Manjunath vs The State Of Karnataka
2022 Latest Caselaw 11896 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16 T H DAY OF SEPTEMBER, 2022

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

          CRIMINAL APPEAL NO.86 OF 2011

BETWEEN:

1.    Manjunath
      S/o Late Gujjaiah
      Aged about 34 years
      R/at D.No.81
      Marigudi Street
      Sidd aling ap ura
      Mysore.

2.    Smt. Chennamma
      W/o. Late Gujjaiah
      Aged about 64 years
      R/at D.No.81
      Marigudi Street
      Sidd aling ap ura
      Mysore.

3.    Mahadeva
      S/o Gujjaiah
      Aged about 47 years
      Halebeedi
      Near Eshwara Temple
      Sidd aling ap ura
      Mysore.

4.    Eshwara
      S/o Late Gujjaiah
      Aged major
      R/at D.No.81
      Marigudi Street
      Sidd aling ap ura, Mysore.
                          :: 2 ::


5.   Krishna
     S/o Late Gujjaiah
     Aged Major
     R/at D.No.81
     Marigudi Street
     Sidd aling ap ura
     Mysore.

6.   Swamy
     S/o Late Gujjaiah
     Aged major
     R/at D.No.81
     Marigudi Street
     Sidd aling ap ura
     Mysore.
                                            ...Appellants
(By Sri C.H. Jad hav, Sr. Counsel for
 Sri Chethan Jad hav, Advocate)

AND:

The State of Karnataka
By Women Police Station, Mysore
Represented by State
Public Prosecutor
High Court Build ing
Bang alore-1.
                                          ...Respondent
(By Sri K. Rahul Rai, HCGP)


      This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. praying to set asid e the judgment dated
24.12.2010 p assed by the V Addl. District and S.J.
Mysore in      S.C.  No.182/2006      -  convicting  the
app ellants/accused nos.1 to 6 for the offence
punishab le under Section 4 of D.P. Act and appellants/
accused nos.1 and 4 for the offence punishable under
Section 3 of D.P. Act, etc.

     This Criminal Appeal coming on for hearing this
day, the Court delivered the following:
                                :: 3 ::


                         JUDGMENT

This appeal is filed by the accused in

S.C.No.182/2006 on the file of V Addl. District and

Sessions Judge, Mysuru. They have questioned

their conviction for the offences under sections 3

and 4 of Dowry Prohibition Act.

2. The prosecution case in brief is that:

The marriage of the deceased viz., Geetha

was solemnized with accused no.1 on 4.2.2001 at

Srirangapatna. At the time of marriage

negotiations, the parents of the deceased gave

Rs.40,000/- to the accused in the form of dowry.

Besides cash, accused no.1 was given a gold chain

weighing 22 grams and the deceased was given a

gold chain weighing 40 grams, a pair of jumkhi

weighing 10 grams, a ring weighing 12 grams and

other items. The allegation is that after the

marriage the accused started demanding the

deceased to bring additional dowry from her :: 4 ::

parents house and in that connection she used to

be harassed. She was also subjected to

harassment because she gave birth to female

baby. It is further alleged that because of

continuous harassment, on 16.10.2004, she

committed suicide by consuming a poisonous

substance. The mother lodged FIR with the police

on 14.11.2004. Investigation led to filing of

charge sheet against the accused for the offences

under sections 3 and 4 of Dowry Prohibition Act

('Act' for short), sections 498-A and 304-B IPC r/w

section 34 IPC.

3. At the conclusion of trial, on analyzing the

oral evidence of 13 witness as per PW.1 to PW.13

and documentary evidence as per Ex.P.1 to

Ex.P.22 and Ex.D.1 to Ex.D.4, the trial court came

to conclusion that the prosecution failed to

establish its case in relation to offence under

section 498-A and section 304-B, but held that the :: 5 ::

offence under section 4 of the Act would get

established against accused no.1 to 6 and the

offence under section 3 of the Act as against

accused no.1 and 4. Each of accused no.1 to 6

was sentenced to simple imprisonment for six

months and fine of Rs.2,000/- with default

sentence of six weeks for the offence under

section 4 of the Act. Accused 1 and 4 each was

sentenced to simple imprisonment for five years

and fine of Rs.20,000/- with default sentence of

one year for the offence under section 3 of the

Act.

4. Assailing the judgment of conviction, it is

the argument of Sri. C.H.Jadhav, learned senior

counsel for the appellant that PW.1, the mother of

the deceased has clearly admitted in the cross-

examination that all the jewellery given to accused

no.1 and the deceased was in the form of marriage

gifts. There is no evidence for giving cash of :: 6 ::

Rs.40,000/-. Accused no.1 was a contractor and

PW.1 has clearly admitted that he had good

income. Ex.D.1 to 3 were marked through PW.2.

They are the statements given by PW.2 before the

Tahasildar at the time of conducting inquest. At

that time, PW.2 clearly stated that nobody was

responsible for the death of his daughter. If the

entire evidence is analyzed in proper perspective,

there is no evidence that the accused demanded

for cash of Rs.40,000/- at the time of marriage.

His further argument is that when the trial court

found that the offences under section 498-A and

304-B IPC were not established, it could not have

recorded conviction for the offences under section

3 and 4 of D.P.Act. The main offence was under

section 304-B IPC and since there was no evidence

for the offence under section 304-B IPC, obviously

the court should have disbelieved the prosecution

case with regard to offences under sections 3 and

4 of the Act. In support of his argument, he :: 7 ::

places reliance on the judgment of the Hon'ble

Supreme Court in the case of Sakhi Mandalani

Vs. State of Bihar and others[(1999) 5 SCC

705] and Bombay High Court in the case of Ramu

Vs. State of Maharashtra (Crl.A.No.48/2002).

He argues for allowing the appeal and acquitting

the accused.

5. Learned Government Pleader submits that

Ex.P.7 is the photograph which clearly shows

father of accused no.1 receiving the cash. It has

clearly come in the evidence of PW.1 and 2 that

they gave Rs.40,000/- to the accused at the time

of marriage. This part of the evidence has not

been assailed in the cross examination. Even after

marriage, there was continuous harassment on the

deceased for dowry. The offences under sections

3 and 4 of the Act stand independently and merely

for the reason that the court below acquitted the

accused of the offence under section 498-A and :: 8 ::

304-B IPC, it cannot be said that the accused

cannot be convicted for the offences under

sections 3 and 4 of the Act. In support of his

argument, he places reliance of the judgment of

the co-ordinate bench of this court in the case of

Basavaraju @ Puttaswamy Vs. State by

Badanavalu Police Station

(Crl.A.No.687/2010). He submits that this

judgment was challenged in the Hon'ble Supreme

Court by preferring Special Leave and thereby the

judgment of co-ordinate bench may be followed.

He argues for sustaining the judgment of the trial

court.

6. Since the State has not preferred appeal

questioning the acquittal of the accused for the

offence under sections 498-A and 304-B IPC, it is

not necessary for me to examine the evidence in

that regard. It is enough to examine if the

conviction recorded by the trial court for the :: 9 ::

offences under sections 3 and 4 of the Act is

correct or not.

7. PW.1 and 2 are the main witnesses, being

the parents of the deceased. It is true that in the

evidence of PW.1, she has stated that at the time

of marriage negotiations, there was a demand by

the accused for cash of Rs.40,000/- and 125

grams of gold, 150 grams of silver and a watch.

Through PW.1, Ex.P.7, the photograph showing the

payment of cash was marked. If the cross

examination of PW.1 is perused, except a

suggestion that there was no demand for cash of

Rs.40,000/-, there is no effort to discredit her.

However PW.1 has given an admission that gold

and silver items that were given to the deceased

were traditional gifts and that they were given

with love and affection. PW.2 has also stated that

accused demanded for cash of Rs.40,000/- and

125 grams of gold etc. There is no cross :: 10 ::

examination of PW.2 on this aspect. There is no

cross examination of PW.1 and 2 on Ex.P.7. If this

part of evidence is considered, a conclusion can be

drawn that there was demand for Rs.40,000/-.

But the prosecution case is that even after the

marriage there was demand for additional dowry

and in that connection the deceased used to be

harassed.

8. If the court below has found that there is

no evidence to be believe the prosecution case

that the deceased used to be harassed and ill-

treated in connection with demand for dowry after

the marriage, obviously a doubt arises whether

there was demand for dowry even before the

marriage. Therefore even if PW.1 and PW.2 have

stated that Rs.40,000/- was given to the accused

as per the demand before marriage, it does not

become clear whether it was given in the form of

dowry or not. In a circumstance like this, :: 11 ::

judgment of the Hon'ble Supreme Court in the

case of Sakhi (supra) can be aptly referred.

"6. These sections make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under section 304-B was not found established, it was not possible to record conviction under sections 3 and 4 of the Dowry Prohibition Act.

           7.      Consequently,           the       appeal        is
    allowed.       The judgment of the High Court,

so far as the appellant is concerned, is set aside and she is acquitted of the charges under sections 3 and 4 of the Dowry Prohibition Act."

9. In the reported case also there was

harassment on the deceased in connection with

dowry demand. The trial court convicted the

accused for the offences under sections 3 and 4 of :: 12 ::

the Act and section 304-B IPC. In the appeal

preferred by the accused to the High Court, the

accused were acquitted of the offence under

section 304-B IPC sustaining the conviction for the

offences under sections 3 and 4 of the Act. In

this context the Hon'ble Supreme Court held that

since the offence under section 304-B IPC is the

main offence and when conviction for the said

offence is not sustainable, the accused would be

entitled to acquittal in respect of the offences

under sections 3 and 4 of the Act. Following the

said judgment, the Bombay High Court in the case

of Ramu (supra) has also taken the same view.

The learned Government Pleader has placed

reliance on the judgment of the co-ordinate bench

of this court in the case of Basavaraju. It is true

that in this case the conviction for the offences

under sections 3 and 4 of D.P.Act was sustained

although accused were acquitted of the offence

under section 304-B IPC. But it is to be noted that :: 13 ::

the judgment of the Hon'ble Supreme Court in the

case of Sakhi had not been brought to the notice

of the learned judge which decided Basavaraju's

case. Since the judgment of the Supreme Court is

very much applicable, it is to be held that this

appeal deserves to be allowed and hence the

following:

ORDER

Appeal is allowed. The judgment of the trial

court in S.C.No.182/2006 on the file of V Addl.

District and Sessions Judge, Mysuru is set aside.

The appellants are acquitted of the offences under

sections 3 and 4 of the Dowry Prohibition Act.

Their bail bonds are cancelled.

Sd/-

JUDGE

sd