2016 ALL SCR (Cri) 169
SUPREME COURT

H. L. DATTU, ARUN MISHRA AND AMITAVA ROY, JJ.

Krishnoji Rao Keserekar Vs. State of Karnataka

Criminal Appeal No.953 of 2008

13th August, 2015.

Petitioner Counsel: Mr. SHANTH KUMAR V. MAHALE, Mr. AMITH J., Mr. RAJESH MAHALE
Respondent Counsel: Ms. ANITHA SHENOY

Penal Code (1860), Ss.498A, 304B - Dowry Prohibition Act (1961), Ss.3, 4 - Cruelty and dowry death - Conviction - Validity - Deceased staying at maternal home committed suicide by hanging herself - No evidence to show that accused persons caused cruelty to deceased or harassed her for dowry during her period of long stay at maternal home - But it is proved that accused demanded Rs.10,000/-, a gold chain and a gold ring from family of deceased prior to marriage - Even though prosecution failed to prove major offences punishable u/Ss.498A, 304B - Accused persons could still be convicted for offences punishable u/Ss.3, 4 of DP Act. 2000 ALL MR (Cri) 552 (S.C.) Disting. (Paras 17, 18, 19)

Cases Cited:
Sakhi Mandalani Vs. State of Bihar, 2000 ALL MR (Cri) 552 (S.C.)=(1999) 5 SCC 705 [Para 8,10,14,17]


JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.1421 of 2000(A), dated 13.06.2007. By the impugned judgment and order, the High Court partly allowed the appeal against the order of acquittal passed by the Trial Court in Sessions Case No.78 of 1995, dated 08.08.2000.

2. The brief facts of the prosecution case are that a marriage took place between Latha Bai - the deceased (Wife) and Jagadeesh - Accused No.1 (Husband) on 17.02.1991 at Bangalore. About a month prior to the date of marriage, negotiations between the families of the bride and groom took place in the parental house of the deceased. The groom's family demanded a sum of Rs.10,000/-, a gold ring and a gold chain as dowry in connection with the marriage. The bride's family agreed to pay the said dowry, and gave Rs.10,000/- to the groom's family a month prior to the marriage, and the gold chain and gold ring to Accused No.1 at the time of marriage.

3. After the marriage, the deceased and Accused No.1 began residing at their marital home in Sampangirama Nagar. The parents of Accused No.1, Krishnoji Rao, father-in-law/ Accused No.2, Saraswathi Bai, mother-in-law/ Accused No.3 and Sanjeeva Rao, elder brother/ Accused No.4 were also residing in their home at Sampangirama Nagar. Accused No.1-husband was working in a printing press before his marriage but he gave up his job after marriage with the intention to set up his own printing press. Although, in the beginning the deceased and Accused No.1 shared a cordial marriage but after a few months, Accused No.1 started harassing the deceased to bring more dowry of Rs.10,000/- from her parents house, so that he could set up his own printing press. The brother of the deceased, Shivaji Rao (PW-3), paid Accused No.1 sums of Rs.5,000/- and Rs.2,000/- on two occasions. Dissatisfied with this payment, the accused persons continued to harass the deceased to bring more dowry from her parent's house.

4. The prosecution alleges that when the deceased became pregnant and delivered a child, Accused No.1 did not show any care and affection towards her due to which she went to live in her maternal home. Even at the time of delivery of the child the Accused No.1 did not come to the hospital and the brothers of the deceased were compelled to bring Accused No.1 to the hospital. After the delivery of the child, Accused No.1 did not show any inclination to welcome the deceased back to their marital home. Eventually, the deceased returned to her marital home, however she continued to face harassment in connection with the demand for dowry. The brothers of the deceased were unable to fulfill the demands of Accused No.1, and the deceased was compelled to return to her maternal home, where she lived for a year and a half. The deceased could not find any way out of her predicament and was utterly dejected. Ultimately, on 31.05.1993 at around 12:30 noon, when she was alone in her maternal home, she committed suicide by hanging herself.

5. Shivaji Rao (PW-3), the brother of the deceased, thereafter, lodged a complaint and a case was registered as Crime No.310 of 1993 for an offence punishable under Section 304-B Indian Penal Code, 1860 (for short, "the IPC"). Upon completion of the investigation, a chargesheet was filed against the accused persons for offences punishable under Sections 3,4 and 6 of the Dowry Prohibition Act, 1961, (for short, "the DP Act") and Sections 498-A and 304-B of the IPC, and the case was committed for trial before the Court of Sessions, Bangalore.

6. The prosecution presented the evidence of 12 witnesses and supported their evidence with several documents. Witnesses included the elder sister (PW-1) and two elder brothers of the deceased (PW-3 and PW-7), two neighbours of the accused persons (PW-2 and PW-4), and tenant of the brother of the deceased (PW-5). The accused did not adduce any evidence in defense.

7. The Trial Court found that PW-2, PW-4 and PW-5 were hostile witnesses and did not support the case of the prosecution. The Trial Court also found the statements of PW-1, PW-3 and PW-7 to be inconsistent and contradictory with respect to the amount of money demanded after marriage and also the identity of the accused persons who demanded money, and held that their statements did not prove the case of the prosecution. The Trial Court further held that from the evidence available on record it was proved that the deceased was staying at her maternal home nine months prior to her suicide and that the evidence on record did not indicate that the accused persons caused cruelty to the deceased during those nine months or harassed her for dowry. Accordingly, the Trial Court acquitted the accused persons for offences under Sections 304-B and 498-A of the IPC.

8. Further, the Trial Court relied upon the evidence of PW-1, PW-3 and PW-7 to hold that the gifts given to Accused No.1 at the time of marriage were voluntarily given by the bride's family. The Trial Court noticed the statements of the relatives of the deceased wherein they have admitted that giving money to the groom for buying wedding dresses was a customary practice within their community. The Trial Court relied upon the decision of this Court in Sakhi Mandalani v. State of Bihar (1999) 5 SCC 705 : [2000 ALL MR (Cri) 552 (S.C.)] to hold that when the prosecution was unable prove the guilt of the accused for the major offences such as 498-A and 304-B of the IPC, conviction under Sections 3 and 4 of the DP Act was improper. Accordingly, the Trial Court held that the prosecution had failed to prove its case against the accused under the DP Act beyond reasonable doubt. As a result, the accused were acquitted of all offences.

9. Being aggrieved by the said order passed by the Trial Court, the respondent-State carried the matter in appeal before the High Court.

10. The High Court after detailed appreciation of the prosecution evidence held that it was proved that the Accused No.2 demanded a sum of Rs.10,000/-, a gold chain and a gold ring in connection with the marriage of Accused No.1 and the deceased. It was further proved that Accused No.2 received Rs.10,000/- as dowry a month prior to the date of marriage, and Accused No.1 received a gold ring and a gold chain as dowry on the date of marriage. It was thereby proved that Accused No.1 and Accused No.2 had committed offence punishable under Sections 3 and 4 of the DP Act. However, the High Court found fault with the reasoning of the Trial Court that because the prosecution had failed to prove the major offences under Sections 498-A and 304-B of the IPC, there was no need to consider the evidence in proof of offences under Sections 3 and 4 of the DP Act. The High Court differentiated the facts in the case-herein from the facts in Mandalani, [2000 ALL MR (Cri) 552 (S.C.)] (supra), and held that the decision of this Court in the case above was peculiar to the facts of this case, and that this Court had nowhere held, as a general principle of law, that in all cases where the prosecution fails to prove an offence punishable under Section 304-B, there is no need to consider the case of the prosecution for offences punishable under Sections 3 and 4 of the DP Act.

11. In that view of the matter, the High Court modified the judgment and order passed by the Trial Court. It confirmed the order of acquittal passed by the Trial Court in respect of Accused No.3 and 4 for offences punishable under Sections 3,4 and 6 of the DP Act and Sections 498-A and 304-B of the IPC. It further confirmed the order of acquittal passed by the Trial Court in respect of Accused No.1 and 2 for offences under Sections 498-A and 304-B of the IPC. However, the High Court convicted Accused No.1 for offences punishable under Section 3 of the DP Act and sentenced him to undergo imprisonment for a period of five years and to pay a fine of Rs.15,000/- and in default to undergo imprisonment for six months. It further convicted Accused No.1 for the offence punishable under Section 4 of the DP Act and sentenced him to undergo imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default to undergo imprisonment for 3 months. The High Court convicted Accused No.2 for the offence punishable under Section 3 of the DP Act. However, in light of his old age, given that he was over 65 years old, reduced the minimum sentence provided under Section 3 of the DP Act and sentenced him to imprisonment for one year and to pay a fine of Rs.15,000/- and in default to undergo imprisonment for six months. It further convicted Accused No.2 for the offence punishable under Section 4 of the DP Act and sentenced him to undergo imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default to undergo imprisonment for 3 months. All substantive sentences of imprisonment were ordered to run concurrently.

12. Aggrieved by the judgment and order passed by the High Court, the appellant/Accused No.2 is before us in this appeal.

13. We have heard learned counsel appearing for the parties to the lis and also carefully perused the evidence on record including the judgments and orders passed by the Courts below.

14. Shri Shantha Kumar V. Mahale, learned counsel appearing for appellant/Accused No.2 would assail the judgment and order passed by the High Court and submit that the High Court has not appreciated the judgment of this Court in Mandalani, [2000 ALL MR (Cri) 552 (S.C.)] (supra), wherein it was held that once the accused are acquitted for the major offences punishable under Sections 498-A and 304-B of the IPC and when the allegation made is harassment and demand of dowry, the accused cannot be convicted under Sections 3 and 4 of the DP Act. Further, the learned counsel for Accused No.2 would submit that the High Court ought to have appreciated that there is a custom in their caste that the family of the bride gives clothes to the family of the groom, and that Rs.10,000/- paid by the family of the deceased to Accused No.2 was towards purchase of cloth for the wedding between Accused No.1 and the deceased. This cannot be termed as a demand made towards dowry, and convicting Accused No.2 for the offence under Sections 3 and 4 of the DP Act is erroneous. The learned counsel also contended that the Accused No.2 is 74 years of age, and the factor of his old age should be taken into consideration by the court.

15. Per contra, learned counsel appearing for the respondent-State would support the judgment and order passed by the High Court.

16. It has been duly proved that the appellant/Accused No.2 demanded Rs.10,000/-, a gold chain, and a gold ring from the family of the deceased prior to the marriage, and that Accused No.2 did in fact received Rs.10,000/- as dowry from the family of the deceased a month prior to the marriage, and further that a gold chain and gold ring were given to Accused No.1 on the day of the marriage. It is often the elders of the family who perpetuate the social evil of dowry and the same has been proven to be true in the instant case. We do not find merit in the contention of the learned counsel for Accused No.2 that there was a custom in their caste for the bride's family to give clothes to the family of the groom and therefore the sum of Rs.10,000/- does not amount to dowry.

17. Further, the facts in the case herein can be differentiated from the facts in Mandalani, [2000 ALL MR (Cri) 552 (S.C.)] (supra). While referring to Sections 3 and 4 of the DP Act, in Mandalani, [2000 ALL MR (Cri) 552 (S.C.)] (supra) this Court had held at paragraph 6 on page 707:

"...

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."

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."

18. Further, the age of appellant/Accused No.2 was rightly taken into consideration by the High Court at the time of determining the sentence for the offence punishable under Section 3 of the DP Act, and the High Court accordingly, reduced the sentence to minimum, provided under the DP Act, and sentenced Accused No.2 to imprisonment for one year. We do not find any grounds to reduce the sentence further.

19. After carefully going through the judgments and orders passed by the High Court as well as the Trial Court, and the material available on record and also in the peculiar facts and circumstances of the case, we see no infirmity in the impugned judgment and order of the High Court.

20. Accordingly, the Criminal Appeal is dismissed. If the appellant/Accused No.2 is on bail, we direct the jurisdictional police authorities to take him into custody forthwith to serve out the remaining period of the sentence.

Ordered accordingly.

Appeal dismissed.