Dismissed

State of Karnataka v. Mohan Venkappa Naik

Karnataka HC20 Jan 2021CRL.A/100167/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the State's criminal appeal against acquittal. The court held that prosecution evidence regarding dowry demand and cruelty was contradictory, vague, and insufficient to prove the charge of dowry death or abetment of suicide beyond reasonable doubt.

What did the court decide?

Appeal dismissed; judgment of acquittal by District and Sessions Judge confirmed.

State of Karnataka Vs Mohan Venkappa Naik — Dowry and Cruelty | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^{T H} DAY OF JANUARY, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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CRIMINAL APPEAL NO.100167/2017

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BETWEEN:

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STATE OF KARNATAKA REP. BY THE POLICE INSPECTOR, MANKI POLICE STATION, UTTARA KANNADA DISTRICT, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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...APPELLANT.

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(BY SHRI V.M.BANAKAR, ADDL. SPP.)

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AND:

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MOHAN VENKAPPA NAIK AGE: 30 YEARS, OCC: AGRICULTURIST, R/O: DEVARAGADDE, MANKI, HONNAVAR, U.K.

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SMT.LAXMI @ BHAGI KOM VENKAPPA NAIK AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: MOOLEMANE, MANKI, HONNAVAR, U.K.

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RESPONDENTS

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(BY SHRI J S SHETTY, ADVOCATE.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 26.9.2016, PASSED BY THE DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR, IN SESSIONS CASE NO.61/2009 AND TO CONVICT THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 304B, 306 READ WITH SECTION 34 OF IPC AND SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT, ETC.,.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, SRI P.N.DESAI, J, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is by the State assailing the judgment of acquittal dated 26.9.2016, in S.C.No.61/2019, on the file of the District and Sessions Judge, Uttar Kannada, Karwar.

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Brief case of the prosecution is as

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under:

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a) That on 27.5.2004, the marriage of accused No.1 and deceased Nagaratna took place at Shri Durga Parameshwari Temple, Bhatkal. After the marriage, the deceased was living with accused No.1. They begot two children. It is the further case of prosecution that, at the time of marriage, the accused demanded dowry of

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Rs.80,000/- and 10 tolas of gold. PW.3-Devamma, the mother of deceased borrowed loan from the bank and gave Rs.45,000/- cash and 8 tolas of gold as dowry to both accused at the time of marriage. But the accused were not happy and insisting the deceased to bring more amount and gold from her parents house, and started to illtreat her. When the deceased informed the same to her relatives, they advised the deceased to tolerate for some time as they were newly married.

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b) It is further the case of prosecution that on 28.12.2008 one Narayan informed mother of deceased over phone that her daughter died due to burn injuries. Immediately the complainant, PW.3Devamma and their relatives went to the house of accused at Deveragadde. They found the dead body of Nagaratna lying in a room, and there were burnt marks on it. In this regard, PW.1 Nagappa, who is sister’s son of the deceased, lodged a complaint before the police as per Ex.P.1.

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c) PW.18 Dy.S.P., Bhatkal, visited the spot and conducted spot panchanama, seized a five liters kerosene can and the burnt clothes. Then he sent the dead body for postmortem, seized the clothes found on the dead body, conducted inquest panchanama, recorded the statement of witnesses, sent the seized material objects to the forensic science laboratory and handed over further investigation to COD. PW.21-Dy.S.P., COD, after completing the further investigation, filed the charge sheet against the accused.

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d) The learned Sessions Judge framed charges against the accused for the offences punishable under sections 498A, 304B, 306 read with section 34 of IPC and sections 3, 4 and 6 of Dowry Prohibition Act. In order to prove the charge, the prosecution in all examined 21 witnesses as PW.1 to PW.21 and got marked 25 documents as Exs.P.1 to P.25 and got identified 9 material objects as MO.1 to MO.9. Thereafter statement of accused as required under section

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313 of Cr.P.C. was recorded. The accused denied the incriminating evidence appearing against them. The accused filed their written statement. They did not choose to lead any defence evidence. After hearing the arguments, the trial Court acquitted the accused.

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Aggrieved by the same, the State has preferred this appeal on the ground that judgment and order passed by the trial Court is contrary to law, facts and evidence on record.

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We have heard the arguments of learned

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Addl. SPP for appellant/State and Shri J.S.Shetty, learned counsel for accused.

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The learned Addl. SPP for the State argued that, out of 21 witnesses examined by the prosecution, PW.3-Devamma, mother of the deceased, PW.5-Laxmi, sister and PW.6Subbaraya, cousin of deceased have supported the prosecution. In order to show that dowry was given, the prosecution examined PW.2-Jayaram,

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the manager of the bank who stated that, PW.3 borrowed loan of Rs.50,000/- on 11.5.2004 from the bank. In this regard a certificate was also produced as per Ex.P.9. Learned Addl. SPP argued that PW.16-Chandrashekhar, PW.17-Sukru have also stated that PW.3 used to borrow money from them. PW.17 has further stated that, about 8 years back he gave Rs.80,000/- loan to her. There is evidence to show that accused demanded dowry amount of Rs.40,000/- and gold was also given at the time of marriage. The learned Addl. SPP further argued that PW.1 who is the sister’s son of deceased went to the spot and after ascertaining the situation, lodged the complaint. PW.3Devamma, mother of deceased stated in her evidence that, after the marriage the accused were ill-treating the deceased, same was informed to her by the deceased. Similarly PW.5-Laxmi and PW.6-Subbaraya, the sister and cousin of deceased respectively, have also supported the evidence of PW.3 about ill-treating the deceased to compel her

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to bring more dowry amount. The learned Addl. SPP argued that in view of the evidence of PWs.1, 2, 3, 5, 6, 16 and 17, the prosecution has proved the charge levelled against the accused and prayed to set aside the judgment of acquittal and to convict the accused.

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Against this, Shri J.S.Shetty, learned counsel for the accused argued that the learned Sessions Judge has given proper reason to disbelieve the evidence of prosecution witnesses. The learned counsel further argued that there are material contradictions and inconsistencies in the evidence of prosecution witnesses. The learned Sessions Judge has rightly appreciated the evidence and came to the right conclusion and acquitted the accused. It is submitted that, this appeal is against the judgment of acquittal, unless the finding of trial Court is capricious or perverse, the same will not be normally interfered by the appellate Court and prayed to dismiss the appeal.

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We have perused the judgment of trial

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Court and the evidence on record.

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PW.1 is the complainant who set the criminal law into motion by lodging the complaint Ex.P.1. In his examination-in-chief he has stated that after the marriage both accused and deceased, they were living happily for about 4 years. They got two children. His evidence indicates that for about four years after the marriage there was no difference of opinion between the couples and that there was no ill-treatment by the accused. In the crossexamination he states that after hearing news of death of accused, they went to the house of accused and found him in a police jeep. PW.1 stated that two years prior to death of deceased, he had visited the house of accused. Thereafter he has not visited. So it appears that he is not having any information or any knowledge about any ill-treatment alleged to have been given by the accused. He has admitted in cross-examination

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that he did not enquire any other person or the neighbourers as to how the deceased committed suicide. In his examination-in-chief itself he has stated that at the time of marriage talks, the accused had demanded 10 tolas of gold and Rs.60,000/- cash, which is again contrary to the evidence of the other witnesses. PW.3 mother has stated that Rs.45,000/- cash and gold was given. Before whom the said talks took place, who were present, when it took place, no particulars are forthcoming.

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PW.3 Devamma is the mother of the deceased. She has stated that they have performed the marriage of deceased with accused No.1 by giving Rs.45,000/- cash and 8 tolas of gold as dowry and for that purpose she had borrowed loan of Rs.50,000/- from the bank and she has also borrowed Rs.80,000/- loan from PW.17-Sukru. In support of that, the prosecution has examined PW.2-Jayaram, manager of Grameen Bank, Idagunji branch. He has stated that PW.3

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had borrowed loan of Rs.50,000/- from the bank on 11.5.2004 under the Integrated Agricultural Development Scheme and still she is due in a sum of Rs.26,066/-. In the cross-examination, PW.2 has admitted that every year she used to borrow different loans from the bank. This evidence of PW.2 will not help the prosecution to show that the dowry amount was paid by borrowing loan from the bank.

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PW.17 Sukru, though in his examinationin-chief has stated that he has given Rs.80,000/loan to PW.3, but in the cross-examination he has admitted that he did not take any document in this regard from PW.3. Therefore in the absence of any documentary evidence in this regard, it cannot be presumed that PW.17 had given loan of Rs.80,000/-. Admittedly PW.3 was having transaction with him and she used to give crops to him.

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PW.5-Laxmi and PW.6-Subbaraya have stated in their evidence that at the time of

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marriage accused demanded 10 tolas of gold and Rs.60,000/- cash. Accordingly PW.1-Nagappa and PW.6-Subbaraya have given the said gold and cash to the accused No.1. Both of them have not stated as to when the said marriage talks took place, who were present, who called them for marriage talks. The evidence of these witnesses regarding accused demanding dowry is general and vague. There are no particulars as to when the marriage talks took place; who were present; which accused demanded amount; from accused side, who were present; and from where the amount was brought. There is contradiction as to when actually such gold or cash was paid. Both PW.5 and PW.6 state that the said amount was given by PW.3-Devamma and PW.6Subbaraya. PW.1-Nagappa states that 15 days prior to marriage, he gave cash to accused No.1 and at the time of marriage golden ornaments were given. The evidence of these witnesses does not indicate that the accused demanded gold or cash. PW.3-Devamma admitted in her cross-

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examination that she had performed the marriage of all her daughters and she had given gold and cash to them. Therefore some customary ornaments might have been given to the deceased at the time of her marriage, but it is not dowry as alleged by the prosecution.

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PW.3 is having only 10 guntas of garden land. Except income from that land, she has no other income. She was borrowing the loan every year from the bank. Under such circumstances it is very difficult to believe that PW.3 had given Rs.40,000/- cash and 8 tolas gold as dowry to accused. Therefore the trial Court rightly came to the conclusion that the evidence of prosecution regarding demand of dowry and acceptance cannot be believed. None of the elders or independent witnesses, neither from the village of PW.3 nor from the village of the accused were examined to show that actually any such dowry talks took place. There is no evidence in this regard or any enquiry was made by the Investigating Officer.

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Therefore the evidence adduced by the prosecution is not sufficient to hold that the accused either demanded or accepted the dowry as alleged.

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As per the medical evidence, the death of the deceased is not a homicidal, but it is a suicide. This is not seriously disputed by the learned Addl. SPP. So as to prove the allegation under section 306 of IPC, the prosecution has to adduce the evidence to show that the deceased was subjected to such kind of cruelty and the abetment by the accused was of such a nature, so as to drive the woman to commit suicide. The learned Addl. SPP submitted that there is a presumption as to abetment of suicide by a married woman, under section 113A of the Evidence Act 1872, as death of the deceased had taken place within 7 years of marriage. From the said section it is evident that the Court may presume, having regard to all other circumstances of the case that such suicide had been abetted. The initial burden to prove the cruelty and

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abetment of suicide is on the prosecution. As discussed above, the prosecution relies on the evidence of witnesses PW.1, 3, 5, 6 and 16. On reassessing the evidence, it is evident that PW.1 complainant has stated in examination-in-chief itself, that both accused and deceased were living happily for about 4 years after the marriage. So if at all there was any ill-treatment or cruelty committed by the accused, then he could not have stated that they could not have lived happily for four years. The evidence of PW.1 makes the prosecution case fall flat on the very first step itself.

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PW.3-Devamma, the mother of the

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deceased has stated that when she had been to the house of the deceased, her daughter told that accused was abusing her for bringing more gold.

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She has simply stated that the accused were quarrelling with her. Without stating any particular acts regarding nature of quarrel or abuse, ill-treatment or harassment, such a vague and

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general evidence cannot be considered as proof for cruelty. It is only an omnibus statement that accused were quarrelling, abusing and harassing her. Even she went to the extent stating, that accused have murdered her daughter.

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It appears, she, having lost her daughter, in a sorrow or grief, has made exaggerated statement before the Court. Except one vague sentence that accused were quarrelling and abusing her, there is no evidence in proof of either physical cruelty or mental cruelty, which would have driven the deceased to commit suicide.

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Cross-examination of PW.3 indicates she

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has not called any panchayat or any person to discuss the alleged ill-treatment or cruelty on deceased. She was alone residing in the house. She never went to the house of deceased and resided in her house. Then how she came to know about alleged ill-treatment, harassment or cruelty is not forthcoming. She was angry because of death of her daughter and due to that she has got

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hatredness towards the accused. She has performed the marriage of other daughters by giving gold and cash to all of them. When she went to see the dead body of deceased, the children of her husband’s first wife were present. The police recorded their statements also, but none of them was either examined before the Court or cited as witnesses. The evidence of PW.3 does not indicate the ingredients of either cruelty of abetment.

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PW.5-Laxmi, is the sister of deceased. She has given evidence contrary to that of PW.1. She has stated that immediately after six months of marriage, accused became addicted to alcohol and started threatening to kill the deceased if she did not bring dowry amount and gold. It is neither the case of prosecution nor it is mentioned in the written complaint that the accused was harassing or ill-treating his wife in the state of intoxication. She has further stated that when the deceased had come to her house, she used to inform her about the ill-treatment.

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In the cross-examination, she has

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admitted no panchayat was called regarding the accused demanding money or dowry. She has not informed any other person regarding the life threat given by the accused. If at all the deceased had informed her about any cruelty on her, definitely she would have brought this to the notice of her mother or PW.1. But they have not stated anything about PW.5 informing them. The allegation that the accused addicted to alcohol, is totally a new introduction by PW.5. Why she used to visit the house of deceased for every two months is not forthcoming. She has further stated that on hearing the news of the death of her sister, she went to the house of accused and enquired them, but none informed any reason for her death. PW.4Timmappa who was relative of deceased was present there, but he has not supported the prosecution. The prosecution treated him as hostile. Nothing helpful is elicited in his crossexamination.

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PW.6-Subbaraya, is another relative of the deceased. He has not stated anything about any ill-treatment, cruelty or harassment by the accused regarding dowry. His evidence does not corroborate the evidence of other witnesses. In the cross-examination he has stated that after hearing the news of death of deceased Nagaratna, they went to the house of the accused. There, police asked them to give a complaint. They all discussed in this regard and PW.16Chandrashekhar wrote a complaint and they lodged the complaint. In his cross-examination he has stated that after the marriage the deceased might have visited his house once or twice, at that time deceased Nagaratna told him that both herself and her husband were leading happy marital life. His evidence makes the allegations of prosecution doubtful.

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PW.18-Vedamurthy, the Investigating

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Officer who has made part of the investigation, stated that accused No.1 was not in the house at

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the time of incident. He states that accused was arrested on 29.12.2008 at Manki Mavinakatte. On the other hand, the evidence of other witnesses indicates that accused No.1 was very much present in the house itself and he was found in a police jeep. Therefore, even prior to lodging of the complaint he was in the custody of police.

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PW.21-Siddegouda, Dy.S.P., has stated that he found both the accused were not in the house when the deceased committed suicide. He also came to know during investigation that the deceased had locked the room from inside. Accused No.1, PW.4 and CW.26 tried to break open the lock and then they tried to extinguish the fire. PW.14 Dr.Gajanan Hegde stated that on the date of incident the accused had also sustained burnt injuries on his hand and accused took treatment at OPD. But the Investigating Officer has not collected any documents from hospital in this regard.

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PW.21 Investigating Officer has further stated that accused No.2 used to visit her daughter’s house at Mangaluru. He has not recorded the statement of children of first wife of father of deceased who were admittedly present according to PW.3 when they visited the house of accused. He has not enquired regarding any gold given at the time of marriage. He has stated that during his investigation he came to know from some of the witnesses that both the deceased and her husband were living happily, but only PW.3 and her children have stated about the ill-treatment.

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It is also evident from his evidence that accused No.1 was not in the house and immediately after he learnt that deceased had set fire to herself, accused No.1 came to his house, tried to break open the door. Somehow, he along with others gained entry into that room through other door and tried to extinguish the fire. In such a course accused sustained burnt injuries to his

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hand. But no records were produced or collected by the Investigating Officer in this regard.

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The accused No.1 and 2 after recording their statement under section 313 of Cr.P.C., filed their written statement. In that they have given explanation as to how this accused No.1 sustained burnt injuries. Accused have stated that the deceased was short tempered. Accused No.2 was residing with her daughter at Mangaluru. Accused No.2 used to return to her house only for collecting pension. The deceased was getting angry for silly reasons. It is further stated that on the date of incident, accused No.1 went to the shop and he came to know that the deceased locked the room from inside and set fire to herself by pouring kerosene oil. With the help of neighbourers somehow he gained entry into that room and tried to extinguish fire and sustained burnt injuries. He took treatment at Manki hospital and Karwar district hospital. Accused have denied receiving of any dowry or causing any cruelty or harassment as

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alleged. They have stated that both accused and deceased were living happily. There were no differences of opinions between them. Deceased never went to her mother’s house or visited her relatives. By taking disadvantage of the circumstances, a false case was filed against them.

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This explanation of accused if considered in the light of evidence adduced by the prosecution, it appears that PW.3, in the state of grief or sorrow owing to losing her daughter might have falsely implicated the accused, this possibility cannot be ruled out. On the other hand, the evidence of the prosecution indicates that there is no proof of ingredients regarding demand of dowry or acceptance of dowry. The evidence of prosecution witnesses regarding ill-treatment, harassment or cruelty does not inspire our confidence.

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Here allegation was that accused treated

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the deceased with cruelty for fulfillment of dowry demand. It is necessary to prove that the

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deceased was subjected to cruelty by the husband or relative of husband and such cruelty consisted of (1) either harassment of the woman with a view to coerce her meeting a demand for dowry, or (2) a willful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life may be physical or mental. In order to attract the provisions of Sec.304-B of IPC, prosecution has to prove that (a) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (d) such cruelty or harassment must be for or in connection with demand for dowry; and (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death. On

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re-appreciation of evidence, it becomes evident that the essential requirements for charge leveled against the accused are not proved beyond reasonable doubt.

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It is evident that there is no corroboration in the evidence of prosecution witnesses. On the other hand, the evidence of prosecution witnesses is full of contradictions and inconsistencies which go to the root of the case. The learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove the guilt of accused beyond all reasonable doubt and given benefit of doubt to the accused and acquitted the accused. In view of defence of the accused that the deceased was short tempered and she was getting angry for silly reason, the possibility of deceased committing suicide, cannot be ruled out.

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This being an appeal against acquittal, unless it is shown that the trial judge has erred in acquitting the accused, or there is perversity or

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illegality in the finding of the trial Court, there cannot be interference with the impugned judgment.

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We do not find any error or infirmity in

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the judgment of the trial Court. We do not find any reasons to interfere with the said finding. The appeal being devoid of merits, is liable to be dismissed. Accordingly the appeal is dismissed confirming the judgment of acquittal dated 26.9.2016, passed by the learned District and Sessions Judge, Uttara Kannada, Karwar, in S.C.No.61/2009.

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Registry to send back the trial Court records forthwith.

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Sd/JUDGE

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Sd/JUDGE

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Mrk/-

State of Karnataka v. Mohan Venkappa Naik

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Mohan Venkappa Naik

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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