Dismissed

State of Karnataka v. Sri Mahesha

Karnataka HC11 Jul 2024CRL.A/1226/2018

Case brief

AI extract

What is this about?

Criminal appeal against acquittal in matrimonial dispute involving dowry death probability. HC upheld Trial Court's acquittal finding prosecution failed to prove cruelty soon before death and initial burden for Section 113B presumption was not discharged.

What did the court decide?

Criminal appeal filed under S.378 Cr.P.C. was allowed by Trial Court but dismissed by this Court; accused acquitted.

State of Karnataka Vs Sri Mahesha — Dowry and Cruelty | Karnataka HC (2024)

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NC: 2024:KHC:26724-DB CRL.A No. 1226/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF JULY, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.1226/2018 (A)

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BETWEEN:

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STATE OF KARNATAKA BY NAZARABAD POLICE STATION MYSURU REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-1.

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…APPELLANT

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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(BY SRI. RAJAT SUBRAMANYA, HCGP)

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AND:

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SRI. MAHESHA S/O SWAMY AGED ABOUT 30 YEARS.

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SRI. SWAMY S/O VEERABHADRAIAH AGED ABOUT 55 YEARS.

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SMT. NANJAMMA W/O SWAMY AGED ABOUT 44 YEARS.

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ALL ARE R/O NO.113, 3RD BLOCK MAHAVEER HOUSE, SATELLITE TOWN KENGERI, BENGALURU-500060.

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…RESPONDENTS

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(BY SRI. SHARATH S. GOWDA, ADV., FOR R1 TO R3)

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THIS CRIMINAL APPEAL IS FILED U/S.378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 17.01.2018 PASSED IN S.C.NO.369/2014 BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, THEREBY ACQUITTING THE ACCUSED/RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498(A) AND 304(B) R/W 34 OF IPC AND SECTION 3 AND 4 OF DOWRY PROHIBITION ACT, 1961.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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"Whether the impugned judgment and order of acquittal

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passed by the V Additional District & Sessions Judge, Mysuru, in S.C.No.369/2014 suffers patent illegality or perversity?" is the question involved in this case.

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Respondent Nos.1 to 3 were prosecuted in S.C.No.369/2014 before the Trial Court for the charges for the offences punishable under Sections 498A, 304B read with Section 34 of IPC on the basis of the charge sheet filed by Nazarbad police in Crime No.214/2013 of that police station.

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Respondent Nos.1 to 3 were accused Nos.1 to 3 in

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the said case. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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The case of the prosecution in brief is as follows:

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(i) PW-1 is the mother and PW-2 is the brother of

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deceased. PW-4 is the brother of PW-1, PW-3 is the cousin brother of CW-1. CW-1 is the husband of PW-1 and father of deceased Rekhamani. PWs-5 to 7 are the neighbours of PW-1. Accused Nos.2 and 3 are the parents of accused No.1.

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(ii) Accused No.1 and Rekhamani were in love with each other, their marriage was opposed by accused Nos.2 & 3. Ultimately, on a police complaint, the marriage of the deceased Rekhamani and accused No.1 was performed on 03.10.2012 in Ganapathi Temple, Yaraganahalli, Mysuru. The marriage was registered on 04.10.2012 with the Registrar of Marriages, Mysuru North, Mysuru.

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(iii) The couple lived cordially for 4-5 months. Thereafter, the accused started harassing the victim saying that had accused No.1 married another girl they would have got huge dowry. They subjected her to mental cruelty demanding dowry of Rs.4,00,000/-. In that connection on the complaint by Rekhamani, NCR No.136/2013 was registered in Mysuru Police Helpline and NCR No.306/2013 was registered in Mysuru

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Women Police Station. A complaint was filed before the Kengeri Police and counseling was held between the victim and accused No.1.

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(iv) Accused No.1 met with a road traffic accident on 12.07.2013 in Mysuru. Rekhamani was not informed of the same for 20 days. After learning about the accident, when she went to the house of accused to see her husband, accused demanding dowry of Rs.4,00,000/- did not permit her inside the house and harassed her. Being frustrated by that, on 01.09.2013 at 08.00p.m., Rekhamani consumed blood pressure pills and attempted to commit suicide. She was shifted to Narayana Hrudayalaya Hospital in Mysuru and she died on the same day at 11.15p.m.

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On the basis of Ex.P-9, the complaint of CW-1, the father of Rekhamani, the FIR Ex.P-25 was registered against the accused in Crime No.214/2013 for the offences punishable under Sections 498A, 304B of IPC and Sections 3 & 4 of Dowry Prohibition Act, 1961 ('D.P.Act', for short). The police on conducting the investigation, filed the charge sheet against the accused for the aforesaid offences.

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The Trial Court on hearing the parties, framed the charges against the accused for the offences punishable under Sections 498A & 304B of IPC read with Section 34 of IPC. As the accused denied the charges, trial was conducted. In support of the case of the prosecution, PWs-1 to 22 were examined and Exs.P-1 to P-35 were marked. After their examination under Section 313 Cr.P.C., the accused did not adduce any defence evidence. On behalf of the accused, Exs.D-1 & D-2 were marked by way of confrontation. The complainant CW-1 died before the charge sheet was filed.

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The Trial Court on hearing the parties by the impugned judgment and order, acquitted the accused holding that the charges brought against the accused were not proved beyond reasonable doubt. Challenging the impugned judgment of acquittal, the State has preferred the above appeal.

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Sri.Rajath Subramanaya, learned High Court Government Pleader, reiterating the grounds of appeal, submits that admittedly, the death has taken place within seven years of marriage and that was unnatural death. He further submits that PWs-1 to 7 have supported the prosecution case regarding

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accused harassing the victim in connection with the demand for dowry. Under such circumstances, the prosecution has the benefit of presumption under Section 113B of the Indian Evidence Act, 1872, ('Evidence Act' for short) and the accused failed to rebut the said presumption. The Trial Court without

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judicious appreciation of the evidence, has acquitted the accused. Therefore, the impugned judgment and order of acquittal is liable to be set aside and the accused need to be convicted.

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Per contra, Sri.Sharath S.Gowda, learned counsel

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for the respondents-accused justifying the impugned judgment and order submits that merely because the death is unnatural one and taken place within seven years of the marriage, the accused cannot be convicted on the ground of dowry harassment. He submits that to raise that presumption, the prosecution has to discharge the initial burden that soon before her death the victim was subjected to cruelty. He submits that as per the evidence of PW-13/Counsellor herself there were no major differences between the couple. Therefore, they were counseled to lead happy marital life and advised to go together. He further submits that as per the prosecution itself, accused

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No.1 met with the accident on 12.07.2013 and that incident was made known to the deceased and her family members after 20 days. Thereafter, CW-1, PW-1 and the victim allegedly went to the house of the accused, there she was harassed. In such a situation, it becomes absurd to imagine that the accused subjected the victim to cruelty. Exs.P-16 & P-17 show that the victim herself was oversensitive, intolerant and threatening of committing suicide. The Trial Court on judicious appreciation of evidence, has acquitted the accused, such judgment cannot be interfered in the appeal.

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ANALYSIS

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There is no dispute that the accused and deceased were related to each other even before the marriage. It is also not disputed that the marriage of accused No.1 and Rekhamani was performed on 03.10.2012 and registered on 04.10.2012. Thereafter, for four months the couple lived happily in the parental house of the deceased. Admittedly, the accused were ordinary residents of Kengeri in Bengaluru. Thereafter, the couple lived together in the house of the accused till the month of Ashada in the year 2013 which lies somewhere in the month of June-July. It is also admitted fact that the deceased was sent

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to her parental house at Mysuru for observation of Ashada month.

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Exs.P-16, P-17 (muchalikes) and the evidence of PW-13 and other evidence show that on 07.06.2013 the victim filed complaint before the Police Helpline, Mysuru, which was registered in NCR No.136/2013. On the requisition of Mysuru Mahila Police, PW-13 conducted counseling for accused No.1 & Rekhamani, both of them executed Exs.P-16 & P-17 undertakings, and were sent back. The victim filed another complaint as per Ex.P-13 before the Commissioner of Police, Bengaluru alleging dowry harassment. There is no dispute that couple were again advised and sent back. As per Ex.D-1 on 12.07.2013, accused No.1 met with a road traffic accident, suffered grievous injuries in the accident. As per PWs-1 to 4 and other witnesses, themselves and Rekhamani was not informed of the accident for 20 days. It is alleged that after 20 days when PW-1, CW-1 and Rekhamani went to the house of accused in Kengeri, they were not permitted inside demanding Rs.4,00,000/- dowry and on 01.09.2013 the victim Rekhamani committed suicide in the house of PW-1 & CW-1.

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It is the settled position of law that in an appeal against the order of acquittal, the scope of interference is limited. Unless it is shown that the impugned order of acquittal suffers patent illegality or perversity, the same cannot be interfered, merely because two views are possible. If two views are possible, then the view favourable to the accused has to be considered. This view of ours is supported by the judgment of Hon'ble Supreme Court in the case of Prem Singh vs. State of Haryana¹ . In that judgment it was held that in such cases the accused have the double benefits, first one being the presumption of innocence available at the trial stage and secondly that gets reaffirmed by the judgment of acquittal. Now this Court has to examine this matter in the light of such legal principle.

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It is no doubt true that the death has occurred within seven years of marriage and the same is unnatural one. But to invoke Section 113B of the Evidence Act, to raise the presumption of abetment of suicide, it should be shown that soon before her death, the married woman was subjected to

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1 2013(14) SCC 88

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cruelty as contemplated under Section 498A of IPC. The cruelty contemplated under Section 498A IPC is the one in connection with the demand for dowry or of such degree which is likely to cause harm to the mental or physical health of the victim or drove her to commit suicide.

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In this case, there are no allegations of physical cruelty. The cruelty alleged was in connection with unlawful demand of Rs.4,00,000/-. The death has not taken place in the house of the accused. Even according to the prosecution, the victim and accused in the initial four months of marriage lived in her parental house, thereafter she went to the house of the accused situated in Kengeri, Bengaluru, lived there upto the month of Ashada in the year 2013. When she was living in her parental house, admittedly accused No.1 met with the accident on 12.07.2013 suffering grievous injuries. It is the case of the prosecution itself that thereafter for 20 days, the said incident was not informed to the victim or her family members. The alleged demand for dowry was when the victim, her father (CW-1) and PW-1 went to the house of the accused to see the injured-accused No.1. A doubt arises as to could it be possible

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for the accused to demand dowry and harass when they were shattered due to the accident suffered by accused No.1.

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It is material to note that though the victim filed several complaints before the police viz., Ex.P-10 before the Mahila Police Station, Mysuru on 29.06.2013, Ex.P-13 before the Commissioner of Police, Bengaluru, no case was registered against the accused for any cognizable offence. As against that only counseling was done and they were sent back. The evidence of PW-13, the family counselor, and Exs.P-16 & P-17 show that though in the complaint the deceased alleged dowry harassment, no substantial or serious acts on the part of accused were found.

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PW-13 in her chief examination states that when a conciliation was held between the couple, both of them agreed to live cordially and executed Exs.P-16 & P-17. In the crossexamination, PW-13 unequivocally states that she did not find the differences between the couple very serious one, therefore, the parents of the couple were not called for conciliation and that was not found necessary. She also states that both the couple were making allegations against each other. In Ex.P-16

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Rekhamani herself has undertaken that she will not suspect her husband and pollute the family atmosphere, she will respect her parents-in-law, she will not threaten her husband of committing suicide and filing false dowry case. That presupposes indicates that even before she committing suicide, she was threatening the accused of filing false dowry case, she was suspecting him and threatening of suicide. It is no doubt true that in Ex.P-17 the undertaking of accused No.1, he said to have stated that he will not demand for dowry, divorce, etc. As the said document is executed in the police custody that cannot be used against the accused.

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As rightly observed by the Trial Court, the allegation of demand for dowry was not consistent. In Ex.P-9, CW-1 claimed that the demand for dowry was for Rs.4,00,000/-. As per Ex.P-11 filed by the victim on 01.10.2012 soon before the marriage, alleged dowry demanded was Rs.2,00,000/-. In Ex.P-12 filed on 20.09.2013 by Rekhamani before Women Police Station, Mysuru, it was alleged that accused demanded dowry of Rs.10,00,000/-. In Ex.P-13 filed on 02.07.2013, which was filed two months prior to the death, omnibus allegation of

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harassment for dowry and threats of murder were made, the sum of dowry demanded was not mentioned.

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It is also material to note that victim consumed blood pressure pills on 01.09.2013 at 08.00 p.m. and she died on 01.09.2013 at 11.15p.m. The complaint was filed on 02.09.2013 at 10.15 a.m. The FIR was delivered to the Magistrate on 02.09.2013 at 12.30p.m. That supports the contention of the accused that on deliberations, the compliant was filed.

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To crown all this Ex.D-1, the complaint filed by Rekhamani herself on 25.08.2013, wherein she states that she got information about her husband suffering an accident on 12.07.2013. She states that she was staying with her parents since 1 1/2 months prior to 25.08.2013. She further states that she went to the house of accused on learning about the incident on 22.07.2013 and she along with her father came to know that accused No.1 is admitted in Apollo Hospital and is unconscious and is shifted to Bengaluru Hospital. The complainant further states that thereafter she gave her phone number to the neighbours of the accused and went back to her

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parental house. In that document absolutely there is no whisper about the accused demanding dowry and not permitting her to see the accused. In fact based on Ex.D-1, investigation was conducted and charge sheet Ex.P-34 was filed by Yelawala police against accused No.1. But later her father CW-1 filed complaint Ex.P-9 stating that when they had gone to the house of accused, they demanded Rs.4,00,000/- to permit Rekhamani to see her husband. This demolishes the case of the prosecution.

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The State has preferred the appeal questioning the acquittal on the ground that there was dowry harassment. However, before the Trial Court, there was no charge for the offences punishable under Sections 3 and 4 of the D.P.Act. The prosecution did not make any efforts to get those charges framed. It was not the case of the prosecution that they were inadvertently omitted. There was no charge for the offences punishable under Sections 3 and 4 of the D.P.Act and the charge for Section 304B of IPC also does not sustain.

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The defence of the accused was that PW-1 the mother of the victim, owned a site and she executed gift deed Ex.D-2 conveying the same to PW-2 to the exclusion of victim,

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therefore she committed suicide. The execution of Ex.D-2 by PW-1 is an admitted fact. Basically, the prosecution failed to establish by cogent and consistent evidence that soon before the death, the victim was subjected to cruelty in connection with demand for dowry. Since the said initial burden was not discharged, the presumption of abetment to commit suicide is not available to the prosecution. Even for the arguments sake, the same is accepted, such presumption stood rebutted by the evidence of PW-13, the Counsellor. The Trial Court, on judicious appreciation of evidence on record, by assigning cogent reasons, has acquitted the accused. No patent illegality, perversity or arbitrariness is found in the same. Hence, the following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Sd/JUDGE

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BSR List No.: 1 Sl No.: 18

State of Karnataka v. Sri Mahesha

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Sri Mahesha

Case brief

What is this about?

What did the court decide?

What the court decided

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