crl.p.597.2010 cw 1326.2010-bng bench...
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 8TH DAY OF DECEMBER, 2014
:PRESENT:
THE HON’BLE MR.JUSTICE MOHAN.M.SHANTANAGOUDAR
:AND:
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 1326/2010 C/W
CRIMINAL APPEAL NO. 597/2010
IN CRL.A.1326/2010 BETWEEN:
STATE BY VIDYARANAYAPURA POLICE STATION BANGALORE ... APPELLANT (BY SRI.B VISWESWARAIAH, HCGP)
AND:
1. SRI. NAVEEN KUMAR, AGED 31 YEARS,
S/O PRASANNA KUMAR
2. PRASANNA KUMAR
AGED 51 YEARS S/O LATE RUDRARADHYA
3. SMT. SUVARNAMMA
AGED 58 YEARS W/O PRASANNA KUMAR
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A1 TO A3 ARE RESIDING AT NO.465, 11th "C" CROSS, 3rd BLOCK, BEL EXTENSION,
VIDYARANAYAPURA BANGALORE-97.
4. SMT. MANGALA GOWRI AGED 35 YEARS W/O SATISH KUMAR
R/AT NO. 570/3, 10th CROSS 4th MAIN, 3RD BLOCK, VIDYARANAYAPURA, BANGALORE.
5. SATISH KUMAR AGED 41 YEARS
S/O PRABHUDEV R/AT NO. 570/3, 10th CROSS, 4th MAIN, 3rd BLOCK VIDYARANAYAPURA BANGALORE. ... RESPONDENTS
(BY SRI. C.H.HANUMANTHARAYA, ADV., )
THIS CRL.A. IS FILED U/S. 378(1) & (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT DT: 28.04.10 PASSED BY THE P.O., FTC-VI, BANGALORE IN S.C.NO.516/04 - ACQUITTING THE
RESPONDENTS FOR THE OFFENCE P/U/S 302, 304-B, 498-A IPC AND SEC. 3 AND 4 OF D.P. ACT. IN CRL.A.597/2010 BETWEEN:
SMT.RATNA AGED ABOUT 60 YEARS W/O SRI. C.R. CHANNAVEERAPPA RESIDING AT NO.A59, BASAVESHWARA ROAD,
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SOMWARAPET, COORG DIST, KARNATAKA ... APPELLANT (BY SMT. SYEDA SHEHNAZ, ADV., &
SRI.V. BALAKRISHNA, ADV.,) AND:
1. SRI. NAVEEN KUMAR AGED 31 YEARS
S/O SRI.PRASANNA KUMAR
2. SRI. PRASANNA KUMAR AGED ABOUT 58 YEARS S/O LATE RUDRARADHYA
3. SMT. SUVARNAMMA AGED ABOUT 58 YEARS W/O SRI. PRASANNA KUMAR 1 TO 3 IS RESIDING AT 465, 11th ‘C’ CROSS, III BLOCK
BEL EXTENSION, VIDHYARANYAPURA, BANGALORE
4. SMT. MANGALA GOWRI AGED 35 YEARS W/O SATISH KUMAR
RESIDING AT NO.570/3 10th CROSS, 4th MAIN, 3rd BLOCK VIDHYARANYAPURA, BANGALORE-560097.
5. SRI.SATISH KUMAR AGED 41 YEARS
RESIDING AT NO. 570/3 10th CROSS, 4th MAIN 3rd BLOCK, VIDHYARANYAPURA BANGALORE-560097.
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6. STATE OF KARNATAKA
BY VIDYARANYAPURA POLICE STATION BANGALORE-560097. ... RESPONDENTS
(BY SRI.C.H.HANUMANTHARAYA, ADV., FOR R1 TO R5, SRI. B.VISWESWARAIAH, HCGP FOR R6)
THESE CRL.APPEALS ARE FILED U/S.372 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DT.28.04.2010 PASSED BY THE P.O. FTC-VI, BANGALORE IN S.C.NO.516/2004 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/Ss 302, 304-B, 498-A IPC AND SECs.3 & 4 OF D.P. ACT.
THESE CRIMINAL APPEALS HAVING BEEN RESERVED
FOR JUDGMENT ON 1.9.2014, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY, K.N. PHANEENDRA, J. DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment of acquittal recorded by the
Fast Track Court & Sessions Judge, Bangalore City, FTC
No.VI, in SC No.516/2004 dated 28.4.2010, the first
informant by name Smt. Ratna-PW13 (complainant) has
preferred Crl. Appeal No.597/2010. So also, the State has
preferred an appeal against the same judgment of acquittal in
Criminal Appeal No.1326/2010.
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2. The Trial Court has tried the respondents herein
who are arrayed as Accused Nos.1 to 5 for the offence
punishable under Sections 498A, 304B, 302 of IPC, also
under Section 3 & 4 of the Dowry Prohibition Act read with
Section 34 of IPC and ultimately found that the accused
found not guilty of the aforesaid offences and consequently,
acquitted them.
3. The brief factual matrix that emanate from the
records are that:
Smt. Ratna and Sri Channaveerappa, parents of the
deceased simpa, examined as PWs. 13 and 16 respectively are
the husband and wife. They have given their daughter by
name Simpa (deceased) in marriage to Accused No.1. The
other accused persons i.e., A2 and A3 are the parents of A1.
A4 Smt. Mangala Gowri and A5 Sathish Kumar are the sister
and brother-in-law of A1 respectively. The marriage between
A1 and Simpa, undisputedly taken place on 5.9.1999. It is
also not disputed that they have got a child of 1 ½ years old
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at the time of the incident. The main case of the prosecution
is that even at the time of the marriage, particularly at the
time of negotiations, the accused persons have demanded
cash of Rs.1 lakh and Jewellary worth Rs.5 lakhs. At the
time of marriage, the said amount was paid as dowry and
Jewelry worth Rs.5 lakhs were also given in consideration of
the marriage. Sometime after the marriage, A1 and Smt.
Simpa lived happily as husband and wife in the matrimonial
home. Thereafter, the accused persons being not satisfied
with the dowry of Rs.25,000/- given at the time of marriage
and the Jewellary have started demanding more money and
articles from the parental house of the deceased. In this
background, it is specifically alleged that there was ill-
treatment and harassment to the deceased which were un-
tolerable. In this backdrop, on 30.5.2002, in the morning
hours as per the prosecution case, at about 7.30 a.m., the
accused persons have killed the deceased by causing burn
injuries by pouring kerosene on her and liting fire in the
lavatory situated in the backyard of their house, which is
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situated at 11th-C Cross, 3rd Block, BEL Extension,
Vidhyaranyapura, Bangalore. The prosecution case further
continues on the allegations that the Accused No.1 secured
the presence of the police giving information that she died in
the lavatory. The Police Constable-CW33 (examined as DW-6)
went to the spot and recorded the statement of A1 and
thereafter, a case was registered by Police in UDR
No.14/2002 and submitted FIR and requested the Taluka
Executive Magistrate to conduct the inquest panchanama.
The Taluka Executive Magistrate – PW20 Mr. N.R. Sudakar
has conducted the inquest panchanama at M.S. Ramaiah
Hospital, where the dead body was shifted by that time.
Thereafter, on the request of the Police, the dead body of the
deceased Smt. Simpa was shifted from M.S. Ramaiah
Hospital to Bowring Hospital for the purpose of conducting
post-mortem examination. On 31.5.2002, the post-mortem
examination was conducted and on the basis of the
statements of the father and the mother of the deceased, the
Police have registered a case in Crime No.86/2002 against the
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accused persons for the offence punishable under Section
498A, 304B, and 302 of IPC and also u/s. 3 & 4 of the Dowry
Prohibition Act read with Section 34 of IPC.
4. The records disclose that at the initial stage A2 to
A5 were enlarged on bail and subsequently A1 was also
enlarged on bail. The Trial Court, after going through the
contents of the charge sheet, has framed charges against the
accused persons for the offence punishable under Sections
498A, 302, 304B and also under sections 3 and 4 of Dowry
prohibition act, read with Section 34 of IPC. The prosecution
has proceeded with the trial and examined as many as 24
witnesses PWs.1 to 24 and got marked Exhibits P1 to P63
and MOs.1 to 48. The accused were examined u/s.313 of
Cr.PC and called upon the lead defence evidence if any. The
accused persons have also examined as many as 7 witnesses
as DWs.1 to 7 and got marked Exhibits D1 to D107.
5. (a) The prosecution witnesses examined particularly,
PW1 Mr.Ravikumar, PW-10 Srinivas and PW-19 Narasimha,
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who are the panch witnesses to the inquest panchanama and
they have seen the dead body and also attested the
panchanama and spoken to about the conducting of the
inquest panchanama.
(b) PW2 is the seizure mahazar witness for Exs.P3 and
P4, wherein, A1 handed over gold and silver ornaments to the
Police in his house.
(c) PW3 is also another panch witness who is no other
than the co-brother of A2 by name G. Mahesh, who was
present at the time of the dead body being taken out from the
toilet and the Police have conducted mahazar at that spot and
he is the signatory to the spot panchanama and during that
panchanama MOs.1 Kerosene container and MO2 match box
were recovered.
(d) PW-4 Sri G. Umesh, another panch witness for
seizure of some gold and silver ornaments by CCB Police
produced by A3 under Exs.P5 and P6.
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(e) PW5 one Mr. Guruswamy is no other than the
brother of CW10 who speak about the negotiations held prior
to the marriage between A1 and A2 and also he speak about
the demand of dowry etc.,
(f) PW-6 Mr. S.C. Chandrasekhar is the neighbor of
the complainant at Somawarpeth. He also speaks about the
negotiations and demand of dowry and also he has seen the
dead body and he also speaks about the injuries on the dead
body.
(g) PW7 H.B. Krishnappa also deposed in the similar
manner as that of PW6 stating about the negotiations in
demand of further dowry and injuries on the dead body.
(h) PW-8 Suma is no other than the sister of the
paternal aunt (father’s sister of the deceased). She also
deposed about the demand of further dowry and torture by
the accused persons as well as the injuries on the dead body.
(i) PW-9 Rekha Mohan also speaks in similar manner
as that of PW8.
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(j) PW-11 Sri R. Naganna is the PSI of
Vidhyaranyapura Police Station. He speaks about his visit to
the house of A1 on the date of the incident at about 8.45 a.m.
and recorded the statement of A1 through his writer and
registered a case in UDR No.14/2002 and also requested the
Taluka Executive Magistrate to conduct the inquest
panchanama.
(k) PW12 Champa is the sister of the deceased. PW13
Smt. Ratna, mother of the deceased, PW15 Nagaraj is genetive
brother of the deceased, PW16 Channaveerappa is the father
of the deceased have all spoken to about the negotiations in
demand of dowry by A1 to A3 and further demand of dowry of
Rs.10 lakhs etc., and torture and harassment given to the
deceased and also the accused persons have killed the
deceased by pouring kerosene on her and liting fire.
(l) PW-14 A.S. Umesh has deposed about the demand
of dowry after the marriage and also about the galata taken
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place at the house of the accused on the previous day and
also saw the dead body and injuries on the dead body etc.,
(m) PW17 Dr. Beemappa Havanur is the doctor who
was working in the Bowring Hospital during the relevant
point of time has conducted the P.M. examination on the
dead body of the deceased Simpa and issued PM report as per
Ex.P-32 and also given information to the Police and
answered the queries of the Police.
(n) PW18 K. Ajjanna, Inspector of Police, who
registered a case in Crime No.86/2002 as per Ex.P44 and
dispatched the First Information Report to the court as per
Ex.P43 on the same evening on which day, the case was
registered.
(o) PW19 one N.M. Narasimhan is the Medical Shop
owner in JP Nagar, Bangalore, who also speaks about the
galata in the house of Accused No.1 on the previous day.
(p) PW21 Dr.M. Somashetty, HOD of Forensic Lab, MS
Ramaiah Hospital has deposed before the Court with regard
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to the receipt of the dead body of the deceased and thereafter,
the dead body was shifted to Bowring Hospital for the
purpose of PM examination.
(q) PW-22 ACP Sri V. Thimmappa in fact is the brother
who conducted partial investigation in this case has deposed
about the seizure of some gold ornaments at the instance of
A1 to A3.
(r) PW-23 Sri S.P. Naik is the Investigating Officer,
who has deposed about the investigation done by him,
recording of the sworn statement of the witnesses with regard
to the demand of further dowry, harassment by the accused
both physically and mentally etc.,
(s) PW-24 Sri Panduranga Rao, ACP has completed the
investigation after taking over the same from PW-22 and he
subsequently handed over the investigation to PW23 and
ultimately, charge sheet has been filed against the accused
persons.
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6. We have heard the detailed and very lengthy
arguments addressed by the learned High Court Government
Pleader appearing for the State and also Sri V. Balakrishna,
learned counsel, appearing for the appellant/complainant in
Criminal Appeal No.597/2010.
7. The arguments of Sri B.Visweshwaraiah learned
High Court Government Pleader and Sri V. Balakrishna,
learned Counsel for the complainant are almost similar. On
the same grounds, they have challenged the judgment of
acquittal of the trial Court. Apart from describing the factual
matrix of the case in their Memorandum of Appeals and at
the time of arguments, it is specifically contended that the
trial Court has committed a serious illegality in acquitting the
accused for the offences charged against them. In fact, the
evidence of PWs.6, 7, 12, 13 and 16 unequivocally establish
the case against the accused persons beyond all reasonable
doubt. The accused persons have demanded dowry, gold
articles prior to the marriage, received the same at the time of
the marriage and also subsequently, demanded heavy
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amount of dowry and for that reason, they have ill-treated
and harassed the deceased and ultimately killed her by
pouring kerosene and litting fire. Their evidence fully
corroborated with the evidence of other witnesses i.e., PW5
Guruswamy and sister of the deceased by name Champa,
Suma, Rekha Mohan and father and mother of the deceased
by name Ratna and Channaveerappa. The evidence of PW15
Nagaraja and evidence of the father of the deceased have also
not properly appreciated by the trial Court though the
allegations made against the accused with regard to the
demand of dowry, receiving of the dowry and gold articles and
subsequent demand of dowry, ill-treatment and harassment
given to the deceased has been proved by the prosecution
beyond all reasonable doubt. The trial Court failed to
consider the evidence of the doctors with regard to the Post
Mortem report, inquest report and also the opinion of the
doctor as well as the Taluka Executive Magistrate with regard
to the death of the deceased Simpa. The trial Court also
failed to consider that the accused persons have not properly
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explained as to how the death was occurred, what is the
reason for the death and non-explanation by the accused has
not been properly appreciated by the trial Court and thereby
committed serious error in acquitting the accused.
8. Sri Balakrishna, learned Counsel for the complainant
has further elaborately contended that the trial Court has not
appreciated the statements of the accused u/s.313 Cr.PC in
proper perspective. For several questions, the accused have
not properly given answers and the trial Court has failed to
appreciate that those improper answers are in addition to the
proven case of the prosecution fill up the doubts in the
prosecution case, those improper answers could have been
considered as additional circumstance against the accused in
support of the case of the prosecution.
9. The learned High Court Government Pleader as well
as the learned Counsel for the complainant have also cited
several rulings in this regard which are discussed in
succeeding paragraphs while appreciating the evidence.
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10. Sri C.H. Hanumantharaya learned Counsel for the
accused with all force countered the arguments of the learned
High Court Government Pleader as well as the learned
Counsel for the complainant. He has specifically contended
that the trial Court has appreciated the materials on record
by taking all care and caution by giving equal importance to
the evidence of the prosecution witnesses and also the
defence witnesses. The trial Court has appreciated the
evidence considering the contradictions, omissions which are
serious in nature elicited during the course of cross
examination of the witnesses proved through the evidence of
the Investigating Officers. He has specifically contended that
the case of the prosecution has been made from time to time,
from the time of the First Information Report and the
subsequent statements of the witnesses. Further, he
contended that there is sufficient material to show that the
Post Mortem report has been manipulated and the said
document amply proves that the prosecution witnesses want
to implicate the accused falsely into the crime to make believe
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the court that suicidal death of the deceased to that of
murder by the accused persons. He has taken us through
the evidence of the witnesses and also specifically the
evidence of the Taluka Executive Magistrate, the doctor and
other witnesses and also particularly the evidence of the
Investigating Officer to show that the entire evidence of the
prosecution witnesses is nothing but improvement by stage
by stage. Therefore, the trial Court, after considering the
above said aspects in detail, has specifically come to the
conclusion that the prosecution had not proved the case
beyond reasonable doubt.
11. He has also humbly urged before this Court that
when the trial Court has acquitted the accused persons, it is
doubly made sure that the accused persons are innocent.
While dealing with the acquittal judgments, the court must be
very careful in reversing the judgment unless the judgment of
the trial Court is so erroneous, illegal and it bites the
conscious of the court. Therefore, he contended that there is
no room for this court to interfere with the well-reasoned
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judgment of the trial Court. Hence, he has pleaded for
confirmation of the said judgment of acquittal passed by the
trial Court.
12. We have also carefully perused the entire judgment
of the trial Court. The trial Court after forming the points for
consideration has come to the definite conclusion on
appreciation of the materials on record that the prosecution
has not proved the case beyond reasonable doubt and the
defence which are cropped up in the case go to the root of the
prosecution case and there is no material to show that the
accused persons have committed the murder of the deceased.
With reference to the demand of dowry prior to the marriage
and receipt of the dowry and cash of Rs.25,000/- at the time
of marriage is not at all supported by the sufficient convincing
and acceptable evidence by the court. Further trial court also
elaborately discussed with regard to subsequent demand of
dowry of Rs 10,00,000/- and held that such demand and
receipt of Rs 5,00,000/- are also not proved to the
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satisfaction of the Court. Hence, the trial Court has acquitted
the accused persons.
13. Appreciating the above said arguments submitted
by the learned Counsels and also on looking to the judgment
of the trial Court, it is clear that the trial Court has written a
very lengthy judgment and appreciated the material on record
and drawn some inferences and concluded the judgment by
acquitting the accused persons.
14. The Court should bear in mind that when the
accused persons are acquitted by the trial Court, the
appellate court normally should not interfere with such
judgment particularly, when the case is based on
circumstantial evidence and also the evidence of the close
relatives of the victim.
15. It is worth to note here the decision of the Hon'ble
Apex Court reported in (2007)4 SCC 415 between
Chandrappa and Others Vs. State of Karnataka, wherein the
Hon'ble Apex Court has held that following general principles
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regarding powers of the appellate court to be borne in mind
by the court while dealing with an appeal against an order of
acquittal. The relevant portion reads as under:-
(1) An appellate Court has full power to review,
re-appreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2) The Code of Criminal Procedure 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it,
may reach its own conclusion both on questions of fact
and law.
(3) Various expressions, such as “substantial and
compelling reasons” , “good and sufficient grounds”,
“very strong circumstance”, “distorted conclusions”,
“glaring mistakes” etc., are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasize the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
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presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless
he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial Court.
(5) If two reasonable views are possible on the
basis of evidence on record and one favorable to the
accused has been taken by the trial Court, it ought not
to be disturbed by the appellate court.”
16. Consistent with the above said observations made
by the Hon'ble Apex Court, there are catena of rulings
wherein the Hon'ble Apex Court had amply made it clear that
in a case based on circumstantial evidence and when the
case mainly rests on the interested witnesses testimony
under which, the conclusion of guilt is to be drawn, should
be fully proved and such facts and circumstances must be
conclusive in nature. All the factual aspects and
circumstances should be complete and there should be no
loop hole left in the chain of evidence. The proof must be
complete, consistent and cogent, only with hypothesis of the
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guilt of accused and totally inconsistent with the innocence
of the accused. We are also conscious and cautious of the
principles that accused is presumed to be innocent unless
his guilt is proved. But the innocence of the case is fortified
by the acquittal of the accused persons by the trial Court.
The Appellate court normally should not interfere with the
judgment of acquittal except in exceptional circumstances
and for compelling reasons and in that event it should not
hesitate to reverse the judgment of acquittal. The court has
to bear in mind the findings recorded by the trial Court if it is
perverse, illegal and the conclusion arrived at by the trial
Court is contrary to the evidence on record or the entire
approach of the trial Court with respect to dealing with the
evidence is patently illegal, leading to miscarriage of justice,
or if the judgment of the trial Court is so un-reasonable and
based on erroneous understanding of the facts of the case,
then the appellate court can interfere with such judgments.
If for any reason, the appellate court comes to a different
view as that of the trial Court, it should also bear in mind
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that the view taken by the trial Court is also possible on the
basis of the material on record; and that, such view also
should not be interfered with.
17. Keeping in mind the above said valuable
principles, let us deal with the present case on hand.
18. On over all analysis of the entire materials on
record, in our opinion, three important points crop up for
consideration of this court:
(1) Whether on the basis of the facts and
circumstances of the case, prosecution has proved
beyond reasonable doubt that deceased Simpa
D/o.PW16 died a homicidal death or a suicidal
death.
(2) whether the prosecution proves beyond
reasonable doubt that the deceased Simpa has died
an un-natural death (Suicidal death), within seven
years of marriage and soon before her death, she
was subjected to cruelty or harassment by the
accused persons in connection with any demand of
dowry or whether, the accused persons have abated
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the commission of such suicide by the deceased by
means of their conduct.?
(3) Whether the prosecutions proves beyond
reasonable doubt that the accused persons treated
the deceased with cruelty in demand of dowry or for
any other reasons which are sufficient to drive her
to commit suicide.
POINT NO 1.
19. In order to deal with the first point, this Court has
to consider the materials on record. According to the overall
case of the prosecution case is. A1to A3 with an intention to
extract more dowry and money from the deceased started
quarreling with the deceased on the previous day. On the
date of the incident, they killed her inside their house, and
after her death, in order to make believe the public that she
has committed suicide, they took the dead body and put the
same in a sitting posture in the lavatory situated outside the
house and poured kerosene on her and lit fire.
20. The prosecution has also relied upon some of the
injuries on the dead body i.e., to say three injuries on the
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dead body in detail we discuss about the injuries little later.
It is the case of the prosecution that the accused after
committing the murder of his wife, did not shift the dead
body to the Hospital but they first secured the Police in order
to create the evidence in their favour. Therefore, looking to
the circumstances, it is crystal clear that it is not a suicide
but a murder. For this, the prosecution has relied upon the
evidence of PWs.1, 10 and 19 who are the inquest panch
witnesses at the initial stages, who have actually seen the
dead body.
21. Before adverting to the evidence of these
witnesses, it is just and necessary to have a brief look at the
First Information Report submitted by the mother and father
(PW 13 and 16) of the deceased which is marked at Ex.P13,
so far as it relates to the death of the deceased and how it
has taken place according to the witnesses. The inquest of
the dead body was conducted in the MS Ramaiah Hospital by
the Taluka Executive Magistrate on 30.5.2002 at 4.00 p.m.
and it was concluded at 6.00 p.m. At 6.15 p.m., the First
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Information Report was lodged and a case has been
registered in Crime No.86/2012 for the offence punishable
under Section 498-A and 302 of IPC.
22. In this context the learned counsel Sri Balakrishna
relied upon a decision of the Hon’ble apex court reported in
AIR 1975 S.C.1252 between Pedda Naryan and others Vs
State of Andhra Pradesh, where in the Hon’ble Apex court
observed that,-
There is no need to mention every minute detail in the
FIR mentioning the overt acts of each and every
accused.
It is neither customary nor necessary to go in detail to
narrate the story of prosecution. The object of Section
174 is very limited. It can only be used for the purpose
of ascertaining whether a person has died under
suspicious circumstances or an un-natural death, and if
so what is the apparent cause of death. It is contented
in this background the court has take into consideration
the contents of FIR and the inquest. Therefore we feel it
just and necessary to have the brief account of FIR and
the Inquest panchanama and then we would like to
discuss the evidence on record to find out whether the
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contents of these documents play any dominant role in
the case.
The gist of the First Information Report is:
that on the previous day of the incident at about 3.00
p.m., the accused No.2, father of A2, has called the
mother of the deceased (PW13) stating that their
grandson (son of the deceased) has been assaulted by
the deceased on the ground that he was grumbling for
taking any food and they requested the father and
mother of the deceased to immediately go over to
Bangalore and to advice their daughter properly and
they also stated that they are not responsible if she
commit anything to herself. At about 5.00 p.m., the
father and mother of the deceased tried to contact A1,
but they could not get him over phone. Up to 10.00
p.m., on 30.5.2012 they waited. On the date of the
incident at about 8.45 p.m., A2 called the parents of the
deceased and informed them that Simpa is dead and
immediately asked them to go over to Bangalore and
they saw the dead body in M.S. Ramaiah Hospital,
Bangalore at about 4.30 p.m., and stated that their
daughter is a Law Graduate and she is not a lady who
could commit suicide and therefore they suspected the
death is a homicidal death at the hands of the accused
as such they requested the Police to take action against
the accused.
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Nowhere in the FIR, have they stated as to how the incident
has happened and how the deceased died and also nothing
stated about the injuries on the dead body of the deceased.
23. Coming to the evidence of PW2, 10 and 19 who are
the inquest panch witnesses, which discloses that they are
friends of PW15 Nagaraj. Nagaraj is no other than the
brother of the deceased. It is specifically stated by them that
PW20 Taluka Executive Magistrate has conducted the inquest
and they found at the time of inquest itself a portion of the
index finger of the deceased was chopped off and there was a
scratch injury on the palm and it was depicted in the inquest
panchanama. They also stated that there was a stab injury
on the person of the deceased. On perusal of the inquest
panchanama which is marked at Ex.P2 at column No.7, it is
specifically written that no external injuries were found on the
dead body except the burn injuries. It is also to be taken note
of, that the cause of the death at column No.3 that accused
person No.1 has screamed for help on that particularly day,
on seeing the deceased inside the lavatory, bolted from inside,
30
flames and smoke coming out from the lavatory and
thereafter, the door of the lavatory was broke open and water
was poured inside the lavatory and the said death was due to
burn injuries. Even at column No.5 also, the inquest report
shows that there are no other injuries on the dead body. The
statement of the father of the deceased PW16
Channaveerappa was also recorded at the time of inquest. In
his statement, he also never stated anything about the
serious injuries on the dead body which were visible. What is
stated by PW16 is nothing but reiteration of the First
Information report and nothing more than that. Column
No.11 also shows that panch witnesses have opined that
death was due to the burn injuries. When such being the
case, it appears, the panch witnesses have improved their
version during the course of the evidence. But in the course
of cross examination, they have admitted that at the time of
inquest, the Taluka Executive Magistrate has narrated the
physical features of the dead body and also specifically about
the burn injuries and peeling of the skin and not finding any
31
other marks. They also admitted that they did not bring to
the notice of the Taluka Executive Magistrate regarding any
injury to the index finger or any other parts on the dead body.
PW19 in fact has in the course of examination in chief itself
has deposed that he observed the stab injury on the palm and
cut injury to the index finger. But nobody has stated in the
course of cross examination that they have appraised this fact
to the Taluka Executive Magistrate. Of course, during the
course of the Post Mortem examination, these injuries appear
to have come to the light. The panch witnesses to the inquest
and the evidence of the PW16 compared to his earlier
statement before the Taluka Executive Magistrate and in the
First Information Report, it is clear that there is nothing on
record with regard to the visible injuries on the dead body.
Therefore, it is very difficult to draw any inference that these
injuries are in any manner caused by any person during the
life time of the deceased.
24. The learned Counsel Sri Balakrishna has
strenuously argued that during the course of Post Mortem
32
examination, it is very much made clear that those injuries
were found on the dead body and blood was present in the
said injuries and the doctor has also specifically and
categorically stated that those injuries are ante mortem in
nature and could be caused by means of knife or other sharp
edged weapon. Therefore, he argues before the court that A1
has committed the murder first stabbing and thereafter bring
the dead body to the lavatory, and there after poured
kerosene and lit fire on the body of the deceased.
25. Countering the above submissions, the learned
Counsel for the accused Sri C.H. Hanumantharaya
strenuously contends that if the evidence of the doctor and
the Post Mortem report is properly understood and
meticulously observed, it clearly reveals that the over
handedness of the complainant and the witnesses colluding
with the doctors created such evidence in order to improve
the case of the prosecution. Therefore, he draws the
attention of the court as to why the dead body was shifted
from M.S. Ramaiah Hospital to the Bowring Hospital.
33
26. In the above said backdrop the evidence of PW21
Dr. Somshekar play an important role. He deposed that he
was on duty in the M.S. Ramaiah Hospital on 31.5.2002. He
has deposed that the Taluka Executive Magistrate has
conducted the inquest panchanama on the dead body. After
about 15 minutes of the inquest, this witness has received a
requisition from Vidhyaranyapura Police, requesting to shift
the dead body to the Bowring Hospital as the parents of the
deceased suspected that some Doctors in M.S.Ramaiah
Hospital are related to the accused.
27. It is worth to note here the document Ex.P52
written by PW16 who made a request to shift the dead body
from M.S. Ramaiah Hospital to Bowring Hospital, wherein it
is categorically stated that some of the doctors who are
related to the accused are working in M.S. Ramaiah Hospital.
Therefore, PW16 has specifically suggested the name of
Bowring Hospital wherein the Doctor by name Sarvamangala
who is related to the parents of the deceased was working.
In fact, the prosecution witnesses, particularly PW17 has
34
admitted this aspect as to one of the doctor is relative to the
deceased.
28. Be that as it may, PW17 Dr.Havanur has
conducted Post Mortem examination on the dead body. The
Post Mortem examination report clearly discloses that the
deceased has sustained three injuries over neck, face front
and back of chest and abdomen, as follows:
i) Incised wound found on the middle portion of the right
palm measuring 2 cm x 0.2 cm x 0.5 cms.;
ii) Incised wound 3cm below the right Metacarpus of the
right index finger measuring 1.5 cm x o.25 cm x 0.25 cm.
iii) Stab wound on the left side of the front of the abdomen
measuring 2.5 cm x 0.25 cm, abdominal cavity deep.
It is stated that those were ante-mortem in nature.
Mentioning the same, PW-17 has issued the PM report as per
Ex.P32. He also gave his opinion that those injuries could be
caused by a sharp weapon like blade and by a single edged
weapon like knife. The doctor has also issued his opinion as
35
per Ex.P-34 stating that injury Nos.1, 2 and 3 noted above
could not cause the death of a person.
29. It is further observed by this court that during the
course of cross examination of the doctor, Ex.P45 and P46
were shown to the witnesses. Those are the Form No.146 (I)
and 146(II). The forms sent to the doctor by the Taluka
Executive Magistrate in which it was brought to the notice of
the doctor that the deceased bolted the toilet from inside,
poured kerosene herself and lit fire and after seeing these two
documents, it is brought to the notice of the doctor that there
is no mention regarding presence of the blood at the stab
wound, as such in Ex.P32.
30. The learned Counsel for the accused has
elaborately argued that the Investigating Officer has sent a
letter to the doctor as per Ex.P49. Ex.P35 is the reply and in
Ex.P35, there is no blood in the abdominal cavity but in
Ex.P32 it is stated so.
36
31. The learned Counsel for the accused, brought to
our notice the cross examination portion of the doctor in
order to establish the manipulations of inserting the words
“blood present in the wound” at page 12 of the evidence of the
doctor in his further examination dated 2.4.2008, wherein the
doctor has stated that “I agree that the wordings “blood
present in the wound” written in the portion of the Post
Mortem report vary from the earlier writing at the same
portion. It is denied by him that the words “the blood present
in the wound after the description of the injury at Ex.P32
being written subsequently.”
32. We have seen the original Post Mortem report
marked at Ex.P-32, wherein it is noted at page 2 that while
describing abdomen, it is stated that peritoneum is pierced on
the left side of abdomen (lower part). But, after dissection,
while explaining the abdomen portion of injury, nothing has
been stated with regard to the presence of the blood present
inside the wound. On the other hand, while describing the
external injuries itself, the presence of the blood in the wound
37
has been described. The depth of the injury is also
mentioned while describing the external injuries itself,
whereas it is not stated so while explaining the abdomen.
Therefore, what is found in page No.4 with regard to the
presence of the blood in the wound is not explained at page
No.2 while explaining the abdomen after dissection. Though
the doctor has admitted this, but he has not explained as to
how he could say while describing the external injuries about
the depth of the injury. On careful perusal of the Post
Mortem report, it discloses the presence of blood in the
wound. Wherever the words “presence of blood in the wound”
finds a place in the Post Mortem report, they are of different
fonts appears to be written subsequently.
33. In this background, now we will come back to the
evidence of the doctor PW-17 in this regard. At page 12 of his
evidence, he has admitted that he do not remember that the
words “the blood present in the wound” was written after the
description of the injury at Ex.P32 being written
subsequently. But he denies that those words are inserted
38
subsequently. Looking to the above said circumstances, a
doubt is definitely created in the mind of the court as to why
and how the doctor can note the presence of the blood in the
wound while explaining the external injuries even before
dissecting the body. There is no such explanation available in
the evidence of the doctor. Perhaps, that may be the reason
to explain that the injuries were ante-mortem in nature and
the doctor must have noted the same with regard to the
presence of the blood in the wound. The court should not
ignore the admission of the Investigating Officer that he has
been receiving instructions from the Director of prosecution
so far as the investigation of this case is concerned.
34. Be that as it may, the doctor has explained the
injuries as ante-mortem in nature. However, the doctor has
categorically stated that the injuries are very trivial and
simple in nature not sufficient to cause the death. The
Taluka Executive Magistrate not at all observed the injuries at
the time of the inquest. Perhaps that may be the reason to
write those injuries are trivial and simple in nature and also
39
burn injuries being present on the dead body. The learned
Counsel has rightly contended that the Post Mortem report
Ex.P32 shows that the margins of the injuries are clear cut
and that was due to burns, margins cannot be clear cut if
really they were ante-mortem in nature and they should be
even edged. The learned Counsel also successfully
persuaded us that there is doubt with regard to the injuries
being ante-mortem or post mortem. He drew our attention to
the evidence of the doctor PW-17 at page 17, wherein he
admitted that, when a person dies, first he meets a somatic
death and then molecular death. He explains that the
somatic death is nothing but stopping of the functioning of
the brain, heart and respiratory function, this occurs about 5
to 10 minutes after stoppage of supply of oxygen. Molecular
death is nothing but the death of the individual cells of the
different organs of the body. In case of somatic death
followed by the injuries suffered by such person between
somatic death and Molecular death, those injuries simulate
ante mortem injuries. In view of the above, the learned
40
Counsel has also successful in creating doubt in the mind of
the court that in this case, the dead body was inside a
lavatory, situated outside the house of the accused, which
was bolted from inside. It is also a fact proved before the
court by the prosecution itself, that the door was broken by
the Police and then the dead body was dragged out from the
lavatory, through the broken door, there may be chances of
broken pieces of door coming in contact with the body of the
deceased causing such simple and trivial injuries. By that
time, the deceased must have died and it may be somatic
death and thereafter, the injuries being caused before the
molecular death. Therefore, there are chances of confusion of
those injuries as ante mortem. In view of the circumstances
prevailing in this case and also the evidence of the doctor and
also the evidence of DW.6 Head Constable who has dragged
the dead body from the lavatory, it creates a serious doubt as
to the nature of injuries as ante-mortem. More over the
doctor has clearly opined that the above said injuries cannot
cause the death of a person. However, a doubt is created in
41
the mind of court, whether in order to help the prosecution,
the doctor has inserted the words “blood present in the
wound” subsequently after writing the Post Mortem report.
This doubt in our opinion goes a long way so far as the
prosecution case is concerned.
35. The other circumstance which the prosecution
would like to establish before this court as argued by the
learned High Court Government Pleader and also the learned
Counsel Sri Balakrishna for the complainant is that, A1 to A3
were alone in their house with the deceased. Particularly on
the day of the incident, A1 was very much present with the
deceased when the incident took place. He had drawn our
attention to Ex.P59, which is a sketch of the house and
submitted that the incident was not taken place in the toilet,
but inside the bathroom in the house. He concentrated on
the conduct of the accused that he has not made any efforts
to save the wife nor telephoned to the doctor, but immediately
informed the Police. He draws our attention that the lavatory
could be bolted from outside. Actually, the murder was
42
committed inside the house and thereafter, the dead body
was put in the lavatory, lit fire to the body after pouring
kerosene and thereafter the door of the lavatory was bolted
from outside itself, so as to make it appear to the public that
the deceased went inside the lavatory and committed suicide.
There is no reason as to why the said lady has to go to the
toilet outside when there is a toilet inside the house also. He
also draws our attention that the matchbox, plastic bucket
were intact inside the lavatory and it creates a serious doubt
with regard to the conduct of the accused. He also contended
that the accused No.1 in his statement also admitted that he
was present at that relevant point of time.
36. He specifically contends that A1 has admitted in
his statement that he denies that the deceased has committed
suicide; therefore, it should be treated as a murder. There is
absolutely no explanation by the accused as to how the
deceased died.
43
37. In this context he relied upon some of the
observation on facts by the apex court and submitted that
under similar circumstances the apex court found the
accused guilty
38. In the decisions reported in AIR 1992 SC 2045
between State of U.P. Vs Dr Ravindra prakash Mittal, and
2006 AIR SCW 5300 between Trimuk Maroti Kirkan Vs State of
Maharashtra, wherein the Supreme Court has observed thus:-
“The husband committing the murder of his wife,
medical evidence disclosing that she died of strangulation
and her body was set on fire thereafter. The
circumstances indicating that none other than the
accused had access to the room where the wife died. The
accused has to explain the death of the deceased.
Regarding conduct of the accused it is observed
that, in a circumstantial evidence case, the husband
committing the murder of his wife, medical evidence
disclosing that she died of strangulation and her body
was set on fire thereafter. The circumstances indicating
that none other the accused had access to the room where
the wife died. Accused has to explain the death of the
deceased.
44
39. He also relied upon some other rulings regarding
conduct of the accused, reported in 2009 AIR SCW 3381
between State of West Bengal Vs Deepak Haldar and another.
2010 AIR SCW 419 between Jayabalan Vs union territory of
Pondicherry. 2010 AIR SCW 7144 between Sathyanarayan
Tiwari and another Vs State of U.P. Wherein the apex court
observed that,
The Conduct of the accused plays a dominant role.
The doors and windows of the house were kept closed at
the time of the incident. The deceased was assaulted by
accused/husband prior to the incident. Later, she was
put on fire by pouring kerosene. The accused did not
make any efforts to put off the fire nor made any
arrangements for treatment. On the other hand, he was
found abusing the deceased and her relatives, no
evidence to show that the death was due to burst of the
stove. Circumstances clearly lead to the inference of
guilt of the accused.
40. All the above said rulings rendered on the basis
of the facts of the respective cases, no principle as such laid
down except that the conduct of the accused in the criminal
cases also to be taken into consideration by the courts
45
dealing with especially in bride burning cases. Therefore the
court has to consider those decisions depending upon the
facts and circumstances of the cases. It is a very well know
phenomenon that no two cases are similar in all respects.
Each and every case has got its distinctive and individual
characteristics. Therefore the court has to apply the above
principles to the facts and circumstances of each case.
41. Per contra, the learned Counsel for the accused
strenuously contended that A2 to A5 were not all present at
the time of the incident, they were not known as to the
deceased went into the Toilet situated outside the house and
committed suicide. Accused No 1 (DW1) in his evidence
explained as soon as he saw the smoke coming out from the
lavatory he came out with hue and cry and immediately
informed the Police in order to save his wife. Within short
span of time DW6 Maregowda came to that particular spot,
broke open the door, then only he came to know about the
suicide committed by his wife and thereafter the dead body
46
was dragged out from the lavatory and shifted to the
Hospital.
42. Looking to the above said submissions, it is seen
from the records, particularly the evidence of DW1 that he in
fact in his examination in chief explained that as soon as he
came near the lavatory and suspected his wife might be
inside, in order to open the door, he kicked the door with his
legs and tried to broke open the door, but he could not open
it, as the toilet door was bolted from inside. In the mean
while, people gathered and he also tried to extinguish fire by
pouring water to inside the toilet and thereafter only he
informed to the Police. The court cannot expect a particular
set of reaction from all the persons, as varieties of men, may
have varieties of behavior. Merely because A1 informed the
Police, before informing the doctor and taking the deceased
to the Hospital, it cannot be said that his attitude is
abnormal. Perhaps may be the reason that if he informs the
Police they would quickly take action and shift the deceased
to the Hospital. This also cannot be ruled out. DW-1 has
47
further deposed that the Police broke open the door and then
dragged the dead body of the deceased, by that time; the
dead body was completely burnt. In fact, even much before
DW1 gave such explanation before the court, but soon after
the incident, his statement was recorded by the Investigating
Officer as per Ex.P39 on which basis the Police have
registered a UDR Case earlier. In the course of cross
examination, DW1 has denied that even much earlier to the
Police came to the spot, he already made a hole on the door
of the toilet, because, he actually kept the dead body to
facilitate himself to bolt the lavatory from outside, he
hatched such plan, but those suggestions are denied. Even
accepting for a moment, the conduct of the accused is
suspicious. But, the said explanation given by the accused
is fully corroborated and fortified by the evidence of DW6. In
this background, his evidence plays an important role.
43. DW6 Maregowda, Head constable, in fact is a
prosecution witnesses cited as CW31. He was not examined
by the prosecution for the reasons best known to the
48
prosecution. He has deposed before the court that on the
date of the incident, after receiving the telephone message,
he went to the spot along with the Investigating Officer at
about 8.15 a.m. by that time, 30 to 40 persons were already
gathered, and DW1 (Accused) was also present. He has
categorically stated that there was a hole in the lavatory door
and he made the hole big by breaking the door with a stone.
He categorically denied that the hole was sufficient to unbolt
the door from outside itself. He has categorically stated that
the hole was not sufficient to unbolt the lavatory from
outside. Therefore, he made all his efforts to broke open the
door by kicking and stoning the door in order to enlarge the
hole and thereafter he dragged the dead body to outside the
lavatory. The evidence of DW6 cannot be easily brushed
aside. Nowhere is it elicited that he has got any animosity or
ill-will against any of the prosecution witnesses nor it is
elicited that he is interested witness so far as the accused is
concerned. He being the prosecution witness has deposed
before the court as to what he has stated before the Police.
49
But, the evidence of DW1, DW2 and DW6 goes to show that a
small hole in the said door of the toilet was made big by
breaking the same with a stone and thereafter, removed the
dead body.
44. DW3 is another witness by name Smt. Rashmi.
She has stated that when she came to the spot, A1 was
present and was making efforts to extinguish fire by pouring
water inside the toilet and in the mean while the Police came
there. She also supported the evidence of DW1 as well as
DW6. In view of the above said evidence on the accused
side, the story of the prosecution that the accused after
killing the deceased, put the dead body in the lavatory and
poured kerosene and lit fire and thereafter, bolted the
lavatory from outside through that hole is not believable. On
the other hand the explanation offered by the accused in his
evidence is also probable.
45. It is a well recognized principle of criminal
jurisprudence that the accused need not establish a fact in
50
issue or any relevant fact, beyond all reasonable doubt as it
is incumbent on the prosecution to do the same. It suffice
that by means of preponderance of probabilities, if the
accused is able to create a reasonable doubt in the case of
the prosecution, the court has to give due weight for the said
probabilities. Further, added to that the court has to give
equal importance to the evidence of the prosecution
witnesses as well as the evidence of the defence. Therefore,
the story of the prosecution as noted above has to be
suspected, in view of the plausible explanation offered by the
accused and also as stated by the witnesses to the defence.
46. In order to prove that it is a murder, the previous
antecedents of the accused soon before the death also play an
important role. The evidence of DWs2 and 3 who are
independent neighboring witnesses cannot be in this case
easily discarded. Admittedly, A2 and A3 were not present at
the time of the incident, but they came later as per the
evidence of DW2 and DW3. When DW2 and DW3 came to the
spot, A1 was present and he was raising hue and cry and
51
pouring water into the lavatory. Perhaps with an intention to
extinguish fire. So it is crystal clear that A2 and A3 were not
present, and A1 made all his attempts which occurred to his
mind at that time, it cannot be said that the prosecution story
is fully believable. The evidence of DWs.2 & 3 in this regard
cannot be easily discarded.
47. The lavatory is situated outside of the house of the
accused in the backyard. The sketch Ex.P59 shows that it is
a very small lavatory and the photographs of the dead body
produced before the court clearly establishes that prior to
dragging out the dead body from the toilet, it was in a sitting
posture. The court cannot imagine certain things which are
not supported by any settled principles of medical
jurisprudence or by means of any imagination as to how the
incident had happened inside the lavatory. Merely because
the dead body was in a sitting posture, it cannot be inferred
that after killing the said lady, the dead body was taken to the
lavatory and thereby, made the dead body to sit in the sitting
posture. If that were to be the view, other view proposed by
52
the learned Counsel for the accused that when the lavatory
door was bolted from inside after bolting if the deceased
ablazed herself, after pouring kerosene, immediately after
sustaining severe burn injuries, she must have lost her
balance and due to which she gradually collapsed and in that
context also, the dead body might have found in a sitting
posture in the lavatory. Therefore with all certainty it cannot
be imagined, as to how exactly the dead body came into
sitting posture, she might have fallen on the wall, or on the
bucket or kerosene or even other portion of the lavatory,
therefore, the court is not in a position to exactly imagine as
to what happened inside the lavatory. Therefore, when two
views are possible on the same set of facts and circumstances
and the view which is favorable to the accused has been
preferred by trial Court, such view based on the factual
matrix of the case and also appreciating certain facts, it may
not be proper on the part of this court to deviate from the
observations made by the trial Court. The burn injuries
found on the head, mouth back and chest. Therefore, it
53
shows that if the kerosene is poured from the head portion it
will drop down from the head to the mouth, back, chest and
other parts of the body. The back portion is not so much
caught with fire. Therefore, it probabalises that because of
the congested place in the lavatory, the kerosene might not
have fallen on the back portion of the body of the deceased to
the fuller extent. Even the doctor was not taken to the spot
by the Investigating Officer, in order to ascertain whether the
dead body could be in a sitting posture if she has committed
suicide, and could have lost consciousness immediately and
gradually her body fell down to the sitting posture. It is also
quite natural as per the doctors evidence that immediately
after sustaining burn injuries, the injured due to lack of
oxygen and also smoke due to the kerosene burning, she
must have lost the consciousness within one or two minutes,
therefore, the body of the said lady immediately might have
lost the control and that may also be one of the reason as to
the dead body found in sitting posture. Looking to the above
said circumstances we do not want to propose substitute our
54
views to that of the views of the trial Judge in this regard
when such inference is also possible.
48. Now, coming to the other argument of the learned
Counsel for the appellant Sri Balakrishna that the accused in
his statement under section 313 Cr.P.C. according to him has
admitted certain things. The questions put to accused No 1,
PW9 Rekha Mohan, and P.W.11 Naganna that “Simpa
committed suicide by burning” but in their answer they
denied it as false. Therefore the learned counsel contends
that they indirectly admitted that simpa died a homicidal
death. But such an inference cannot be drawn by the Court
taking such answers as admission of the accused.
49. The accused also at page 26 has given an
explanation that immediately, after the incident, even before
the Police came to the spot, about 10 to 12 persons
assembled there, he was at a shock, Therefore, he
immediately did not make any effort to brake open the door of
the toilet. The learned Counsel contended that he never
55
made any attempts to save his wife. Therefore, when he was
present just prior to the incident with the deceased, he did
not make any effort to save the life of his wife; on the other
hand he wanted to create some evidence in his favour by
calling the police to the spot. Therefore the court has to draw
an adverse inference.
50. Drawing of adverse inference, in my opinion is in
very rarest of rare circumstances on the basis of the
admission of the accused so far as the criminal cases are
concerned. Such admissions, either with regard to a fact in
issue, or a relevant fact should be of such a nature, it should
not create even a semblance of suspicion with regard to the
conduct of the accused, and such circumstance should be
unerringly point to the guilt of the accuse. But here the said
statement of the accused about his presence and also he
made some effort to pour water to save his wife and not broke
open the door etc., cannot be taken as an un-equivocal
admission, so as to draw an adverse inference against him.
Therefore, in our opinion, the court has to visualize the entire
56
evidence placed before the court not only the statement of the
accused. If the other materials available on record
unequivocally point towards the guilt of the accused in such
an eventuality, admission by way of any conduct of the
accused with regard to such relevant facts can be made use of
as additional corroborative evidence. Therefore, such
argument of the learned Counsel cannot be easily accepted.
51. The records also disclose as we have already
referred to taking of the dead body from M.S. Ramaiah
Hospital to Bowring Hospital wherein one of the relatives of
the deceased was working by name Dr.Sarvamangala, the
insertion of the words “blood in the wound” by the doctor is to
some extent doubtfully established before the court. Further,
it discloses that one Swamiji of Koladmath related to the
deceased was very much present throughout at the time of
Post Mortem examination. Further, the lavatory door being
bolted from inside and no cogent materials are placed to show
that the door could be bolted from outside. The doubtful
circumstance with regard to the ante-mortem nature of
57
injuries on the dead body, the witnesses who saw the dead
body, have never spoken anything about the injuries on the
dead body including the Taluka Executive Magistrate coupled
with the conduct of A1, who according to the other witnesses
also poured water from outside in order to save his wife.
These are all the circumstances which create a serious doubt
with regard to the death of the deceased. When the case of
the prosecution surrounded with mysteries and also
suspicious circumstances, then the court cannot say that the
death of the deceased has been proved to be a murder beyond
all reasonable doubt. When the court is of such opinion that
the death was not a homicidal death, the other alternative
inference should be that the death must have been caused
due to suicide. Hence, giving such benefit of doubt, we
propose to answer this point that the prosecution has
established before the court that the death occurred by
means of burn injuries and the same amounts to a suicidal
death and not a homicidal death.
58
POINTS 2 AND 3.
52. In order to answer the second and third point for
consideration formulated by us, it is just and necessary to
bear in mind few facts projected by the prosecution in order
to establish the offences under Sections 3 and 4 of the
D.P.Act and also for the offences under Sections 304B, 306
and 498A of the IPC.
53. The prosecution has projected the facts that the
marriage between the 1st accused and daughter of PW16 by
name Simpa was taken place on 5.9.1999. Prior to the
marriage in the month of February 1999, there was
negotiation and at that time, the accused persons one
Mahesh, his wife Meena and all the family members of the
complainant viz; Channaveerappa were present. During that
time, the accused persons have demanded a sum of Rs.1,
00,000/- cash and gold chain, gold karadige, suit, silk
clothes, diamond ring and five sets of gold jewelries to the
bride Simpa. Thereafter Channaveerappa expressed his
59
incapacity and has agreed to pay an amount of Rs.25,000/-
cash, gold chain, bracelet, diamond ring, gold karadige,
watch, suit, silk clothes and three sets of gold ornaments to
Simpa along with six silk sarees and matrimonial engagement
was agreed to be fixed on 28.04.1999. At the time of
engagement, as agreed upon, an amount of Rs.25, 000/- was
given as dowry and other articles as noted above were also
given in consideration of the marriage and the marriage was
performed on 4th and 5th of September 1999. Therefore, it is
contended that the accused persons have committed the
offence under Section 3 of the D.P.Act
54. It is the further case of the prosecution that,
about two months later after the marriage, the accused
persons have started ill-treating and harassing the deceased
Simpa in demand of cash of Rs 10,000,00. In that context,
the father of the deceased – PW6 Channaveerappa made
arrangements for payment of Rs.5, 00,000/- (five lakh) and
the same was given to the accused persons. In spite of that,
persistence for demand of dowry did not stop, ill-treatment
60
and harassment to the deceased Simpa intensified for the
purpose of extracting the remaining amount of Rs.5,00,000/-.
55. Apart from the above, the prosecution also
projected that the parents of the deceased have spent lot of
money at the time of marriage and they actually sent the
couple for honeymoon by spending Rs.20,000/- and they
have also given lot of gold and silver articles and household
articles on demand by the accused persons on several
ceremonies and functions. In that connection also, the
accused persons have ill-treated and harassed deceased
Simpa. Their ill-treatment and harassment was to such an
extent that the deceased could not tolerate, and it drew the
deceased to commit suicide and such ill-treatment was
sufficient to commit suicide by the deceased. In this
background, the prosecution has relied upon the oral and
documentary evidence placed before the Court.
56. In the above said scenario, the learned High
Court Government Pleader and also the learned Counsel for
61
the appellant (Complainant’s Counsel) strenuously argued
that the Court has to re appreciate the entire materials on
record. It should not give much importance to minor
mistakes and contradictions in the evidence of the witnesses.
It is contended that though there are some contradictions and
omissions compared to the First Information Report, inquest
and earlier statement of the witnesses and subsequent
statements before the CCB police, however, acceptable and
believable evidence is available before the Court against the
accused. Therefore, whatever the evidence placed before the
Court has to be taken into consideration by the Court. He
further contended that much importance should not be given
to the contradictions and omissions, particularly in dowry
death cases. He also contends that the witnesses, though
they are close relatives, particularly in the dowry death case,
the evidence of the parents and the close relatives of the
deceased play a dominant role. Therefore, he contends that
the evidence placed before the Court are sufficient to draw an
inference that, due to the ill-treatment and harassment by the
62
accused in demand of dowry prior to and after the marriage,
it actually drew the said lady to commit suicide. In the event
this Court comes to a conclusion that it is not a murder and
it is a suicide by the deceased, then the Court can draw
inference on the basis of the evidence that the accused
persons are solely responsible for the death of the deceased
who died a suicidal death.
57. As we have already held while discussing point
No.1 that the prosecution has failed to prove beyond all
reasonable doubt that the accused persons have committed
the murder of the deceased and therefore, the offence does
not fall under Section 302 of the IPC. Therefore, in view of
the above said submissions, the Court has to see whether the
act or omission or any conduct of the accused persons in any
manner falls within the four corners of the above said
provisions of law.
58. In this background, some of the rulings cited by
the learned Counsel for the appellants, in our opinion, are
63
also important to be taken note of before adverting to the
evidence on record, which are as under:
(1) AIR 1975 SC 1252 between Podda Narayana & Others Vs.
State of Andhra Pradesh, wherein the Hon'ble Supreme
Court has observed that;
“There is no need to mention every minute detail
in the First Information Report mentioning the overt acts
of each and every accused. It is neither customary nor
necessary to go in detail to narrate the story of the
prosecution.
The object of Section 174 of Cr.P.C. is very limited.
It can only be used for the purpose of ascertaining
whether a person has died under suspicious
circumstances or an un-natural death and if so, what
the apparent cause of the death is. The question
regarding the details as to how the deceased was
assaulted or who assaulted him or under what
circumstances he was assaulted is foreign to the ambit
and scope of Section 174 Cr.P.C. The object of holding
any inquest as can be seen from Section 175 Cr.P.C is
only to ascertain whether a person died natural death,
or a homicidal death or due to un-natural death like
suicide.”
64
The learned Counsel submitted that, in this case also
much importance should not be given to the contents of the
FIR and also the statement made by PW13 and PW16 at the
time of inquest proceedings. Those statements shall be looked
into only for limited purpose as guided by the above decision.
(2) 1997 SCC (CRL.) 981 between Harpalsingh Vs. State of
Haryana & Others wherein the Hon'ble Supreme Court has
made an observation that -
“Merely because a material witness was not
examined by the prosecution, a criminal court is not lean
to draw the adverse inference that if he was examined,
he would have given a contrary version. The illustration
(g) in Section 114 of the Evidence Act is only a
permissible inference and not a necessary inference.
Unless there are other circumstances also to facilitate
the drawing of an adverse inference, it should not be a
mechanical process to draw the adverse inference
merely on the strength of non-examination of a
witnesses even if it is a material evidence”.
It was also held that –
“The supplementary statement of the first informant
recorded by the Investigating Officer could only have
been used to contradict the witnesses in view of the
65
interdict contained in Section 162 of Cr.P.C, the
statement cannot be used for comparing with the First
Information Report. The Investigating Officer elicit more
details from such persons, during any subsequent
interrogation, his evidence does not become suspect. It
is not advisable to throw the evidence of the informant
over phone, merely because the Investigating Officer
succeeded in eliciting further details or even fuller
details during subsequent interrogation.”
In this case, the learned Counsel drew our attention
that the subsequent statements of the witnesses before the
CCB Police giving the details and also the said statements are
fully supported by the evidence before the Court. Though
there are some contradictions and omissions in the evidence
of these witnesses, the overall case of the prosecution has to
be looked into and the Court has to see what the truth in the
evidence before the Court is. Therefore, the Court should not
give much importance to the minor contradictions in the
evidence of the witnesses.
(4) The learned Counsel also cited another ruling reported in
(2005) SCC (CRL.) 113 between Parsuram Pandey and others
66
Vs. State of Bihar – wherein the Hon'ble Supreme Court has
observed that -
“The contradictions inconsistencies, exaggeration
or embellishments in putting the story by the
prosecution about the starting of the incident cannot
wash away the entire incident proved by eye-
witnesses. If no prejudice shown to have caused to the
accused due to the irregular, imperfect recording of
statement u/s.313 of Cr.P.C., accused is not entitled to
the benefit for the defective recording of the statement.”
(5) The learned Counsel also cited another ruling
reported in (2006)1 SCC (CRL.) 134 in the case of
Devindersingh and others Vs. State of Punjab, wherein the
Apex Court observed that,-
“In the absence of the deceased, testimony of her
parents would be most relevant - Evidence regarding
continuous dowry demands and consequent cruelty and
harassment to the wife becomes more believable where
a young woman having a small child of 15 months and
another in her womb, ended her life.”
59. By citing the above said rulings, the learned
Counsel for the appellants has strenuously contended that
67
the Court has to bear in mind the conduct of the accused
persons prior to the marriage and after the marriage and also
the evidence placed on record. On over all analysis of the
entire materials on record, if the Court is of the opinion that
the evidence of the close kith and kin of the deceased can be
believed, there is no reason to deny justice to the victim, the
Court has to magnanimously analyze and appreciate the
evidence of the close relatives of the deceased. Therefore, in
this case the entire case would base on the relatives’
evidence. But their evidence has to be very carefully scanned,
scrutinized and accepted by the Court. Hence he pleaded for
accepting the evidence of the witnesses and to convict the
accused for the above said offences.
60. Contrary to this, the learned Counsel for the
accused Sri. C. H. Hanumantharaya has strenuously
contended that, in this particular case, there are huge
contradictions and discrepancies in the evidence of the
prosecution witnesses regarding demand of dowry prior to
and after the marriage as alleged by the prosecution
68
witnesses. There is long delay in recording the statement of
the witnesses by the Investigating Officer, who took over the
investigation subsequently that is by the CCB police.
61. In this regard, the learned Counsel relied upon
the decision reported in AIR 1971 SC 804 in the case of
Balakrushna Swain vs. State of Orissa, wherein the Apex
Court held that,
“The unjustified and unexplained long delay and
recording the statement and material witnesses by the
Investigating Officer will render the evidence of such
witnesses unreliable.”
In support of the same contention, he relied upon another
ruling reported in 2005 Cri.L.J 1913 in the case of
Vishwanath and Anr. Vs. State of Madhya Pradesh, wherein it
was held that,
“Delay in recording the statement of crucial
witnesses in the absence of explanation of delay cannot
render the witnesses reliable.”
62. The learned Counsel also submitted before the
Court that the failure of the witnesses to give particulars of
69
dowry demand either in the complaint to the police or during
the course of subsequent investigation makes the evidence of
said witnesses unreliable. Where the evidence rendered by
the witnesses is totally bereft of the foundation, either in the
First Information Report or in the statement at the earliest
point of time that is at the time of inquest but totally
improved before the Court while giving evidence, such
evidence has to be very carefully scrutinized by the Court.
The learned Counsel further submits that there is no hard
and fast rule as to how the evidence of the witnesses has to
be analyzed by the Court. But the golden principles should
be born in mind by the Court, that with all care and caution
and over all analysis of the entire materials on record, it
should convince the conscience of the Court that such
evidence can be relied upon, particularly if the witnesses are
the relatives who are interested in the case of dowry death
cases, their evidence has to be very carefully candidly
scanned.
70
63. In this background, the earlier statements at the
time of inquest, contents of the First Information Report and
their evidence before the Court play a very important rule.
Though they cannot be compared with each other,
nevertheless, the proven material omissions and
contradictions, if they go to the root of the allegations made
against the accused, the court should be very slow to accept
the same without any corroboration from other independent
source.
64. After hearing the arguments of the learned
Counsel, the Court has to see the materials placed before the
Court by the prosecution whether on the basis of the entire
materials on record, the prosecution is able to prove the
offences alleged against the accused. Before adverting to the
evidence adduced by the prosecution for the above said
offences, it is just and necessary for this Court to bear in
mind what proof is required in order to prove the above said
offences.
71
65. Sections 3 and 4 of the Dowry Prohibition Act,
1961 reads as under:
“3. Penalty for giving or taking dowry.-
(1) If any person, after the commencement of this Act,
gives or takes or abets the giving or taking of dowry, he
shall be punishable with imprisonment for a term which
shall not be less than five years, and with the fine
which shall not be less than fifteen thousand rupees or
the amount of the value of such dowry, whichever is
more:
Provided that the Court may, for adequate and
special reasons to be recorded in the judgment, impose
a sentence of imprisonment for a term of less than five
years.
(2) Nothing in sub-section (1) shall apply to or, in
relation to,-
Presents which are given at the time of a
marriage to the bride (without nay demand having been
made in that behalf):
Provided that such presents are entered in list
maintained in accordance with rule made under this
Act;
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Presents which are given at the time of marriage
to the bridegroom (without any demand having been
made in that behalf):
Provided that such presents are entered in a list
maintained in accordance with rules made under this
Act;
Provided further that where such presents are
made by or on behalf of the bride or any person related
to the bride, such presents are of a customary nature
and the value thereof is not excessive having regard to
the financial status of the person by whom, or on whose
behalf, such presents are given.
4. Penalty for demanding dowry.- If any
person demands directly or indirectly, from the parents
or other relatives or guardian of a bride or bridegroom
as the case may be, any dowry, he shall be punishable
with imprisonment for a term which shall not be less
than six months but which may extend to two years
and with fine which may extend to ten thousand
rupees:
Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of less
than six months.”
73
66. In order to prove the above said provisions, the
prosecution has to prove beyond reasonable doubt that there
was a demand for dowry or any consideration towards the
marriage prior to the marriage. In order to prove the offences
under Section 4 of the D.P.Act, there must have been
persistent demand for dowry at the time or after the marriage
and either it must have been complied or there was
consistent and persistent demand by the accused persons.
67. In order to prove the dowry death, the prosecution
has to prove certain ingredients of Section 304B of the IPC,
which reads as under:
“304B. Dowry death-
(1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her
marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in
connection with, any demand for dowry, such death
shall be called "dowry death", and such husband or
relative shall be deemed to have caused her death.
74
Explanation- For the purpose of this sub-section,
"dowry" shall have the same meaning as in section 2 of
the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life.”
68. In order to prove the offence in this particular
provision, the prosecution has to prove that the death of a
woman, particularly in this case Smt. Simpa was due to burn
or fatal injuries occurred otherwise than under normal
circumstances within seven years of her marriage. Insofar as
this aspect is concerned, there is no dispute that the death of
the deceased Simpa occurred due to burn and fatal injury
and it was occurred otherwise than in normal circumstances.
The marriage was taken place in the year 1999 and death was
occurred in the year 2002. Therefore, the death was occurred
within seven years of her marriage. These ingredients have
been in fact established before the Court, but the prosecution
has to prove that the death was not only occurred due to
75
otherwise than normal circumstances within seven years of
marriage, but the death was occurred due to subjecting the
deceased to cruelty or harassment by her husband or any
relative of her husband, in connection with any demand for
dowry, then only the said death can be called as dowry death
and for the purpose of this Section, dowry was in the same
manner as in Section(2) of the D.P. Act.
69. Therefore, the ingredient that the death was occurred
due to subjecting of the deceased to cruelty or harassment in
connection with demand for dowry is the essential ingredient,
which has to be established by the prosecution beyond
reasonable doubt. Even if the offence under Section 304B is
not established, the Court has to see whether the offence falls
under Section 306 of the IPC. Section 306 of the IPC reads as
follows:
“306. Abetment of suicide
If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with
76
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”
70. In order to attract this provision, the accused
persons must have abetted the suicide committed by the
deceased. In this case, we have already held that the
deceased has committed suicide within seven years of her
marriage and also the said death is an unnatural death.
Whether the death of the deceased was due to any illegal act
or omission or the conduct of the accused and they actually
facilitated the deceased to commit suicide. Though the
abetment is not defined under Section 306 of the IPC, the
Court has to fall back upon Section 107 of the IPC, which
defines what is meant by abetment, which reads as under:
“107. Abetment of a thing
A person abets the doing of a thing, who -
First- Instigates any person to do that thing; or
Secondly- Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
77
Thirdly- Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1- A person who by willful
misrepresentation, or by willful concealment of a
material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that
thing.”
71. Insofar as this case is concerned, the
prosecution has to establish that the accused persons abetted
the said suicide by the deceased by instigating the deceased
or intentionally aided by their act or illegal omissions driving
the lady to commit suicide. Therefore, the conduct of the
accused persons plays a very dominant role in order to attract
Section 306 of the IPC.
72. In order to prove the offence under Section 498A
of the IPC, the prosecution has to prove certain conduct of the
accused as noted in the said provision. Section 498A of the
IPC reads as under:
78
“498A. Husband or relative of husband of a
woman subjecting her to cruelty
Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which
may extend to three years and shall also liable to fine.
Explanation- For the purpose of this section, "cruelty"
means-
(a) any willful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any
person related to her to meet such demand.”
73. In order to prove this provision, the prosecution
must prove that the deceased Simpa was subjected to cruelty
or harassment and such cruelty or harassment was by the
husband or by the relatives of the husband and the cruelty
meted out by them was with a view to drive her to commit
suicide or to cause grave injury or danger to her life, limb or
79
health, whether mental or physical or such harassment was
with a view to coercing her or any person related to her to
meet any unlawful demand for property or valuable security
or on account of failure of such woman or any person related
to her to meet such unlawful demand.
74. On perusal of the above said provisions so far as it
relates to this case, the whole case of the prosecution is
concentrated on the fact that, the accused persons have ill-
treated and harassed the deceased in cruel manner with an
intention of coercing her and her father to meet their unlawful
demand by way of demanding valuable properties and also
cash of Rs.1, 00,000/- prior to the marriage and Rs.10,
00,000/- after the marriage. On account of failure on the
part of the deceased Simpa and her father to meet such
demand, the cruelty was intensified by the accused persons
which reached to the climax and resulted in the death of the
deceased.
80
75. As could be seen from the entire materials on
record, there is no other reason explained either by the
witnesses or by the prosecution that, for any other reason the
accused persons have harassed or treated the deceased
Simpa in cruel manner. Therefore, the trial Court has also
relied upon the evidence in order to ascertain whether the ill-
treatment and harassment was made in order to extract more
dowry or money or other valuable things at the instance of
the deceased and her father.
76. The prosecution in order to prove the above said
provisions relied upon the evidence of PWs. 5 to 9 and 12 to
16. PWs. 13 and 16 are the parents of the deceased. PWs. 12
and 15 are respectively the sister and brother of the deceased.
PW5 is the senior paternal uncle of the deceased. PWs 6 and
7 are the neighbors of PW16 and PW8 is the sister of PW16.
Therefore, it goes without saying that all these witnesses are
closely inter-related to each other.
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77. Before adverting to the evidence of these
witnesses, it is just and necessary for this Court to go
through the contents of the First Information Report and also
the earliest statement made by the parents PWs. 13 and 16 at
the time of inquest.
78. Ex.P42 is the UDR F.I.R. registered on the basis
of the statement of the husband of the deceased, (accused No
1) wherein he has categorically stated that, on 30.05.2002 at
about 7.30 am, when himself and his wife Simpa were
standing in the front yard of their house along with their
child, the deceased Simpa handed over the child to DW1 –
accused and went to attend the nature call. She did not
return soon. Therefore, the husband went to the back yard
lavatory and saw that some smoke and flames were coming
from the lavatory, immediately he made attempts to pour
water to save the deceased and simultaneously he informed
the police. After police came there, they came to know that
the deceased Simpa committed suicide by pouring kerosene
and litting fire on herself. This is the earliest statement made
82
by DW1, which is also later translated into evidence in the
deposition of DW1 (accused No 1).
79. Subsequently, after receiving the information of
the death of the deceased Simpa PWs. 13 and 16 came to the
spot and in fact at the time of inquest, (Ex.P.2)they have given
their statement before the Taluka Executive Magistrate –
PW20 Mr. N. R. Sudhakar, wherein PW16 has stated that he
performed the marriage his daughter Simpa in accordance
with customs and as ‘Varopachara’ he has given a bracelet,
golden karadige, golden chain, a ring and Rs.25,000/- cash to
the bridegroom and also golden jewelries worth Rs.5,00,000/-
to his daughter. It is also stated that, after the marriage the
accused persons were mentally and physically ill-treating and
harassing the deceased. Further on 29.05.2002, he came to
know about the death of his daughter and he came to
Ramaiah hospital and saw the dead body and thereafter he
gave the statement and also the complaint. On the same
facts and allegations he lodged the First Information Report.
83
80. In this background, the police have registered the
case and investigated the matter. At the earliest point of
time, the investigation was done by the jurisdictional police
and later the same has been transferred to CCB police and
they have investigated the matter. Now in this background,
the Court has to examine the evidence on record.
81. The evidence of PWs. 13 and 16 disclose that, at
the time of inquest or at the time of the First Information,
they have only stated that, as ‘Varopachara’ they have given
certain articles and cash of Rs.25,000/- to the bridegroom
and also given clothes and ornaments worth Rs.5,00,000/- to
the bride. Nowhere in these two documents is it specifically
stated that those articles were persistently demanded by the
accused persons. But subsequently, during the course of
investigation also, they have not stated before the
Investigating Officer about the said demand prior to the
marriage. But after lapse of one month from the date of
registration of the case, the CCB Police have taken over the
case and witnesses given their further statement before the
84
Police. But the contradictions elicited from the mouth of
these two witnesses and the same has been proved by the
evidence of the Investigating Officer show that they have not
even stated so before the Investigating Officer. As we have re-
looked to the statement of these two witnesses, at the time of
inquest and also at the time of the First Information Report
they have never stated regarding any of the accused
demanding dowry of a sum of Rs.1, 00,000/- as alleged.
Even on the next date of the incident, Investigating Officer
has recorded the statement of these two witnesses, but
admittedly they have only re-iterated the facts as stated by
them during the inquest proceedings. The statement of PW12
in fact was not at all recorded by the Investigating Officer, but
she has stated before the CCB police subsequently after the
lapse of one month for the first time. As could be seen from
the evidence of PWs. 13, 15 and 16 in their evidence itself,
they have admitted that they have not stated all those things
at the time of inquest, First Information Report or at the
earlier point of time when the Investigating Officer has
85
recorded the statement with regard to demand of dowry of
Rs.25,000/-. But they have reiterated that all those things
were given by way of ‘Varopachara’.
82. It is worth to note here the evidence of the
Investigating Officer who is examined before the Court as
PW23 – Mr. S. P. Nayak, who has stated that, from December
1999 to 15.07.2007, he was working as ACP of CCB Police.
On 28.06.2002, he recorded the statement of Smt. Ratna and
Channabasappa (PW 13, and 16). In the course of cross-
examination at pages 22 to 29, the material contradictions
have been elicited. He has admitted that witnesses have not
stated those things as stated by them in the examination-in-
chief with regard to the demand of Rs.25, 000/- gold articles
as dowry or as consideration for the marriage. For the first
time after the lapse of one month after the incident, the said
witness deposed before the CCB Police, but even before the
CCB Police as admitted by the Investigating Officer, they have
not vividly and more meticulously stated that those articles
were given by way of dowry.
86
83. Though the evidence of those witnesses cannot be
out-rightly rejected, nevertheless, has to be very carefully
scrutinized. When other material witnesses, according to the
prosecution, were also present at the time of this marriage
talks i.e., to say one Mr. Mahesh and his wife Meena, those
witnesses were not examined before the Court for the reasons
best known to the prosecution. Hence the evidence of these
two witnesses has to be rejected with a pinch of salt.
84. PWs. 5 to 7 have also deposed before the Court
that they were present at the time of marriage talks and
accused have demanded dowry and other articles in
consideration of marriage and subsequently PW16 gave such
cash and ornaments at the time of marriage. It is worth to
note here that these witnesses were not cordial with PW16 at
the time of engagement programme or at the time marriage
and naming ceremony of the child of the deceased. They are
no other than the brother and neighbor of PW16. The
documents produced before the Court by the accused which
were confronted and marked at Exbts. D8 to D26 show that
87
presence of these witnesses was conspicuously not there and
none of the family of PW5 is found in the said photographs.
PW16 has not admitted that his sisters are given in marriage
and they are residing at Bangalore and PW5 never visited the
house of the deceased till the death of the deceased. Though
such suggestions have been denied, nevertheless, there are
some materials to show that PW5 was not cordial with PW16
as per the evidence of defense witnesses. Therefore, perhaps
that may be reason they were not found in the photographs at
the time of engagement function. The searching and detailed
cross-examination has been adverted to these witnesses in
order to prove that, during marriage talks, these articles were
not at all given by way of dowry and also as consideration of
the marriage. The evidence of PWs. 13 and 16 – parents of
the deceased show that, at the time of marriage talks, the
accused persons have demanded Rs.1,00,000/- and gold
ornaments. Accordingly, PW16 has agreed to pay a sum of
Rs.25, 000/- during engagement and they were given at the
time of marriage. But the accused persons have contended
88
that, at no point of time, they demanded dowry. This has
been reiterated in the evidence of DW1 and it is also admitted
by the accused persons that those articles and a cash of
Rs.25,000/- were actually given by PW16 as agreed at the
time of engagement and given them at the time of marriage.
But those things were voluntarily given as per the customs
prevailed in their community and not on any demand by the
accused persons.
85. Therefore, the evidence let in by the accused
persons, particularly DW1 and other witnesses clearly
establishes that there is no overall denial by the accused
persons with regard to these articles and cash amount, but
they have stated that an amount of Rs.25,000/- was given to
accused No.1 for clothes, but not as dowry.
86. Ex.D59 is the portion of the statement of PW16
marked and proved before the Court through the
Investigating Officer. It reveals that, he has earlier stated
that, at the time of marriage, a diamond ring and ornaments
89
worth Rs.5, 00,000/- were given to the bridegroom as
‘Varopachara’. PW15 – Nagaraj who is no other than the son
of PW16 (son of the deceased) in his statement at Ex.P33 has
also repeated the same factual aspects that those articles
were given as ‘Varopachara’. It is also fortified by the
evidence of PW9 – Smt. Rekha at Ex.D27 that these articles
were not given as ‘Varopachara’ and accused persons never
did not demand nor they ill-treated the deceased in demand
of dowry.
87. The other witnesses PWs. 12 and 15 who are the
sister and brother of the deceased, have reiterated in their
evidence in support of the evidence of PW13 and 16. The
evidence of these interested witnesses is almost similar in all
respects. Therefore, there is absolutely no need to discuss
their evidence in detail word by word and witness by witness.
With regard to demand of dowry, PW13 has categorically
admitted that PWs. 12 and 15 were not there are at the time
of marriage talks. Therefore it is clear that, PWs. 12 and 15
tried to exaggerate the things and they also stated about the
90
demand and receipt of the amount and jewelries in
consideration of the marriage. When at the earliest point of
time in the First Information Report, inquest and also at the
time of subsequent statement before the Investigating Officer,
there is absolutely no whisper from any of the witnesses that
those articles were demanded and received by the accused
persons, but while investigation was handed over to the CCB
Police, at the time of recording their further statement, the
prosecution has stated that the accused demanded
Rs.1,00,000/- and they have agreed to pay Rs.25,000/- and
also the ornaments, which clearly amounts to improvement
step by step by the prosecution witnesses. Therefore, the trial
Court has declined to accept the statement of those
witnesses.
88. It is worthwhile to note here that the CCB police
have recorded further statements of most of the witnesses
after a month. When such serious and incriminating
evidence was available with these witnesses, they never stated
anything at the time of First Information Report or at the time
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of inquest or at the time when their first statement was
recorded by the earlier Investigating Officer. At least why they
have waited for one month to state such important facts
before the CCB Police is nowhere explained. We are at loss
to understand that, at the time of the inquest and the First
Information Report, the parents and relatives might be in grief
due to the death of their daughter and under such
circumstances, they might not have given a detailed,
meticulous and vivid statement. But they have to explain,
though they have an opportunity, whenever their subsequent
statement was recorded, why they have not stated all those
things before the earlier Investigating Officer. Even otherwise,
if the Investigating Officer has not recorded their statement
properly, why they have waited for one month till the CCB
Police recorded their statement. What transpired during
these one month is not stated by any of the witnesses and
why they have kept mum for all these days without disclosing
the same to any of the Police Officers? Therefore, though all
the witnesses have stated in their examination-in-chief
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regarding demand of dowry and ill-treatment and cause of
death in detail, but they have not stated so even before the
CCB Police. In the course of cross-examination of PWs. 22
and 23 who are the Investigating Officers, all these
contradictions have been meticulously proved. Therefore, it
goes to show that lot of improvements have been made by
these witnesses after long lapse of one month. Even during
the course of evidence, they have improved a lot by deposing
what they have not stated even before the Investigating
Officers PWs. 22 and 23. Therefore, as rightly contended by
the learned Counsel for the accused, their evidence has to be
rejected. Therefore, when there evidence is not natural and
trust worthy for acceptance and their improved version stage
by stage create a serious doubt with regard to their conduct.
Hence their evidence deserves no credibility.
89. In this context, the evidence of the defense also
plays an important role. We have already referred to the
evidence of DW1 who has accepted the receipt of an amount
of Rs.25, 000/- and the other ornaments. DW4 has also
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stated that PW16 has agreed to give Rs.20,000/- to accused
No.1. But subsequently he agreed to pay Rs.20, 000/-.
Accordingly, PW2 has given only Rs.20, 000/- to purchase
clothes. At the time of marriage talks, one Mahesh and his
wife Smt. Meena were also present. In fact PW16 has also
accepted this particular factum. The records disclose that in
the charge sheet also this Mahesh was cited as CW26 and
Smt. Meena was cited as CW27. But they were not examined
by the prosecution for the reasons best known to them. It is
never stated by PW16 in his evidence that these two
witnesses are not cordial with each other and they were not at
all present at the time of marriage talks. But he never stated
why those witnesses are left out from examination. These
witnesses particularly Mahesh was examined before the Court
as DW4. He has categorically stated that, he and his wife
Smt. Meena were present at the time of marriage negotiations.
Photographs produced before the Court also establishes their
presence and the non-examination of these Mahesh and
Meena was held to be fatal by the trial Court. We also found
94
that the prosecution at least should have explained why these
witnesses were left out unnecessary and why only close
relatives were examined insofar as this aspect is concerned.
DW4 has categorically stated that there was absolutely no
demand of any cash or any jewelry by the accused persons
and all those things were agreed to be given as ‘Varopachara’.
Therefore, the prosecution has not established with regard to
demand of Rs.25, 000/- and other jewelries as stated by PWs.
13 and 16 by way of dowry or as consideration of the
marriage. Therefore, when material witnesses have not been
examined, an adverse inference has to be drawn by the Court.
Accordingly, we also do not accept the evidence of these
witnesses insofar as this aspect is concerned. Certain
discrepancies have also been seen in the evidence of these
witnesses. Some of the witnesses have stated that dowry was
given to accused No.2, but some witnesses have stated that
the dowry amount was given to accused No.1 etc. There is no
consistency in the evidence of the witnesses. The evidence of
the witnesses regarding demanding of dowry by accused Nos.
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1 to 3 and PW16 giving the same, in our opinion, is also not
reliable and credit worthy. The omissions and contradictions,
which we have observed, proved through PWs. 22 and 23 are
not mere omissions. They amount to contradictions go to the
root of the prosecution case. Of course, mere delay as noted
in the above said Supreme Court decisions in examining the
witnesses is not sufficient to discard, but the nature of
evidence given, conduct of the witnesses and the time gap in
giving such opportunity to the witnesses, and immediately
not disclosing the truth before the competent authorities,
have also to be counted before accepting or discarding the
evidence of those witnesses. Therefore, the decisions cited by
the Counsel for the accused that the unexplained delay,
particularly long delay in cases like this, in recording the
statement of the witnesses and not giving any proper
explanation why they have kept quiet for so many days and
why their statement is not recorded by the earlier
Investigating Officer, why they have not stated all the details
96
at least at the time of their second statement, makes their
evidence unworthy for acceptance.
90. Now coming to the subsequent demand of dowry
of Rs.10,00,000/- as demanded by accused No.1, we have
once again re-evaluated the evidence of important witnesses
i.e., PWs. 13, 16, 14 and 15, who have spoken to insofar as
this demand is concerned. According to these witnesses,
immediately after two months of the marriage, the accused
have started ill-treating the deceased by demanding
additional dowry. PW14 has stated that the accused
demanded Rs.2,00,000/- immediately after two months of the
marriage. However, PW15 has deposed before the Court
that, in the month of January 2002, the accused demanded
Rs.10,00,000/-. PW13, who is no other than the mother of
the deceased has stated that the accused demanded
Rs.10,00,000/- at the time of naming ceremony of her
grandson.
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91. The trial Court has declined to accept the
evidence on the ground that PW16 in his evidence has stated
that prior to the marriage, the accused have demanded
Rs.1,00,000/-, out of which he has only paid Rs.25,000/-. It
is not that he was capable of giving the said amount, but he
did not pay the same. But according to him, he was unable
to meet such demand by the accused. when at the time of
marriage or prior to the marriage or after the marriage, he
was unable to meet the demand of the accused even
Rs.1,00,000/-, can it be said knowing fully well the capacity
of PWs. 16 and 13, the accused persons could have
demanded Rs.10,00,000/-, particularly when the accused no
1 is a software engineer and earning hand sum salary.
Therefore, the trial Court held the said circumstances as
improbable. We also fortify the said observation as a possible
observation on the basis of the facts of the trial Court. No
where the prosecution witnesses have stated that the accused
demanded the said amount of Rs.10,00,000/- as dowry. The
important witnesses including father and mother of the
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deceased PWs. 13 and 16 have stated that the accused
demanded the said amount for the purpose of starting a
factory. The amount, even if it is demanded, cannot be called
as a dowry. But nevertheless, as argued by the learned
Counsel for the appellant any amount in consideration of the
marriage, if it is demanded prior to or subsequent to the
marriage amounts to dowry.
92. It is the case of the prosecution that PW16 has
stated in his evidence that, out of Rs.10,00,000/- he made
arrangements for payment of Rs.5,00,000/-. He in fact has
given a detailed and vivid description as to how he secured
this amount. He arranged such a huge amount by selling the
coffee crops, borrowing a sum of Rs.50, 000/- from PW14 and
a sum of Rs.1.5 lakhs from Vijaya Bank. PW14 in fact is an
advocate, who has stated that he gave Rs.50,000/- to PW16.
It is pertinent to note here these incriminating materials are
only stated at the time of their statement being recorded by
CCB Police as already narrated, after a lapse of one month
from the date of the incident. PW14 being a lawyer, he has
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not produced any material to show that an amount of
Rs.50,000/- was given as hand loan to PW16. This also
creates a serious doubt as to why no documentation has been
made. Even PW14 being an advocate knows the consequence
of making such hand loan without there being any record to
that effect. This type of evidence can be created at any time
therefore it is difficult to believe such evidence also.
93. PW16 has also produced certain document i.e.,
Ex.P36 - the certificate issued by Vijaya Bank for having
borrowed a sum of Rs.1,50,000/- on 13.05.2002. The
evidence of PW16 reveals that he has taken a crop loan to
meet the expenses of the maintenance of coffee crop. But
except Ex.P36, no other document has been produced before
the Court. Ex.P36 also does not disclose all the details of the
crop loan accorded by the said bank. This Ex.P36 was issued
on 05.08.2002. According to PW16, he has taken loan on
13.05.2001. The demand by the accused persons as per the
evidence of PW16 was in the month of January 2002. After
the death of the deceased, this document was secured on
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05.08.2002. It also creates a serious doubt whether this
amount of Rs.1,50,000/- was utilized for the purpose of
maintaining the crops or to meet the demand of accused
persons. If at all this amount was taken as a crop loan for
the purpose of meeting the expenses of maintaining the crop,
and if that amount was not utilized for maintaining the crop,
how the crops were managed is not explained by PW16. It
also creates a doubt whether after the death of the deceased,
though this person has taken the crop loan and utilized for
the said purpose, but that has been used for the purpose of
laying a false claim against the accused. In the absence of
examining any witness in this regard, as to whether this crop
loan was properly utilized for maintaining the crop or the
same was utilized for any other purpose, the Court cannot
come to a definite conclusion that this amount was utilized
for meeting the demand of the accused. It is quite
understandable that when once the bank grants any crop
loan to PW.16, there would be a regular monitoring by the
bank authorities to ensure that the said amount was utilized
101
for the purpose it was granted to him. Therefore, it creates a
serious doubt whether such payment as crop loan is not
properly utilized and the same was used for meeting the
demands of the accused.
94. Another document produced as Ex.P37 that PW16
has received Rs.3, 00,000/- from Prime Associates and
Ex.P38 is an endorsement issued by the Prime Associates. It
is stated that PW16 has paid an amount of Rs.5,00,000/-.
According to him, deceased Simpa had been to Somawarpeth,
the native place of PW16 on 24.05.2002 and after mobilizing
the amount of Rs.5,00,000/- he requested PW6 –
Chandrasekhar to go along with the deceased to the house of
PW12 – Champa and wait for accused No.1 to come to the
house of PW12 and hand over the said cash of Rs.5,00,000/-
to accused No.1. According to the prosecution story, PW6
took Rs.5,00,000/- and handed over to accused No.1 in the
presence of PW12. PW12 has also stated about the same. If
really PW16 has sufficient source of income, why he has to
borrow the money from PW14 and also from the bank.
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Moreover, the said amount of Rs.5,00,000/- is not a small
amount and it is not that the accused No.1 has demanded the
same by way of dowry. It is stated that the said amount was
for the purpose of establishing the factory. Therefore, PW16
ought to have given this money either by way of cheque or by
way of DD. Why he has given the same by way of cash is also
not established before the Court. The accused have insisted
or demanded for payment of said money by way of cash is
also not established before the Court. The author of the said
document is also not examined before the court. It is not that
the accused have insisted or demanded for payment of said
money by way of cash. This also creates reasonable doubt
with regard to arranging the money as stated by P.W. 16.
95. The testimony of PW6 coming to the house of
PW12 and handing over the amount to accused No.1 is also
not believable, because of the simple reason that, even this
meticulous description as given in the statement of this
witness, has not been stated before the investigation officers.
As we have already discussed the evidence of PWs. 22 and 23
103
which disclose that, whatever they have stated about this
payment of Rs.5,00,000/- subsequently by mobilizing the
said amount and payment of the said amount to the accused
are all conspicuously not there in their earlier statement and
it is proved to be an improvement before the Court. All the
witnesses invariably in their oral statement before the
Investigating Officers have not at all disclosed these
important facts, but they have deposed for the first time
before the Court, perhaps, may be the reason subsequent to
their statement before the CCB police, they have created a
story meticulously regarding the payment of Rs.5,00,000/- to
the accused. Therefore, such evidence has also rightly not
been accepted by the trial Court.
96. Once again, at the cost of repetition, we refer the
evidence of PW23, who in his evidence during the course of
cross-examination, at pages 7 to 30, the improvement and
contradictions are elicited. The contradictions in the evidence
of PW5 - Guruswamy, PW6 – S. C. Chandrasekhar, PW7 – H.
B. Krishnappa, PW8 – Suma, PW9 – Rekha Mohan, PW14 – A.
104
S. Mahesh, PW16 – Channaveerappa have been elicited, that
what the above witnesses have stated before the Court with
regard to subsequent demand of dowry in particular manner
sending PWs. 6 to the house of PW12 all these facts have not
been stated in their earlier statements. When such being the
case, how evidence before the Court alone can be accepted.
Therefore interestedness of the witnesses is apparent on the
face of their evidence which creates a serious doubt with
regard to their conduct.
97. Therefore, after meticulously analyzing the
evidence on record, the trial Court has observed that, when
there is a long cleavage between the statement of these
witnesses earlier made to the police and the evidence before
the Court, the said evidence cannot be used for the purpose
of drawing any inference against the accused persons.
98. Looking to the above said materials on record,
even after re-evaluation of the evidence of these witnesses, we
are also of the opinion that the witnesses are not only related
105
to each other, but also closely to the deceased. They have
made lot of improvements from time to time. Of course, once
again we reiterate that there is no hard and fast rule to
disbelieve the evidence of related witnesses. They should not
be without any reason dubbed as interested witnesses. The
interestedness of the witnesses has to be qualified and
quantified on the basis of the materials on record. If the
evidence by the witnesses are natural and it is forthcoming
without any embellishment and they have no intention to
falsely implicate the accused persons into the crime, then
only the evidence of such witnesses can be believed. That is
how the Apex Court has opined that their evidence has to be
very meticulously scanned and scrutinized in order to
ascertain the truth or falsity in their evidence. Neither the
truth nor falsity can be ascertained from the evidence of those
witnesses. When such situation occurs, it is difficult to hold
that the prosecution has proved the case against the accused
beyond reasonable doubt with regard to the said demand of
dowry, either prior to the marriage or after the marriage, and
106
that there was any ill-treatment or harassment to the
deceased in demand of the said dowry or any articles in
consideration of marriage. It cannot also be said that, by
means of their conduct, the accused persons have demanded
any dowry or any valuable consideration after the marriage
and due to which the deceased has committed suicide and
that the ill-treatment was to such an extent that it was
sufficient to drive a woman to commit suicide.
99. Now coming to the other circumstances pleaded
by the prosecution witnesses, though they have not been
meticulously stated in their statement earlier, it is the case of
PW16 that after the marriage they send the bride and
bridegroom to honeymoon and in fact PW16 has spent
Rs.20,000/-. But the same has been denied by the other
side. Contrary to that, DW1 in his statement has stated that
even after the marriage, even without the knowledge of PW16,
he has booked for honeymoon and they went to several
places. In this regard, he has produced Ex.D72 that he has
actually spent money for their honeymoon. On the other
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hand, PW16 has not produced any document to show that he
has spent an amount of Rs.20,000/-. It is further stated by
PW13, the mother of the deceased that, after two months of
the marriage, there was some demand by the accused
persons and the ill-treatment started. But no where in the
evidence of these witnesses any of the witnesses have stated
what was the nature of ill-treatment meted out by the
accused persons on the deceased. Only by using of the word
that the accused persons have ill-treated and harassed is not
sufficient to draw an inference that in a particular manner,
the accused persons were ill-treating and harassing the
deceased. Further added to that, except stating the demand
of dowry and other articles and persistent demand for the
said amount, no witnesses have stated whether there was any
physical or mental ill-treatment to the deceased otherwise
than such demand.
100. In this background, the Court has to see the
evidence of these witnesses with regard to other factors.
PW13 has stated that, after two months of the marriage, the
108
accused No.1 and deceased came to their house. At that
time, PW13 had given Deepale kamba, arathi battalu,
kumkum battalu, silver idols on demand by accused No.1. It
is stated that the accused have also demanded a cot, kitchen
set and almirah and in fact these were also given to them.
Therefore, they say that PW16 gave cash of Rs.30,000/- in
order to purchase all these things. It is further stated that, at
the time of Seemantha to the deceased for her first issue, the
accused Nos. 1 to 3 have insisted for arranging Seemantha at
Bangalore and in fact PW16 at his cost performed the
Seemantha and gave several gold ornaments to Simpa and
gave gold karadige and clothes to accused No.1. It is further
stated that at the time of naming ceremony of their grandson,
they gave gold bracelet, ring, chain, silver plate, and bowl
with spoons to the child and sari to their daughter. The
prosecution has also produced Exs.P21 to P30 - receipts to
show that PW16 has purchased gold ornaments at different
places and naming ceremony and Seemantha were also
conducted by PW16.
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101. Looking to the above said circumstances, in our
opinion, the evidence of PWs. 13 and 16 in this regard
becomes totally unnatural, because of the simple reason,
whatever they have given to their daughter and even to the
son-in-law and grandson , which are customary in nature
and with lot of love and affection at the relevant point of time
even conducting of Seemantha in the house of accused No.1
and naming ceremony of their grand son and giving some
articles by way of gift or by way of love and affection have
been converted into dowry and also ornaments given on
demand by way of consideration of marriage subsequent to
the death of the deceased. There is no semblance of material
to show that, at the time giving statement before the police
they have stated that these articles were given by way of
dowry or in consideration of marriage. It appears to us after
the death of the deceased even small matters have been
converted in to allegations against the accused by PWs. 13
and 16 and all the relatives. Perhaps, in order to see that the
accused are sent behind the bars, they have even
110
meticulously nurtured few of the tiny things which happen in
almost all the families as incriminating materials against
accused person. It goes without saying that in almost all the
families giving of the clothes, gold articles conducting of
Seemantha ceremony are all customary in nature. Even it is
very usual, in middle class and poor parents also conduct
such customary functions to their capacity. In our opinion it
is unwarranted on the part of PWs. 13 and 16 to create such
a story that they have conducted all those customary
performance or ceremonies only on demand by the accused
persons. Therefore, when the circumstances show that those
ceremonies and performances are improbably having been
done by PWs. 13 and 16, only on the insistence and demand
by the accused, probably they must have done with all love
and affection as per the customs. Looking to the conduct of
these witnesses it is apparent that they are highly interested
witnesses who can exploit small tiny matters to lay a false
case against the accused persons. Even otherwise there is lot
of inconsistencies regarding alleged ill-treatment and
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harassment by the accused in order to secure all those
things. Hence the trial Court is also properly appreciated
these materials on record. We do not want to differ from the
said findings.
102. According to the prosecution, the accused having
ill-treated the deceased by not allowing her to use the
telephone and made all attempts to separate the child from
the deceased and deceased joined job for some time in order
to avoid the ill-treatment by the accused persons. Nowhere in
the evidence of PWs. 13 and 16, have they stated that during
the period of converture PW16 has convened any Panchayath
requesting any of the elders of both the families, in order to
advise the accused persons not to ill-treat or harass the
deceased. This is the natural conduct which is expected of a
father and even at no point of time, it is stated that they have
received any phone calls from the deceased and any letters
from the deceased, making allegations of ill-treatment or
harassment against the accused persons. It is quite relevant
to note here that the prosecution has not made any efforts
112
even during the course of investigation or at the time of
evidence before the Court to examine any one of the
neighboring witnesses of the accused persons to establish the
conduct of the accused persons in this regard. They are
natural and proper witnesses to establish or to corroborate
the evidence of the related witnesses. Therefore, in our
opinion, the non-examination of material witnesses Mahesh
and his wife Meena and non-examination of DW6 with regard
to the death of the deceased, though those witnesses were
available to the prosecution and no explanation is offered for
not examining those witnesses, who were in fact examined by
the accused on his side, creates a serious unexplained doubt
regarding the truth of the prosecution case. Such benefit also
enure to the benefit of the accused.
103. Therefore, looking from any angle, in our
opinion, the prosecution has not established with regard to
the demand of dowry and ill-treatment or harassment to the
deceased in demand of dowry by the accused persons.
According to the prosecution, it is an admitted fact by PW16
113
that at the time of Seemantha programme, naming ceremony
and marriage of the deceased and also the marriage talks
prior to the marriage, the photographs and video were taken.
And even subsequent to the marriage lot of programmes was
conducted in the house of PW16 and for all those
programmes, the accused and deceased have participated.
Even it is there in the evidence those ten days prior to the
death of the deceased, birthday of accused No.1 was
celebrated in the house of PW16. Photos produced by DW1
reveals that PW5 - brother of the deceased, PW16 and his
family members were not at all participated in any of these
functions. That shows that subsequently, PW16 might have
persuaded PW5 his brother to give evidence in support of
their cases. It also creates a serious doubt with regard to the
natural conduct of PW16 and the events naturally taken place
must have been converted as incriminating materials against
the accused.
104. The evidence of material witnesses PWs. 12, 13
to 16 as we have already referred, is quite contrary to each
114
other. Admittedly, marriage of accused Nos. 4 and 5 was
performed much earlier to the marriage of the deceased.
Accused Nos. 4 and 5 are none other than the sister and her
husband, of accused No.1 who have been staying separately
much earlier to the marriage of accused No.1. In only one
sentence it is stated in the evidence of PWs.13 and 16 that
accused Nos. 4 and 5 have insisted the deceased to bring
money and nowhere in the evidence it is elicited on what
dates and at what time these accused Nos. 4 and 5 were
present in the house of accused No.1 and ill-treated and
harassed the deceased. This clearly goes to show that,
because of their relationship with accused No.1, they were
unnecessarily dragged to the Court and false allegations have
been made against them. Only one sentence by way of
allegation that they also insisted the deceased to bring
money, such mere allegation bereft of any proof is not reliable
and creditworthy. It clearly goes to show the false allegations
with accused No. 4 and 5. All the witnesses deposed for the
first time before the Court with regard to the ill-treatment and
115
harassment. But as we have referred to the evidence of the
witnesses, nowhere in their earlier statement they have stated
anything about the ill-treatment or harassment by accused
Nos. 4 and 5.
105. In this background, it is also worth to note here
some evidence of DW1 and DW7. It is stated by PW13 that in
the year 2001, her husband was admitted to Wockhardt
hospital due to heart problem. Accused No.1 requested PW13
to go to his place and at that time itself, the deceased
telephoned to PWs. 13 stating that her Mangalya Chain was
torn by accused No.1 and she requested accused not to give
torture to her. In fact PW16 also went to the house of
accused and advised him. But according to PW16, taking
advantage of the situation that PW16 was suffering from
heart problem, they demanded remaining amount of
Rs.5,00,000/- on the ground that, when PW16 can spend
money for his heart treatment, why he cannot give another
Rs.5,00,000/- to accused No.1. PW13 further stated that,
during February 2002, accused Nos. 2 and 3 called her to
116
come to their house and at that time, they have demanded
such an amount. Contrary to this, DW1 has led the evidence.
He has deposed that, he was not so inhumane to demand
such an amount from PW16. Even admitting the version of
PW16 in such a manner, it is stated by DW1 that after
discharge from the hospital, PW16 was advised to take rest.
Hence DW1 made arrangements in his company guesthouse
from 07.11.2001 till 18.12.2001. DW7 – Mr. Prasannakumar,
an accountant of the company in which A-1 was working, has
deposed before the Court that accused No.1 has actually
booked a room for PW16 and PW16 stayed in the said
guesthouse and DW1 has paid such an amount as per
Ex.P104 and DW7 has identified his signature at Ex.P104B
and accused No.1 put his signature at Ex.P104A. DW7 is
an independent witness. Why he has to tell falsehood before
the Court is not explained. On the other hand, it is the
natural conduct of DW1, who shows that he actually helped
PW16 in making accommodation in the guesthouse belonging
to the company of accused No.1. Therefore, it clearly goes to
117
show that the conduct of DW1 cannot be easily ignored and
that he inhumanly demanded any money at that time. In this
context, DW5 – father-in-law of PW12, close relative of PW16.
has also stated that PW16 was admitted to Wockhardt
hospital and at that time, he paid Rs.1,40,000/- to PW16 for
medical expenses and after discharge, PW16 stayed in
Koramangal Guest House for 25-30 days. Though he has not
produced any material to show the payment of Rs.1,40,000/-,
nevertheless, the staying of PW16 in the guest house is
fortified. Though PW16 has denied having been used the
guest house, but according to him, he stayed in the
Koladmath in Bangalore but none has been examined from
said Koladmath. Though the witnesses of both sides have not
properly established this fact, it goes to show that the cordial
relationship between the accused and PWs.16 and 13 were
there even prior to the death of the deceased. But abruptly
after the death of the deceased, each and every small
circumstances, which were not at all sufficient to lodge any
118
complaint against accused, appears to have been made use of
by PW16.
106. The learned Counsel for the accused also
brought to our notice that, on several occasions, the accused
left India to different places. The sequence of events from
05.09.1999 to 30.05.2002 for a period of 2 years 8 months,
on several occasions and most of the time, the accused has
left the country on his official duties as he is a Software
Engineer and he used to get lots of money by doing work in
the foreign countries. In this regard, Exs.P83 and P84 are the
visa and passport produced before the Court, which fortifies
the said claims of DW1. It is also an admitted fact by the
prosecution witnesses that, often the deceased Simpa used to
visit parental house. According to the evidence of DW1, as
and when he used to go to the foreign country, it was an
agreement between the parties that he has to leave his wife
Simpa in her parent’s house and whenever he comes back
from foreign country, he has to take her to back to
matrimonial home at Bangalore. The evidence of defence
119
witness should also be given the same credit as that of the
prosecution witnesses. If really torture started after two
months of marriage, the accused ought not to have been left
his wife to stay in her parents’ house on so many occasions
107. Looking to the above said evidence, though DW1
has taken a different stand that he used to give money to the
mother-in-law (mother of the deceased) and she was doing
chit business out of the said money and she was also using
the said money for gaining interest by giving loans to different
persons, but no such materials are produced to accept the
evidence of DW1.
108. On over all looking to the above said facts and
circumstances of the case and over all the analysis of the
entire materials on record, it cannot be said that the
prosecution has established the case beyond reasonable
doubt. The evidence before the Court with regard to small
things and small ceremonies performed by the PW16
including naming ceremony and Seemantha, giving gifts to
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the daughter and grandson were all taken into consideration
as consideration of marriage that shows the conduct of
PWs.13 and 16 that they are not trustworthy for acceptance.
Even those circumstances cannot be used by any ordinary
prudent man against the accused persons, but they want to
use those circumstances also in order to create certain
evidence against the persons. Therefore, in this background,
their statement earlier made to the police at the time of
inquest and while giving the First Information Report to the
police plays a very dominant role in order to ascertain the
contradictions, omissions in the evidence placed before the
Court by these witnesses.
109. Therefore, we are of the opinion that, looking to
the facts and circumstances even on re-assessment of the
evidence, it cannot be said that the prosecution has proved
the case against the accused beyond reasonable doubt.
Therefore, this Court cannot come to any other conclusion
than the one reached by the trial Court. As we have already
said that, even this Court is of the opinion that some
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materials are sufficient to draw any different inference, but
the Court should be reluctant to draw such inference when
appreciation of the evidence by the trial Court is fully based
on the materials on record and such opinion of the judge with
regard to the reliability and credit worthiness of the witnesses
is also possible.
110. For the above said reasons, we are of the opinion
that none of the offences under Sections 304B, 306 or 498A
of the IPC or under Sections 3 and 4 of the D.P.Act have been
established by the prosecution beyond reasonable doubt.
111. Therefore, the appeals fail and accordingly, both
the appeals are dismissed.
SD/-
JUDGE
SD/- JUDGE
PL
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