry Prohibition Act, alleged against them.

This Criminal Revision Petition coming on for
Admission, this day, the Court made the following:
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ORDER

This petition has been filed by the

petitioners/accused Nos.1 to 7 challenging the order

passed by the Court of the XLV Additional City Civil and

Sessions Judge, Bengaluru City (CCH-46) in S.C.

No.1034/2014 dated 26.09.2018 where under the

application filed under Section 227 of Cr.P.C. came to

be dismissed.

2. I have heard the learned counsel for

petitioners/accused and the learned High Court

Government Pleader for respondent – State.

3. Though this case is listed for admission,

with the consent of learned counsel appearing for both

the parties, the same is taken up for final disposal.

4. The factual matrix of the case is that the

marriage of the deceased was got performed with

petitioner No.1 on 30.11.2011. At that time, cash of
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Rs.2,00,000/- and other gold ornaments were given.

It is further alleged that whatever the amount and gold

which has been given was not sufficient in that context

subsequently, in the matrimonial home the ill-treatment

and harassment was continued and the same was used

to be informed by the deceased to her parents and her

sister and they have also advised the deceased in this

behalf. Further again, it is informed that there is

demand for more dowry by the accused persons. When

the said harassment was continued frequently, the

complainant gave Rs.60,000/- to the first accused and

subsequently, she became pregnant and delivered twin

two female children. For that also, the harassment

continued for having given birth to female children and

again, they demanded a sum of Rs.1,30,000/- towards

medical expenses, which he had spent on the delivery of

the deceased. As accused No.1 was in the habit of IPL

betting, he lost Rs.7,00,000/- and started to insist the

deceased to get money from her parental house. It is
-5-

further alleged that on the intervening night of

03.01.2014 at about 8.40 p.m., accused No.1 called the

complainant and told that it is not possible for him to

manage with his sister in respect of matrimonial dispute

and requested the complainant to come and solve the

issue by advising his sister. In turn, the wife of the

complainant called the deceased and advised that there

will be small issues in between the husband and wife

and told her to settle. At that time, she told that her

husband is using vulgur words and told her that she

herself would deal with the situation. On 04.01.2013,

the complainant received a call from his Aunt that the

deceased has committed suicide along with her two

children. Immediately, they went and informed the

same to the police. On the basis of the complaint, a

case has been registered and after investigation, the

chargesheet has been filed.

-6-

5. The committal Court has committed the

case. Thereafter, the Sessions Court took cognizance.

At the time of hearing before the charge, an application

came to be filed under Section 227 of Cr.P.C. for

discharge of the accused. The same was seriously

objected by the prosecutor by filing his detailed

objections. After hearing the both the counsel, the

application came to be dismissed. Challenging the

same, the petitioners/accused are before this Court.

6. The main grounds urged by the learned

counsel for the petitioners/accused are that there is no

material to attract the provisions of Section 304B of IPC.

In order to attract the provision of Section 304B of IPC,

soon before the death, there must be ill-treatment and

harassment caused to the deceased for demand of

dowry. It is her further submission that the statement

of the witnesses recorded during the course of

investigation indicates that no such demand of dowry
-7-

and harassment was there soon before the death. It is

her further submission that on the intervening night of

the alleged incident, the matter was reiterated to the

brother of the deceased and has informed that it is not

possible for the accused to manage with his sister in

respect of matrimonial dispute and the same has been

advised by consoling that in between the husband and

wife, small issues will be there. That itself clearly goes

to show that the ingredients of Section 304B of IPC were

not present at the time when the alleged incident has

taken place. When the ingredients of Section 304B of

IPC were conspicuously absent, then under such

circumstance, the petitioners/accused are entitled to be

discharged for the said offences. Alternatively, it is her

further submission that at the most, there is some

material as against the accused under Section 498A of

IPC and at the most, it may attract the provisions of

Section 306 of IPC but there is no material to frame the

charge under Section 304B of IPC. It is her further
-8-

submission that the trial Court without looking to the

said aspect has come to the wrong conclusion and has

wrongly held that there is prima facie material as

against the petitioners/accused. On these grounds, she

prayed to set aside the impugned order and prays to

discharge the accused.

7. Per contra, learned High Court Government

Pleader vehemently argued and submitted that the

charge sheet material clearly goes to show that at the

time of marriage, there was a demand of dowry in the

form of cash, gold and silver. Subsequently also, there

was ill-treatment and harassment for demand of dowry

and as the accused has lost Rs.7,00,000/- in IPL

betting, he demanded to bring Rs.7,00,000/-. It is his

further submission that the said ill-treatment was

continued for having been given birth to two female twin

babies. It is further submitted that CWs.7, 8, 9 and

other witnesses have categorically deposed about the ill-
-9-

treatment and harassment made out by the accused

persons in that light, there is prima facie material as

against the petitioners/accused. It is his further

submission that by going through the materials placed

on record, it clearly goes to show that the trial Court

after considering all these aspects has come to a right

conclusion and has rightly dismissed the application.

8. I have carefully and cautiously gone through

the submissions made by the learned counsel appearing

for both the parties and have carefully and cautiously

gone through the charge sheet material and the

statement of the witnesses, which is made available by

the learned counsel for the petitioners/accused during

the course of arguments.

9. The Hon’ble Apex Court in catena of

decisions has laid down certain guidelines. What are

the criteria, which have to be seen while considering the

question of framing of charge. It has also been observed

– 10 –

that the Court below having undoubted power to sift

and weigh the evidence for limited purpose of finding

out whether there is a prima facie case made out as

against the accused or not? The test determination

prima facie case would naturally depend upon the facts

of each case and no straight jacket formula or universal

law can be made in this behalf. It is well settled

proposition of law has been laid down in catena of

decisions.

10. The Hon’ble Apex Court in the case of UNION

OF INDIA Vs. PRAFULLA KUMAR SAMAL AND

ANOTHER reported in (1979) 3 SCC 4 therein, it has

been observed that whether the material placed before

the Court discloses suspicion as against the accused

without there being any grave suspicion, under such

circumstance, the Court is justified in discharging the

accused. If the material placed before the Court

discloses grave suspicion against the accused then, the

– 11 –

Court will be fully justified in framing the charge and

proceeding with the trial. For the purpose of brevity, I

quote paragraph No.10 of the said decision, which

reads as under:

“Thus, on a consideration of the
authorities mentioned above, the following
principles emerge:

(1) That the Judge while considering
the question of framing the
charges under Section 227 of the
Code has the undoubted power to
sift and weigh the evidence for the
limited purpose of finding out
whether or not a prima facie case
against the accused has been
made out.

(2) Where the materials placed before
the Court disclose grave
suspicion against the accused
which has not been properly
explained the Court will be fully
justified in framing a charge and
proceeding with the trial.

– 12 –

(3) The test to determine a prima
facie case would naturally depend
upon the facts of each case and it
is difficult to lay down a rule of
universal application. By and
large however if two views are
equally possible and the Judge is
satisfied that the evidence
produced before him while giving
rise to some suspicion but not
grave suspicion against the
accused, he will be fully within
his right to discharge the accused.

(4) That in exercising his jurisdiction
under Section 227 of the Code the
Judge which under the present
Code is a senior and experienced
court cannot act merely as a post
office or a mouthpiece of the
prosecution, but has to consider
the broad probabilities of the case,
the total effect of the evidence and
the documents produced before
the Court, any basic infirmities

– 13 –

appearing in the case and so on.

This however does not mean that
the judge should make a roving
enquiry into the pros and cons of
the matter and weigh the evidence
as if he was conducting a trial.”

11. The said proposition of law as stated above

has been reiterated by the Hon’ble Apex Court in the

case of Asim Shariff Vs. National Investigation

Agency reported in (2019) 7 SCC 148 at paragraph

Nos.18 it has been observed as under:

“18. Taking note of the exposition
of law on the subject laid down by this
Court, it is settled that the Judge while
considering the question of framing
charge under Section 227 CrPC in
sessions cases (which is akin to Section
239 CrPC pertaining to warrant cases)
has the undoubted power to sift and
weigh the evidence for the limited
purpose of finding out whether or not a
prima facie case against the accused

– 14 –

has been made out; where the material
placed before the court discloses grave
suspicion against the accused which
has not been properly explained, the
court will be fully justified in framing
the charge; by and large if two views
are possible and one of them giving rise
to suspicion only, as distinguished from
grave suspicion against the accused,
the trial Judge will be justified in
discharging him. It is thus clear that
while examining the discharge
application filed under Section 227
CrPC, it is expected from the trial Judge
to exercise its judicial mind to determine
as to whether a case for trial has been
made out or not. It is true that in such
proceedings, the court is not supposed
to hold a mini trial by marshalling the
evidence on record.”

12. Keeping in view, the principle laid down in

the decisions quoted supra, the factual matrix if they

are looked into, though it is contended by the learned

– 15 –

counsel for petitioners/accused that conspicuously the

ingredients of Section 304 B of IPC are not existing and

as such, the accused persons are entitled to be

discharge. It is further submission that even as per the

version of the complainant, soon before the death, there

was no ill-treatment and harassment caused to the

deceased.

13. I have carefully and cautiously gone

through the statement of the witnesses and the charge

sheet material.

14. Without expressing anything on the merits of

the case, I am of the considered opinion that the word

used under Section 304B of IPC, though it is used soon

before the death.

15. The Hon’ble Apex Court has interpreted the

soon before the death not prior to the death immediately

even it has to be taken into consideration depending

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upon the facts and circumstances of each case and the

entire statement of the witnesses and charge sheet

material has to be looked into in this behalf. On going

through the statement of the witnesses and charge

sheet material there appears to be some material about

ill-treatment and harassment meted out by the accused

for the purpose of demand of dowry.

16. Be that as it may. Even there is a

presumption in law with regard to the said offence is

concerned. That has to be seen with reference to the

factual matrix of the case. In that light, if the entire

material is looked into, there appears to be a prima facie

material as against the accused to frame the charge.

17. Be that as it may. It is well settled proposition

of law that while discharging the accused the Court has

to keep in mind the aspect that even if the entire

material is accepted as it is without there being any

rebuttal on the part of the accused, if there is no

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material to frame the charge, then under such

circumstances, the accused is entitled for discharge.

But on going through the factual matrix of the case

there arises a doubt in the case of the accused and if

there are two views on a similar factual situation, at this

juncture it is not a fit case to discharge the accused. So

in that light also the contentions which have been

raised by the learned counsel for the petitioner-accused

are not acceptable.

The petition is devoid of merits. The same is liable

to be dismissed and accordingly it is dismissed.

IA No.2/2019 does not survive for consideration,

the same is also dismissed.

Sd/-

JUDGE

AP/VBS

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