Karnataka High Court
State By Sanjayanagar P S vs Deepak Kumar on 11 April, 2016
Bench: S.Abdul Nazeer, A.V.Chandrashekara
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2016
P R E S E N T:
THE HON'BLE MR.JUSTICE S.ABDUL NAZEER
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRIMINAL APPEAL NO.623/2010
BETWEEN:
STATE BY SANJAYANAGAR P S
BANGALORE
... APPELLANT
(By Sri: P.M. NAWAZ, SPP)
AND:
1. DEEPAK KUMAR
S/O LEHAR SINGH,
AGED ABOUT 39 YEARS
NO.145, 9TH MAIN
3RD CROSS, HIB COLONY
BANGALORE-94
2
2. SHANTHI BAI
W/O LEHAR SINGH,
AGED ABOUT 57 YEARS
NO.145, 9TH MAIN
3RD CROSS, HIB COLONY
BANGALORE
3. LEHAR SINGH
S/O LATE KESARI LAL,
AGED ABOUT 60 YEARS
NO.145, 9TH MAIN
3RD CROSS, HIB COLONY
BANGALORE
4. SANJAY KUMAR
S/O LEHAR SINGH,
AGED ABOUT 36 YEARS
NO.145, 9TH MAIN
3RD CROSS, HIB COLONY
BANGALORE
... RESPONDENTS
(By Sri: S G BHAGAWAN, ADV. FOR R1 TO R4)
CRL.A. FILED U/S.378(1)&(3) CR.P.C BY THE STATE
P.P. FOR THE STATE PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGEMENT OF ACQUITTAL DT.21.1.10
PASSED BY THE P.O. FTC-V, BANGALORE IN S.C.NO.7/03-
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE
OFFENCE P/U/S 498(A), 304(B), 302, 306, 201 R/W 34 OF
IPC AND SEC. 3(1), 4 AND 6 OF D.P. ACT.
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THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 05.02.2016 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, A.V. CHANDRASHEKARA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The judgment of acquittal passed by the Fast Track Court-V in S.C.7/03 is called in question by the State represented by Sanjaynagar police station in this appeal.
2. Respondents in the appeal were the accused in S.C.7/03 against whom charge sheet was filed for the offences punishable under Sections 498A, 304B, 306bread with Section 34, I.P.C. and Sections 3, 4 and 6 of the Dowry Prohibition Act. Later on, Section 302, I.P.C. came to be invoked against them. After a full- fledged trial, they have been acquitted. 4
3. The case on hand relates to the death of a married lady-Smt.Radha, daughter of PW3-Ratanlal in the house of accused nos.1 to 4 within 7 years from the date of her marriage with the 1st accused-Deepak Kumar, son of accused nos.2 and 3. Their marriage was solemnized on 6.5.1994 in Bheemnagar of Rajasthan as per the customs of their community. Six months prior to the marriage, betrothal ceremony was held in Bengaluru in which Ratanlal-PW3, Birdichand, Aravindkumar (Arunkumar) and Sampathraj had participated in the marriage talks.
4. As per the prosecution case, accused had demanded dowry in cash of Rs.25,000/-, gold ornaments weighing 150 grams, silver articles weighing 6 kgs, clothes to the bridegroom, 1 kg. gold ornaments, 2 kgs. silver coins and other household articles to the bride. As per the demand, PW3-Ratanlal had paid cash and household articles about 5 days prior to the marriage and some items prior to the marriage and the 5 remaining items at the time of marriage. The 4th accused is the younger brother of the 1st accused.
5. After the marriage, deceased Radha started living with the 1st accused in the house of her in-laws at Bengaluru. On 28.5.1996, she gave birth to a female child in the house of her father at Mysuru, and while going back, her parents had given 40 grams gold articles and clothes. Till she gave birth, she was being looked after well by the accused. After the birth of the female child, all the accused started harassing her physically and mentally and were demanding her to bring additional dowry.
6. A male child was born to the couple on 19.1.1999 at Mission Hospital, Mysuru. Before the birth of the second child, the marriage of Nemichand-brother of the deceased was fixed at Bengaluru and PW-3 had asked the accused to send Radha for the marriage. At that time, accused had demanded further Rs.10,00,000/- 6 and 10 tolas of gold and PW-3 had agreed to fulfill the demand made at the time of marriage of his son. When PW-3 and his relatives were coming from Mysuru to Bengaluru in two buses, 3rd accused had made elaborate arrangements for their stay and food in his farm by the side of Mysuru Road. At that time, PW-3 paid Rs.71,000/- in cash and gold and clothes to the accused and in spite of the same, accused started harassing her. It is alleged that the deceased, in fact, had informed her father over phone about the ill- treatment meted out to her. In turn PW-3 had asked his son and Sampathraj to go to the house of the accused to make enquiries. Accordingly they had gone to the house of the accused and asked 1st accused to send Radha. The 1st accused is stated to have apologized and undertook not to assault her again and that he would look after her well. The same was informed to PW-3.
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7. On 4.8.2000 at 5.30 p.m. the 3rd accused informed Gyanchand, a relative of PW-3, that Radha was seriously ill and asked them to come to Bengaluru. PW- 3 was in Raichur then and therefore PW-7 and other relatives rushed to Bengaluru on the same night and found her to be no more. They found the dead body in the room of the 4th accused, the younger brother of accused no.1. PW-3 is stated to have arrived at 6.30 a.m. on the next morning and he suspected that the death of his daughter was not suicidal, but a suspicious one. Therefore, he asked for opening the door of the room of the deceased. By that time, police and Tahsildar arrived at the spot. The door of the room of the deceased was got opened and they found blood stains and damage to the switch board and regulator. Blood had spilled over the cot, handkerchief and pillow.
8. The Taluka Executive Magistrate recorded the statements of the father of the deceased and directed the police to register a case. Accordingly a case was 8 registered for the offences punishable under Sections 498A and 302, I.P.C. Earlier to that, on the information of accused No.3 - Lehar Singh, a case was already registered in UDR No.36/00 under Section 174, Cr.P.C. on the basis of the report of accused no.3-Lehar Singh. The IO i.e. PW-20 registered a case in Crime No.351/00 for the offences punishable under Sections 498A, 302, I.P.C. and sent the first information to the court. He seized the blood stained materials found at the spot and with the help of PW-3 and his relatives, video recording of the room was got done. The I.O. recorded the statements of witnesses and returned to the police station. The dead body was sent to conduct autopsy.
9. Dr.Kiran-PW19 conducted post mortem of the dead body between 12.45 p.m. and 1.15 p.m. and found ligature marks on the neck and opined that death was due to hanging. After the post mortem, the dead body was handed over to the relatives of the deceased for cremation. PW-20 took up the case for further 9 investigation from PW-21 and again went to the spot and got a sketch prepared with the help of PW-18. The said sketch is marked as Ex.P3. On the directions of PW-20, PW-21 went to Mysuru on 14.8.2000and recorded the statements of 14 persons and handed over further investigation to PW-20.
10. The matter was handed over to COD for further investigation. Investigation done till then was verified and PW-23 recorded the further statement of PW7 and seized the marriage invitation card, marriage photographs and photo of the dead body. On 6.6.2001, he went to Mysuru and recorded further statements of PW-3, PW-12, PW-9 and also statements of Birdichand, Nemichand and Rajesh. Accused no.3 was arrested and 11 mahazars were prepared in the presence of Panchas and submitted the same. After completion of investigation, charge was filed for the above said offences.
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11. On framing of charges for the offences punishable under Sections 498A, 304B, 306, I.P.C. and Sections 3, 4 and 6 of the D.P. Act read with Section 34, I.P.C., accused had pleaded not guilty and claimed to be tried. Later on, additional charge sheet was framed for the offences punishable under Sections 201 and 302, I.P.C. for which also the accused had pleaded not guilty.
12. In order to bring home the guilt of the accused, prosecution has examined in all 25 witnesses and got marked 89 exhibits and 41 material objects. Accused have been enquired under Section 313, Cr.P.C. in regard to the incriminating circumstances arising in the case of the prosecution. Accused nos.1 to 3 chose to submit their written say. The 1st accused has produced 3 documents along with his say, and 26 documents have been got marked on behalf of the accused while cross-examining material witnesses.
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13. The learned judge has chosen to frame the following points for consideration as found in paragraph 7 of the judgment:
1. Whether the prosecution proves hilt that, death of wife of accused No.1 by name Smt. Radha on 4.8.00 at about 4 p.m. in the house bearing No. 145, 8th Main Road, III cross, HIB Colony, Bangalore is homicidal?
2. Whether prosecution further proves beyond all reasonable doubt, that marriage of accused No.1 was performed with daughter of P.W.3 Rathanlal by name Smt. Radha on 6.5.94 at Bhima Nagar of Rajasthan and after marriage said Radha began to reside with all accused at house bearing No.145, 8th Main Road, III Cross, HIB Colony, Bangalore and accused No.1 being the husband of deceased Radha, accused No.2 and 3 being the parents of accused No1 and accused No.4 being the brother of accused No.1 subjected said Radha to cruelty with a view of forcing her to meet their unlawful demand of dowry and there by accused have committed an offence punishable under section 498(A) r/w 34 of I.P.C?
3. Whether Prosecution proves beyond all reasonable doubt that, on 4.8.00 at about 4 p.m. accused No.1 being the husband of Smt. Deceased Radha, accused no.2 and 3 being the parents of accused No.1 and accused No.4 being the brother of accused 12 No.1 in furtherance of their common intention for non fulfillment of unlawful demand of dowry committed murder of Radha in the room of accused No.1 and shifted the dead body to the room of accused No.4 and hanged her to the fan with Sari and there by accused have committed murder of deceased punishable under Section 302 r/w 34 of IPC?
4. Whether prosecution further proves beyond all reasonable doubt that, on the above said date, time and place accused knowingly that, causing the death of said Radha is punishable with death or imprisonment for life have been committed, they screened the offence by shifting the dead body from the room of the deceased to the room of accused No.4 and canvassed as it is suicidal death to screen the offence from legal punishment and there by they have committed the offence punishable under Section 201 r/w 34 of IPC?
5. Whether prosecution further proves beyond all reasonable doubt that, on 4.8.00 at about 4 p.m. the said Radha's death was caused otherwise than under normal circumstances namely by hanging herself within seven years of her marriage and soon before the death she was subjected to cruelty by all accused in furtherance of their common intention to meet their unlawful demand of dowry and there by accused have committed the offence punishable under Section 304(B) r/w 34 of IPC?13
6. Whether prosecution proves beyond all reasonable doubt that, on the above said date, time and place accused abated the deceased to commit suicide by forcing here to fulfill their unlawful demand of dowry and accused in furtherance of their common intention abated to the deceased Radha to commit suicide and there by accused have committed on offence punishable under section 306 r/w 34 of IPC?
7. Whether prosecution proves beyond all reasonable doubt that, accused No.1 being the husband of Radha, accused No.2 and 3 being the parents of accused No.1 have accepted 150 grams of gold ornaments, Rs.25,000/- cash, 1 K.G. gold ornaments to deceased and 8 K.G. silver ornaments and house hold articles worth Rs.50,000/-, clothes, gold rings to accused No.2 to 4 and thereby accused have committed an offence punishable under Section 3(1) of D.P. Act?
8. Whether prosecution proves beyond all reasonable doubt that, accused No.1 being the husband of deceased Radha and accused No.2 and 3 being the parents of accused No.1 and accused No.4 being the brother of accused No.1, during the marriage of Nemi Chand the son of PW.3 Rathanlal during May 1998 they have demanded cash of Rs.1 lakh, 10 thola gold for sending deceased to the house of her parents. Accordingly, they have received a sum of Rs.70,000/- as cash, 10 thola gold as further dowry after marriage of deceased with accused No.1 and for remaining balance of Rs.30,000/- they forced P.W.3 to 14 give it and there by accused have committed an offence punishable under Section 4 of D.P. Act?
9. Whether prosecution proves beyond all reasonable doubt that, accused received dowry of 150 grams of gold, Rs.25.000/-
cash 1 K.G. gold to deceased and 6 K.G. silver articles and house hold articles worth Rs.50.000/- one gold ring each from the parents of deceased and there after Rs.70,000/- cash and 10 thola gold from the parents of the deceased which have to be required to transferred the same to the bride Smt. Radha within stipulated period fixed by law, as it is given in connection with marriage of Smt.Radha, and failed to transfer the same in favour of Radha and there by accused havdfe committed an offence punishable under Section 6 of D.P. Act?
10. What Order?
Ultimately all the points are answered in the negative and consequently the accused have been acquitted of all the offences alleged against them.
14. Mr.P.M.Nawaz, learned SPP has submitted his arguments at length and has relied on several decisions to contend that the trial court has not adopted right approach to the real state of affairs and that the evidence placed on record is not assessed in right 15 perspective. It is argued that some inconsistencies found here and there in the prosecution case have been blown out of proportion to give the benefit of doubt to the accused. It is argued that the father and close relatives of the deceased are the best witnesses in a case of this nature, and their evidence is not properly analyzed. It is argued that the accused have not tendered any explanation in regard to the incriminating circumstances found in the room of the deceased, and that there is overwhelming evidence in regard to the cruelty meted out to her.
15. It is further argued that acceptable evidence is placed on record in regard to the demand made for dowry and acceptance of the same in connection with the marriage and thereafter and the same being vouch- safed by the seizure of gold ornaments, silver articles, etc. at the instance of the accused and returning of the same to one of the brothers of the deceased. 16
16. Per contra, Sri S.G.Bhagawan, learned counsel representing the appellants-accused, has submitted his arguments at length contending that the trial court has adopted right approach to the real state of affairs and that the presumption available under Section 304B, I.P.C. has been rebutted by effectively cross-examining the material witnesses. It is his contention that the innocence of the accused is further fortified by the judgment of acquittal passed by the trial court. He has argued that if two views are possible in a case like this, one which is favourable to the accused is to be adopted. He has placed reliance on several decisions to support his contentions. It is his case that in the light of acquittal of the accused, the 1st accused is entitled for the items handed over to PW-3 to be returned to him and therefore the appeal filed on behalf of the accused will have to be allowed.
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17. After hearing the learned SPP-I and learned counsel representing the accused, the following points arise for the consideration of this court:
1) Whether the acquittal of the accused for the offences punishable under Sections 201 and 302, I.P.C. is justified?
2) Whether the prosecution has proved beyond all reasonable doubt that the accused had demanded dowry and accepted the same in connection with the marriage of the 1st accused with the deceased Radha?
3) Whether the prosecution has proved beyond reasonable doubt that the accused treated the deceased with cruelty to be punishable under Section 498A, I.P.C. and Radha's death was dowry death?
4) Whether there are enough materials to prove that the accused abetted Radha to commit suicide?
REASONS
18. Point no.(1): When charge sheet was filed against the accused, Sections 302 and 201, I.P.C. had not been 18 invoked. Charges came to be framed for these offences at a later point of time, that too, after the commencement of trial. In order to prove the charge for the offence punishable under Section 302, I.P.C., prosecution is expected to prove beyond all reasonable doubt about the act by which death was caused. When PW-3 (Ratanlal) came from Raichur, he went directly to the house of the deceased.
19. The first information lodged by PW-3, father of the deceased, is marked as Ex.P10. This was a statement given to the Taluk Executive Magistrate and in turn the Taluka Executive Magistrate directed the police to register a case on the basis of the said statement. Ex.P-2 was forwarded the police inspector of Sanjayanagar police station for necessary action to register a case for the offences punishable under Sections 302 and 498A, I.P.C. and it was received at 19 12.30 p.m. and a case was registered after going to the police station in Crime No.351/00.
20. Even before registration of the case, police had registered a case in UDR.36/00 on the basis of a report given by 3rd accused-Lehar Singh. Ex.P65 is the report submitted by the 3rd accused at about 6.15 p.m. on 4.8.2000. It is mentioned in Ex.P65 that by the time he came to his house, the door of the room of the deceased had been opened and he found the dead body of his daughter-in-law, Radha lying in the said room. It was informed to him that she had committed suicide by hanging to the ceiling fan. It is further mentioned that on the previous night, there was a verbal exchange between his son (1st accused) and the deceased about the two children playing with knives and the deceased having kept quiet without avoiding children to do so. He did not interfere in the quarrel. It is also mentioned that the deceased was finding it difficult to breast-feed the second child because of pain in the breast region, 20 and the 1st accused did not take her to the doctor in spite of requests, and hence she was upset on the ground that her husband was not evincing interest in her health. Thus PW-3 suspected that probably that might be the cause for his daughter committing suicide.
21. Of course the first information submitted by PW-3 is the basis for registering in the case for the above offences. In Ex.P10, there is reference about the deceased being assaulted by the 1st accused two years prior to her death, and the same being intimated to him over phone by the deceased. In this regard he had sent his son, Arunkumar and Shantaraj to go to the house and make enquiries. Then the 1st accused is stated to have apologized and assured that he would look after her well in future. It is also mentioned that the first accused was always coming home very late and on being questioned, he would assault her and would unnecessarily quarrel with her. He (PW-3) suspected 21 that the 1st accused might have quarreled with his daughter and murdered her.
22. The above statement, according to PW-3, is further supported by the dead body being found in the room of the 4th accused who is the younger brother of the 1st accused, in the same house. He has further mentioned that his daughter was a commerce graduate and was mentally strong and she had not committed suicide. According to him, the basis for his strong suspicion about the murder was the room in the dead body was found.
23. The main allegation is against the first accused in committing the alleged murder. Of course, as rightly pointed out by the learned counsel for the accused, it is a detailed report given to the Taluka Executive Magistrate who in turn forwarded it to the police for registration of the case. Suspicion, however strong, cannot take the place of proof, is the cardinal principle. 22 The case in regard to the alleged murder is based on circumstances.
24. Ex.P1 is the first information lodged by PW-3 and it discloses that he had suspected the murder of his daughter. The evidence of PW-19, Dr.Kiran who conducted autopsy on the dead body of Radha is relevant. Ex.P-18 is the post-mortem report. PW-16, Ahmed Hasan was the Taluka Executive Magistrate who conducted inquest and prepared a report vide Ex.P16. PW-25, P.K.Devadas is the forensic expert and he was examined pursuant to the application filed by the public prosecutor.
25. PW-16 who conducted inquest, has not spoken anything in his evidence about the injuries on the dead body other than ligature marks measuring 6"x 1" on the neck. The doctor who conducted post-mortem (PW-19) has deposed that he found an oblique ligature mark on the side of the neck. It is his specific case that the 23 death was due to hanging. He had not noticed any injury. The public prosecutor has made an attempt to elicit from him that the reddish colour found on the left hand of the deceased (as seen in Ex.P-36) is a mark of violence. The doctor, in his cross-examination, has explained that bloodstains found in a few hours of the death would continue when the decomposition of the body starts. In fact on hanging, post-mortem stains would be visible on hands and legs. The stains noted in the document marked as Ex. P-19 to P-27 and 30, 31, 36 to 51, 52, 53, 56 and 57 show post-mortem stains. In regard to the red colour, the doctor has categorically deposed that the dark portion found on the left side of the neck was because of the ligature material. In fact the doctor has ruled out the possibility of murder.
26. PW-7, Arunkumar is the son of PW-3 and brother of the deceased. He has deposed that the photos marked at Exs. P-19 to 27 were taken before the videograph was done. The red colour scene in the video is nothing but 24 post-mortem stains. Video graph was done between 9:20 PM and 9:50 PM on 15.8. 2000, almost after 17 hours from the time of death.
27. Learned SPP has vehemently argued that the bloodstains found in the room of the deceased was that of the deceased. Ex.P-61 is the report of the chemical examiner and Ex. P-62 is the serology report marked through PW-24 who is the last investigating officer. Ex.P62 reflects that the blood found in the room of the deceased at items 1 to 5 was 'O' group. Item numbers 1 to 3 are bed sheets and item number 4 is a handkerchief and item number 5 is a cotton piece. Ex.P32 is a switchboard and blood group on the wall and scratches could not be ascertained.
28. PW-7 in his cross-examination on 28.10.2006, has admitted that the second child of Radha was born on 19.1.1999 and she was in-patient in Mission Hospital at Mysuru. When the 1st accused was examined under 25 Section 313, Cr.P.C., he chose to furnish the discharge summary issued by the said hospital relating to the birth of a second child to Radha. It discloses that Radha's blood group is 'A'. Two blood reports issued by Standard Laboratories dated 12.7.2005 issued eight months prior to the evidence of PW-23, disclose the blood group of the 1st accused as 'O'. There is no matching between the blood group of the deceased and the blood group found on six items in the room of the 1st accused.
29. What is argued before this court by the learned State Public Prosecutor is that the first accused should have entered into the witness box and got marked the said documents. On the other hand, attempt should be made by the prosecution to get the blood group of the deceased examined. But no such attempt is made. On the other hand, the accused is able to probablise his defence effectively about the blood group found an items 1 to 5 as belonging to his blood group and did not 26 match with the blood group of the deceased. Apart from this, the accused has given an explanation in his examination under Section 313, Cr.P.C. that since his childhood, he has the problem of bleeding nose and he was bleeding on the morning of 4.8.2000 also.
30. In order to probablise his defence, accused need not examine himself. The accused will be examined only under Section 313, Cr.P.C. Hence, nothing comes in the way of the accused to explain his stand in the case and if it is probablised, benefit of doubt will be extended. In this view of the matter, it can be said with certainty that the accused has been able to probablise that his blood group is 'O' and the blood found on item numbers 1 to 7 did not match with the blood group of his wife-Radha.
31. After the examination of 24 witnesses and recording of evidence of the accused under Section 313, Cr.P.C. and hearing arguments in part, an application was 27 moved on behalf of the prosecution under Section 311, Cr.P.C.to examine an independent doctor to give his opinion after viewing the video cassette relating to the bedroom of the first accused. PW-25, Dr.Devadas has specifically opined that the death of Radha was due to suicide. He has completely concurred with the evidence given by Dr.Kiran in the post-mortem report.
32. PW-25 has admitted that when a woman is admitted to delivery, her blood group and Rh factors would be ascertained through proper tests and report would be collected. The totality of the evidence of PW-16 (Ahmed Hasan) Dr.Kiran, (PW-19) Devadas (PW-25) and Ex.P-16-inquest report, P-18, post-mortem report and Ex.P-62-serology report coupled with discharge summary of Radha from the hospital and blood test reports of the accused would not support the charge framed for the offences punishable under Section 302, I.P.C. These aspects have been elaborately considered by the trial court by answering the point framed 28 regarding homicide in the negative. In fact the learned judge has assessed the entire evidence in detail and has given cogent reasons to give a categorical finding that the prosecution has failed to prove that the death of Radha was due to homicide.
33. It was suspected that Radha was virtually murdered and then hanged in the room of the 4th accused to project as though she had committed suicide. Anyhow Dr.Kiran has given an opinion that it was a clear case of hanging since ligature marks were oblique and there was no fracture on the hyoid bone. The best witness who could have been examined on behalf of the prosecution are CWs-14 and 15, namely Basavaraju and Chikkathayamma. They were working as servants in the house of the accused at the relevant point of time. The prosecution has given up these two material witnesses. It is not their case that they have been given up since they were not likely to support the prosecution case. If they had been examined, they 29 would have spoken about the small male child of the deceased.
34. Admittedly the male child was not found in the room where she was found dead. The said material witnesses could have spoken about the approximate time the 1st accused left the house and what Radha was doing at the relevant point of time. They could have unfolded the case of the prosecution in a better manner and therefore, non-examination of CWs-14 and 15 would pave way for drawing an adverse inference under Section 114(g) of the Evidence Act.
35. In the case of STATE OF U.P. & OTHERS .v. JAGGO @ JAGDISH & OTHERS (AIR 1971 SC 1586), it is held that witnesses whose evidence is essential to unfold the narrative should be called upon to tender evidence. This solitary principle is very much stressed in criminal trials in order to elicit the truth. Such witnesses must be examined to ascertain as to whether 30 the result or effect of their testimony is for or against the case of the prosecution. This is also a circumstance which casts a serious doubt in the mind of the court about the allegation of murder. This aspect of the matter is also dealt at length by the trial Court. Even on re-appreciation of the evidence by this Court, there is no reason to take a different view from that of the one already taken by the trial Court.
36. Accordingly the trial court is justified in holding that the prosecution has failed to prove the charge for the offence punishable under Section 302 I.P.C. Accordingly point no.(1) is answered in the affirmative.
37. Point no.(2): The charges framed on 22.3.2004 vide charges 4 to 6 speak about the demand for dowry and its acceptance. Since they are relevant, they are extracted below:
4. That you A.1 being the husband of Smt. Radha you A.2 & A.3 being the parents of A.1, you A.1 accepted 150 gms of gold ornaments, 25,000/- rupees of cash, 1 Kg of gold 31 ornaments , 6 kg's of silver articles, household articles worth about 50,000/-, you A.2 3 & 4 received gold ring, cloth forcibly from parents of deceased, after commencement of D.P. Act 1961 as dowry thereby committed an offence punishable U/s 3(1) of the D.P. Act and within the cognizance of this Court.
5. That you A.1 being the husband of Smt. Radha and you A.2 and A.3 being the parents of A.1, A4 being the brother of A1 during May 1998 demanded CW.1 Rathanlal of sum of Rs.1 lakh, 10 thola of gold, 70,000/- rupees cash and again accepted 10 thola of gold before sending the deceased to the marriage of her brother CW.5 Nemichand and also demanded Rs.30,000/- being the balance amount of the dowry from the CW.1 and thereby committed an offence punishable U/s 4 of the D.P. Act and within the cognizance of this court.
6. That you A.1 being the husband of Smt. Radha and you A.2 and A.3 being the parents of A.1 you A4 being brother of A1 received the dowry of 150 gms of gold, 25,000/- rupees cash, 1 kg gold to the deceased and 6 kgs of silver articles, household articles worth about Rs.50,000/- one gold ring each, from the parents of deceased Rs.1 lakh cash, 10 thola of gold, Rs.70,000/- cash and again 10 thola of gold from the parents of deceased which you were under the law to require to transfer the bride Smt. Radha within a specified period fixed by the law as it is given in connection with the marriage of Smt. Radha and failed to 32 execute such transfer in favour of Smt. Radha and thereby committed an offence punishable U/s 6 of D.P Act and with the cognizance of this Court.
38. A specific charge is made alleging that the husband of Radha, himself and his parents had accepted gold ornaments weighing 150 grams, Rs.25,000/- cash, gold weighing one KG and six KG were silver articles and household articles worth Rs. 50,000/-. Charge number 5 speaks about accused nos. 1 to 3 demanding PW-3, Ratanlal Rs. 1 lakh cash, gold ornaments and had received Rs.70,000/- in cash and 10 tolas of gold before sending the deceased to attend the marriage of her brother-Nemichand. It is alleged that they demanded the balance of Rs.30,000/-to be paid. Charge no.6 speaks about non-transfer of the above dowry so received to Radha and Ratanlal 6 months prior to the date of her marriage. Therefore Sections 3, 4 and 6 of the Dowry Prohibition Act have been invoked.
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39. The initial burden is on the prosecution to prove its case beyond all reasonable doubt. Charges have also been framed for the offences punishable under Sections 304B and 306, IPC. In order to establish the offence under Section 304B, prosecution is expected to prove the following ingredients:
1. The death of Radha should have been caused by burns or bodily injury or otherwise than under normal circumstances;
2. Her death should have occurred within seven years of her marriage;
3. She must have been subjected to cruelty or harassment by the accused; and
4. Such cruelty or harassment should be for or in connection with demand for dowry soon before her death
5. Such cruelty or harassment was met out soon before her death.
40. Of course the prosecution has been able to prove that the death of Radha was under unnatural circumstances, that too within seven years of her 34 marriage in the house of her in-laws. Whether she was subjected to cruelty or harassment soon prior to her death in connection with demand for dowry, will have to be looked into.
41. As rightly pointed out by the learned counsel for the accused, Ex. P-10 is silent in regard to the demand and receipt of dowry in connection with the marriage of the deceased with the first accused and thereafter what is mentioned in Ex. P-10 is that the first accused used to come home late and on being questioned, he used to quarrel with the deceased. The allegation in regard to demand and receipt for dowry and the alleged cruelty meted out to her was disclosed only on 14.8.2000 to the police when the statements were recorded by PW-21, the subsequent IO and not prior to that. The evidence of PWs-1 to 6, 8, 14, 17 are relevant in regard to the demand made for dowry during marriage negotiations and subsequently. Therefore it is relevant to scan the evidence of his witnesses.
35
42. PW-1, Chandra Singh is the cousin brother of the deceased. He has deposed about the marriage of Radha being solemnized with the first accused and the betrothal talks that took place in the house of the third accused in Bangalore. He had not attended the marriage talks. According to him, his father-Birdichand had attended the betrothal ceremony. Birdichand is examined as PW-10. In the light of PW-1 having not attended the marriage talks that took place in the house of third accused in Bangalore, much importance cannot be attached to his version and rightly the learned trial judge has not done so.
43. It is useful to refer to the evidence of PW-10, Birdichand. He is the brother of PW-3 and is a resident of Tiptur town. He knew the accused very well. According to him, the engagement took place in the house of the third accused stop he had participated in the negotiations. It is his case that at the time of marriage talks, the accused had remanded them to give 36 one kg. gold, Rs. 1 lakh cash, eight kg. silver articles and clothes to the bridegroom. According to him, his brother (PW-3, Ratanlal) had agreed to pay dowry as per his capacity and not as demanded by the third accused. It is his case that his brother had agreed to give the articles and jewels at the time of marriage. Admittedly the engagement took place a year before the marriage. He has deposed that at the time of engagement, one gold ring, gold chain, suit cloth and Rs.21,000/- cash were given to the bridegroom by his brother, and that after the lapse of one year, the marriage of Radha with the first accused took place at Bheemnagar in Rajasthan. One month prior to it, one bracelet, one gold ring and a watch and clothes had been sent to be given to the bridegroom. The next day after the marriage, when the bridegroom was taken to her marital home, PW-3 is stated to have given one kg. gold, one kg. silver coins embossed with Bhagavan Mahaveer the accused. He has further deposed in paragraph 4 of his 37 examination-in-chief that the third accused had demanded his brother 10 tolas gold and Rs.1.00 lakh cash in order to send Radha to attend the marriage of her brother-Nemichand.
44. PW-10 has further deposed that the marriage party came into buses from Mysore to Bangalore and the second accused had arranged in his farm situated on the side of Bangalore Mysore Road. In the said party, PW-3 is stated to have given 10 tolas gold and Rs.71,000/- cash and clothes to the third accused. Of course he had not accompanied his brother-Ratanlal in order to get Radha to attend the marriage of her brother-Nemichand. He has admitted that the third accused-Lehar Singh had arranged a lunch party in his farm.
45. Some important omissions have been elicited from his mouth as found in paragraphs 16 to 22. Of course he has denied those suggestions put to him regarding 38 omission. But those material omissions have been put to PW-23, the IO of CoD (Corps of Detectives) who has deposed that PW-10 did not disclose before him as deposed by him (PW-10) in the court.
46. Charge is framed for the offence punishable under Section 4 of the Dowry Prohibition Act, alleging that accused nos.1 to 4, during the month of May 1998, demanded PW-3 a sum of Rs.1,00,000/-, 10 tolas of gold in order to send the deceased to attend the marriage of her brother-Namichand (CW-5) and further Rs.30,000/- being the balance amount of dowry. The allegation in regard to acceptance of dowry attracting Section 3 of the D.P. Act as per the charge framed is that accused nos.1 to 3 accepted 150 grams gold, Rs.25,000/- cash, 1 kg gold ornaments, 6 kg silver articles and Rs.50,000/- worth of household articles, and that accused nos.2 and 3 received a gold ring and clothes.
39
47. PWs-1, 2 and 10 have not stated anything before PW-21, Purushottam, I.O. that the accused demanded or accepted any ornaments or cash or gold as dowry. Hence the assertion of these material wsitnesses in regard to the demand and receipt of dowry by the accused are omissions amounting to material contradictions. As rightly pointed out by the learned counsel for the accused, they cannot be considered as minor contradictions.
48. PW-1 has deposed in his evidence that as per the community customs, 120 grams gold, Rs.21,000/- cash, gold and silver ornaments, and one watch were given. PW-2 has stated that150 grams gold, one watch, clothes, etc. were given and for the bride 100 grams gold, 8 kg silver articles and household articles were given 5 days prior to the date of marriage. It is his version that 10 tolas gold was given as on the date of the marriage. In fact, PW-22, I.O. has deposed that PW- 2 did not state before him about these aspects. 40
49. Insofar as PW-3, Ratanlal is concerned, he has deposed that 5 days prior to the date of marriage, Rs.21,000/- cash, 10 tolas gold, clothes and one watch were given and on the date of marriage, 1 kg gold ½ kg silver articles, Rs.50,000/- cash and clothes and household articles were given. He does not state that they were given as dowry. PW-4 has deposed that 5 days prior to the marriage, 10 tolas gold, Rs.21,000/- cash, clothes and one watch were given and on the day of marriage, 1 kg gold, ½ silver, Rs.50,000/- cash clothes and household articles were given. He does not state that they were given as dowry.
50. PW-4 has deposed that 5 days prior to the marriage, 10 tolas plaintiff gold, Rs.21,000/- cash, clothes and one watch were given to the parents of the 1st accused and on the day of marriage, 1 kg gold, 6 kg silver, 2 kg silver coins and household articles. He also does not state that they were given as dowry. 41
51. PW-7 has deposed that at the time of engagement, Rs.21,000/- cash, 10 tolas gold, one watch and suit cloth was given and 1 kg. gold, 8 kgs. silver, 2 kgs. silver coins and Rs.51,000/- were given. He does not say the persons who received the same. According to him, clothes and gold were given on the day of marriage and 5 days prior to the marriage, 100 grams gold, Rs.21,000/- cash, one watch were given and the remaining items were given on the day of marriage.
52. PW-10 has stated in his evidence that at the time of engagement, one gold chain, suit cloth, Rs.21,000/- cash were given to the 1st accused and one month prior to the marriage, one gold bracelet, gold chain, ring and watch with gold strap and clothes were given to all the family of the bridegroom. On the next day, 1 kg gold, 6 kg silver, 2 kg silver coins embossed with Bhagawan Mahaveer were given to the accused.
42
53. The IO has specifically deposed that these witnesses have not stated before him these aspects. PW-14 has stated that at the time of marriage, 100 grams told, 8 kg silver articles and Rs.21,000/- cash were given. There are lot of inherent inconsistencies in the evidence of these material witnesses in relation to demand and receipt of dowry with reference to the quantity, nature of dowry and dates. In the light of serious contradictions in the versions of material witnesses, it is very difficult to accept the argument of the learned SPP that the prosecution has proved the demand for dowry and receipt of the same. In fact PW- 10 has categorically deposed that the items were given as per the customs prevailing in their community.
54. It is useful to refer to Ex.P-63, mahazar dated 21.9.2001 and the list of the same date. As per Ex.P- 63, 11 items were delivered by PW-3 (Ratanlal) at the time of marriage. There is no evidence that they were given as dowry.
43
55. As rightly pointed out by the learned counsel appearing for the accused, Ex.D-26 is an important document and it had been submitted along with the charge sheet. The prosecution did not get it marked. Therefore, the accused got it marked by confronting the same to PW-6 (Sampathraj) who is stated to have the custody of M.Os. 22 to 41. The author of Ex.D-26 is Nemichand, son of PW-3, Ratanlal and it bears his signature at Ex.D-26(a). The said Nemichand is not examined before the court. Ex.D26 (b) is the signature of PW-3, Ratanlal. It is specifically mentioned in Ex.D- 26 that the items were presented during the marriage of Radha. Prosecution witnesses have not found fault with the contents of this document. It is not the case of the prosecution that the accused have manipulated Ex.D- 26 in collusion with the investigating authorities.
56. CW-10, Sampathraj is examined as PW-6. He has admitted in his cross-examination that M.Os.22 to 41 were given to his custody and he has given endorsement 44 to that effect. It shows that the total weight of 12 gold ornaments mentioned in Ex.D-26 is 548 grams. The details of silver articles is also found in Ex.D-26 and they are as follows:
1) One ice cream set (1 plate Big + 6 small plates)
2) One water glass stand,
3) One Thali + 6 katoris,
4) One plate,
5) One silver coconut,
6) One small glass.
Sampathraj (PW-6) has acknowledged as follows in Ex.D-26 dated 21.9.2001:
'The above items are received for safe custody as per the direction of the above noted Panchayatdars.' The beginning of Ex.D-26 reads as follows:
'Following are some of the items which were produced by Lehar Singh which were presented during the marriage of Radha in the presence of Ratanlal and CoD Dy.SP, Mr.Vasu Savanoor and the same were handed over to Sampathraj for the safe custody at CoD office on 21.9.2001 at 5.45 p.m.' 45 In fact, PW-6 has denied having given any statement to the police as per Ex.D29 to the effect that he gave one gold chain, gold ring to Deepak Kumar (1st accused) on the day of betrothal. The IO has deposed that he has given statement as per Ex.D-29.
57. Many contradictions have been elicited from the mouth of PW-3 and they are marked as Ex.D-23. In the light of uncontroverted document at Ex.D-26, the gold ornaments and silver articles so given to the accused and the bride in connection with the marriage cannot be considered as dowry.
58. In the case of NARAYANA MURTHY . v. STATE OF KARNATAKA (AIR 2008 SC 2377), the Hon'ble apex court has held that 'customary presentations made during thread changing ceremony on the birth of a girl is not 'dowry.' Hence, learned senior counsel representing the appellants requests this court to apply 46 the same analogy to the facts of this case. There is a lot of force in the said submission.
59. The case of PW-7 is that his father is seen in ex.P- 4 giving gold, silver articles, etc. to the accused, but the stand of the accused is that in Ex.P-4 some persons are seen playing cards and it has nothing to do with giving of anything to the accused. If Ex.P-4 is properly seen, none of the accused are present in Ex.P-4. No ornaments or gold are seen. In it, people are seen playing cards and some persons are writing something. In the next photograph, 1st accused is shown to be serving food. Accordingly point no.(2) is answered in the negative, holding that the prosecution has failed to prove beyond all reasonable doubt that the accused had demanded dowry and accepted the same in connection with the marriage of the deceased Radha with the 1st accused-Deepak Kumar.
47
60. Point no.(3): In order to establish the cruelty said to have been meted to the deceased, prosecution has relied on one instance of assault made by the 1st accused to the deceased two years prior to her death. PW-3, Ratanlal has deposed that Radha had telephoned him about the assault made on her by the 1st accused and therefore, he had sent PWs-6 and 7 to the house of the accused and 1st accused was properly advised. All the accused undertook to look after her well. Other than this incident, no other serious allegation is made about the alleged cruelty. Even otherwise, the allegation made by material witnesses in regard to cruelty is too vague and general.
61. As rightly pointed out by the learned counsel for the accused, in order to attract the offence punishable under Section 304B, I.P.C. read with Section 113B of the Evidence Act, it must be proved by the prosecution that the deceased had been subjected to cruelty soon before her death in connection with the demand for 48 dowry. As held in KAMESH PANJIYAR .v. STATE OF BIHAR ([2005] 2 SCC 388), 'there must be existence of proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the allegation of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.' In the instant case, it is not the case of the prosecution that soon before her death, Radha was subjected to cruelty for the purpose of dowry. The only incident that took place two years prior to her death cannot be considered as a live link to disturb her mental equilibrium.
62. Learned SPP, Mr.P.M.Nawaz has relied on another decision of the Hon'ble apex court rendered in the case of RAJINDER SINGH .v. STATE OF PUNJAB in Crl.A.2321/09 dated 26.2.2015 (2015 Crl.L.J. 1934) by a Bench consisting of three Hon'ble Judges. Section 304B of the Indian Penal Code and Section 113B of the 49 Indian Evidence Act have been discussed at length. Section 2 of the Dowry Prohibition Act is also discussed at length. In the said case, the Hon'ble Supreme Court has discussed about the receipt of money or property or valuable security demanded by any persons mentioned in Section 2 of the Dowry Prohibition Act at or before or after the marriage which is reasonably connected to the death of a married woman. It is held that it would necessarily be in connection with or in relation to marriage, unless facts of a given case clearly and unequivocally point otherwise. Of course the word 'soon' does not mean 'immediately.' The statute must be given a fair, pragmatic and common sense interpretation. That expression is a relative expression. Time lags may differ from case to case and all that is necessary is that the demand should not be stale, but should be the continuing cause for death of married woman under Section 304B, I.P.C..
50
63. It is not the case of the prosecution that there was any cruelty after the birth of the male child. The cruelty alleged refers to a period two years prior to the date of her death. As per the facts in the case of RAJINDER SINGH (supra), the facts were glaring. The demands were made shortly after one year. A she- buffalo was given to the daughter and she was an illiterate. She was sent back to her father's house and money was demanded again. The father went along with the son with a request that the daughter be not ill- treated on account of demand for money and he had assured that the demand for money would be fulfilled and they were expected to wait till the crops of his field would be harvested. Fifteen days later, the deceased visited her parents with the complaint of torture and she committed suicide by consuming poison. The facts in the present case are certainly distinguishable from the facts found in the case of RAJINDER SINGH. Therefore, even the alleged cruelty meted out to the 51 deceased two years prior to her death cannot be considered as 'soon before her death' and the alleged cruelty, by no stretch of imagination, can be considered as one in regard to demand for dowry. Hence we are of the considered opinion that the decision relied upon by the learned SPP is not helpful to the prosecution case, as it is distinguishable on facts.
64. Even otherwise, the material witnesses examined on behalf of the prosecution are not consistent with regard to the demand for dowry or torture meted out to the deceased. There is a lot of force in the submission of the learned counsel for the appellant that there are inherent contradictions which have been properly taken note of by the trial court while negating the points formulated for consideration. Thus the trial court is justified in holding that the prosecution has failed to prove that the deceased Radha was subjected to cruelty and torture in connection with demand for dowry and as a result of the same, she committed suicide, an 52 offence punishable under Sections 498A and 304B, I.P.C.
65. In fact, after the death of deceased Radha, accused did not run away from the place. They were present and Lehar Singh (3rd accused) had submitted a report on the basis of which UDR.36/00 came to be registered as per Ex.P66. The relatives of the deceased also arrived at the house on the night of 4.8.2000 and they saw her dead body in the said house. Police were also present at the spot when the relatives arrived there. It is also forthcoming in the evidence of PW-3 that his was a very traditional family and girls were not expected to wear western outfits. Exs.D14 to 16 depict the deceased in western outfit and this would probablise about the liberal approach adopted by the accused towards the accused.
66. At the time of the marriage of the 4th accused, photographs marked as Exs.P1 to P4, 14 to 22 and 24 53 had been taken in the year 1999. They also depict the happy participation of PW-3 in the marriage of the 4th accused and this cannot be lightly ignored while assessing the evidence relating to the cruelty or harassment meted out to the deceased in the year 1998 or prior to her death. The learned Judge has discussed this aspect at length by referring to various decisions cited before him and has rightly held that it was not a dowry death. Hence, Point No.3 is answered in the negative.
67. Point No.(4): Charge is also framed for the offence punishable under Section 306, I.P.C. and a relevant point is also framed to that effect by the learned trial judge. Even if the prosecution is not able to prove that the death of a married lady was a dowry death and if the prosecution is able to prove that the unnatural death was due to abetment, the accused could be convicted for the offence punishable under 54 Section 306, I.P.C. even in the absence of a charge to that effect, provided Section 304B, I.P.C. is invoked.
68. As already stated, the torture alleged was two years prior to the date of death of Radha. Several photographs have been shown to show that she had participated in many family functions and she was happy. Though she was brought up in a traditional way, there was a lot of scope for her to be in western style and this is evident from the photographs marked by the prosecution. In the report submitted by the 3rd accused to the police which is registered as UDR.36/00, he has mentioned that the two children of Radha were playing with knives on the previous night and this was objected to by the 1st accused and there was a verbal exchange of words between Radha and her husband and that he did not interfere with their affair. It was also mentioned that she was having pain in her breasts and that her husband had not evinced interest to get 55 her treated. According to him, this could be the basis for Radha to become upset and commit suicide.
69. This document got marked by the prosecution is not seriously disputed. As already discussed, what happened prior to the death of Radha is not forthcoming. The two main witnesses, Basavaraj and Chikkatayamma, servants in the house of the accused, have not been examined, though they are cited as witness in the charge sheet. In the absence of any demand for dowry or harassment meted out to the accused 'soon before' her death, Section 304B, I.P.C will not be attracted. Consequently if she was not assaulted or harassed frequently by the accused or his relatives 'soon before' her death, the same cannot be considered as the basis to commit suicide.
70. Section 107, I.P.C. speaks about abetment. The said provision is relevant and is reproduced below: 56
107. Abetment of a thing.- A person abets the doing of a thing, who-
Firstly - 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 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.
Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
Explanation 2 is very relevant. Some act must have been done either prior or at the time of commission of the offence in order to facilitate the commission of that act and that could be considered as an aid in doing of that act. In fact, in the statement recorded under 57 Section 313, Cr.P.C., the 1st accused has stated that his wife had asked him to take her to a doctor relating to breast feeding problem. Because of pressure of work, he could not attend to it. One day prior to her death, the children were playing with knives and he had asked his wife as to why she had allowed them to do so. She did not speak anything but became upset.
71. In the present case, there is no clear evidence as to the reason(s) for Radha to take such an extreme step to commit suicide. Even before her death, she had not telephoned either to her father or other relatives or neighbours about the ill-treatment which had left her with no other alternative but to commit suicide.
72. In order to convict a person for the offence punishable under Section 306, I.P.C., there must be instigation to commit the offence or aiding in commission of the offence. Therefore abetment must attract the definition found in Section 107, I.P.C. 58 Attempt to commit suicide and abetment to commit suicide are two different offences and stand on a different footing. Before holding an accused guilty of the offence punishable under Section 306, I.P.C., the court must scrupulously examine the facts of the case and also assess the entire evidence placed before it to find out as to whether cruelty and harassment had left the victim to no other alternative but to put an end to her life.
73. In cases of abetment to commit suicide, there must be proof of direct or indirect acts and incitement to commit the offence. Mere allegation of harassment without there being any positive action on the part of the accused which led or compelled the person to commit suicide, is not sufficient to convict an accused for the offence under Section 306, I.P.C. The person who is stated to have abetted another to commit suicide must have played an active role by way of instigation or 59 by doing some act to facilitate the victim to commit suicide.
74. What is argued before this court by the learned SPP is that Section 113A of the Evidence Act will have to be taken in aid of the present case. The said provision reads as follows:
113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purpose of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).] What is 'presumption' in regard to abetment to commit suicide is dealt with in Section 113A of the Evidence Act and it is clear that when a husband is guilty of cruelty 60 to the wife. The first requisite for attracting Section 113A is that it must be proved that the wife was subjected to cruelty as defined under Section 498A, I.P.C.
75. As already discussed, prosecution is not able to prove that deceased Radha was subjected to cruelty to be punished for the offence under Section 498A. Cruelty must be such that the victim would be left with no other alternative except to commit suicide. In the present case, the prosecution has not been able to pin- point any circumstance effectively which led Radha to commit suicide. The presumption available under Section 113A of the Evidence Act can be applied only in appropriate cases and the court may refuse to draw the presumption. Presumption of facts are inferences from facts and patterns drawn from experience and observations of the common course of nature. 61
76. A presumption is not evidence, but only makes out a prima facie case for the party in whose favour it exists. It is the rule surrounding evidence and indicates on whom the burden of proof lies. In the case of SURYAKANTH .v. STATE OF KARNATAKA (AIR KAR HCR. 2036), the accused had been tried for the offences punishable under Sections 498A, 304B, 120B, I.P.C. But the allegation about demand for dowry by the accused was not proved. However, there was overwhelming evidence that he had made the life of his wife intolerable by beating her frequently. On the day of commission of suicide, she was not allowed to attend the marriage of her near relative; whereas the husband had gone there. It was held that the cruel behavior of her husband led her to commit suicide and therefore, he was convicted for the offence punishable under Section 306, I.P.C.
77. As already discussed, in the present case, prosecution is not able to place on record any such 62 evidence which comes under the definition of Section 306, I.P.C. with the aid of Sections 113A, Evidence Act and 107 of IPC . The death took place 6 ½ years after the marriage with the 1st accused and they had two children out of the marriage. They had participated in several functions and were found to be happy, as depicted in the several photographs. Ex.D-26 discloses that gold ornaments and other valuable articles were presented as gifts and the said document is got marked on behalf of the accused. The learned judge has evaluated the entire evidence relating to this in right perspective, of course, with reference to certain decisions cited before him. He has properly assessed the evidence placed on record. This court is of the opinion that no fault could be found with the acquittal of the accused for the offence punishable under Section 306, I.P.C.
78. What is argued before this court by the learned SPP is that even in an appeal against acquittal, the first 63 appellate court is not inhibited from re-assessing the evidence in order to ascertain as to whether the case is proved beyond all reasonable doubt. There is no second opinion on the said aspect. But in the present case, the accused have already been acquitted. Their innocence is further fortified by the judgment of acquittal. If two views are possible in criminal cases, that view which is favourable to the accused should be adopted, is the cardinal principle. In fact, the learned trial judge has assessed the entire evidence inclusive of the evidence of material witnesses with reference to the decisions cited before him.
79. What is argued before this court by the learned SPP, placing reliance upon the decision rendered in the case of KALIYAPERUMAL & ANOTHER .v. STATE OF TAMILNADU (AIR 2003 SC 3828) is that the consequence of cruelty which is likely to drive a woman to commit suicide or to cause danger to life, limb or mental health is required to established, applying the 64 provisions of Section 498A, I.P.C. This decision is relied upon by the learned SPP to contend that the words 'soon before' is a relative term and would depend on the facts and circumstances of each case and no strait-jacket formula can be laid down as to what constitutes 'soon before.' Thus even on re-assessment of the entire evidence placed on record in the light of the principles reiterated in the said decision, this court is of the opinion that there cannot be any other opinion other than the one already arrived at by the trial court.
80. Learned SPP has relied upon another decision of the Hon'ble Supreme Court in the case of PREM KANWAR .v. STATE OF RAJASTHAN (AIR 2009 SC 1242) wherein the Hon'ble apex court has held that 'nothing comes in the way of the High Court to make a fresh scrutiny and to re-appraise the evidence and other materials placed on record. If on such re-appraisal, the High Court is of the opinion that there is also another view which could be reasonably taken, the view which 65 favours the accused should be adopted.' In another decision in the case of TRIMUKH MAROTI KIRKAN .v. STATE OF MAHARASHTRA reported in [2006] 10 SCC 681, it is held that 'if the accused did not offer any explanation in a case like this or offers a false explanation against incriminating circumstances, that can be treated as an additional link in the chain of circumstances against the accused to make it complete.' In the present case, the accused has in fact been able to probablise that his blood group is 'O' and the blood group of the deceased was 'A' and it did not match with the blood group found on items nos.1 to 7 where Radha was found dead. He has given an explanation that from his childhood he was having the problem of bleeding nose.
81. Thus viewed from any angle, this court is of the opinion that no illegality or perversity is found in the approach adopted by the trial court. In fact, the trial 66 court has assessed the entire evidence placed on record in right perspective. No good grounds are made out to interfere with the well considered order. Accordingly, point No.4 is answered in the negative.
82. In the result, the appeal is to be dismissed by upholding the judgment of acquittal. Hence, following order is passed:
ORDER The appeal filed under Section 374, Cr.P.C.
by the State challenging the judgment of acquittal passed in S.C.7/03 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE vgh*