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Mallikarjun S/O Shivashankrappa vs The State Through Madbool Police … on 7 December, 2012

Karnataka High Court Mallikarjun S/O Shivashankrappa vs The State Through Madbool Police … on 7 December, 2012Author: Mohan Shantanagoudar

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IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT GULBARGA

DATED THIS THE 7TH DAY OF DECEMBER, 2012 BEFORE

THE HON’BLE MR.JUSTICE MOHAN SHANTANAGOUDAR CRIMINAL APPEAL NO.3538/2010

BETWEEN :

Mallikarjun

S/o.Shivshankrappa

Aged 28 years, Occ: Glass Cutter

R/o.Mattimood Village

Chittapur Taluk

Gulbarga Dist.

.. APPELLANT

(By Sri Mahantesh Desai, Adv.,)

AND :

The State through

Madbool Police Station

Chittapur Taluk

Gulbarga Dist.

Rep.by Public Prosecutor

High Court Circuit Bench

At Gulbarga

.. RESPONDENT

(By Sri Subhash Mallapur, HCGP)

This appeal is filed under Section 374(2) of Cr.P.C. by the advocate for the appellant praying that this Hon’ble Court may be pleased to set aside the judgment and order of conviction and setence passed in SC.No.44/2008 on -2-

3.2.2010 passed by the II Additional District and Sessions Judge at Gulbarga, convicting the appellant-accused for the offences punishable under Sections 304-B, 498A of IPC and Sections 3, 4 and 7 of Dowry Prohibition Act, etc. This appeal coming on for final hearing, this day the Court delivered the following:-

JUDGMENT

This appeal is filed by the convicted accused. The appellant is convicted for the offences punishable under Sections 498-A, 304-B of IPC r/w. Sections 3, 4 and 6 of Dowry Prohibition Act. He is sentenced to undergo imprisonment for eight years.

2. The case of the prosecution in brief is that the appellant is the husband of the deceased Sridevi @ Srilatha; PWs.1 and 2 are the parents of the deceased; PW.3 is the sister of the deceased and PW.4 is the brother of the deceased; Marriage between the deceased and the appellant was performed on 4.5.2007; prior to marriage, the accused demanded a sum of Rs.1,50,000/- in the -3-

form of cash and 5 tholas of gold; however, it was decided that the accused should be given cash of Rs.51,000/- and 3½ tholas of gold as dowry. In addition to that, other household articles worth Rs.45,000/- were also given to the accused at the time of marriage; after some time of the marriage, the harassment against the deceased started; the accused was demanding the deceased for bringing additional sum of Rs.50,000/- as dowry; so also the accused was used to demand gold chain, etc.; because of financial problems, the said wish of the accused was not fulfilled by the parents of the deceased; on 7.9.2007 when the deceased Sridevi went to the house of Mahananda, the friend of the deceased, in connection with religious function, she was in dull mood; on being enquired, the deceased said that on the previous night, i.e., on 6.9.2007, the accused assaulted and tortured her saying that she should bring additional amount of Rs.50,000/-. Being -4-

desperate of ill-treatment meted out by the accused, the deceased committed suicide by hanging herself with a rope.

3. In order to prove the case, the prosecution in all examined 31 witness and got marked 58 exhibits and 10 material objects. On behalf of the accused, 3 exhibits were got marked. As aforementioned, the Trial Court convicted the accused and sentenced him to undergo imprisonment eight years.

4. PW.1 is the father of the deceased; PW.2 is the mother of the deceased; PWs.3 and 4 are the sister and brother of the deceased respectively; PW.5 is the villager of the parents of the deceased; PW.6 is the neighbour of the parents of the deceased; PWs.5 and 6 deposed about marriage talks, demand of dowry by the accused and payment of dowry made by the parents of the deceased to the accused. -5-

5. Sri Mahantesh Desai, learned advocate appearing on behalf of the appellant at the outset fairly submitted that this is not a case of acquittal of the accused. However, according to him, the sentence imposed is harsh and that the offence may not fall under Section 304-B of IPC.

6. The evidence of PWs.1, 2, 3 and 4 is consistent and cogent. All of them have deposed fully supporting the case of the prosecution. PW.1 has deposed about payment of dowry prior to the marriage. Rs.51,000/- was paid to the accused prior to the marriage on demand by the accused apart from 3½ tholas of gold; after some of the marriage, the accused started harassing the deceased by pressurizing her for additional amount of dowry of Rs.50,000/-; since the said demand is not fulfilled by the parents of the deceased because of the financial problems, she was being harassed on one pretext or -6-

the other by the accused; the deceased had expressed that she was being tortured by the accused during her life time; PW.1 has further deposed that the deceased committed suicide as she could not tolerate the ill- treatment meted out by the accused. She has further deposed that though the deceased used to tell her parents about the ill-treatment by the accused, the parents used to tell her to wait for some time and they would take her back to the parents’ house. The evidence of PW.1 fully supports the case of the prosecution. His evidence supported the evidence of PWs.2 and 4. Evidence of all these witnesses is consistent, cogent and reliable.

7. The evidence of PWs.1 to 4 is supported by two independent witnesses PWs.5 and 6. PW.5 is the villager of the village wherein the parents of the deceased are living and PW.6 is the neighbour of the parents of the deceased. Both of them have deposed -7-

about marriage talks, payment of dowry made by the parents to the accused. The evidence of PWs.5 and 6 is also consistent with the case of the prosecution. The Trial Court is justified in believing their version. Though PWs.1 to 6 are subjected to cross- examination, nothing worth is elicited from them in the cross-examination.

8. It is relevant to note that all other witnesses have turned hostile except the official witnesses. Be that as it may, evidence of PWs.1 to 4, coupled with the evidence of PWs.5 and 6, it is sufficient to conclude that the prosecution has proved its case beyond the reasonable doubt. On re-appreciation of the material on record, this Court does not find any ground to interfere with the judgment and order of conviction. Evidence of PW.1 about the demand of dowry, payment of dowry prior to the marriage and the case of the prosecution relating to harassment by -8-

the accused. Thus, the offence squarely covers under Section 304-B of IPC since the deceased committed suicide as she could not tolerate the ill-treatment made by the accused, inasmuch as she was pressurized by the accused to bring additional amount of Rs.50,000/-. Thus, it is a clear case of dowry death. Therefore, the judgment and order of conviction need not be interfered with.

9. It is submitted that the appellant has got old aged parents and they are not in a position to look after the agricultural lands. The appellant has already spent more than six years in custody. Therefore, having regard to the totality of the facts and circumstances of the case, sentence is reduced to seven years. Accordingly, the following order is made:-

i) The judgment and order of conviction dated 1.2.2010, convicting the accused for the -9-

offences punishable under Sections 498A, 304-B of IPC r/w. Sections 3, 4 and 6 of Dowry Prohibition Act, stands confirmed;

ii) The sentence as given by the Trial Court is modified. The appellant is sentenced to undergo imprisonment for seven years instead of eight

years;

iii) The sentence of fine is not interfered with;

iv) Sentence shall run concurrently as ordered by the Trial Court. The period of imprisonment already undergone by the appellant shall be given set off.

Appeal is partly allowed.

Sd/-

JUDGE

*ck/-

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