Karnataka High Court
Mahadeva vs State on 14 December, 2023
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CRL.A No. 858 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 858 OF 2018
Between:
1. Mahadeva
S/o. Venkata Swamy,
(Wrongly shown as Mahadeva Gowda)
Aged about 30 years
R/o. Narasipura Village,
Halebeedu Hobly,
Belur Taluk, Hassan District.
2. Venkata Swamy
S/o. Rama Bovi,
Aged about 57 years
R/o. Narasipura Village,
Digitally signed Halebeedu Hobly,
by C K LATHA Belur Taluk, Hassan District.
Location: HIGH
COURT OF 3. Gangamma
KARNATAKA
W/o. Venkata Swamy,
Aged about 55 years
R/o. Narasipura Village,
Halebeedu Hobly,
Belur Taluk, Hassan District-573 201.
...Appellants
(By Sri Mohan Kumar D., Advocate for A1;
Sri P.Mahesha, Advocate for A2 and A3)
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CRL.A No. 858 of 2018
And:
State
By Halebeedu Police,
Represented By SPP,
High Court of Karnataka,
Bengaluru - 560001.
...Respondent
(By Sri. Vijayakumar Majage, SPP-II)
This Criminal Appeal is filed under section 374(2) praying
to set aside the judgment and order of conviction dated
23.04.2018 passed by the III Additional District and Sessions
Judge, Hassan, in S.C.No.245/2014 - convicting the appellant/
accused No.1 to 3 for the offence p/u/s 498A, 302 and 304B
r/w 34 of IPC and section 4 of D.P. Act.
This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
Accused nos.1 to 3 in S.C.No.245/2014 on the
file of III Additional District and Sessions Judge,
Hassan, have preferred this appeal challenging the
judgment and order dated 23.04.2018 by which
they were convicted and sentenced for the
offences punishable under Sections 498A, 302,
304B IPC and Section 4 of the Dowry Prohibition
Act (for short 'the D.P.Act') read with section 34 of
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IPC. Totally four accused faced the trial, but the
trial court acquitted accused no.4.
2. The prosecution case is about homicidal
death of a woman by name Roopa, wife of accused
no.1. FIR was registered at the instance of PW1-
Kumara, the brother of Roopa. He reported to the
police that the marriage of Roopa had been
performed with accused no.1 in the year 2009. At
the time of the marriage negotiations, there was a
demand for a gold chain, a gold ring and cash of
Rs.50,000/-. The demand of accused nos.1 to 3
was satisfied before the marriage itself. Roopa
and accused no.1 lived together cordially for about
3 to 4 years and thereafter accused no.1 started
ill-treating his wife putting forth a demand for
money in the form of dowry. His family was
somehow able to arrange for Rs.30,000/- and it
was paid to accused no.1. Again accused no.1
demanded for Rs.10,000/- for the purpose of
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drilling a borewell and at that time Rs.5,000/- was
paid to him. The accused did not stop the
demand. Accused no.4 used to instigate accused
no.3 to demand for money. Once the accused sent
out Roopa from their house. This resulted in a
complaint being made to police. At that time the
accused came to police station and gave an
undertaking that they would not harass Roopa in
future and took her to their house. A week after,
accused nos.1 to 3 joined together at the instance
of fourth accused and set fire to her. PW6 and
PW7 shifted Roopa to hospital and gave
information to her family members. When PW1,
his parents and brothers went to hospital, Roopa
told them that accused 1 to 3 poured kerosene and
set fire to her. She died later on. Initially FIR
was registered for the offences punishable under
sections 498A, 307 IPC, sections 3 and 4 of D.P.
Act read with section 34 of IPC. After the death,
sections 304B and 302 IPC were added and after
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the investigation, charge sheet came to be filed for
all the offences. The trial court also framed
charges for the said offences as also for the
offences under sections 114 and 109 of IPC in
regard to allegations against accused no.4.
3. The prosecution in all examined 29
witnesses and relied upon documents as per Exs.P1
to P28 and material objects as per MOs.1 to 5.
Defence examined a witness and three documents
marked as Exs.D1 to D3. Placing reliance on the
testimonies of PWs1 to 7, the trial court came to
conclusion that the prosecution was able to prove
the charges against accused 1 to 3 and convicted
them for the aforesaid offences.
4. We have heard the argument of Sri
Mohan Kumara D, learned advocate for accused
no.1, Sri P.Mahesha, learned advocate for accused
nos.2 and 3 and Sri Vijayakumar Majage, learned
SPP-II for the respondent/State.
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5. It is the argument of Sri Mohan Kumara D
and Sri P.Mahesha that the trial court has firstly
erred in convicting accused 1 to 3 for the offences
punishable under sections 304B and 302 of IPC.
The trial court has come to conclusion that accused
1 to 3 put forth demand for dowry and harassed
the deceased in that connection. If according to
the trial court the prosecution could prove its case
in relation to offence under section 4 of the D.P.
Act, the accused 1 to 3 should have been convicted
only for the offence under section 304B and
section 498A IPC, they should not have been
convicted for the offence under section 302 IPC.
With regard to the offences under sections 498A
and 304B IPC, and section 4 of D.P. Act, there are
no materials. The independent witnesses turned
hostile. PWs1, 3, 4 and 5 are the brothers and
PW2 is the mother of the deceased. They are
interested witnesses and their evidence clearly
discloses that they have made a clear attempt to
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falsely implicate accused 1 to 3. When the
independent witnesses do not support, it is not
safe to rely upon the testimonies of the related
witnesses. That apart PWs6 and 7 are not the eye
witnesses, they have only deposed that they took
the deceased to hospital. PWs1 to 5 have stated
that the deceased told them in the hospital that
the accused 1 to 3 set fire to her. This was
nothing but an oral dying declaration. The P.M.
report shows that the deceased had sustained third
degree burn injuries and in that view, the trial
court should not have believed testimonies of
PWs1 to 5 about the oral dying declaration
inasmuch as the deceased was not in a fit
condition to make any statement. Therefore
looked from any angle, the findings of the trial
court are not sustainable and hence the appeal
deserves to be allowed and accused 1 to 3,
acquitted.
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6. Sri Vijayakumar Majage replied that there
is no rule that the testimonies of blood relations of
the deceased should be disbelieved. Especially in
cases of harassment on a woman in connection
with dowry demand, the best witnesses are the
family members of the deceased, for they would
get first hand information about harassment. All
that is required is that the evidence of blood
relations must be scrutinized with greater caution.
In this case PWs1 to 5 have clearly testified that
even before the marriage, the accused demanded
for dowry and after the marriage also, they
demanded for dowry. Panchayats were also held.
Holding of panchayat is proved. Moreover the
deceased had once made a complaint to the police
against the accused and at that time the accused
gave a muchalika (undertaking) that they would
look after the deceased well in future. The entire
case sheet pertaining to the deceased is produced
as Ex.P26. None of PWs1 to 5 has been
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discredited in the cross-examination. Therefore
the prosecution was able to prove that there was
demand for dowry by the accused and in that
connection they used to ill-treat the deceased. As
a continuation of ill-treatment, the deceased was
killed by setting fire to her. The death took place
within seven years of marriage. Death was
unnatural. Presumption is available in favour of the
prosecution. All the material witnesses, PWs1 to
5, have consistently spoken that the deceased
made a statement before them that accused 1 to 3
set fire to her. Especially on this aspect there is
no cross-examination. PWs6 and 7 have stated
that the accused were not seen in the house when
they brought the deceased to hospital. Absence of
accused at the scene of occurrence is another
factor to be considered. Therefore the trial court
has rightly appreciated the evidence to convict
accused 1 to 3 of the offences charged against
them. Appeal deserves to be dismissed.
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7. We have perused the entire records and
considered the points of arguments. At the outset
it is our opinion that recording conviction for both
the offences under sections 302 and 304B IPC is
incorrect and improper. Though charges can be
framed for both the offences, if the prosecution is
able to prove the harassment of a woman in
connection with demand for dowry, the trial court
cannot record conviction for the offence under
section 302 of IPC. Here in this case the trial
court has held accused 1 to 3 guilty of offence
under section 4 of D.P. Act and therefore they
should not have been convicted for the offence
under section 302 IPC. However we find that the
trial court has rightly arrived at a conclusion to
hold accused 1 to 3 guilty of offences punishable
under sections 498A and 304B IPC, and section 4
of the D.P. Act for the following reasons :
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8. There is no dispute that death of Roopa
occurred within seven years of marriage and the
death was unnatural. PWs1 and 3 to 5 are the
brothers and PW2 is the mother of the deceased.
There is consistency in their evidence that at the
time of marriage there was a demand for dowry
and even afterwards accused 1 to 3 continued to
demand for dowry. They have stated that at the
time of marriage accused no.1 was given a gold
chain, gold ring and cash of Rs.50,000/-. A few
years later again the accused started demanding
for money. There was demand for Rs.30,000/- and
it was given. Again there was a demand for
Rs.10,000/-. It was partly satisfied. Once the
deceased was beaten and sent away to her parents
house. At that time a complaint was made to the
police. The accused went to police station and
gave an undertaking that they would look after the
deceased very well and a very few days later death
occurred. These witnesses have stated that PWs6
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and 7 informed them that Roopa was admitted to
hospital as she sustained burn injuries and when
they went there, the deceased herself told them
that the accused set fire to her. They also noticed
an injury on the head of the deceased. It is stated
that the accused had beaten the deceased with a
stick on her head. As the doctors at Hassan
hospital opined that the deceased should be
shifted to a hospital at Bengaluru, she was brought
to Victoria hospital where she died. All these
witnesses have consistently spoken that deceased
was able to speak at Hassan hospital and she
herself stated before them that the accused were
responsible for the incident. The witnesses have
not been discredited in the cross-examination.
PW1 has stated in the cross-examination that after
the deceased was taken to Bengaluru he came to
Narasipura where the accused were living and
when he enquired an old woman who was present
in the house of the accused about the incident, she
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told him about the incident and how it occurred.
PW3 also says about going to Narasipura and
enquiring an old woman and Manja Bhovi, i.e.,
PW9 about the incident. They also confirmed the
incident and thereafter they went to police station
to lodge the FIR.
9. If the evidence of PWs6 and 7 is perused,
though they were treated hostile partially, they too
testified the fact that they informed PWs2 to 4
about Roopa catching fire and their taking the
deceased to hospital. PWs6 and 7 did not support
the prosecution case as regards presence of the
accused in the house and their dousing of the fire
by pouring water on the deceased. According to
prosecution, PWs6 and 7 may be eye witnesses to
the incident. But they turned hostile to this extent,
however they have supported the prosecution to
the extent of giving information to PWs2 to 4 and
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the deceased being able to speak at that point of
time.
10. If the evidence of PWs8, 9 and 10 is
considered, it appears that they also implicate the
accused 1 to 3 for the death of Roopa. They have
stated that they went to hospital at Hassan and
heard Roopa telling her brothers and mother that
the accused poured kerosene and set fire to her.
In the cross-examination, it has been elicited from
PWs8, 9 and 10 that they are the relatives of the
deceased.
11. It is true that PWs1 to 5 are the blood
relations of the deceased and PWs8, 9 and 10 are
also related. Merely for the reason that they are
relatives, no inference can be drawn that they
have stated falsehood. PWs8, 9 and 10 have also
spoken about convening a panchayat at Santhe
Maidana and the Inspection Bungalow at Halebeedu
to settle the issues between the deceased and the
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accused in regard to demand put forth by the
latter. The defence has failed to discredit PWs8, 9
and 10 with regard to panchayath held by them. If
Ex.P26 is seen, a clear inference can be drawn that
even before the occurrence of the incident which
resulted in unnatural death of Roopa, a complaint
had been made against the accused by her in
connection with harassment meted out to her.
Ex.P26 is not disputed by the defence in the cross-
examination. It contains the complaint made by
Roopa and the undertaking given by the accused.
The accused might have denied the allegations
made by Roopa, but it also discloses the
undertaking given by them that they would look
after her well in future. Therefore if the entire
evidence is assessed a clear inference can be
drawn that deceased Roopa used to be harassed by
the accused for the sake of dowry. Though the
gold jewellery can be treated as customary gifts
exchanged at the time of marriage, demand for
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Rs.50,000/- at the time of marriage and
subsequent demands for money clearly indicate
that soon before death, the deceased was
subjected to harassment by the accused. The
absence of the accused in their house is so
conspicuous which reflects on their conduct.
Evidence of PWs6 and 7 discloses that they only
shifted the deceased to hospital. The oral dying
declaration made by the deceased in the presence
of her mother and brother and also PWs.8 to 10
can be very much believed in the facts and
circumstances. Some of the witnesses to the
mahazar may have turned hostile, but their hostile
evidence does not shake the prosecution case in
any way, for drawing up of the mahazars is just a
routine formality in the course of investigation
which has no bearing on the entire prosecution
case.
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12. It has to be stated that in a case of this
type, support from related witnesses can only be
expected and if their testimonies appear to be
trustworthy, definitely it can be acted upon. We
do not find any kind of effort made by the
witnesses to falsely implicate the accused.
13. First accused has adduced evidence as
DW1 and stated that he was working as a driver of
an ambulance at Bengaluru. An effort has also
been made to prove that his father and mother,
i.e., accused nos.2 and 3 had been to another
place to attend a death ceremony in connection
with death of their relative. Exs.D1 and D2 are
the documents marked through him. Ex.D1 is the
invitation card in regard to ceremony and Ex.D2 is
the death certificate of the relative of the accused.
The public prosecutor while cross-examining DW1
confronted another death certificate which was
marked as Ex.D3. In regard to the evidence of
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DW1 it has to be stated that merely for the reason
that he was working as driver of an ambulance, his
presence at the time of incident cannot be
doubted. He has clearly admitted in the cross-
examination that he has not produced any
document to show that he was in Bengaluru at that
time. Then the presence of accused 2 and 3 also
cannot be doubted by placing reliance on Exs.D1
and D2. The incident occurred at about 7.30 P.M.
on 05.03.2014. Though Ex.D1 shows that the
death ceremony was arranged on 05.03.2014 at
4.30 PM, if the date of deaths mentioned in Exs.D2
and D3 are considered, the date of ceremony as
printed in Ex.D1 becomes doubtful. In Ex.D2, date
of death of Narayana Bhovi is shown as
01.07.2014 and in Ex.D3 date of death is shown as
01.03.2014. A suggestion was given to DW1 in the
cross-examination that usually the vaikunta
samaradhana ceremony will be held on 9 t h or 11 t h
day of the death. DW1 might have answered that
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he does not know about it but in view of
discrepancy as regards the date of death as can
be made out in Exs.D2 and D3, no credence can be
attached to Ex.D1 and in all probability the
accused might have obtained the invitation card
printed to suit their convenience. In fact a
suggestion was given to DW1 that Ex.D1 is a
created document. Therefore there is no
probability in the defence.
14. From the above discussion, the inferences
to be drawn are that the prosecution has been able
to prove that deceased Roopa was being subjected
to harassment by the accused 1 to 3 for the sake
of dowry and that they set fire to her on
05.03.2014 which led to her death on the next
day. In this view accused 1 to 3 can be held guilty
of section 4 of D.P. Act, sections 498A and 304B of
IPC. There is no material to convict them for the
offence under section 302 IPC. From this
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discussion the appeal deserves to be partly
allowed.
15. Accused 2 and 3 are aged persons. For
the offence under section 304B IPC, the
imprisonment period shall not be less than seven
years although life imprisonment can be imposed.
We do not think that here is a case for imposing
life sentence taking the age factor of accused 2
and 3. Hence, the following :
ORDER
(i) The judgment dated 23.04.2018 in
S.C.No.245/2014 on the file of III
Additional District and Sessions Judge,
Hassan, is modified.
(ii) Accused 1 to 3 are acquitted of the
offences punishable under section 302
IPC.
(iii) The judgment of conviction for the
offences under sections 304B, 498A of
IPC and section 4 of the D.P . Act read
with section 34 IPC is confirmed.
(iv) Each of accused 1 to 3 is sentenced to
imprisonment for a period of seven
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years and fine of Rs.5,000/-. Accused
no.1 is sub jected to rigorous
imprisonment and accused 2 and 3 are
directed to undergo simple
imprisonment. In default to pay fine,
each one of them shall undergo
imprisonment for a period of six months.
(v) The sentence imposed by the trial court
for the offence under section 498A IPC
and section 4 of D.P. Act is confirmed
with a modification that accused 2 and 3
shall undergo simple imprisonment.
(vi) The sentence of imprisonment shall run
concurrently.
(vii) The period of imprisonment already
undergone by accused 1 to 3 is ordered
to be set off.
Sd/-
JUDGE
Sd/-
JUDGE
KMV/CKL
