Partly allowed

Bahaddursingh S/O Vijayasingh Paradesi v. the State through

Karnataka HC26 Nov 2024CRL.A/200211/2021

Case brief

AI extract

What is this about?

Husband and mother-in-law appealed convictions in a dowry death case arising from the wife's death after an assault. The High Court found dowry demand unproved from the earliest statement, set aside the 304-B and DP Act convictions, convicted the husband under Section 304 Part-II IPC with six years' imprisonment, confirmed his 498A conviction, and acquitted the mother-in-law.

What did the court decide?

Accused No.1's convictions under S.304-B IPC and S.4 DP Act set aside; convicted under S.304 Part-II IPC with 6 years RI and Rs.5,000 fine; S.498A conviction confirmed; accused No.2 acquitted; set off

Bahaddursingh S/O Vijayasingh Paradesi Vs the State… — Dowry and Cruelty | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 26^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO.200211 OF 2021

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(374(CR.PC)/415(BNSS))

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C/W

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CRIMINAL APPEAL NO.200210 OF 2021

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(374(CR.PC)/415(BNSS)) IN CRL.A.NO.200211/2021:

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BETWEEN:

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BAHADDURSINGH S/O VIJAYASINGH PARDESI, AGE: 36 YEARS, OCC: PRIVATE WORK, R/O TIMMAPPA SHALA A218, KUMATA NAKA, SOLAPUR-413005 (NOW IN JUDICIAL CUSTODY)

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Digitally signed by SWETA KULKARNI Location: High Court Of Karnataka

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(BY SRI. NANDKISHORE BOOB, ADVOCATE)

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AND:

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…APPELLANT

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THE STATE THROUGH KALABURAGI WOMEN POLICE STATION, KALABURAGI, NOW REPRESENTED BY ADDL. SPP HIGH COURT OF KARNATAKA AT KALABURAGI BENCH-585103

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…RESPONDENT

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(BY SRI. MAQBOOL AHMED, AGA)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., PRAYING TO CALL FOR RECORDS AND EXAMINE THE RECORDS IN S.C.NO.165/2019 AND SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE LEARNED I ADDL. SESSIONS JUDGE, KALABURAGI FOR CONVICTING THE APPELLANT BY ITS JUDGMENT DATED 16.09.2021 PASSED IN S.C.NO.165/2019, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN CRL.A NO.200210 OF 2021:

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BETWEEN:

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RANJANABAI @ RANJANA W/O VIJAYSINGH PARDESI AGE: 58 YEARS, OCC: HOUSEWIFE, R/O TIMMAPPA SHALA A218, KUMATA NAKA, SOLAPUR

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…APPELLANT

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(BY SRI. NANDKISHORE BOOB, ADVOCATE) AND:

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THE STATE THROUGH KALABURAGI WOMEN POLICE STATION, KALABURAGI NOW REPRESENTED BY ADDL. SPP HIGH COURT OF KARNATAKA AT KALABURAGI BENCH-585103

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…RESPONDENT

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(BY SRI. MAQBOOL AHMED, AGA)

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THESE APPEALS, COMING ON FOR FURTHER DICTATION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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ORAL JUDGMENT

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In these appeals, appellants/accused Nos.1 and 2 have assailed the judgment and order dated 16.09.2021

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passed by the Court of I^st Additional Sessions Judge, Kalaburagi in S.C.No.165/2019, wherein, the learned Sessions Judge has convicted and sentenced accused Nos.1 and 2 for the offence punishable under Section 498A of IPC and Section 4 of the Dowry Prohibition Act (for short ‘D.P’ Act) and accused No.1 for the offence punishable under Section 304-B of IPC.

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The learned Sessions Judge has acquitted accused Nos.1 and 2 of the offence punishable under Section 302 of IPC and Section 3 of the D.P. Act.

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Heard the learned counsel for the appellants, learned High Court Government Pleader for the State and perused the evidence and material on record including the impugned judgment passed by the trial Court.

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Brief facts of the case are that, deceased Reena

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Thakur, daughter of the complainant–Smt.Bhawanibai Thakur is a resident of Kondedgalli, Brahmapur, Kalaburagi. Her marriage with accused No.1, a resident of Solapur, took place on 08.12.2015 at Sulphal Matta, Kalaburagi. At the time of marriage, 5 tolas of gold and household articles were given. After the marriage, deceased started living in her matrimonial home at Solapur. Accused No.1 and his mother i.e., accused No.2 started subjecting her to physical and mental torture demanding her to get additional dowry of Rs.1 lakh and 5 tolas of gold from her parental home.

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In the month of December, 2017, deceased was appointed as Assistant Professor at Government Degree College, Afzalpur. Therefore, she along with her husband started residing in Kondedgalli, near her parental house. Accused No.1 continued to harass her demanding money, a house and a car. He was suspecting her fidelity and

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under the influence of alcohol, used to physically abuse her.

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On 04.06.2019 at about 12.00 in the midnight,

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accused No.1 called the complainant over phone and informed her that her daughter is suffering from abdominal pain. Immediately, the complainant along with her son and others went to the house of accused and noticing her daughter in pain, shifted her to one Ashwini Hospital at Solapur and admitted her in the said hospital. While undergoing treatment, Reena Takhur died on 07.06.2019 at about 4.00 PM.

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It is the case of prosecution that, accused

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persons demanded and received 5 tolas of gold and other household articles from the deceased at the time of

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marriage and after the marriage, started demanding additional dowry of Rs.1 lakh and 5 tolas gold and also a car and a house and they were subjecting her to physical

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and mental cruelty. On the intervening night of 03.06.2019 and 04.06.2019, accused No.1 insisted the

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deceased to give money and when she refused, assaulted her with his hands on her face, head, back and forcibly kicked on her stomach and caused internal injuries, on account of which, she succumbed to the injuries, while undergoing treatment in Ashwini Hospital, Solapur, on 07.06.2019 at about 4.00 PM i.e., within 7 years of her marriage.

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Charges were framed against accused Nos.1 and 2 for offences under Section 498-A, 304-B and 302 of IPC and Sections 3 and 4 and Dowry Prevention Act. The prosecution got examined 18 witnesses and got marked 20 documents, in order to establish its case.

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The learned Sessions Judge vide impugned judgment, convicted accused Nos.1 and 2 for the offence punishable under Section 498-A of IPC and Section 4 of D.P. Act and accused No.1 for the offence punishable under Section 304-B of IPC. They were acquitted of the offence punishable under Section 302 of IPC and Section 3 of D.P. Act.

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For the offence punishable under Section 304-B of IPC, accused No.1 was sentenced to undergo R.I for 7 years.

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For the offence punishable under Section 498-A of IPC, accused Nos.1 and 2 were sentenced to undergo S.I. for a period of 2 years and to pay fine of Rs.5,000/each, in default of payment of fine, to undergo S.I for a period 3 months.

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For the offence punishable under Section 4 of the D.P. Act, accused Nos.1 and 2 were sentenced to undergo S.I for a period of 8 months and to pay fine of Rs.5,000/- each, in default of payment of fine, to undergo S.I for a period of 2 months.

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Assailing the impugned judgment, the learned counsel for the appellants has contended that, the incident took place on the night intervening 03.06.2019 and 04.06.2019 and till the victim died on 07.06.2019, there was no complaint lodged. It is contended that a false complaint was field belatedly alleging dowry demand and

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harassment against the appellants. It is contended that the deceased was admitted at one Ashwini Hospital, Solapur on 04.06.2019 itself, however, the case sheet of the said hospital was not produced and her statement was also not recorded, though the complainant has stated that, she was talking at the time of her admission to the hospital. It is further contended that the statement of the alleged eyewitness-PW-12 was recorded belatedly after 10 days and therefore, his evidence cannot be believed. Further, the Doctor who treated the victim has not been examined.

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Learned counsel has further contended that the witnesses have admitted that the victim was suffering from liver disease and i.e., exactly the defence of the accused that the victim died due to complication on account of liver disease. It is therefore, contended that the trial Court without properly appreciating the above aspects has erroneously convicted the appellants and

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therefore, sought to allow the appeals and acquit the appellants/accused Nos.1 and 2.

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Per contra, the learned High Court Government Pleader has contended that the evidence of victim’s mother-PW.1 coupled with the evidence of PWs.5 and 7 is sufficient to hold that the accused were subjecting the deceased to physical and mental torture and demanding additional dowry. It is contended that PW.12 is an eyewitness, whose evidence clearly show that the accused No.1 assaulted the victim and caused injuries to her, which is corroborated by the medical evidence. He further contended that the victim died within 7 years of her marriage, therefore, the trial Court has rightly come to the conclusion that it is a case of dowry death. He therefore, contended that the trial Court by assigning valid reasons has rightly convicted the accused. Accordingly, sought to dismiss the appeal.

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The marriage of the deceased – Reena Thakur was performed with accused No.1 on 08.12.2015. In

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Ex.P.2 – complaint based on which the case was registered, it is stated that at the time of marriage 05 tolas of gold and household articles were given. It is not specifically stated therein that the said articles were given as dowry or accused demanded 05 tolas of gold and household articles at the time of marriage. The complainant i.e., victim’s mother is examined as PW.1. In her evidence she has stated that the said articles were given as dowry. Whereas PWs.5 and 7 viz., younger sister and younger brother of the deceased have not stated that the gold and household articles were given as dowry or that accused demanded gold or household articles from them, at the time of marriage. It is only stated by them that at the time of marriage, 05 tolas of gold and household articles were given and the marriage expenses were met by them.

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The learned Sessions Judge has acquitted the

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accused of the offence punishable under Section 3 of the Dowry Prohibition Act. In fact, a fair submission was made

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by the public prosecutor that Section 3 of the D.P. Act is

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not attracted from the pleadings or evidence on record.

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As per Ex.P.2 both the accused were insisting

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the deceased to get Rs.1,00,000/- and 05 tolas of gold

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from her parental home saying that whatever dowry was given at the time of marriage was insufficient. It is stated that in this connection they were subjecting the deceased to physical and mental torture. It is further stated that the deceased had given a sum of Rs.1,00,000/- to accused No.1, the amount which she saved from her salary. Though, PW.1 has deposed in her evidence that the said

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amount was given to accused No.1 and the money was wasted by him for his bad habits like drinking etc., there is no material worth accepting to show that a sum of Rs.1,00,000/- was given to accused No.1. Both PWs.5 and 7 have not stated about the payment of Rs.1,00,000/- to accused No.1. Therefore, the testimony of PW.1 has remained uncorroborated.

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It is the further case of the prosecution that in the year 2017, after the deceased was appointed as an Assistant Professor in a Government Degree College, Afzalpur, she along with accused No.1 started living in a house at Kondedgalli, near complainant’s house, wherein he was pestering her to give money for his day to day expenses and he was also demanding a house and a car. It is stated that he was addicted to drinking and used to abuse the deceased and also suspecting her character and subjecting her to physical and mental torture etc.,

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PW.1 in her deposition has stated that accused

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No.1 was demanding a house and a car and he was harassing the deceased. Both PWs.5 and 7 have deposed in their evidence that accused was harassing the deceased by demanding a house and a car. It is relevant to mention that immediately after the deceased was taken to one Ashwini Hospital in Sholapur in the early morning of 04.06.2019, she was examined by the Doctor. Till 07.06.2019 there was no complaint lodged against the

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accused persons and no MLC was sent to the police. As per the evidence of PW.11, the Head Constable of Sadar Bazar Police Station, Sholapur, on receiving the MLC from the Hospital on 07.06.2019, he immediately went to the hospital. He has stated that the victim was not in a position to talk. On the next day about 04.00 p.m. the victim died and on receiving the said information, he went to the hospital and recorded the statement of PW.1 as per Ex.P.1. On the same day the inquest mahazar was conducted.

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Ex.P.1 is the statement of the complainant recorded by PW.11 on 07.06.2019, the said document is marked through PW.1. She gave her statement in Marathi language and she has admitted the signature on Ex.P.1. The translated version of the said statement is marked as Ex.P.1 (b).

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Interestingly, no case was registered on the basis of Ex.P.1, on the other hand, written complaint, which is marked as Ex.P.2 was lodged on 09.06.2019,

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based on which PW.15 – PSI of Women Police Station, Kalaburagi, registered a case against the accused persons.

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In the earliest version, which is marked as Ex.P.1(b), complainant has not alleged any dowry demand by the accused persons. It is only stated that accused No.1 was suspecting the fidelity of the deceased and he was physically abusing and torturing her. No doubt, PWs.1, 5 and 7 have stated that the accused was demanding a car and house from the complainant, however, particularly they have stated that the accused was demanding money and harassing the deceased suspecting her character. When there are no allegations of dowry demand in the earliest version given by the complainant, this Court has to conduct a careful scrutiny of the evidence and material on record, to see as to whether the ingredients of Section 304-B is made or not, notwithstanding the fact that deceased died within 7 years of her marriage.

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The learned Sessions Judge has come to the conclusion that over all testimony of the witnesses clearly emphasizes the fact that accused No.1 has forcibly kicked the deceased on her stomach. At the time of her death, deceased was facing problem on account of liver disease and accused No.1 had clear knowledge that his wife was suffering from liver problem and in spite of that he has forcibly kicked the deceased with a specific knowledge that the injuries caused may lead to her death and on account of the said assault, severe damage was caused to the liver. The learned Sessions Judge has held that there was no intention for accused No.1 to commit the murder of his

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wife and therefore, Section 302 of IPC was not attracted.

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The incident took place on 04.06.2019 during

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the midnight. According to the complainant, accused No.1 informed over phone that her daughter is suffering from abdominal pain and therefore, she along with her family members went to the house of accused and noticed that her daughter was crying with pain. They shifted her to

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Ashwini Hospital and admitted her as an impatient. In Ex.P.2, it is stated that accused No.1 fled away from the hospital and therefore, raising suspicion, she enquired with her daughter, who informed that accused demanded money for expenses and when she told him that she do not have money, he assaulted on her face, head and back and kicked on her stomach. The said statement made in Ex.P.2 clearly goes to show that accused No.1 quarreled with the deceased on the date of incident demanding money and then assaulted her with hands and kicked on her stomach.

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The prosecution has examined PW.12 an independent witness, who saw the accused assaulting and kicking the deceased. It is contended by the learned counsel for appellant that the statement of the said witness was recorded belatedly after 10 days and therefore, he is not a trustworthy witness. Further, neither in the complaint nor in the evidence of PWs.1, 5

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and 7, they have mentioned about presence of PW.12 at the spot.

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According to PW.12, on 03.06.2019 at about 11.30 PM., while he was sitting on a platform near Jagadhamba Gudi, he heard the screaming of the deceased and therefore, he went to see as to what was happening. He saw the accused assaulting the deceased with his hands and kicking on her stomach. He has stated that victim’s mother and other relatives came to the spot and they shifted the victim to the hospital.

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It is the specific case of the prosecution that, the deceased sustained injuries on account of the assault made by accused No.1. Even according to PW.1, when she went to the house of her daughter along with other family members, she noticed that her daughter was suffering from abdominal pain and after admitting her to the hospital, accused No.1 fled away. Therefore, she enquired with her daughter, who told her that the accused demanded money for expenses and assaulted and kicked

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her, etc. Even the trial Court has come to the conclusion that there is evidence to show that on account of the assault made by the accused, deceased who was suffering from liver problem, succumbed to the injuries. Hence, this is not a case wherein the victim has died under suspicious circumstances, on the other hand, the evidence on record suggest that she sustained injuries due to the assault by the accused and subsequently, succumbed to the injuries while undergoing treatment in the hospital.

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This Court has come to the conclusion that,

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there was no demand or acceptance of dowry at the time of marriage and the case of the prosecution that, a sum of Rs.1 lakh was given to accused No.1 was also not proved. Insofar as the allegation of demanding a car and house by accused No.1, the same is not stated in the earliest version, when the complainant gave her statement on 07.06.2019, which statement is marked as Ex.P.1. The trial Court itself has acquitted both the accused of the offence punishable under Section 3 of the D.P. Act. This

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Court finds insufficient material to confirm the conviction under Section 4 of the D.P Act, witnesses have stated that accused No.1 was demanding money for expenses and it cannot be held that he has demanded dowry in connection with marriage, so as to attract Section 4 of the D.P. Act.

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The prosecution has examined PW.17 – Doctor, who conducted the post mortem examination. In Ex.P.18, alleged history furnished was physical assault by the husband. On examination, PW.17 has noticed the following injuries;

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“Therapeutic puncture wound of pinhole size present on dorsum of the both hands and on right cubital fossa suggestive of injection mark.

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Therapeutic puncture wound of size pinhole present on lft lateral aspect of neck.

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After dissection of the dead body I have found following internal injuries as under:

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In spleen with weight : Weight 80 gm 1) Lacerated wound of size 3 cms x 2 cms x tissue deep present on left side of anterior surface. 2) Lacerated wound of size 4 cm x 3 cm x tissue deep present on right side of anterior surface. Pale.”

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Cause of death is on account of “shock and hemorrhage due to splenic ruputure”.

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The deceased died on 07.06.2019 at about 4.00 PM., while undergoing treatment at Ashwini Hospital, Solapur. Admittedly there is no dying declaration of the deceased. In fact, PW.11 has stated that on 07.06.2019, on receiving the MLC intimation, when he went to the hospital to record the statement of the victim, she was not in a position to talk. The cause of death is not seriously disputed by the defence, however, the specific defence taken by the accused is that, the deceased was suffering from liver disease and on account of the same she died in the hospital and subsequently, a false case was registered against the accused. It has come in the evidence that the deceased was suffering from liver disease. PW.1 in her cross-examination has admitted that prior to the incident, accused No.1 had taken the deceased to the hospital for her liver problem. She has admitted that her daughter used to take treatment in the hospital and take tablets for

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the said problem. However, a careful perusal of the medical evidence and the evidence of Doctor - PW.17, it cannot be said that, on account of the said liver problem, the deceased died in the hospital.

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PW.17 has noticed puncture wound on the lateral aspect of neck and certain internal injuries. Insofar as the injuries caused to the deceased, the same are corroborated by medical evidence. PW.1 was residing nearby and she has rushed to the house of her daughter, on receiving the phone call of accused No.1 and noticed her daughter suffering from abdominal pain and therefore, shifted and admitted her to the hospital, with a history of assault by accused No.1. There is sufficient evidence on record to show that, the deceased sustained injuries on account of the assault by accused No.1 and subsequently, succumbed to the said injuries, while undergoing treatment in the hospital.

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A perusal of Ex.P.2 and the evidence on record clearly goes to show that, it is accused No.1 himself, who

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informed PW.1 over phone and then he too accompanied the deceased to the hospital. PW.1 has stated that, after her daughter was got admitted, accused No.1 fled away. She has stated that her daughter informed her that accused No.1 demanded money for expenses and then assaulted her with hands and kicked on her stomach. If there was any intention on the part of accused No.1 to take away the life of deceased, he would not have informed PW.1 about the incident and would not have accompanied the deceased to the hospital. The allegations are that, he has assaulted the deceased with hands and kicked on her stomach. Admittedly, he did not use any weapon. It appears, in the quarrel, in a fit of anger, accused assaulted the deceased with hands and kicked her, which act resulted in her death.

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The trial Court was not proper in holding that the accused has caused dowry death. There are sufficient evidence on record to show that the deceased sustained injuries on account of the assault made by the accused.

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There is no sufficient evidence to show that, soon before

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her death, deceased was subjected to cruelty for the purpose of dowry in connection with marriage. On the other hand, there are materials to show that, accused demanded money from the deceased for expenses and then picked up a quarrel and assaulted her. It is well settled that if an accused is acquitted under Section 302 of IPC and if there is evidence available so as to satisfy the ingredients of Section 304-B of IPC, the accused can still be convicted under Section 304-B of IPC. However, in the

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present case, this Court is of the view that, there is no sufficient evidence to show that the accused has caused dowry death, on the other hand, there is evidence to show that the deceased sustained injuries on account of assault made by the accused and subsequently, succumbed to the said injuries. However, the materials on record are not sufficient to fulfill the ingredients of Section 300 of IPC.

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The material on record do not show that there was any intention for the accused to commit murder. However, he had a knowledge that, his act would lead to death, since

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deceased was suffering from liver problem. This Court is of the view that the accused has committed culpable homicidal not amounting to murder and committed such act with a knowledge that his act may lead to causing death of the deceased. Accused No.1 has therefore, committed for an offence punishable under Section 304 Part-II IPC.

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Insofar as Section 498A of IPC is concerned, it is the consistent evidence of the prosecution witnesses namely, PWs.1, 5 and 7 that the accused was addicted to alcohol and he was suspecting the character of the deceased and subjecting her to physical and mental torture. However, there is no sufficient evidence insofar as accused No.2 is concerned, who was admittedly not residing with accused No.1 and the deceased at the time of incident. It is the specific case of prosecution that the deceased and accused were living separately in a rented house near the house of the complainant from 2017. It is also relevant to mention that, while filing the charge

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sheet, the name of accused No.2 was deleted. However, subsequently on an application filed by the prosecutor, she

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was impleaded as an accused. The charges leveled against accused No.2 are not at all established by the prosecution.

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It is submitted by the learned counsel for the appellant that, since the date of arrest i.e., 10.06.2019, the accused is in custody. Therefore, he is in custody for over 5 years 5 months. In the overall facts and circumstances, this Court deems it fit to sentence the accused for 6 years imprisonment for the offence punishable under Section 304 Part-II of IPC.

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For the forgoing reasons, the following:

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ORDER

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i. Criminal Appeal No.200211/2021 is allowed-

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in-part.

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ii. Criminal Appeal No.200210/2021 is allowed.

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iii. The conviction and sentence imposed against accused No.1 by the Court of I-Additional Sessions Judge, Kalaburagi in S.C.No.165/2019 vide impugned order dated 16.09.2021 for the offence punishable under Section 304-B of IPC and Section 4 of the D.P Act, are set aside.

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iv. Accused No.1 is convicted for an offence punishable under Section 304 Part-II of IPC and is sentenced to undergo rigorous imprisonment for a period of 6 years and to a pay fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for 2 months.

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