Allowed

Shiva Pramod v. the State of Karnataka

Karnataka HC19 Dec 2024CRL.A/327/2012

Case brief

AI extract

What is this about?

High Court allowed criminal appeal challenging conviction for dowry death and cruelty. Court acquitted appellant, finding evidence insufficient to prove cruelty connected to dowry demand, as unhappiness stemmed from marital incompatibility and lack of affection rather than harassment.

What did the court decide?

Impugned judgment of conviction set aside; appellant acquitted of offences under Sections 498-A and 304-B IPC.

Shiva Pramod Vs the State of Karnataka — Dowry and Cruelty | Karnataka HC (2024)

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1 - NC: 2024:KHC:52512 CRL.A No. 327 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No. 327 OF 2012

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BETWEEN:

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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.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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…APPELLANT (BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR SRI N A KARIAPPA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KENGERI POLICE STATION BANGALORE CITY. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR).

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…RESPONDENT

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(BY SMT. A VENAT SATHYANARAYANA, HCGP)

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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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NC: 2024:KHC:52512 CRL.A No. 327 of 2012

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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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.

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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.

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The case came to be committed to the Sessions

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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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Heard learned Senior Counsel for appellant – accused No.1 and learned High Court Government Pleader for the respondent –State.

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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

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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

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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

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the following decisions

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1) Shoor Singh Vs. State of Uttarakhand¹

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2) Girish Singh Vs. State of Uttarakhand²

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3) Baijnath Vs. State of M.P.³

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4) Vipin Jaiswal Vs. State of A.P⁴

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5) Sunil Bajaj Vs. State of M.P⁵

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6) State of Karnatka Vs. H A Ramswamy⁶

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7) Biswajit Halder Vs. State of Bihar⁷

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8) Kahkashan Kausar Vs. State of Bihar⁸

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9) Sharad Birdhichand Sarda Vs. State of

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Maharastra⁹

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10) T Aruntperunjothi Vs. State of T.N.¹⁰

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1 Reported in 2024 7 Supreme 225

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2 Reported in 2020 18 SCC 423

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3 Reported in 2017 (1) SCC 101

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4 Reported in 2013 (3) SCC 684

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5 Reported in 2001 (9) SCC 417

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6 Reported in ILR 1996 KAR 1107

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7 Reported in 2008 (1) SCC 202

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8 Reported in 2022 (6) SCC 599

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9 Reported in 1984 (4) SCC 116

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11) Aher Raja Khima Vs. State of Saurashtra¹¹

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12) State of W.B. Vs. Orilal Jaiswal12

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13) State of Haryana Vs. Ram Singh¹³

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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.

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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

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10 Reported in 2006 (9) SCC 467

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11 Reported in AIR 1956 SC 217

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12 Reported in 1994 SCC(Cri) 107

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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.

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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:

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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?

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My answer to the above point is in Affirmative for the following reasons

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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

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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.

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The Hon’ble Apex Court in the case of Shoor Singh Vs. State of Uttarakhand (Supra) has observed as under

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“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.

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Explanation. -- For the purpose of this subsection, 'dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 [28 of 1961).

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(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:

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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;

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ii. such death must have occurred within seven years of her marriage;

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iii. soon before such death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

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iv. such cruelty or harassment must be in connection with any demand for dowry.

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The phrase 'otherwise than under normal circumstances' is wide enough to encompass a suicidal death.

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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.

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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.”

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In the instant case, it is not in dispute that the

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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.

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The Hon’ble Apex Court in the case of Girish Singh Vs State of Karnataka(Supra ) has observed as under

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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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The Hon’ble Apex Court in the case of Bajinath

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Vs State of M.P(Supra) has observed as under

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”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.”

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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.

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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.

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P.W.1 –father of the deceased has stated in his

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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.

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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.

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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

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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.

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The Division Bench of this Court in the case of

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State of Karnataka Vs H.A.Ramswamy(Supra) has observed as under:

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“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-andthe- 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.”

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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.

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The Honbale Apex Court in the case of Sharad Birdhichand Sarda Vs State of Maharasytra(Supra ) has observed as under

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“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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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

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that the appellant -accused No.1 has harassed and illtreated 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

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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

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judgment of conviction and order on sentence.

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In the result, the following

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ORDER

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i) The appeal is allowed.

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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.

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iii) In view of the above order, IA No.1/2024 stands allowed and order dated 20.11.2024 is recalled.

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iv) Communicate the order of recalling order dated 20.11.2024 to the trail Court by e-mail.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP

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List No.: 1 Sl No.: 14

Shiva Pramod v. the State of Karnataka

Case brief

What is this about?

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Shiva Pramod v. the State of Karnataka

Case brief

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