Karnataka High Court
Shiva Pramod vs The State Of Karnataka on 19 December, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 327 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 327 OF 2012
BETWEEN:
SHIVA PRAMOD
S/O SHIVAKUMAR
AGED ABOUT 22 YEARS
R/AT No.307, EMBASSY BILAD APARTMENT
IN FRONT OF BETHASTHA CHURCH
80 FEET ROAD, KENGERI UPANAGAR
BANGALORE - 60.
Digitally signed by ...APPELLANT
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH (BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR
COURT OF SRI N A KARIAPPA, ADVOCATE)
KARNATAKA
AND:
THE STATE OF KARNATAKA
BY KENGERI POLICE STATION
BANGALORE CITY.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR).
...RESPONDENT
(BY SMT. A VENAT SATHYANARAYANA, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 16.03.2012
PASSED BY THE P.O. FTC-VIII, BANGALORE IN
S.C.No.240/2010-CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 498-A, 304-B
IPC AND ETC.,
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THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the appellant -accused No.1
praying to set aside the judgment of conviction and order
on sentence dated 16.03.2012 passed in S.C.No.240/2010
by the Presiding Officer, Fast Track Court No.VIII,
Bengaluru, whereunder the appellant -accused No.1 has
been convicted for the offences punishable under Sections
498-A and 304-B of the Indian Penal Code (hereinafter
referred to as “IPC” for brevity) and sentenced to undergo
rigorous imprisonment for a period of 01 year and to pay
fine of Rs.25,000/- for offence punishable under Section
498A of IPC and sentenced to undergo rigorous
imprisonment for a period of 07 years for offence
punishable under Section 304 -B of IPC.
2. The factual matrix of the prosecution case is
that the marriage of the appellant -accused No.1 has
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taken place with deceased -Vinushree on 05.11.2008 at
Horanadu Eshwari Kashi Sri Amrutheswari Temple in
Mudagere Taluk, Chikkamangaluru District. Accused No.2
-Shivakumar is father of the appellant -accused No.1 has
received the sum of Rs.3,00,000/- as dowry at the time of
marriage talks and after the marriage accused persons
started ill-treatment to the deceased Vinushree by
demanding dowry of Rs.10 lakhs from her parental house.
That on 16.10.2011 at about 11.30 p.m., the appellant –
accused No.1 brought the deceased form her parental
house forcibly and on the same night at about 12.00
midnight the deceased -Vinushree has committed suicide
by hanging in the bed room of the accused No.1 with the
help of dupatta to ceiling fan in the house of the appellant
-accused No.1 due to cruelty and harassment given by the
accused. The deceased -Vinushree has committed suicide
within 07 years of her marriage and there by accused have
committed offence charged against them. Charge sheet
came to be filed against the appellant -accused No.1 and
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accused No.2 for offences punishable under Sections 498A
and 304B of IPC.
3. The case came to be committed to the Sessions
Court. The Sessions Court has framed charges for the
said offences. In order to prove charges, the prosecution
has examined 21 witnesses as P.W.1 to 21, got marked
documents as Ex.P1 to 26 and material objects as M.O.1
to 5. The statements of accused persons came to be
recorded under Section 313 of Cr.P.C. The accused lead
defence evidence and examined three witnesses as D.W.1
to 3 and got marked documents as Ex.D1 to D4. Learned
Sessions Judge after hearing arguments on both sides has
formulated points for consideration and passed the
impugned judgment convicting the appellant -accused
No.1 for offences punishable under Sections 498-A and
304-B of IPC. The said judgment of conviction and order
on sentence has been challenged in this appeal.
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4. Heard learned Senior Counsel for appellant –
accused No.1 and learned High Court Government Pleader
for the respondent -State.
5. Learned Senior Counsel for the appellant –
accused No.1 would contend that the appellant -accused
No.1 and his father who was arrayed as accused No.2
were running education institution and they are financially
sound and therefore, there is no question of demand of
dowry from parents of the deceased. The deceased was
not happy with her marriage with the appellant -accused
No.1 as she had dream of marriage with orphan who could
stay with her parents as her father had no male child. On
perusal of Ex.P2 and 3 -note book containing writings of
the deceased that there is no serious allegation against
the appellant -accused No.1 or on his father and there are
only minor or small differences between husband and wife.
There is no any allegation of any cruelty and harassment
by the appellant -accused No.1. The appellant -accused
No.1 intended that the deceased should stay with him, as
deceased was staying in her parent’s house after surgery,
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as she did not join him inspite of his request, he got
issued legal notice -Ex.P6 calling upon the deceased to
come and join him to lead marital life. The appellant –
accused No.1 was suffering from Hemophilia and for that
he requires continue medical care and therefore, his father
has got admitted the deceased to medical course at his
expenses. The parents of the deceased are not financially
sound and they have taken assistance of others for
arranging marriage expenses. The marriage has been
performed by the parents of the appellant -accused No.1.
The allegation of demand of Rs.10 lakhs as dowry for
starting a new company by the appellant -accused No.1 is
a false allegation. P.W.6 -younger brother of P.W.1 has
not stated regarding the said alleged demand of Rs.10
lakhs in his evidence. Even the father of the appellant –
accused No.1 had helped P.W.1 financially in performing
the marriage of his elder daughter. Ex.P21 itself indicates
that the deceased was diagnosed with molar pregnancy
and procedure was conducting for evacuation of mole and
this is not medical termination of the pregnancy. The
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allegation of parents of the deceased that there is medical
termination of pregnancy by accused persons is false and
same is forth coming in Ex.P21. The letter written by the
deceased as per EX.P7 does not contain any harassment
of ill-treatment by the appellant -accused No.1 to the
deceased. The deceased was residing in her parent’s
house on the date of alleged suicide and she was brought
by the appellant -accused No.1 to his house at about
11.30 p.m. and she committed suicide at 12.30 midnight.
The post mortem report does not indicate any injury on
the dead body of the deceased. The husband of the
deceased i.e. accused No.1 was not to the expectation of
the deceased. P.W.1, 4 and 5 to 7 are blood relatives of
the deceased and their evidence is not trustworthy and
they are interested witnesses. P.W.7 himself in his cross
examination has admitted that financial condition of P.W.1
was not sound. The evidence on record does not fulfil
ingredients of offences punishable under Sections 498-A
and 304-B of IPC. Learned Sessions Judge erred in
convicting the appellant -accused No.1 for the said
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offences. Learned Senior Counsel has placed reliance on
the following decisions
1) Shoor Singh Vs. State of Uttarakhand1
2) Girish Singh Vs. State of Uttarakhand2
3) Baijnath Vs. State of M.P.3
4) Vipin Jaiswal Vs. State of A.P4
5) Sunil Bajaj Vs. State of M.P5
6) State of Karnatka Vs. H A Ramswamy6
7) Biswajit Halder Vs. State of Bihar7
8) Kahkashan Kausar Vs. State of Bihar8
9) Sharad Birdhichand Sarda Vs. State of
Maharastra9
10) T Aruntperunjothi Vs. State of T.N.10
1
Reported in 2024 7 Supreme 225
2
Reported in 2020 18 SCC 423
3
Reported in 2017 (1) SCC 101
4
Reported in 2013 (3) SCC 684
5
Reported in 2001 (9) SCC 417
6
Reported in ILR 1996 KAR 1107
7
Reported in 2008 (1) SCC 202
8
Reported in 2022 (6) SCC 599
9
Reported in 1984 (4) SCC 116
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11) Aher Raja Khima Vs. State of Saurashtra11
12) State of W.B. Vs. Orilal Jaiswal12
13) State of Haryana Vs. Ram Singh13
On these grounds he prays to allow the appeal
and acquit the appellant -accused No.1 for offences
punishable under Sections 498A and 304B of IPC.
6. Learned High Court Government Pleader for the
respondent -State would contend that learned Sessions
Judge appreciating evidence on record has rightly
convicted the appellant -accused No.1 for offences
punishable under Sections 498-A and 304-B of IPC. He
has supported the reasons assigned by the learned
Sessions Judge. The evidence of P.W.1, 4, 7 and 9 will
establish that accused persons demanded dowry at the
time of marriage and also subsequently. The appellant –
accused No.1 took the deceased forcibly on 16.10.2009 to
10
Reported in 2006 (9) SCC 467
11
Reported in AIR 1956 SC 217
12
Reported in 1994 SCC(Cri) 107
13
Reported in 2002 (2) SCC 426
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his house where the deceased hanged herself and
committed suicide. On these grounds he prayed for
dismissal of the appeal.
7. Having heard learned counsels, perusing the
impugned judgment, trial Court records and considering
the grounds urged and raised, the following point arises
for my consideration:
Whether the Trial Court has erred
in convicting the appellant -accused
No.1 for the offences punishable under
Sections 498-A and 304-B of IPC?
My answer to the above point is in Affirmative for
the following reasons
The marriage of the deceased -Vinushree has been
performed with the appellant -accused No.1 on
05.11.2008. The deceased -Vinushree committed suicide
on 17.10.2009 at about 12.30 midnight by hanging herself
to a ceiling fan. The death of the deceased is suicidal
death is not in dispute. The death of the deceased –
Vinushree is within 07 years of her marriage. Charge
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against the appellant -accused No.1 is that he has
harassed the deceased by demanding dowry and death of
the deceased is dowry death.
8. The Hon’ble Apex Court in the case of Shoor
Singh Vs. State of Uttarakhand (Supra) has observed
as under
“12. To constitute a ‘dowry death’,
punishable under Section 304-B [Section
304-B. Dowry Death. – (1) Where the death
of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
‘dowry death’, and such husband or relative
shall be deemed to have caused her death.
Explanation. — For the purpose of this sub-
section, ‘dowry’ shall have the same meaning
as in section 2 of the Dowry Prohibition Act,
1961 [28 of 1961).
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CRL.A No. 327 of 2012(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life] IPC,
following ingredients must be satisfied:
i. death of a woman must have been caused
by any burns or bodily injury or it must have
occurred otherwise than under normal
circumstances;
ii. such death must have occurred within
seven years of her marriage;
iii. soon before such death, she must have
been subjected to cruelty or harassment by
her husband or any relative of her husband;
andiv. such cruelty or harassment must be in
connection with any demand for dowry.
The phrase ‘otherwise than under normal
circumstances’ is wide enough to encompass
a suicidal death.
13. When all the above ingredients of ‘dowry
death’ are proved, the presumption under
Section 113-B [Section 113-B. Presumption
as to dowry death. When the question is
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whether a person has committed the dowry
death of a woman and it is shown that soon
before her death such woman had been
subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the court shall presume
that such person had caused the dowry
death.
Explanation.- For the purposes of this
section, dowry death shall have the same
meaning as in section 304 capital B of the
Indian Penal Code [45 of 1860]] of the
Evidence Act is to be raised against the
accused that he has committed the offence
of ‘dowry death’. What is important is that
the presumption under Section 113-B is not
in respect of commission of an act of cruelty,
or harassment, in connection with any
demand for dowry, which is one of the
essential ingredients of the offence of ‘dowry
death’. The presumption, however, is in
respect of commission of the offence of
‘dowry death’ by the accused when all the
essential ingredients of ‘dowry death’ are
proved beyond reasonable doubt by ordinary
rule of evidence, which means that to prove
the essential ingredients of an offence of
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'dowry death' the burden is on the
prosecution."
9. In the instant case, it is not in dispute that the
deceased died otherwise than under normal circumstances
within 07 years of her marriage. However, the issue
between the parties is about her being subjected to cruelty
or harassment by her husband or his relative, soon before
her death, in connection with any demand for dowry.
10. The Hon’ble Apex Court in the case of Girish
Singh Vs State of Karnataka(Supra) has observed as
under
37. The foremost aspect to be established by the
prosecution is that there was reliable evidence to
show that the woman was subjected to cruelty or
harassment by her husband or his relatives which
must be for or in connection with any demand for
dowry, soon before her death. Before the
presumption is raised, it must be established that
the woman was subjected by such person to
cruelty or harassment and it is not any cruelty that
becomes the subject matter of the provision but it
is the cruelty or harassment for or in connection
with, demand for dowry.”
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11. The Hon’ble Apex Court in the case of Bajinath
Vs State of M.P(Supra) has observed as under
“32. This Court while often dwelling on the scope
and purport of Section 304-B of the Code and
Section 113-B of the Act have propounded that
the presumption is contingent on the fact that the
prosecution first spell out the ingredients of the
offence of Section 304- B as in Shindo v. State of
Punjab and echoed in Rajeev Kumar v. State of
Haryana. In the latter pronouncement, this Court
propounded that one of the essential ingredients
of dowry death under Section 304-B of the Code
is that the accused must have subjected the
woman to cruelty in connection with demand for
dowry soon before her death and that this
ingredient has to be proved by the prosecution
beyond reasonable doubt and only then the Court
will presume that the accused has committed the
offence of dowry death under Section 113-B of
the Act. It referred to with approval.”
12. Considering the above aspects it is to be
ascertained that whether the appellant -accused No.1 has
subjected the deceased to cruelty and harassment in
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connection with the demand of dowry soon before her
death.
13. P.W.1 is father of the deceased has stated in
his evidence that at the time of marriage talks accused
persons demanded dowry of Rs.5 lakhs and in talk they
agreed to give dowry of Rs.3 lakhs. P.W.4 is elder sister
of the deceased has not stated regarding any demand of
dowry by accused persons at the time of marriage. P.W.5
is the mother of the deceased and she has also not stated
regarding demand of dowry by accused persons at the
time of marriage. P.W.6 is younger brother of P.W.1 and
uncle of the deceased and he has stated in his evidence
that for marriage expenses accused persons asked to give
Rs.5 lakhs and P.W.1 agreed to give Rs.3 lakhs and he has
helped by paying Rs.50,000/- to him to meet out marriage
expenses to be given to accused persons. P.W.7 is
maternal uncle of the deceased and brother of P.W.5 and
he has stated in his evidence that accused persons for
marriage have asked to give Rs.5 lakhs and they agreed
to give Rs.3 lakhs and he has helped by paying
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Rs.50,000/- to P.W.1 to meet out the said marriage
expenses. Considering the said evidence it is clear that
whatever demanded by accused persons is towards
marriage expenses and not dowry.
14. P.W.1 -father of the deceased has stated in his
evidence that accused No.1 has demanded dowry of Rs.10
lakhs and sent his daughter to his house on 29.05.2009
and thereafter, accused No.1 sent divorce notice on
01.06.2009. P.W.4 -elder sister of the deceased stated in
her evidence that accused persons demanded Rs.10 lakhs
to be brought from her parents for new business of
accused No.1 and in that regard they started harassing
her sister. P.W.5 is the mother of the deceased has stated
in her evidence that accused No.1 started demanding
Rs.10 lakhs for his business and same was told to her by
her daughter i.e. deceased. P.W.6 -uncle of the deceased
and younger brother of P.W.1 has not stated regarding
any demand of dowry by accused persons in sum of Rs.10
lakhs. P.W.7 -younger brother of P.W.5 and maternal
uncle of the deceased has not stated in his evidence
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regarding demand of dowry in sum of Rs.10 lakhs. P.W.9
is friend of P.W.1 and he has stated in his evidence that he
came to know through P.W.1 that accused persons are
demanding Rs.10 lakhs for their business and in that
regard they are harassing the deceased.
15. Ex.P2 and 3 are note books containing writing
of the deceased. The deceased used to write mentioning
dates of writing. On reading of the said writings of the
deceased contained in Ex.P2 dated 13.07.2009,
02.08.2009, 04.08.2009 and 18.09.2009 does not contain
any harassment by the appellant -accused No.1 by
demanding dowry to her. What is written in Ex.P2 and 3
is small difference between her and her husband. The said
writings of the deceased in Ex.P2 are after she was taken
to her husband’s house by D.W.1 and D.W.2 after the
deceased received notice -Ex.P6 got issued by the
appellant -accused No.1.
16. As per evidence of P.W.1, the appellant –
accused No.1 demanding Rs.10 lakhs, assaulted her
daughter and sent her to his house on 29.05.2009. If that
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is so the deceased ought to have written the same in her
writing contained in Ex.P2 dated 13.07.2009, 02.08.2009,
04.08.2009 and 18.09.2009. The deceased was residing
in her parent’s house where she went for Deepavali
festival till 16.10.2006 and she was taken by the appellant
-accused No.1 to his house, on the night of 16.10.2009
within one hour she has committed suicide. The post
mortem report did not indicate any injury over the dead
body of the deceased. Neighbours who have been cited as
C.W.11 to 14 in the charge sheet as prosecution witnesses
have not been examined and their statements are marked
on defence side as Ex.D.1 to 4 which does not disclose any
harassment or ill-treatment by this appellant -accused
No.1 to the deceased. Considering the writings of the
deceased in Ex.P2 and 3 there was marital discord and
that does not amounts to cruelty.
17. The Division Bench of this Court in the case of
State of Karnataka Vs H.A.Ramswamy(Supra) has
observed as under:
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CRL.A No. 327 of 2012“38. The material on record no doubt shows that
the deceased was unhappy. But the cause for this
unhappiness was the fallure of the first accused in
understanding her feelings and not showing love
and affection for which she was yearning as well
as the incompatibility of their likes and dislikes. It
is said that there is no greater disparity in
marriage than unsuitability of mind and purpose.
The marriage appears to have broken down-and-
the- deceased did not see any possibility of
retrieving it. She appears to have been mentally
depressed during that period and she has felt that
the only way left to her was to die. Though the
conduct of A-1 might not have been that of an
ideal husband and ne might have failed in his duty
to provide love and mental security to his wife, the
material on record does not show that he is guilty
of such wilful cruelty as to drive an ordinary
woman in Indian set up to commit suicide. Section
498-A is not intended to punish those husbands
whose wives undergo mental suffering and
unhappiness largely due to incompatibility of
temperament and attitude.”
18. The material on record i.e. writings contained in
Ex.P2 and P3 no doubt that the deceased was unhappy.
But the cause for this unhappiness was the failure of the
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first accused in understanding her feelings and not
showing love and affection for which she was yearning as
well as the incompatibility of their likes and dislikes. The
writings contained in Ex.P2 of the deceased indicate that
the appellant -accused No.1 was in the habit of consuming
alcohol and he used take permission of the deceased to go
for consuming alcohol. Though the conduct of the
appellant -accused No.1 might not have been that an ideal
husband and he might have failed in his duty to provide
love and mental security to his wife, the material on
record does not show that he is guilty of such willful
cruelty as to drive an ordinary women in Indian set up to
commit suicide. Section 498-A is not intended to punish
those husbands whose wives undergo mental suffering
and unhappiness largely due to incompatibility of
temperament and attitude.
19. The Honbale Apex Court in the case of Sharad
Birdhichand Sarda Vs State of Maharasytra(Supra)
has observed as under
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CRL.A No. 327 of 2012“48. Before discussing the evidence of the
witnesses we might mention a few preliminary
remarks against the background of which the
oral statements are to be considered. All
persons to whom the oral statements are said to
have been made by Manju when she visited
Beed for the last time, are close relatives and
friends of the deceased. In view of the close
relationship and affection any person in the
position of the witness would naturally have a
tendency to exaggerate or add facts which may
not have been stated to them at all. Not that
this is done consciously but even unconsciously
the love and affection for the deceased would
create a psychological hatred against the
supposed murderer and, therefore, the Court
has to examine such evidence with very great
care and caution. Even if the witnesses were
speaking a part of the truth or perhaps the
whole of it, they would be guided by a spirit of
revenge or nemesis against the accused person
and in this process certain facts which may not
or could not have been stated may be imagined
to have been stated unconsciously by the
witnesses in order to see that the offender is
punished. This is human psychology and no one
can help it.”
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20. P.W.1 -father of the deceased, P.W.4 -elder
sister of the deceased, P.W.5 -mother of the deceased,
P.W.6 -uncle of the deceased and P.W.7 -maternal uncle
of the deceased are close relatives of the deceased. In
view of the close relationship and affection any person
relates to the deceased would have, such a witness would
naturally have a tendency to exaggerate or add facts
which may not have been stated to them at all. Not that
this is done consciously but even unconsciously the love
and affection for the deceased would create a
psychological hatred against the supposed murderer and
therefore, the Court has to examine such evidence with
very great care and caution. Except the evidence of
P.W.1, 4, 5 to 7, there is no other evidence on record,
may be of neighbours of accused No.1 and deceased or
neighbours of parents of the deceased regarding cruelty
and harassment meted out by the appellant -accused No.1
demanding of dowry to the deceased. D.W.1 and 2 are
brothers of accused No.2 -the father of appellant -accused
No.1 who in their evidence have categorically stated
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regarding they going to house of P.W.1 and bringing back
deceased to the house of accused No.1. They have also
deposed that there is no any harassment to the deceased
regarding demanding of any money. The evidence on
record indicate that the appellant -accused No.1 and his
father -accused No.2 were running education institution
where more than 200 employees are working and they are
financially sound. P.W.7 -maternal uncle of the deceased
in his cross examination has admitted financial condition
of P.W.1 was not sound and financial condition of accused
persons was good. Even P.W.7 has stated that P.W.1 was
having financial difficulties. The father of the appellant –
accused No.1 has performed the marriage of the deceased
with the appellant -accused No.1 in temple at Horanadu.
The appellant -accused No.1 was suffering from
Hemophilia disease and he was taking treatment for the
said disease. The writing contained in Ex.P2 of the
deceased indicate that the appellant -accused No.1 was
not an ideal husband for her and it appears that depressed
by the same the deceased might have committed suicide.
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Ex.P21 itself indicate that the deceased was diagnosed
with Molar pregnancy and treatment was given to her for
evacuation of mole in St.Johns Medial College Hospital,
Bengaluru and therefore, allegation of parents of the
deceased that there is termination of pregnancy at the
instance of the appellant -accused No.1 appears to be not
correct. The evidence on record is not sufficient to hold
that the appellant -accused No.1 has harassed and ill-
treated the deceased for demand of dowry soon prior to
her death and as a result she has committed suicide.
Considering all these aspects learned Sessions Judge has
erred in convicting the appellant -accused No.1 for
offences punishable under Sections 498-A and 304-B of
IPC. Considering the said aspect the prosecution has failed
to prove charges beyond reasonable doubt that appellant –
accused No.1 has committed offences for 498-A and 304-B
of IPC. Therefore, benefit of doubt requires to be extended
to the appellant -accused No.1. The appellant -accused
No.1 has made out grounds for setting aside the impugned
judgment of conviction and order on sentence.
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21. In the result, the following
ORDER
i) The appeal is allowed.
ii) The judgment of conviction and order on
sentence dated 16.03.2012 passed in
S.C.No.240/2010 by the Presiding Officer, Fast
Track Court No.VIII, Bengaluru is set aside and
the appellant -accused No.1 is acquitted for
offences punishable under Sections 498A and
304 B of IPC.
iii) In view of the above order, IA No.1/2024
stands allowed and order dated 20.11.2024 is
recalled.
iv) Communicate the order of recalling order dated
20.11.2024 to the trail Court by e-mail.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
List No.: 1 Sl No.: 14