Ravinchandra S/O Manohara Vs State by Beechanahally Police Station

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:5.12.12 PASSED IN S.C.NO.138/10 ON THE FILE OF THE V ADDL.S.J., MYSORE - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498-A OF IPC. AND THE APPELLANT/ACCUSED IS DIRECTED TO UNDERGO S.I. FOR 2 1/2 YEARS FOR THE OFFENCE P/U/S 498-A OF IPC AND HE IS ALSO DIRECTED TO PAY FINE OF RS.5,000/. IN DEFAULT OF PAYMENT OF FINE, HE IS DIRECTED TO UNDERGO S.U. FOR 2 MONTHS.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.R.S.Ravi, learned Senior Counsel for

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Sri.Mayanna Gowda, learned counsel for the appellant and Sri.Channappa Erappa, learned High Court Government Pleader for the Respondent/State.

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The appellant being the first accused in Spl.CC.No.138/2010 have been convicted by judgement dated 05.12.2012, on the file of V Additional Sessions Judge, Mysore, has challenged the validity of the judgment of conviction and order of sentence.

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Facts in the nutshell, which are most essential for disposal of the appeal are as under:

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3.1. A complaint came to be lodged with Beechanahalli Police Station, by the complainant Smt.Lingamma W/o Chikkanaika, resident of Itna Village, H D Kote Taluk, contending that she had a daughter by name Annapoorna and she was married to appellant herein. It was a love affair and thereafter marriage was

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performed by exchange of garlands on 22.08.2007 in Mahadeswara Swamy Temple at Mysore.

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3.2. It is contended that the appellant and his parents (accused Nos.2 and 3) looked after Annapoorna for a brief period in a proper manner. Thereafter, there was a demand of dowry by the appellant and his parents. When the said demand was not met, there was physical and mental harassment imparted to the said Annapoorna. When the same was reported to the complainant and her son, they advised the appellant to look after Annapoorna in a proper manner as it was a love affair.

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3.3. However, the harassment continued and appellant said to have threatened Annapoorna that if the dowry demand is not fulfilled, he would contract a second marriage. There were physical abuses and physical assaults to Annapoorna, pursuant to demand of dowry in a sum of Rs.2,00,000/-. When the ill-treatment continued, number of advices were made. But the appellant and his parents did not heed to such requests.

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3.4. When the matter stood thus, on 23.10.2009, at

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about 11.00 a.m., Lingamma received a telephone call from a mobile telephone from N Begur. Immediately, complainant and her son Krishna rushed to the house of the appellant. They noticed Annapoorna in an unconscious stage lying on the bed. Immediately, she was shifted to Kenchanahalli Hospital. After examining Annapoorna, Doctor advised to shift Annapoorna to H D Kote Hospital immediately. Accordingly, complainant and others brought Annopoorna to H D Kote Hospital. On examination of Annapoorna in H D Kote Hospital, it was declared that she had been brought dead.

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3.5. After receiving the complaint, Beechanahall

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Police registered a case against the appellant and his parents for the offences punishable under Sections 498-A, 304-B read with Section 34 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and Sections 3, 4 and 6 of the Dowry Prohibition Act.

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3.6. The appellant was arrested and produced before

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the Magistrate and he was sent to the judicial custody.

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3.7. After completing the investigation in detail, Beechanahalli Police filed charge-sheet for the aforesaid offences against the appellant and his parents. The learned Trial Magistrate took cognizance of those offences and committed the matter to the Sessions Court at Mysore.

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The learned Sessions Judge, after taking cognizance, secured the presence of the appellant and his parents and after compliance of Section 207 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), charges were framed. Accused persons pleaded not guilty therefore, trial was held.

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In order to bring home the guilt of the accused, prosecution in all examined as many as 29 witnesses as PWs.1 to 29 and placed on record 34 documents which were exhibited and marked as Exs.P.1 to P.34.

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The statement of the accused as is

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contemplated under Section 313 of Cr.P.C. was recorded by the learned Sessions Judge, on conclusions of the recording of evidence. Accused persons denied all the incriminating materials found against them in the case of the prosecution and did not choose to place any materials on record about their version to the incident, as is contemplated under Section 313 (4) of Cr.P.C.

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Thereafter, learned Trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence on record, acquitted accused Nos.2 and 3 (parents of the appellant) of all the charges and acquitted the appellant for the offences punishable under Sections 304-B, 302 of IPC and offences under the provision of Dowry Prohibition Act, 1961; but, convicted the appellant only for the offence punishable under Section 498-A of IPC and sentenced him to undergo simple imprisonment for a period of 2½ years with a fine of Rs.5,000/- and default sentence of 2 months.

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Being aggrieved by the same, appellant is

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before this Court in this appeal.

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It is pertinent to note that the state did not challenge the acquittal of the appellant for the offences other than 498-A of IPC; so also did not challenge the order of acquittal passed by the learned Trial Judge acquitting the parents of the appellant in toto.

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Sri.R.S.Ravi, learned Senior Counsel

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representing the appellant contended that when the marriage is a love marriage, there was no scope for the appellant treating the deceased Annapoorna, so as to attract any one of the ingredients for the offence punishable under Section 498-A of IPC, much less all ingredients for the offence under Section 498-A of IPC and thus, sought for allowing the appeal.

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He further contended that the learned Trial Judge has considered the material evidence on record for acquittal of the appellant for the remaining offences, in the absence of any special material on record which would

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attract the offence punishable under Section 498-A of IPC. Thus, conviction recorded by the learned Trial Judge, is more a moral conviction rather than the conviction in accordance with law and thus, sought for allowing the appeal.

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Alternatively, Sri.R.S.Ravi, contended that the incident has occurred in the year 2010 and at this distance of time if the appellant is directed to undergo simple imprisonment as ordered by the learned Trial Judge, it would act harsh on the appellant. Therefore, sought for setting aside the simple imprisonment by holding that the custody period already undergone by the appellant be treated as period of imprisonment by enhancing the fine amount reasonably.

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He buttressed his argument in this regard, by highlighting the fact that the complainant nor the state have challenged the order of the learned Sessions Judge acquitting the appellant for the other offences and his

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parents for all the offences and sought for passing appropriate order.

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Per contra, Sri.Chennappa Erappa, learned High Court Government Pleader supported the impugned judgment. He further contended that mere non-filing of the appeal by the state or the defacto complainant challenging the order of acquittal of the appellant for the remaining offences and acquittal of the parents of the appellant for all the offences would not ipso facto does not make out a case for the appellant to seek acquittal of the appellant even for the offence under Section 498-A of IPC, as material evidence on record is sufficient enough to uphold the order of conviction for the offence under Section 498-A of IPC.

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He has specifically pointed out that the complainant has deposed before the Court about the harassment that is imparted to the deceased by the appellant in the guise of demanding the dowry in a sum of Rs.2,00,000/- and the same has been rightly appreciated

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by the learned Trial Judge while passing the impugned judgment and sought for dismissal of the appeal.

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He also argued that the alternate submission canvassed on behalf of the appellant cannot be countenanced in law inasmuch as the life of Annapoorna would not come back by directing the enhanced fine amount to be paid by the appellant and thus sought for dismissal of the appeal in toto.

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Having heard the arguments of both side, this Court perused the material on record meticulously. On such perusal of the materials on record, following points would arise for consideration:

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1) Whether the prosecution has successful in placing cogent and convincing evidence on record to maintain the order of the conviction under Section 498-A of IPC?

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2) Whether the appellants make out a case that the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

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3) Whether the sentence is excessive?

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4) What order?

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REG.POINT NOS.1 AND 2:

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In the case on hand, the love marriage between the deceased Annapoorna and the appellant having taken place by exchange of garlands in Mahadeswara Swamy Temple at Mysore on 22.08.2007 is not in dispute. Since it is a love marriage, there was no scope for demand of dowry by the parents of the appellant or the appellant at the time of marriage.

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Having said thus, it is found from the complaint averments and the oral testimony of the complainant that after the marriage, her daughter Annapoorna was looked after well for a brief period. Thereafter, there was a demand for a dowry.

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The dowry demand was made in a sum of Rs.2,00,000/- and there was a threat given by the very same appellant that if the demand was not made, he would contract a second marriage. When the same was intimated by Annapoorna to the complainant and her son, both of them advised the appellant to look after

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Annapoorna in a proper manner as it was a love marriage. However, the advice did not yield any result as could be seen from the material on record. When the matter stood thus, on 23.10.2009, at about 11.00 a.m., there was a telephone call received by the complainant from N. Begur.

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Immediately, complainant and her son rushed to the house of the appellant. They have noticed that the body of Annapoorna was lying on the bed. When they enquired as to what has happened, there was no explanation offered by the appellant or his parents. Immediately, she was shifted to Kenchanahalli Hospital, wherein the Doctors after examining Annapoorna, advised the complainant and her son to take Annapoorna to higher medical care at H D Kote. Immediately, Annapoorna was taken to H D Kote Hospital. Doctors who examined Annapoorna in H D Kote Hospital declared that she had been brought dead.

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In the light of the complaint averments, when a death has taken place in the marital home and there is a

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demand of dowry, prosecution enjoys the presumptions under Section 304-B of IPC and under Sections 113-A and 113-B of the Indian Evidence Act. The presumption available in those sections would relieve the place in the positive evidence on record on the complainant. Nevertheless, the learned Trial Judge has acquitted the appellant for the offence punishable under Section 304-B and Section 302 of IPC and also under the provisions of the Dowry Prohibition Act. The learned Trial Judge also acquitted the parents of the appellant for all the offences including 498-A of IPC.

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State did not choose to challenge the acquittal of the appellant and his parents; so also the complainant. Under such circumstances, in the appeal filed by the accused, this Court cannot revisit into the validity of the finding recorded by the learned Trial Judge in acquitting as stated the appellant and his parents as referred to supra .

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However, for the limited purpose of finding out whether the recording of conviction for the offence

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punishable under Section 498-A of IPC, this Court bestows its attention to the prosecution evidence.

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On such consideration of prosecution evidence, since the incident that has occurred in the matrimonial home and there was a report made by the deceased Annapoorna to complainant about the harassment, no more positive evidence could have been placed on record. However, material on record would also go to show that the neighbours have supported the case of prosecution partly. Offence under Section 498-A usually takes place within the four walls and expecting positive evidence in that regard is impermissible. Therefore, legislature in its wisdom carved out presumptions under Sections 113-A and 113-B of the Indian Evidence Act, which are complementary to the offence punishable under Section 304-B of IPC.

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Therefore, in such circumstances, there is a requirement for the appellant or the other accused persons

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to place on record what exactly transpired, which led to the death of Annapoorna in the form of rebuttal evidence.

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In the case on hand, for the reasons best known to the appellant and his parents, no defence evidence is placed on record nor any written submission even furnished to the Court as is contemplated under Section 313(4) Cr.P.C. placing the version of the appellant and his parents about the incident. In the absence of any such material on record, it is expected from the appellant and his parents, as per Section 106 of the Indian Evidence Act, the Trial Judge holding that the material on record would be sufficient enough to record in order of conviction under Section 498-A of IPC cannot be faulted with.

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It is also pertinent to note that if at all the Trial Judge has wrongly appreciated the material evidence on record, he would have convicted the parents of the appellant also for the offence under Section 498-A of IPC. But, the Trial Judge was cautious enough in noting the fact that it was a love marriage and it is the appellant who has

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demanded for a sum of Rs.2,00,000/- as dowry amount. Subsequently, when the same is not met, he has threatened the deceased Annapoorna that he would contract a second marriage stands having been established, has recorded the order of conviction only as against the appellant. Therefore, this Court can very well infer that the sufficient application of judicial mind by the learned Trial Judge while passing the impugned judgement.

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From the above discussion, this Court is of the considered opinion that the conviction of the appellant for the offence under Section 498-A of IPC has been established by the prosecution by placing cogent and convincing evidence on record.

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In view of the foregoing discussion, point No.1 is answered in the affirmative and point No.2 in the negative .

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REG.POINT.NO.3:

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Sri.R.S.Ravi, learned Senior Counsel

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emphasised that the incident has occurred in the year 2010 and much water has flown under the bridge. He has also stated that for the offence under Section 498-A of IPC, the custody period already undergone by the appellant can be treated as a period of imprisonment by enhancing the fine amount and portion of it could be paid as compensation to the mother of the victim Smt.Lingamma.

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Learned High Court Government Pleader, however opposed the said submission, by contending that by paying the enhanced fine amount valuable life of Annapoorna could not be brought back.

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In a matter of this nature when the state and complainant have not challenged the acquittal of the appellant for the remaining offences and parents for all the offences, this Court is of the considered opinion that the alternate submission made on behalf of the appellant needs to be considered.

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Taking note of the fact, that the incident has

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occurred on 23.10.2009 and appellant was in custody for

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some period till he got the bail, the same can be treated as a period of imprisonment by enhancing the fine amount in sum of Rs.75,000/- which can be paid as compensation to Smt.Lingamma (mother of the deceased) and in terms of Section 357 of Cr.P.C. which would meet the ends of justice. Accordingly, point No.3 is answered partly in the affirmative .

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REG.POINT NO.4:

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In view of the findings of this Court on point Nos.1 to 3 as above, following:

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ORDER

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i) The appeal is allowed-in part.

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ii) While maintaining the conviction of the appellant for the offence under Section 498-A of IPC, the custody period already undergone by the appellant is treated as a period of imprisonment by enhancing the

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fine amount in a sum of Rs.75,000/which is payable on or before 28.02.2025, failing which the appellant shall undergo remaining part of the sentence as ordered by the learned Trial Judge.

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iii) On receipt of the entire fine amount of Rs.75,000/-, the same shall be paid as compensation to PW.1-Lingamma under due identification and if she is not alive, to the brother of the deceased under due identification.

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iv) Office is directed to return the Trial Court Records along with copy of this order for issuing modified conviction order.

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Sd/(V SRISHANANDA)

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JUDGE

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BKN/List No.: 1 Sl No.: 37

Ravinchandra S/O Manohara v. State by Beechanahally Police Station

Case brief

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Ravinchandra S/O Manohara v. State by Beechanahally Police Station

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