Dismissed

State of Karnataka v. Kunduwada Basavaraj

Karnataka HC18 Jul 2024CRL.A/567/2017

Case brief

AI extract

What is this about?

Appeals against trial court's conviction under Sections 498A and 306 IPC and acquittal under Section 304B IPC and Sections 3 and 4 DP Act in a suicide case. The High Court found prosecution evidence inconsistent, uncorroborated and exaggerated, held no legally acceptable proof of dowry-related cruelty, dismissed the State's appeal and acquitted the accused of all charges.

What did the court decide?

State's appeal dismissed; accused's appeal allowed; conviction and sentence set aside; accused acquitted of all charges; bail bonds discharged; fine refunded.

State of Karnataka Vs Kunduwada Basavaraj — Dowry and Cruelty | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JULY, 2024 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

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CRIMINAL APPEAL NO.567/2017 (A) C/W CRIMINAL APPEAL NO.1118/2016 (C)

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IN CRIMINAL APPEAL NO.567/2017

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BETWEEN:

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STATE OF KARNATAKA BY RMC YARD POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING

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BENGALURU – 560 001 … APPELLANT

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(BY SMT. SOWMYA R, HCGP)

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AND:

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

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KUNDUWADA BASAVARAJ S/O VEERANNA AGED ABOUT 63 YEARS OCC: AGRICULTURE

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KARIBASAMMA W/O KUNDUWADA BASAVARAJ AGED ABOUT 58 YEARS OCC: HOUSE WIFE

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K. B. VEERESH SON OF KUNDUWADA BASAVARAJAPPA AGED ABOUT 34 YEARS OCC: AGRICULTURE

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BOTH ARE R/O IN FRONT OF ANJANEYA TEMPLE BASAPURA VILLAGE DAVANAGERE - 577 001. … RESPONDENTS

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(BY SRI. HASHMATHPASHA, SENIOR COUNSEL FOR SRI. SANTHOSH B, ADVOCATE FOR R1 TO R3)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.06.2016 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.1/2014 - ACQUITTING THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 304B READ WITH SECTION 34 OF IPC AND SEC.3 AND 4 OF D.P.ACT.

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IN CRIMINAL APPEAL NO.1118/2016

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BETWEEN:

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1 . KUNDUWADA BASAVARAJA S/O VEERANNA AGED ABOUT 62 YEARS OCC: AGRICULTURIST.

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2 . KARIBASAMMA W/O KUNDUWADA BASAVARAJA AGED ABOUT 57 YEARS OCC: HOUSEHOLD.

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3 . K.B. VEERESH S/O KUNDUWADA BASAVARAJA AGED ABOUT 33 YEARS OCC: AGRICULTURIST.

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ALL ARE R/AT OPP. ANJANEYA TEMPLE BASAPURA VILLAGE

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DAVANGERE TALUK & DISTRICT-577009. … APPELLANTS

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(BY SRI. HASHMATHPASHA, SENIOR COUNSEL FOR SRI.SANTHOSH B, ADVOCATE )

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AND:

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THE STATE BY R.M.C. YARD POLICE

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DAVANAGERE

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REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING

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BANGALORE – 560 001 … RESPONDENT

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(BY SMT. SOWMYA R, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 30.06.2016 PASSED

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BY THE PRL. DIST. AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.1/2014 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 306 OF IPC. THESE APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals arise out of the judgment and order of conviction and sentence passed in S.C.No.1/2014 by the Principal District & Sessions Judge, Davanagere for the offences punishable under Sections 498A and 306 of IPC and order of acquittal for the offences punishable under Section 304B read with Section 34 IPC and under Sections 3 & 4 of the Dowry Prohibition Act, 1961 (for short, 'DP Act').

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The appellants in Crl.A.1118/2016 were accused Nos.1 to 3 in S.C.No.1/2014. Crl.A.567/2017 is preferred by the State questioning the acquittal of the accused for the offences punishable under Sections 3 & 4 of the DP Act and Section 304B read with Section 34 of IPC. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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Accused Nos.1 & 2 are the father and mother of accused No.3. They were tried in S.C.No.1/2014 by the trial Court for the charges for the offences punishable under

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Sections 498A, 304B, 306 read with Section 34 of IPC and Sections 3 & 4 of the DP Act on the basis of the charge sheet filed by the Davanagere RMC Yard Police in Crime No.56/2013 of their police station.

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The case of the prosecution in brief is as follows:

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That the marriage of accused No.3 and deceased Kavitha was solemnized on 12.11.2010 in Davanagere. At the time of marriage, on the demand of the accused, the parents of Kavitha had given cash of Rs.3,00,000/-, 20 tholas of gold jewelry, one motorcycle and marriage expenses as dowry. The accused lived cordially with the deceased till she gave birth to a female child who was born with physical and mental disability. The accused subjected Kavitha to physical and mental cruelty demanding additional dowry and abusing that she has given birth to a physically and mentally challenged child. The accused were harassing her saying that she should kill the said child or abandon the same somewhere and she should bring money for the treatment of the child. Being unable to withstand such cruelty, on 10.07.2013 between 05.00 p.m and 08.00 p.m. Kavitha committed suicide by hanging herself in the house of the accused.

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PW-5 is the elder brother, PW-7 is the father of deceased Kavitha. PW-9 is the son of the brother of PW-7. PW14 is the brother-in-law, PW-15 is the elder sister of deceased Kavitha. PWs-10 to 12 are the neighbours of the accused.

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Regarding the incident, PW-5 filed the complaint as per Ex.P-4 based on which initially the FIR was registered against accused Nos.1 to 3 and daughter and son-in-law of accused Nos.1 & 2 for the offences punishable under Sections 302, 498A and 304B of IPC. After investigation, the IO himself dropped accused Nos.4 & 5 on the ground that there was no evidence against them. The charge sheet was filed only against accused Nos.1 to 3 for the offences punishable under Sections 498A, 304B, 306 read with Section 34 of IPC and Sections 3 and 4 of the DP Act.

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The trial Court on hearing the parties, framed the charges against the accused as aforesaid for the offences punishable under Sections 498A, 306, 304B read with Section 34 of IPC and Sections 3 & 4 of DP Act. The accused denied the charges. Therefore, the trial was conducted. In support of the case of the prosecution, PWs-1 to 21 were examined, Exs.P-1 to P-19 and MO-1 were marked.

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The trial Court, on hearing the parties, by the impugned judgment and order, acquitted the accused of the charges for the offences punishable under Section 304B read with 34 of IPC and Sections 3 & 4 of the DP Act, however, convicted them for the offences punishable under Sections 498A & 306 of IPC. For the said offences, the trial Court sentenced the accused as follows:

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Offence	Imprisonment	Fine	In default
498A	3 years Simple Imprisonment	Rs.5,000/-	4 months Simple Imprisonment
306	7 years Simple Imprisonment	Rs.10,000/-	8 months Simple Imprisonment

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Challenging their conviction and sentence, the

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accused have preferred Crl.A.No.1118/2016. Challenging the acquittal for the offences under Section 304B read with Section 34 of IPC and Sections 3 & 4 of the DP Act and sentencing them for lesser offence, the State has preferred Crl.A.No.567/2017.

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Sri.Hashmathpasha, learned Senior counsel

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appearing for the advocate on record for accused Nos.1 to 3 submits that in the complaint absolutely there were no

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allegations of the accused subjecting the victim to cruelty pressurizing her to kill the child or abandon the child and the witnesses stage by stage improved their version to that effect. He further submits that the evidence on record clearly shows that the victim gave birth to a specially abled child and when again she conceived, that child was also found to have some deformity, therefore the pregnancy was terminated on that ground. He further submits that the evidence on record shows that there was a family history of child being born with deformity in the parental family of the victim, due to that depression the victim committed suicide. He further submits that except the relatives of the victim, the neighbours did not support the theory of such harassment. The evidence on record clearly shows that the victim was not subjected to cruelty as required under Section 498A of IPC. The trial Court committed serious error in convicting the accused when the evidence was not cogent, consistent and legally acceptable. Thus, he seeks to allow the appeal of accused Nos.1 to 3 and dismissal of the appeal of the State.

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Per contra, Smt.Sowmya R., learned High Court Government Pleader submits that the evidence of parents,

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brother and relatives of the deceased clearly shows that victim

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was subjected to cruelty in connection with the demand for dowry. The death has taken place within three years of the marriage. Having regard to the evidence of relatives of the victim, the presumption under Section 113B of the Indian Evidence Act, 1872(for short ‘Evidence Act’) arises. She submits that the trial Court, though held that the cruelty within four walls of the house cannot be proved by concrete evidence, fell in error in holding that cruelty was not in connection with demand for dowry but was only with regard to the victim begetting a specially abled child. She submits that such finding of the trial Court has led to injustice, therefore, reversing the judgment and order of trial Court, the accused need to be convicted for the offences punishable under Section 304B read with Section 34 of IPC and Sections 3 & 4 of DP Act.

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On hearing both sides and on examining the materials on record, the point that arises for consideration of the Court is:

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"Whether the impugned judgment and order of

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conviction and sentence for the offences under

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Section 498A and 306 of IPC is just and sustainable

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in law?"

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ANALYSIS

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There is no dispute that the marriage of accused No.3 and Kavitha was solemnized on 12.11.2010. There is also

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no dispute that Kavitha committed suicide in the house of the accused on 10.07.2013 between 05.00 p.m. and 08.00 p.m. by hanging herself. It is also not in dispute that the first child/daughter of the couple was physically and mentally challenged and at the time of death of the victim, the said child was aged 1 year 6 months. It is also not in dispute that Kavitha conceived a second child and it was found that the said fetus had deformity and therefore, the said pregnancy was terminated.

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The complainant party/prosecution claimed that at the time of marriage, the accused demanded and accepted cash of Rs.3,00,000/-, gold jewelry weighing 20 tolas, one Passion Pro bike and the marriage expenses were borne by the parents of Kavitha.

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According to the prosecution, the accused subjected the victim to physical and mental cruelty demanding additional

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dowry and also insisting her that she should kill her specially abled child or abandon her somewhere, which drove her to commit suicide. Whereas, the accused claimed that the victim committed suicide due to depression for begetting a physically and mentally challenged child, again conceiving similar child for the second time and in the background of her family history of begetting such children, but they are falsely implicated in the case. The allegation of demand and acceptance of dowry or harassment for any dowry or for killing or abandoning the child were denied.

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It is no doubt true that the death has taken place within seven years of the marriage and the same is unnatural one. However, that itself does not directly lead to the presumption under Section 113A or 113B of the Evidence Act. It is settled law that to raise such presumption of dowry death, the prosecution is required to discharge its initial burden that soon before her death, the victim was subjected to cruelty in connection with the demand for dowry or so as to drive her to commit suicide.

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In the present case, the incident took place on 10.07.2013 between 05.00 p.m. and 08.00p.m. The complaint

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was filed on 11.07.2013 at 01.30a.m. The FIR was delivered to the Court on 11.07.2013 at 09.30 a.m. Thus, there was no delay in filing the complaint or delivering the FIR.

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In the complaint Ex.P-4, PW-5 himself stated that accused No.1 phoned on 10.07.2013 at 09.00p.m. that all the accused had gone to some temple and when they returned home, the house was locked, Kavitha was not found and whether she had come to their place. He further stated that then his cousin brother PW-9 called the accused and over phone they informed him that the door to the room of Kavitha is locked, despite their attempts since 05.00 p.m. she is not opening the door. On hearing that, himself and PW-9 went to the spot, found the room locked from inside, they informed the police, the police came to the scene of occurrence and opened the door and found that the victim had hanged herself. Thus as per the compliant itself, victim committed suicide when accused had gone to a temple.

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At the first instance in the complaint it was alleged that at the time of marriage, cash of Rs.3,00,000/-, gold jewellries weighing 20 tolas, one Passion Pro motorcycle was given as dowry and marriage was performed at their expense

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and the victim was subjected to demand for additional dowry. In the complaint, it was alleged that at the time of naming ceremony of the child, again gold and refrigerator was given and accused went on demanding that in the similar fashion she should bring some more money. In the complaint, it was further alleged that he had requested brother-in-law of accused No.3 to advice the accused to look after Kavitha well.

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It is material to note that complaint was filed not only against accused Nos.1 to 3, but also daughter and son-inlaw of accused Nos.1 and 2. Despite victim being found hanging behind the closed door of the room which was locked from inside, the allegations of committing murder was made against the accused.

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After the investigation, the investigating officer himself did not find material against the daughter and son-inlaw of accused Nos.1 and 2 and he dropped them. Similarly, the investigating officer did not find substance in the allegation that cash of Rs.3,00,000/-, 20 tolas gold, one passion pro motorcycle were given as dowry and the marriage expenses were born by the parents of Kavitha. The investigating officer further did not find any substance in the allegation that at the

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time of naming ceremony of the child, on the demand of the accused, gold and one refrigerator was given. That goes to show that there was an attempt of false implication for dowry harassment. Therefore, the evidence on record has to be appreciated in that background.

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Out of the witnesses examined, material witnesses were PW.5-complainant cum elder brother of the deceased, PW.7 the father, PW.9 cousin brother, PW.14 husband of the elder sister of the deceased, PW.15 elder sister of the deceased, PW.13 the relative of the deceased, PW.16 who allegedly participated in the marriage talks and PWs.10 to 12 the neighbours, who were examined to corroborate the evidence. However, except for saying that child of the victim was physically and mentally challenged, PWs.10 to 12 did not whisper anything about accused subjecting deceased to cruelty in connection with their demand for dowry or in any other context. Therefore, their evidence was of no use to the prosecution.

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The other evidence relied on by the prosecution was the evidence of PW.20 PSI of RMC yard police station who registered FIR, PW.19 who conducted the investigation, filed

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charge sheet and PW.21 Taluka Executive Magistrate who conducted the inquest on the dead body of the victim.

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PW.21 deposed that he conducted the inquest as per Ex.P10 and recorded the statements of PWs.2,7 and 13. PW.21 did not even state in his chief-examination that after the investigation on the basis of records collected by him, he came to the conclusion that the death of the victim was a dowry death or the accused had subjected her to cruelty. Whereas in para 27 of Ex.P10 inquest mahazar, he implicated the accused, the sister and brother-in-law of accused No.3 and said to have arrived at a conclusion that the victim was subjected to physical and mental cruelty in connection with the demand of the accused for dowry and regarding specially abled child. Therefore, the evidence of PW.21 was also not of much help to the prosecution. Though Vinayaka Gowda was examined as PW.2, he did not whisper anything about inquest mahazarEx.P10 being conducted in his presence or he giving statement before PW.21 implicating the accused for dowry harassment or abetting the commission of suicide. He only spoke about conducting of spot mahazar Ex.P1 in his presence. Therefore, the evidence of PW.21 was also of no use to the prosecution.

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Then what remained was the evidence of PWs.5,7,9 and 13 to 16.

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PW.16 was examined to prove that at the time of marriage, accused demanded and accepted dowry. In his chiefexamination he stated that he acted as a mediator in the marriage of accused No.3 and Kavitha and the accused demanded and agreed for dowry of Rs.3 lakhs in cash, 20 tola gold and to give Rs.1.5 lakhs as marriage expenses to the accused. In the cross-examination he admits that regarding marriage talks, no memorandum was drawn. He further admits that in his presence no cash or jewellaries were paid. He further admits that it was complainant party who informed him about death of Kavitha and who had brought him to the Court to give evidence. By such admission, the statement of PW.16 in his chief-examination that dowry was demanded and paid in his presence was demolished.

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It is the contention of the accused that accused No.3 was the only son for accused Nos.1 and 2 and they were well of, as the victim girl was very beautiful, they got her married to their son without expecting anything. PW.16 in his examination admitted that he introduced the accused to the

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complainant party saying that the accused party are financially sound and on that count, complainant party proceeded with the alliance. PW.7 also in para 4 of his cross-examination admitted that his daughter was very beautiful and accused No.3 was the only son of accused Nos.1 and 2 and they were well of. He also admits that they happily gave their daughter in marriage to accused No.3.

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The evidence on record shows that PW.7 had four daughters namely, the deceased, PW.15, wife of PW.14, Sudha and one son i.e., PW.5. The above evidence goes to show that the accused parties were well placed compared to PW.7. There was variance in evidence of PW.5 and in the complaint with regard to demand and acceptance of dowry. In the complaint it was stated that Rs.3 lakhs, 20 tolas gold, one passion pro motorcycle and marriage expenses were demanded as dowry. But in para 3 of his chief-examination, PW.5 stated that at the time of marriage talks, cash of Rs.3 lakhs and 20 tolas gold and 1.5 lakhs marriage expenses were demanded. In para 4 of the chief-examination he states that after the marriage was fixed, accused No.3 started coming to their house and during that time he demanded a motorcycle and they gave Rs.50,000/- for

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purchasing motorcycle. Even according to him, after the marriage for 5-6 months the couple lived happily and thereafter, they started demanding for additional dowry.

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Whereas PW.7 the father of the victim did not whisper anything about accused No.3 visiting after the engagement ceremony and he demanding motorcycle and cash etc. He only stated about he giving cash of Rs.3 lakhs and 20 tolas gold as dowry. PW.5 in the complaint stated that at the time of naming ceremony of the child also they had given gold and refrigerator, but in his chief-examination he does not mention anything about giving refrigerator. He says only gold ornaments for the child were given. PW.7 says that at the time of naming ceremony, 5 tolas gold ornaments were given to the child. He does not whisper about any demand for gold jewellaries or refrigerator. PW.9 says that at the time of marriage on the demand of the accused cash of Rs.3 lakhs, 20 tola gold, Rs.1.5 lakhs for marriage expenses and Hero Honda motorcycle were given, whereas the father of the victim himself does not speak about Hero Honda motorcycle.

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PW.7 himself in his cross-examination admits that

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the second pregnancy of the victim was terminated on

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diagnosing that the child had deformity/disability. PW.9 disputes the same and he claimed that pregnancy was terminated at the instance of the accused and sister-in-law of the victim. PW.13 though deposed in the chief-examination as if he is totally an outsider to the family of the complainant party, in the cross-examination he admitted that he is the relative of the complainant party. In the chief-examination he only states that before Tahasildar he gave statement to the effect that at the time of marriage, Rs.3 lakhs cash, 20 tolas gold and Rs.1.5 lakhs marriage expenses were given. He does not state having given any statement before the investigating officer to that effect. He does not even say that he was present during the marriage talks or the dowry was given in his presence. He did not state about any demand or acceptance of gold or refrigerator at the time of naming ceremony of the child.

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Though PWs.14 and 15 i.e., brother-in-law and sister of the victim respectively, stated about demand for dowry and the accused insisting the victim to kill her child by drowning in the bucket of water etc., they do not whisper anything about they having given such statements before the

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Taluka Executive Magistrate during inquest. If really there was such harassment, at the earliest point of time, they could have stated about the same during inquest before the Taluka Executive Magistrate. As rightly pointed out by the Trial Court, all the aforesaid witnesses were close relatives of the deceased and they were interested witnesses. They wanted even to implicate sister and brother-in-law of accused No.3 in the case. Under the circumstances their evidence required corroboration. As the neighbors PWs.10 to 13 turned hostile, there was no corroboration for their evidence.

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Despite complaint itself indicating that the victim had committed suicide by locking doors from inside, PWs.14 and 15 made allegations of commission of murder. That goes to show there was an attempt of exaggeration on the part of the aforesaid witnesses to implicate accused by any means. Further PW.7 in clear terms admitted that when the victim conceived for the second time, on investigation it was found that fetus had deformity, therefore pregnancy was terminated and for that reason his daughter was upset. He further admitted that his other daughter Sakamma (wife of PW.14) also had physically disabled child. Despite such admission, the

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allegations were made that the accused got terminated the pregnancy of the victim forcibly. Such admission of PW.7 probabilises the defence of the accused that as there was history in the family of PW.7 of begetting specially-abled children, the victim’s first child and second fetus had deformity, the victim was depressed and committed suicide.

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Under the aforesaid facts and circumstances, the Trial Court holding that charges under Sections 304B IPC and Sections 3 and 4 of the DP Act were not proved beyond reasonable doubt cannot be said to be illegal or perverse. However, the Trial Court on holding that there was no cruelty in connection with demand for dowry, should have assessed the other evidence judiciously, more particularly in the light of admissions of PW.7 regarding the victim getting repetitively children with deformity and also in the context that till the victim committed suicide, there was no whisper from parental family of the victim about the accused subjecting her to cruelty on any ground.

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The Trial Court should have also noticed the exaggeration on the part of above said relatives of victims/witnesses by roping the entire family in the dowry

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death case. The complaint itself states that accused No.1 informed the complainant that after they returned from temple they found door locked and he only called the complainant to enquire about the victim. That substantiates the contention of the accused that when they had been to the temple the victim committed suicide. In para 10 of the cross-examination of PW.9, he also admitted that when they went to the scene of offence, only accused No.1 was found near the house. Therefore, it cannot be said that soon before her death, the victim was subjected to cruelty in any context. Under the circumstances, it can be said without any hesitation that there was no legally acceptable evidence to convict the accused for the offences under Sections 498A, 304B, 306 IPC or Sections 3 and 4 of the DP Act. Therefore, appeal of the State is liable to the dismissed and appeal of the accused succeeds. Hence the following:

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ORDER

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(i) Crl.A.No.567/2017 is hereby dismissed. (ii) Crl.A.No.1118/2016 is hereby allowed.

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(iii) The impugned judgment and order of conviction

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and sentence dated 30.06.2016 in S.C.No.1/2014 on the file of

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Principal District and Sessions Judge, Davanagere are hereby set aside.

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(iv) Accused Nos.1 to 3 in the said case are acquitted of all the charges brought against them.

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(v) Bail bonds of accused Nos.1 to 3 shall stand discharged. Fine amount deposited, if any, shall be refunded to them.

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The order of the Trial Court with regard to disposal of the material object is maintained.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR/PKN List No.: 1 Sl No.: 3

State of Karnataka v. Kunduwada Basavaraj

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Kunduwada Basavaraj

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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