IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 23 DAY OF NOVEMBER 2011 PRESENT THE HON’BLE MRJUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MRJUSTICE RAVI MALIMATH CRIMINAL APPEAL No, 2807/2010 BETWEEN: STATE OF KARNATAKA REPRESENTED BY POLICE INSPECTOR BANGALORE, THROUGH THE ADDL, STATE PUBLIC PROSECUTOR ADVOCATE GENERAL OFFICE, HIGH COURT CIRCUIT BENCH UNIT, DHARWAD. ,APPELLANT [BY SRI VM. BANAKAR, ADDL. SPP J AND: 1. SHIVAKUMAR, 5/0 SHARANA BASAPPA AGED ABOUT 32 YEARS, RESIDENT OF MG. NAGAR, HOSPET BELLARY DISTRICT. 2. SHARVAMANGALAMMA vVG SHARANAE3ASAPPA. ‘E A6CJ oC (EAPS OF MG. NAGAR, HOSPET, BELLARY DISTRICT. [BY SRI. TBASAVARAJ, ADVJ THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CRPC. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT III HOSPET IN SC,NOJ63/2007 DATED 26/02/2010 AND CONVICT AND SENTENCE THE ACCUSEDRESPONDENTS FOR THE OFFENCES WHITH WHICH THEY HAVE BEEN CHARGE SHEETED IN ACCORDANCE WITH LAW. THIS CRIMINAL APPEAL IS COMING ON FOR HEARING THIS DAY, MOHAN SHANTANAGOUDAR J. DELIVERED THE FOLLOWING: - JUDGMENT The State has tiled this appeal against the judgment and order of acquittal dated 26 February, 2010 by the Fast Track Court Iii, Hospet. By the impugned judgment, the accused are acquitted of the offence punishable under Sections 498(A), 304(B) and 306 of the Indian Penal code and under Sections 3, 4 an.d 6 of the Dowry Prohibition 2. Accused No.2 s. the mother of accused No.1, Deceased Shruti is the wife of accused No.1. Their UD is born out of the wedlock. Six rn.onths prior to the :3: manlage, the accused allegedly demanded cash of Rs.80,000/- and 10 tola of gold and other articles as dowry. However, In the presence of elders, It was decided to give cash of Rs.35,000/- and 4 toia of gold and other articles as dowry. Cash of Rs.25,000/- and 4 tola of gold was given In the hands of accused No.1 15 days prior to the marriage and Rs.10,000/- as dowry was given to accused no.2 on the date of the marriage. Despite the same, the accused Ill-treated the deceased compelling her to bring more money from her parents, due to which PW 24, gave a cash of Rs.20,000/- and half told of gold. At another point of time, a sum of Rs.5,000/- was paid. In spite of payment of such an amount, the accused refused to send the deceased to her parents house on the date of the Incident by putting a condition of fulfilling their demand of additional dowry. Shruti, being intolerant about the liltreatment, committed suicide by hanging In the first floor of the matrimonial house on 07/06/2007 at 5.OOm p.m. At 6.30 p.m. accused No.1 lodged the complaint before the jurisdictional Sub Inspector which came to be registered as UDR NO. 14/2007 under Settion 174 of the Code of :4: Criminal Procedure and First Information Report was sent to the Taluka Executive Magistrate as per Ex.P-26. The Taluka Executive Magistrate conducted inquest mahazar as per Ex.P-20 and recorded the statement of the witnesses. Part of the Investigation was done such as conducting of spot mahazar, seizure of rope and taking photographs of the dead body etc. In the meanwhile, accused No.1 Informed PWs.24 and 25 about the death of Shruti. Immediately, thereafter, PWs.24 and 25 along with other relatives, came to Hospet on 08/06/2007. They lodged a complaint at 11.00 a.m. on 08/06/2011 which came to be registered in Crime No.77/2007 by the jurisdictional police under Section 498(A)and 304-B of the Indian Penal Code and under Sections 3, 4 and 6 of the Dowry Prohibition Act read with SectIon 34 of the Indian Penal Code. FIR was despatched as per Ex.P-30. After sometime, the investigation was transferred to CoD, Bangalore. CoD police recorded the further statements of the witnesses and ultimately laid the charge sheet. :5: 3. In order to prove its case, the prosecution in all examined 33 witnesses and got marked 30 exhibits and 22 materIal objects. On behalf of the defendants, 4 exhibits were marked. The trial Court, on evaluation of the material on record, acquitted the accused of all the charges. 4. SrI. Banakar, learned Additional State Public Prosecutor taking us through the material on record contended that the evidence of PWs.24 and 25 coupled with the evidence of PW5. 18, 19, 20, 22 and 23 would be sufficient to prove the guilt of the accused. According to him, the demand of dowry and payment of dowry is proved and as the deceased could not tolerate the mental harassment of the accused, she committed suicide within 7 years from the date of marriage. Thus, he concludes that the reasons assigned and the conclusion arrived at the trial Court are not just and proper. 5. SrI. Basavaraj, learned advocate appearing on behalf of the respondent argues In support of the fr- 3 :6: judgment of the Court below. He brings to the notice of the Court that the first version of the prosecution does not disclose demand for dowry by the accused. However, it merely discloses, the payment of amount by PWs.24 and 25 to the accused. Even if the version of the prosecution is believed, according to him, the amount and gold was voluntarily paid by PWs.24 and 25 to the accused as customary practice. Since PW-13 has turned hostile, he submits that the payment of amount of Rs.25,000/- with 4 tola of gold is not proved. He further points out that it Is not the case of physical harassment. According to him, the deceased was too sensitive In nature and she became Intolerant as she was not sent to her parents place on the date of the accident. 6. PWs.1,3, 5, 7, 8 and 11. to 15 have turned hostile. Their evidence is not helpful to the case of the prosecution. Even though PW-13 Is an elderly person who attended the marriage talks, who was supposed to speak about the payment of dowry by PWs.24 and 25 to the accused of Rs.25,000/- and 4 tola of gold, has turned I-n :7: hostile. Thus virtually supporting evidence relating to payment of amount of Rs.25,000/- and 4 tola of gold Is not available on record. PW-6 Is the doctor who conducted postmortem examination. Postmortem report Is at Ex.P 11. He has opIned that the death Is due to suIcide by hanging. PW-2 is the photographer who took the photographs of the dead body as per Ex.P-2 to P-7. PWs.9 and 10 are the police constables who participated In the investigation. PW-16 Is an engineer who prepared the sketch of scene of offence as per Ex.P-18. PW-17 is the Investigating pancha and speaks about the inquest panchanama as per Ex.P-20. Virtually, the case of the prosecution Is supported by PW-18 on wards. PW-18 is the brother of the complainant and he speaks about the aspect of dowry. PW-19 is a friend of PW-24 who allegedly paid Rs.19,000/- to the complainant prior to the marriage. PW-20 is the marriage broker who arranged the marriage between the deceased and accused No.1. He has spoken about the alleged payment of dowry and discussion relating to dowry. PW-21 is also the inquest pancha. PWs.22 and 23 are the elderly person and neighbour of the :8: complainant who have deposed about payment of dowry. PWs.24 and 25 are the parents of the deceased. PW-24 lodged the complaint as per Ex.P-21. PWs.26 and 27 are the maternal uncle and aunt of the deceased. PW-28 is the brother-in-law of PW-24. PW-29 is the wife of PW-26. PWs.30, 32 and 33 are the Police officers who participated in the investigation, ultimately, which has led to filing of charge sheet. PW-31 is the Taluka Executive Magistrate who conducted inquest panchanama. 7. The main persons who speak about the alleged payment of dowry are PWs.24 and 25. PW-24 is the complainant. The complaint-Ex.P-2 1 nowhere reveals that there was demand by the accused relatIng to dowry. However, the complaint discloses that certain amount was paid by PW-24 in the presence of witnesses to the accused. The first version of the complainant-father of the victim itself clearly reveals that there is no demand for dowry by the accused. The death has occurred. on 07/06/2007 whereas the complaint is lodged on 08/06/2007 at about 11.30 a.m. Thus, there was lot of 9 time for deliberation and consultation for PW 24 before lodging the complaint In spite of such long gap of time PW24 is definite that there no demand f dov b the accused However after sometime the file ivas transferred to the CoD for further investigation. Thereafter, the further statement of PW 24 is recorded in which PW 24 states that there was a demand of dowry by the accused. In the crossexamination of PW24 he has clearly admitted that the deceased and acued NO I were living happily and that the marriage has taken place at Hospet, the place of bridegroom(accused No I He ft rther 3dmits that c ord ng to thei i stom the p ace of 3 pers ho ne forms he n rr aae( see d nnev’ ou e tee p n r g A tt y PC S3 gtpefo ya is n 1: C ide P 2 P :10: PW-25 and informed her that the accused would not sent her to parents’ place unless their demand for money Is met. Such a fact was informed by PW-25 to PW-24. On the very evening the incident has occurred. However, PW 24 has deposed that he had been to Hospet for brining the deceased to his house. But the accused told to PW-24 that they would be sending the victim after one week. If really accused No.1 wanted money on the date of incident, he would not have failed to ask for money from PW-24, who had been to Hospet for brining his daughter. It has also come on record that two weeks prior to the death of the deceased Rudrabhishekha was performed In the house of the accused and that accused used to insist the deceased that she should perform Ishwar pooja with full sanctity and with clean mind and body. Through PW-24, Ex.D-4 is marked. PW-24 has stated before CoD police as per Ex.D 4 that the second accused was admitted to hospital for eye operation and that the deceased was advised to go to her parents’ place after discharge of accused No.2 from the hospital. But PW-24 has improved his version giving go bye to his version before the police. It is also brought on V 11: record In the cross examination of PW-24 that the accused used to tell the deceased that It cannot be possible to send her often to her parents place as they are living in Joint family and it would not be possible to maintain the joint family by accused No.2 because of her old age. The evidence of PW-24 reveals that there was no demand of dowry by accused at the time of marriage. However, according to PW-24, he paid certain amount after marriage on demand by accused No.1 for his necessities as he has suffered loss In the business. Thus, It is clear that the amount, if any, paid by PW-24 Is not related to the marriage and the same cannot be termed as dowry. 8. The mother of the deceased, PW-24, has fairly deposed that accused No.2 was In the hospital during the relevant time for her eye test. Accused No.2 Informed about the death to PW-25 over phone. It has also come n record that the deceased used to stay in her parents’ place very often. PW-24 has specifically admitted that the accused had told PW-25 that they will send the deceased to her parental house after completion of Rudrabhishekha. V 12: If the evidence of PW-25 is read along with the evidence of PW-24, It Is clear that there was no demand for money on the date of the incident by the accused. Accused No.2 was in the hospital for the purpose of her eye operation. It appears, the deceased was too sensitive and did not take the act of the accused sportively of not sending the deceased to her parental house. Admittedly, the accused are living in a joint family consisting of the brothers of the accused No.1 and other family members. Accused No.2 is old and aged. The evidence further reveals that It wiould not be possible for accused No.2 to maintain the family all alone because of her old age. Therefore, the accused used to tell the deceased that she may go to her parents place after discharge of accused No.2 from the hospital. We do not find any harassment In the act of the accused denying permission to the deceased to go to her parental house on that day. Merely because the deceased was not allegedly permitted to go to her parents’ place on the date of the incident, the same cannot be treated as mental cruelty. Admittedly, it is not the case of physical cruelty inasmuch as the evidence nowhere reveals that the deceased was :13: subjected to physical cruelty. PW-26 is the brother-In-law of PW-24. He admits that at the time of marriage, PW-24 and his family members were not so affluent. According to the case of the prosecution, PW-26 provided money to PW 24 in turn to hand over the same to the accused No.1 after the marriage. According to PW-26, he paid Rs.1O,000/- + Rs.20,000/- on two occasions to PW-24 but nothing is there to show that those amounts were paid by PW-24 to accused No.1 inasmuch as PW-3 who was to speak about handing over of money, has turned hostile. PW-26 further deposes that whenever he pays the amount to 3 parties, he takes receipt or pro-note for the same. But in this matter no document Is found in that regard. PW-27 is the sister of PW-25. She goes a step forward and deposes that the accused assaulted the deceased and that the deceased had sustained visible Injuries. This evidence of PW-27 is not at au supported by the medical evidence. It Is not the case of the prosecution also that the accused at any point of time Ill-treated and that the deceased had sustained injuries. ‘tttf_ tt -, 14: 9. Exs.D-2, 3 and 4 the statements made by the complainant and other persons before the COD police, were not deposed by them before the Court. Such statements were omitted before the Court. Such omissions are proved before the Court in the evidence of investigating officer. The statements clearly reveal that the victim was not subjected to any mental harassment. PW-24 has admitted that the deceased Shruti was happy with her husband and mother-In-law. Though accused No.1 Informed PW-25 about the death of the deceased, PW-1 has strangely deposed that accused No.1 did not Inform them over phone. 10. In our consIdered opinion, the trial Court, after evaluation of the material on record, Is justified In acquitting the accused, Inasmuch as the case of the prosecutIon bristles with contradictIons and Improvements, which are noted In the Impugned order by the Court below. As has been held by the Supreme Court In the case of APPA SAHEV Vs STATE OF MAHARASHTRA reported in 2007 AIR SCW 456 “a demand for money on account of 15: some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. As per the definition of “Dowry” as given in 1961 Act, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision It has to be strictly construed. Dowry Is a fairly well known social custom or practice in India. It is well settled principle of Interpretation of Statue that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in It, then the words are to be construed as having that particular meaning.” 11. In the instant case, the accused allegedly asked money for meeting the family necessities for making 16 good the loss suffered by accused No1 in the business. Since the essential ingredient of Section 304(B) of the Indian Penal Code Le, demand for dowry is not established, the trial Court is justified in acquitting the accused. 12. We do not find any reason to convict the accused for the offence under Section 306 also. There is no harassment meted out by the accused. Merely because the victim was not permitted to go to her parents’ place on the date of the incident, the same cannot be construed as harassment, In our society, it is but common that the elders of the family may not permit the women fOlk to go to their parents’ piace when ever nenuinety it is not possible to send women folk to her narents lace. Therefore, the material on record does not reveal the offence under Section 306 also. 13. We find that there is absolutely no clinching evidence placed before the Court to show the instance of a :17: p proximate link between the demand for dowry and death of the deceased. 14. The view taken by the trial Court under the facts and circumstances of the case cannot be said to be not a possible view. It is by now well settled that If two views are possible from the material on record and If the trial Court has a taken one of such possible views while acquitting, High Court would not normally Interfere in the order of acquittal. Since we find that the reasons assigned and conclusion arrived at by the trial Court are Just and proper, no Interference Is called for. The appeal fails, dismissed. a Scj/e I JUDGE sd/a 3tJDGE kmv