Karnataka High Court
R Krishna Murthy vs The State Of Karnataka on 24 March, 2023
Bench: Mohammad Nawaz
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CRL.A No. 904 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 904 OF 2011 (C)
BETWEEN:
1. R KRISHNA MURTHY
AGED ABOUT 36 YEARS
S/O RAMAIAH
R/AT NO. 707,
NANJAPPA BUILDING,
OPP TO GOVT. MATERNITY HOSPITAL,
PIPE LINE ROAD,
MALLASANDRA,
T DASARAHALLI,
BANGALORE- 560 057.
...APPELLANT
(BY SRI. NAGARAJ DAMODAR, ADVOCATE)
Digitally signed
by LAKSHMI T
Location: High
AND:
Court of
Karnataka 1. THE STATE OF KARNATAKA
BY PEENYA POLICE
...RESPONDENT
(BY SRI. K.NAGESHWARAPPA,HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO
SET-ASIDE THE JUDGMENT DATED 3.8.2011 AND THE ORDER
OF SENTENCE DATED 05.08.2011 PASSED BY THE XLV -
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
IN S.C.NO.270/2007 - CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE P/U/S 498-A AND 304(B) OF IPC.
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CRL.A No. 904 of 2011
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment and
order dated 03.08.2011 passed by the Court of 45th
Additional City Civil and Sessions Judge, Bengaluru City in
S.C.No.270/2007, whereby the appellant/accused No.1
has been convicted and sentenced for offences punishable
under Sections 498-A and 304-B of IPC.
2. The trial court has sentenced the appellant to
undergo simple imprisonment for a period of 3 years and
to pay a fine of Rs.1,000/- for the offence punishable
under Section 498A of IPC and in default of payment of
fine to further undergo simple imprisonment for three
months. He has been sentenced to undergo rigorous
imprisonment for a period of 7 years for the offence
punishable under Section 304-B of IPC.
3. Heard the learned counsel for the appellant and
the learned High Court Government Pleader for the
CRL.A No. 904 of 2011
respondent/State and perused the evidence and material
on record.
4. Brief factual matrix of the prosecution case are
that, the appellant/accused No.1 married deceased
Soumya on 19.02.2006. At the time of marriage, the
accused was given dowry of Rs.60,000/- and a gold ring.
After the marriage, the deceased was staying in her
matrimonial house at Mallasandra, Bangalore along with
her husband and mother-in-law. The accused were ill-
treating the deceased suspecting her chastity and picking
up quarrel for trivial reasons. At the instigation of her
mother-in-law, she was being subjected to physical and
mental cruelty by her husband and he was forcing her to
bring money from her parental home. On 22.11.2006, at
about 10.10pm, the appellant picked up quarrel with the
deceased and poured kerosene oil on her and lit fire, on
account of which she sustained severe burn injuries. She
was shifted to Victoria hospital for treatment wherein, she
CRL.A No. 904 of 2011
succumbed to the burn injuries at about 4.00am on
23.11.2006.
5. Charges were framed against accused Nos.1
and 2 for the offence punishable under Section 498A r/w
34 of IPC and against accused No.1 for the offence
punishable under Section 302 of IPC.
6. The learned Sessions Judge after appreciating
the oral and documentary evidence on record, acquitted
accused No.2 and convicted accused No.1 for the offence
punishable under Sections 498-A and 304-B of IPC.
7. Before the trial court, to establish the guilt of
the accused, the prosecution has in all examined 16
witnesses and got marked 18 documents and 10 material
objects.
8. The specific case of the prosecution is that, at
the time of marriage the accused was given a dowry of
Rs.60,000/- and a gold ring. After the marriage the
deceased was being subjected to physical and mental
CRL.A No. 904 of 2011
cruelty for trivial reasons and the accused was also
suspecting her chastity. He was demanding to get money
from her parental home etc. On the date of incident, i.e.,
on 22.11.2006, at about 10.10pm, the accused picked up
quarrel with the deceased and then poured kerosene on
her and lit fire, on account of which she suffered severe
burn injuries and admitted to the Victoria hospital for
treatment and died while undergoing treatment, on
23.11.2006 at about 4.00 a.m.
9. On her admission to the hospital, PW1, Senior
Medical Officer examined the victim and made an entry in
Ex.P.1 and sent a memo as per Ex.P.2 to the jurisdictional
police. Thereafter PW13-ASI of Peenya police station
visited the hospital and after confirming the condition of
the patient from P.W.1 recorded her dying declaration as
per Ex.P.3. Based on the said statement of the victim, a
case was registered.
10. In Ex.P3, Victim has stated that at the time of
marriage a sum of Rs.60,000/- and a gold ring was given
CRL.A No. 904 of 2011
as dowry and accused No.1 used to give physical and
mental torture to her asking to get money from her
parental home. It is further stated that he was making
allegation that she was having some relationship with his
nephew by name Umesh who was her classmate. On
22.11.2006, at about 8.30 p.m, her husband returned
from his work and at about 10.10 p.m, he called her to the
hall and then picked up quarrel and abused her saying that
she is responsible for his mother to stay with her second
son and that she has driven her out of the house and
saying so, he poured kerosene oil on her and lit fire.
When she screamed, neighbours by name Govindappa
(PW3) and Nanjappa (PW4) came and put off the fire and
shifted her to Victoria hospital.
11. The learned Sessions Judge has acquitted the
accused/appellant of the offence punishable under Section
302 of IPC holding that Section 302 is not attracted in this
case. The state has not preferred any appeal against the
acquittal of the accused for offence punishable under
CRL.A No. 904 of 2011
Section 302 of IPC. Except the statement made in Ex.P3,
there are no independent witnesses who speak about the
accused pouring kerosene and setting fire to the deceased.
12. The learned counsel for appellant has
contended that the victim had sustained 97% of burn
injuries and the doctor who has conducted autopsy has
admitted in the cross-examination that since the vocal
cord and lungs were seriously damaged, the victim could
not have spoken properly. He would also draw the
attention of the Court to Ex.P3, wherein PW.7, namely the
uncle of the victim has put his signature. It is therefore
contended that Ex.P3 has come into existence not on the
basis of the statement of the deceased but it is on the
basis of the statement given by PW.7.
13. PW.7 is the uncle of the deceased. He has
stated that after receiving the information about the victim
suffering burn injuries, he went to Victoria Hospital and at
that time the deceased was alive and she was talking and
she stated before the doctor that her husband and
CRL.A No. 904 of 2011
mother-in-law have set her on fire. Hence, the presence of
PW.7, i.e, the uncle of the deceased at the time of
recording the statement of the deceased is very well
established. Further, he has put his signature on Ex.P3.
Hence, considering his presence at the time of recording
the dying declaration, a reasonable doubt arises with
regard to the contents of Ex.P.3.
14. The trial court having acquitted accused No.1 of
Section 302 IPC, has come to the conclusion that the
prosecution has proved the offence against him for the
offence punishable under Section 304-B of IPC. To come to
the said conclusion, the learned Sessions Judge has relied
on Ex.P3 wherein it is stated that a sum of Rs.60,000/-
was given to the accused as dowry at the time of
marriage. It is observed by the learned Sessions Judge
that though charge under Section 304-B of IPC is not
framed, it is a lesser offence. However, what is relevant to
be seen is that in Ex.P3, that is dying declaration, it is not
specifically stated that there was a demand for dowry by
CRL.A No. 904 of 2011
the accused at the time of marriage. It is stated that at
the time of marriage a sum of Rs.60,000/- and a gold ring
was given as dowry. None of the witnesses examined by
the prosecution namely PWs.5, 6 and 7, the parents and
uncle of the deceased have deposed that there was a
demand for dowry at the time of marriage or that dowry of
Rs.60,000/- was given to the accused at the time of
marriage. PW.5, the father of the deceased has stated that
the marriage was performed in one Ganesha Temple and
after the marriage his daughter started living with the
accused at Bagalkunte. Whenever she was visiting his
house, she used to complain to her mother and sister that
accused was picking up quarrel with her etc. A Panchayat
was held and in the Panchayat accused told that they will
not repeat such acts. Similarly, PW.6, mother of the
deceased has also not stated that there was any demand
for dowry at the time of marriage. However, she has
stated that the accused was suspecting the chastity of his
daughter and he was telling her to bring money from her
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CRL.A No. 904 of 2011
parental home and this was being informed by her
daughter over phone.
15. PW.7, uncle of the deceased has stated that the
marriage expenses were met by them and after the
marriage, the accused had taken a house on lease for
Rs.55,000/-, out of which a sum of Rs.5000/- was given to
the accused. After the marriage, the couple were residing
happily for about one and half months and thereafter
accused started suspecting the character of the deceased
and started demanding her to bring money.
16. The averments made in Ex.P3 that there was
dowry of Rs.60,000/- and a gold ring given to the accused
at the time of marriage is not corroborated by any of the
witnesses. Though the prosecution has examined the
parents and uncle of the deceased, none of them have
stated that the accused have either demanded or accepted
dowry at the time of marriage. There is no charge framed
either for the offences under the Dowry Prohibition Act or
under Section 304-B of IPC. The learned Sessions Judge
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CRL.A No. 904 of 2011
having acquitted the accused of the charged offence
punishable under Section 302 of IPC was of the view that
the accused was subjecting the deceased to physical and
mental cruelty suspecting her chastity and also that there
was demand for dowry at the time of marriage and
therefore convicted him for the offence punishable under
Sections 498-A and 304-B of IPC.
17. To convict the accused for an offence
punishable under Section 304-B of IPC, the prosecution
has to establish that soon before her death, the deceased
was subjected to cruelty in connection with dowry. The
ingredients of the said offence have to be proved by the
prosecution. According to PWs.5, 6 and 7, the accused was
suspecting the character of the deceased and he was
demanding the deceased to get money from her parental
home. A careful perusal of Ex.P3 shows that on the date of
incident i.e., on 22.11.2006 at about 8:30 p.m., the
accused returned from his work and at about 9:00 p.m.
the accused as well as the deceased had dinner and
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CRL.A No. 904 of 2011
thereafter the deceased went to sleep. At about 10:10
p.m., the accused called the deceased to the hall and
started quarrelling with her saying that she has driven his
mother out of the house. He picked up quarrel since
about 15 days prior, his mother had left the house and
started residing with her another son. It is not alleged in
Ex.P3 that the accused picked up quarrel with the
deceased on the ground that she has not brought
sufficient dowry. It is also not alleged that accused
demanded money from her. PWs.5, 6 and 7 have not
alleged that immediately prior to the incident in question
the deceased was subjected to cruelty on account of dowry
in connection with marriage.
18. PW.2 is the owner of the house, where the
accused and deceased were staying. PW.11 is the wife of
PW.2. They have only spoken about the deceased
sustaining burn injuries. PW.2 has been treated hostile by
the prosecution. In the cross-examination conducted by
the prosecutor, it was suggested that the accused used to
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CRL.A No. 904 of 2011
pick up quarrel with the deceased for trivial reasons and
he was abusing her and harassing her at the instance of
his mother. PW.5, namely, the father of the deceased has
nowhere stated that the accused was quarreling with the
deceased in connection with dowry or that soon before the
incident, his daughter was forced to get money from her
parental home. There is no material on record to show
that soon before her death, the deceased was subjected to
cruelty or harassment by the accused for, or in connection
with, any demand for dowry. Therefore, the trial Court was
not proper in convicting the accused for an offence
punishable under Section 304-B of IPC. However, the
prosecution has established the guilt of the
appellant/accused No.1 for an offence punishable under
Section 498-A of IPC. In Ex.P3 it is stated that on the
date of incident, the accused picked up quarrel with the
deceased and abused her saying that she has driven her
mother-in-law out of the house and it is also stated that
the accused used to suspect her chastity and he was
giving physical and mental torture to her. PW.5, father of
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CRL.A No. 904 of 2011
the deceased has stated that when his daughter visited
the house she informed that the accused was giving
trouble to her and he had picked up quarrel and assaulted
her etc. PW.6, mother of the deceased has stated that the
accused used to unnecessarily suspect the character of the
deceased etc. Hence, the conviction and sentence passed
against the appellant/accused No.1 for the offence
punishable under Section 498-A of IPC does not call for
any interference. Accordingly, the following:
ORDER
The appeal is partly allowed.
The judgment and order dated 03.08.2011 passed by
the Court of XLV Additional City and Sessions Judge,
Bengaluru City in S.C No.270/2007 convicting and
sentencing appellant/accused No.1 for the offence
punishable under Section 304-B of IPC is hereby set aside.
Conviction and sentence passed against the
appellant/accused No.1 for the offence punishable under
Section 498-A of IPC is confirmed.
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CRL.A No. 904 of 2011
Since the appellant has already undergone the
sentence imposed against him for the offence punishable
under Section 498-A of IPC, his bail bonds are cancelled.
Sd/-
JUDGE
KMV,HB
