Karnataka High Court
Raju Pawar vs State Of Karnataka on 1 April, 2022
Bench: S Rachaiah
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.977 OF 2011
BETWEEN:
RAJU PAWAR,
S/O J.D. PAWAR,
AGED ABOUT 33 YEARS,
R/AT NO. 256/3,
PAPAIAH LAYOUT,
RAJARAJESHWARINAGAR,
BANGALORE.
... APPELLANT
(BY SRI K. DIWAKARA, SR. COUNSEL FOR
NAGENDRA DIKSHIT S., ADVOCATE)
AND:
STATE OF KARNATAKA,
REPRESENTED BY,
RAJARAJESHWARINAGARPOLICE,
BANGALORE .
... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2)CR.P.C PRAYING TO SET ASIDE THE JUDGEMENT/ ORDER OF
CONVICTION DATED 17.08.2011 PASSED BY THE XLV-ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN S.C.NO.909/2007-
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
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PUNISHABLE UNDER SECTIONS 498-A AND 304(B) OF IPC AND
SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT.
AND THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO
S.I. FOR A PERIOD OF 05(FIVE) YEARS AND TO PAY A FINE OF
RS.2,000/- (RUPEES TWO THOUSAND ONLY) AND IN DEFAULT OF
PAYMENT OF FINE, THE ACCUSED SHALL FURTHER UNDERGO S.I. FOR
A PERIOD OF 03(THREE) MONTHS, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 3 OF DOWRY PROHIBITION ACT.
AND THE APPELLANT/ACCUSED NO.1 IS FURTHER SENTENCED TO
UNDERGO S.I. FOR A PERIOD OF 06(SIX) MONTHS AND TO PAY A
FINE OF RS.500/- (RUPEES FIVE HUNDRED ONLY), IN DEFAULT OF
PAYMENT OF FINE, THE ACCUSED SHALL FURTHER UNDERGO S.I. FOR
A PERIOD OF 01(ONE)MONTH, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 4 OF DOWRY PROHIBITION ACT.
AND THE APPELLANT/ACCUSED NO.1 IS FURTHER SENTENCED TO
UNDERGO S.I. FOR A PERIOD OF 02(TWO) YEARS AND TO PAY A FINE
OF RS.3,000/- (RUPEES THREE THOUSAND ONLY), IN DEFAULT OF
PAYMENT OF FINE, THE ACCUSED SHALL FURTHER UNDERGO S.I. FOR
A PERIOD OF 06 (SIX) MONTHS, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 498(A) OF IPC.
AND FURTHER THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO
UNDERGO R.I. FOR A PERIOD OF 07(SEVEN) YEARS FOR OFFENCE
PUNISHABLE UNDER SECTION 304(B) OF IPC. ALL THE SENTENCES
SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 05.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal is filed against the judgment and order of
conviction passed by the XLV Addl. City Civil and Sessions Judge
at Bengaluru in S.C.No.909/2007 dated 17/08/2011, for the
offences punishable under sections 304B, 498A of IPC and
Sections 3 and 4 of the Dowry Prohibition Act.
2. Brief facts of the case are as under:
That the marriage of deceased Geetha and the appellant
was performed on 11.04.2004 at Shivaprabha Kalyana Mantapa,
situated at West of Chord Road, Bangalore. As per the case of
the prosecution, a sum of Rs.1,00,000/- cash and gold
ornaments were given as dowry at the time of marriage. After
the marriage, the deceased Geetha and accused No.1 were
residing in the house of accused No.2, who is the sister of
accused No.1. There was constant quarrel and demand of dowry
by all the members of the family i.e., accused No.1 and accused
Nos.2 to 4. All the accused were demanding additional dowry
and also demanding to sell the site belonging to the deceased.
As she did not heed their words, they were harassing her and
insulting her and not allowing her to live happily in the
matrimonial house.
3. As there was a constant harassment and cruelty
meted out to the deceased, panchayat was held and it was
decided to make a separate house for deceased and Accused
No.1. Accordingly, PW10 - father of the deceased arranged a
separate house for his daughter and son-in-law at Papaiah
Layout, situated at Rajarajeswarinagar. He paid advance of
Rs.25,000/-. Both the accused No.1 and deceased started living
there separately.
4. It is the case of the prosecution that, the Accused
No.1 used to consume alcohol and used to come late in the
evening and was assaulting his wife - Geetha frequently. In
other words, he was demanding money from Geetha and
pressurizing her to sell the site. The deceased was not interested
in selling the property. Hence, there was a constant quarrel
between Accused No.1 and the deceased. Though P.W.10, his
friends and family members tried to pacify the matter, it was not
fructified.
5. On 19.07.2008, PW10 - father of the deceased got
the information about the death of his daughter and he went
there and saw the situation and lodged a complaint against
accused No.1 and his family members. The police have
registered the case in Crime No.70/2007 for the offence under
sections 498(A), 304(B), 302 R/w 34 of IPC and Sections 3 and
4 of Dowry prohibition Act and after conducting investigation,
filed the charge sheet.
6. After committal to the Sessions Court, the Trial Court
framed the charges against all the accused persons and read
over and explained to them. The accused pleaded not guilty and
claimed to be tried.
7. In order to prove the case of the prosecution, the
prosecution has examined 21 witnesses i.e., PWs.1 to 21 and got
marked the documents at Exs.P1 to P36 and material objects
marked at M.Os.1 to 5.
8. After having considered the oral and documentary
evidence and after hearing the arguments of the respective
parties, the trial court convicted accused No.1 and acquitted
accused Nos.2 to 4 for the offences under Sections 498A and
304 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
9. Being aggrieved by the said judgment of conviction,
the accused No.1/appellant has preferred this appeal, seeking to
set aside the judgment of conviction.
10. Sri.K.Diwakar, learned Senior Counsel for the
appellant contended that the trial court committed serious error
while appreciating the evidence and material on record, as such,
the impugned order of conviction of Accused No.1 / Appellant is
liable to be set aside.
Further, the learned Senior Counsel contended that, the
evidence of PW10, who is the father of the deceased, does not
corroborate the evidence of other witnesses namely PWs.2, 3, 4,
5, 6 and 7 with respect to harassment and cruelty and also
demand of dowry.
Further, the learned Senior Counsel contended that, there
are inconsistencies with respect to harassment, cruelty and
demand of dowry between father, mother and brother of the
deceased. Though the independent witnesses namely PWs.5, 6
and 7 are said to have supported the case of prosecution, their
evidence cannot be considered, as they are friends of PW.10 and
are interested witnesses.
Further, the learned Senior Counsel submits that the
demand of dowry is absent from the reading of evidence of all
the witnesses. At the time of marriage, according to the
evidence of friends of PW10, dowry was given in the form of
custom and tradition, as such, the demand of dowry at the time
of marriage would not arise and the trial court ignored to
consider this aspect and the trial court ought to have analyzed
the evidence properly in order to arrive at the conclusion, as
such, the learned Senior Counsel has sought to set aside the
conviction of appellant.
11. Per contra, Smt. Rashmi Jadhav, learned High court
Government Pleader, while justifying the judgment of conviction
submits that the trial court has properly appreciated the oral and
documentary evidence and rightly convicted accused No.1 and
acquitted accused Nos.2 to 4. Further, the learned HCGP submits
that there was a constant demand for additional dowry and in
that regard, cruelty and harassment was meted out by all the
members who had participated in the marriage negotiations.
The evidence of PWs.3, 4, 5, 6, 7 and 10 are consistent with
respect to demand of dowry, harassment and cruelty etc., and
interference in such a well-reasoned order is uncalled for by this
Court.
The learned HCGP further submits that on demand made
by Accused No.1, PW10, the father of the deceased arranged for
a separate house to the accused No.1 and deceased on rent of
Rs.2,300/- per month and paid the advance of Rs.25,000/-. The
same is corroborated by the evidence of PW14 who is the owner
of the house. Further, she submits that Accused No.1 was
constantly demanding money from the deceased and insisting
her to sell the site, as such, there was a constant harassment,
cruelty and demand of dowry. The prosecution has proved the
case beyond all reasonable doubt against accused No.1. Hence,
she sought to dismiss the appeal.
12. After having heard the learned Senior Counsel for
the appellant and the learned HCGP for the State and after
having appreciated the oral and documentary evidence, the
points that arise for my consideration are:
(i) Whether the trial court is justified in
convicting the accused No.1 for the offences
under Sections 498A, 304B of IPC and Sections 3
and 4 of the D.P. Act?
(ii) Whether the appellant has made out a
ground to interfere with the judgment of the trial
court?
13. This court being the first Appellate Court, in order to
re-appreciate the oral and documentary evidence and analyze
the evidence properly, it is necessary to have a cursory look
upon the evidence of all the witnesses, which are re-produced
below:
(a) PW.1 - Uday - is the witness to the
inquest panchanama which is marked as
Ex.P1. Supported the case of the
prosecution.
(b) PW.2 - Narasimha Naik - is the brother-
in-law of CW.1 / PW.10. He deposes
about the marriage negotiations, demand
and acceptance of dowry, further
deposed about the conduct of accused
No.1 and his family members and also
the incident. He has supported the case
of the prosecution.
(c) PW.3 - Ganganaik C.U. - He is also one
of brother-in-law of PW.10. He also
deposes about marriage negotiations,
demand of dowry, cruelty and
harassment. Supported the case.
(d) PW.4 - Kullegowda - was working at
BEML, Bengaluru, where PW.10 was
working. He was the friend of PW.10.
He has deposed that he was present
along with PW.10 throughout the
performance of marriage of the daughter
of PW.10 with accused No.1. Further he
deposes that PW.1 had bought a site in
the name of the deceased and registered
the same in the name of deceased and
accused No.1. He has supported the
case of the prosecution.
(e) PW.5 - Beeranna - is also one of the
friends of PW.10. He was also present at
the time of marriage of the daughter of
PW.10. He deposed that there was a
frequent quarrel between accused No.1
and deceased. Further he deposes that
the in-laws of the deceased, namely,
accused No.2 -Geetha, accused No.3 -
Kavitha, accused No.4 Aravinda and
accused No.5 -Sreekantha were used to
harass the deceased for dowry and also
insisting her to sell the site given to her
by her father PW.10.
(f) PW.6 - Sugunaram - was friend of
PW.10. He was running Hardware Shop
at RR Nagar, Bengaluru. Adjacent to his
shop, PW.10 was running Electrical Shop.
As such, he was acquainted to PW.10.
He deposes that he knows the daughter
of PW.10. Further, he says that a site
was given to the deceased by PW.10
which was measuring 30' x 50' and the
accused No.1 used to insist her to sell
the site for his necessities. As she did
not heed to his words, there was
frequent quarrel between deceased and
accused No.1. He supported the case of
the prosecution.
(g) PW.7 - Lakshmibai - is the wife of PW.10
and mother of the deceased. She
deposes that, the accused No.1 and his
parents and also sister and other
persons, who were present at the time of
marriage negotiations, were demanding
dowry and it was fulfilled. Further she
says that there was a constant
harassment, humiliation and also
degradation of deceased by the accused
No.1 and his parents regarding further
demand of dowry. She further says
that, deceased Geetha used to tell her in
that regard, as such, she came to know
about the facts and also they have
conducted panchayath several times and
tried to pacify the matter between them.
She supported the case of the
prosecution.
(h) PW.8 - Narayana - is the son of PW.10.
Reiterated the same facts as that of his
mother PW.7 and supported the case of
the prosecution.
(i) PW.9 - Ramesh.K. - is also one of the
sons of PW.10 and PW.7 and also brother
of deceased. He has also reiterated the
same facts as that of PW.7. He
supported the case of the prosecution.
(j) PW.10 - Krishnanaik - is the father of
deceased and also the husband of PW.7.
He says that he had lodged a complaint
before the police and same was marked
as Ex.P9. He has deposed that the
accused No.1 and parents and also sister
and her husband were constantly
harassing deceased Geetha to sell the
site and give money to them. The same
factor was made known to him by the
deceased Geetha. Though he tried to
pacify the matter several times, the
harassment had not stopped. Hence,
with the intervention of elders and the
panchayath, a separate house was made
on rental basis where accused No.1 and
deceased were residing. He says that
the advance of Rs.25,000/- was given to
the landlord by him. Inspite of he
taking care of accused No.1 and also
clearing the debt that he had borrowed,
accused No.1 was in the habit of
consuming alcohol and used to quarrel
with deceased Geetha. He has
supported the case with regard to
cruelty, harassment and also demand of
dowry by accused No.1.
(k) PW.11 - Sreenivasa - is the signatory to
Ex.P14 - spot mahazar under which
MO.1 and MO.2 have been seized.
Supported the case of the prosecution.
(l) PW.12 - Dr.K.V.Sateesh - is the Doctor
who conducted postmortem of the body
of deceased Geetha and issued report as
per Ex.P17.
(m) PW.13 - Chandrashekar Murthy - Police
Constable of RR Nagar Police Station, has
carried the clothes of the deceased after
postmortem and produced the clothes
before the I.O.
(n) PW.14 - Umashankar - was the owner of
the house where accused No.1 and
deceased were living together lastly. He
says that, PW.10 had given Rs.25,000/-
to him towards the advance amount and
supported the case of the prosecution
with regard presence of deceased and
accused No.1 in his house which was
rented to them and also amount given to
him by PW.10.
(o) PW.15 - Peter - is a photographer. He
says that photographs of the deceased
were captured at the request of I.O. and
the said photographs were marked at
Ex.P20 to P25. Supported the case of
the prosecution with regard to scene of
occurrence.
(p) PW.16 - Prashanth - is a circumstantial
witness and a friend of PW.10. He has
supported with regard to drinking habit
of accused No.1, quarrel between
accused No.1 and deceased, and also the
site which was standing in the name of
deceased Geetha. Partly turned hostile.
(q) PW.17 - V.Chandrashekar - Police
Inspector of RR Nagar Police Station, he
has conducted investigation partly and
handed over the investigation to CW.33.
(r) PW.18 - Shivayya - was the Special
Tahsildar, Bengaluru South Taluk. He
says that he has conducted inquest
mahazar as per Ex.P1. Supported the
case of the prosecution.
(s) PW.19 - K.Narayanagowda - is stated to
have registered the case on the basis of
the complaint given by PW.10 in Crime
No.70/2007 for the offence under
sections 498A, 304B, 302 read with 34 of
IPC and sections 3 and 4 of the DP Act.
He says that he has conducted partial
investigation.
(t) PW.20 - Krishnamurthy - Head
Constable of RR Nagar Police Station. He
says that he was deputed to arrest
accused. Accordingly, he traced the
accused on 21.5.2007 at about 3.30 p.m.
and apprehended him and produced him
before the I.O.
(u) PW.21 - Ramesh Babu - was working as
ACP of Kengeri Gate Division, he says
that investigation was carried by him
after having taken charge from PW.17.
He states that he has filed chargesheet
after investigation.
(v) DW.1 - Raju Pawar - is the accused.
Examined himself as DW.1 and tried to
demolish the case of the prosecution.
Supported his case / defence.
14. After having gone through the evidence of all the
witnesses, it is appropriate at this stage and also relevant to
state the definition of sections 498A and 304B of the Indian
Penal Code.
Section 498-A of IPC reads thus:-
Husband or relative of husband of a
woman subjecting her to cruelty:-
Whoever, being the husband or the relative
of the husband of a woman, subjects such
woman to cruelty shall be punished with
imprisonment for a term which may extend
to three years, and shall also liable to fine.
Section 304B reads thus:
"Where the death of woman is caused
by any burns, 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."
"Whoever commits the 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."
15. The following Ingredients are to be satisfied for
dowry death:
(a) The death of a woman must have been caused by
burns or bodily injury or otherwise than under
normal circumstances,
(b) Such death should have occurred within seven years
of her marriage.
(c) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.
(d) Such cruelty or harassment should be for or in
connection with demand of dowry.
(e) Such cruelty or harassment is shown to have been
meted out to the woman soon before her death.
16. Now, it is relevant to note that, the cruelty and
harassment by the husband or any relative could be directly
relatable to or in connection with, any demand of dowry. The
expression "demand of dowry" will have to be construed to the
word immediately preceding this expression. Similarly, "in
connection with the marriage" is an expression should be given
appropriate meaning to avoid undue harassment or advantage to
either of the parties.
17. A conjoint reading of section 113-B of Indian
Evidence Act and section 304-B of IPC makes it clear that there
must be material to show that soon before death, the victim was
subjected to cruelty or harassment. "Soon before death" is a
relative term and it would depend upon circumstances of each
case.
18. The word "Soon before death" cannot be given a
restricted or a narrower meaning. A reasonable time would be
applicable in such cases. Each case depends on its facts which
are to be decided. The court has to look into the facts of each
case, conduct of the parties and impact of cruelty and
harassment inflicted upon the deceased, in relation to demand of
dowry, which is the cause of unnatural death of the deceased.
19. In the case in hand, the evidence of P.W.2, P.W.3,
P.W.7, P.W.8, P.W.9 and P.W.10 are the relatives of the
deceased Geetha, their evidence with regard to marriage
negotiation, demand of dowry at the time of marriage, cruelty
and harassment in connection with demand of dowry are
consistent and reliable. After having gone through the evidence
these witnesses, there is no reason to disbelieve the evidence of
these witnesses. Though these witnesses were subjected to
lengthy cross - examination, they withstood it and supported the
case of the prosecution.
Further, they deposed that there was panchayath
conducted to pacify the quarrel between the deceased and
accused No.1 and his family members. The P.W.10 and his
friends have decided to keep the deceased and accused No.1
separately in a rented house, in order to keep them happy in
their marital life. P.W.10 further deposes that, he arranged a
separate house for his son-in-law and daughter on rental basis.
20. P.W.14 who is the owner of the house where the
deceased and accused No.1 last resided together has endorsed it
through his evidence. Further P.W.14, being the owner of the
house where the deceased and accused No.1 were residing
deposes that, the advance amount of Rs.25,000/- was given to
him by P.W.10. However, the agreement had stood in the name
of the accused No.1. Though PW.14 was not aware about the
reason for suicide, but, he said that, only husband and wife were
residing in his house. Further, he says that, the accused No.1
has not paid rent for 6 to 7 months. It shows that, how the
accused No.1 was negligent towards his family. Even though
accused No.1 worked in the Department of Endowment Religious
Trust, he was not paying the rent regularly and was not taking
care of family necessities, that itself is a harassment. It appears
from the evidence of PW.14 that, the accused No.1 had never
mended his ways.
21. PW.4, PW.5 and PW.6 are the friends of PW.10 and
are independent witnesses. PW.4 and PW.5 were working in
BEML along with P.W.10, whereas PW.6 was running Hardware
business. PW.6 says that, the shop of PW.10 was situated near
his shop, as such, he was acquainted with P.W.10 and his family
members. All these three witnesses are consistent with regard to
site measuring 30 feet x 50 feet which was given to the
deceased by P.W.10. Further, they depose that, they knew
about the demand made by accused No.1 to sell the site, and as
the deceased had refused to heed to their words, there were
frequent quarrel between them in that regard. Merely because
they are the friends of P.W.10, their evidence cannot be ignored.
Nothing is there to disbelieve their evidence. Hence, the
prosecution has established the case with regard to demand of
money in the form of dowry, cruelty and harassment etc.
22. Initially, in cases like dowry death, the initial burden
is on the prosecution. However, the initial burden need not be
proved beyond all reasonable doubt, but, requires
preponderance of probability. Once initial burden is discharged,
the onus to disprove the same will be shifted to the accused.
23. In this case, the prosecution has proved the
marriage between the accused No.1 with deceased Geetha and it
was performed three years prior to death of the deceased. There
was cruelty and harassment in connection with demand of dowry
by the husband and in-laws. PW.10 made separate house to
accused No.1 and deceased daughter, after panchayath having
been held between the family of accused No.1 and deceased. All
the witnesses are consistent in their evidence with regard to
demand of amount by the accused and pressurizing the
deceased to sell the site. PW.14, the owner of the house where
the deceased and accused No.1 were living, deposed that, the
accused No.1 was not paying the rent regularly to him. The
deceased died unnaturally i.e., she has committed suicide. In
view of the observation made by this court, I am of the
considered opinion that, the primary burden has been
successfully proved by the prosecution and onus to rebut the
same has been shifted to the accused. In this case, the accused
has neither discharged the initial burden nor disproved the
allegation, if any.
24. Now, it is relevant to look into the presumption
available under section 113-B of Indian Evidence Act. The
necessity for insertion of the two provisions has been amply
analyzed by the Law Commission of India in its 21st Report dated
10.08.1988 on "Dowry Death and Law Reform". Keeping in view
the impediment in the pre-existing law in securing evidence to
prove dowry related deaths, the Legislature thought it wise to
insert a provision relating to presumption of dowry death on
proof of certain essentials. It is in this background that
presumptive section 113-B in the Evidence Act has been
inserted. The said presumption is rebuttable.
25. Once the initial burden is discharged, the onus
would be shifted upon the accused to disprove it. Here in this
case, though the accused No.1 examined himself as D.W.1,
there was no satisfactory explanation by the accused No.1 to
disprove the presumption. The evidence of all the witnesses
with regard to harassment or cruelty in connection with demand
of dowry is consistent not only by the related witnesses, but also
by the independent witnesses like, PW.4, PW.5 and PW.6.
26. The accused, though he was living along with the
deceased in a separate house, has not made any attempt to
save the deceased or lodged a complaint to the concerned
authority. Such being the fact, in view of the deeming provision,
the accused No.1 is deemed to have committed dowry death.
27. In the light of the observation made above, the
points which stated above are answered as follows;
a) The Point No.1 formulated above is answered in the
affirmative by holding that, the Trial Court is justified in
convicting the accused No.1 for the offences punishable under
sections 304-B, 498-A of IPC and sections 3 and 4 of D.P. Act.
b) Similarly, the point No.2 that arose for consideration is
answered in the negative by holding that, the Appellant /
Accused No.1 has not made out any ground to interfere in the
well-reasoned order passed by the Trial court, convicting the
Accused No.1.
In view of the above, I pass the following:-
ORDER
a) The Appeal is dismissed.
b) The Judgment and order of conviction dated
17.08.2011 passed by the learned XLV Addl. City
Civil and Session Judge (CCH- 46), Bengaluru, in S.C
No.909/2007 is confirmed.
c) The Registry is directed to provide the accused free
copy of this judgment.
d) The bail bonds, if any, stand cancelled and accused
is directed to surrender before the trial court for
completing the remaining period of sentence and
imprisonment forthwith.
e) The Registry is directed to send the original records,
along with judgment of this court, to the Trial court
to take necessary steps to secure the presence of
the accused No.1, if he has not surrendered before
the court forthwith.
Sd/-
JUDGE
SNC/BSS
