Karnataka High Court
Venkatesh vs State Of Karnataka By on 26 August, 2020
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL No.340/2015
BETWEEN:
Venkatesh,
S/o Rachaiah @ Sollapuri,
Aged about 30 years,
Occupation: Coolie,
Resident of Giddenahalli village-562106
Jigani Hobli, Anekal Taluk.
... APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
SRI SANTOSH B., ADVOCATE)
AND:
State of Karnataka,
By Bannerughatta Police, Anekal Taluk,
And A.D.C., C.I.D., Bangalore-560083.
(Represented by State Public Prosecutor)
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE
PUBLIC PROSECUTOR)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE ORDER AND SENTENCE
DATED 9.2.2015, PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL
DISTRICT, SIT AT ANEKAL, IN S.C. No.242/2011-
CONVICTING THE APPELLANT/ACCUSED No.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 3, 4 OF DP ACT
AND UNDER SECTION 498-A, 302, 201 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT IS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The present Criminal Appeal is filed by the accused No.1 against the judgment and order of conviction dated 09.02.2015 made in S.C.No.242/2011 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal, sentencing the appellant/accused No.1 to undergo imprisonment for life and to pay a fine of `1,00,000/-, in default, to undergo imprisonment for three years for the offence punishable under Section 302 of the Indian Penal Code; to undergo imprisonment for five years and to pay a fine of `30,000/- in default to undergo 3 imprisonment for one year for the offence punishable under Section 201 of Indian Penal Code; to undergo imprisonment for two years and to pay a fine of `2,000/- in default to undergo simple imprisonment for three months for the offence punishable under Section 498A of the Indian Penal Code; to undergo imprisonment for five years and to pay a fine of `30,000/- in default to undergo imprisonment for one year for the offence punishable under Section 3 of the Dowry Prohibition Act, 1961 and to undergo imprisonment for one year and to pay a fine of `2,000/- in default to undergo simple imprisonment for three months for the offence punishable under Section 4 of the Dowry Prohibition Act, 1961.
I. FACTS OF THE CASE
2. It is the case of the prosecution that the accused No.1 is the husband of deceased Kamalamma. Accused Nos.2, 3 and 8 are the relatives of accused No.1. The 4 marriage between the accused No.1 and the deceased Kamalamma was performed at Maruthi Kalyana Mantapa, Kanakapura. At the time of the marriage, accused persons demanded `50,000/- dowry, 10 gms gold chain, 7 gms ring and other ornaments. The parents of the deceased Kamalamma gave the same to the accused No.1.
3. After the marriage, the deceased was residing with the accused persons. The accused persons started demanding additional dowry of `1,00,000/- from the parents of Kamalamma and gave her mental and physical torture. On 04.02.2009, the accused No.1 quarreled with deceased Kamalamma. At that time, one Munivenkatappa-P.W.13 advised accused No.1 not to quarrel with Kamalamma. At that time, accused No.1 abused Munivenkatappa, warned him and aked him to go away. At about 3.45 am, the accused Nod.1 put plastic wire to the neck of Kamalamma and 5 strangulated her and committed murder. In order to destroy the evidence, he tied the rope to her neck and tide the said rope to the bar of the window. Thereafter, accused No.1 took 20 days old child in a plastic basket and ran way with an intention to marry another lady. C.W.15/P.W.4-Manjesh intimated the death of Kamalamma to her parents. The complainant/P.W.1- Bhagyamma and other persons came to the spot. C.W.46/P.W.21- Vishwanath, PSI, received the information and proceeded to the spot. On the spot, the P.W.1 filed complaint before C.W.46, who sent the said complaint through C.W.47- Appaji, P.C-1629 for registration of the case to the police station. C.W.47 carried the complaint and handed over to C.W.48- Chandrashekaraiah, ASI, who, in turn received the complaint and registered the same under Crime No.36/2009 and sent the FIR to the Court. It is further stated that the investigation was handed over to C.W.46, who, in turn intimated the Tahsildar, Anekal to 6 conduct inquest panchanama. He handed over investigation to C.W.49-M.Shankarappa, CPI, who proceeded to the spot and recorded the statements of C.W.17 to C.W.21. N.Satish-C.W.38/Special Tahsildar, drawn up the inquest panchanama of the dead body of Kamalamma. He recorded the statements of the relatives and sent the dead body for postmortem to Anekal Government Hospital and handed over inquest panchanama and other documents to C.W.49. On 06.02.2009, the staff members produced accused No.1 before him. C.W.49 arrested the accused No.1 and recorded confession statement leading to discovery of fact. The accused No.1 shown the spot where he had left the child in basket. C.W.49 drawn up the spot panchanama. C.W.49 came to know that the PSI of Hosur Police Station has left the child in Narendra Nambigaiah Nakshatram Ashram. He took the accused No.1 to the said Ashrama. When enquired, the head of the Ashram, showed the child to accused No.1. The 7 accused No.1 identified the said child. Accordingly, C.W.49 drew the panchanama. He recorded the statement of witnesses and produced the accused No.1 before the Court. He has further recorded the supplementary statement of witnesses, received M.O.3 to M.O.6 and produced the same under PF No.26/2009. He arrested accused Nos.2, 4 to 7. Thereafter, he received the postmortem report and handed over investigation to C.W.50-Smt. H.M. Meenakshi, P.I. She recorded the supplementary statements of complainant and C.W.2 to 14, 15 to 31, 33 to 37 and arrested accused No.8 on 26.10.2009 and produced before the Court. After completion of investigation, she filed charge sheet against accused Nos.1 to 3 and 8 showing the accused Nos.4 to 7 in dropped column alleging the commission of offence punishable under Sections 498A, 302, 304B, 201 r/w Section 34 of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. The learned Additional Civil Judge and JMFC, 8 Anekal, took cognizance of the offence and registered the case against accused Nos.1 to 3 and 8 and committed the case to the Prl. District and Sessions Judge, Bengaluru Rural District, Bengaluru.
4. In order to prove the guilt of the accused persons, the prosecution examined P.Ws.1 to 21 and marked the documents Exs.P.1 to 16 and 16(a) and marked M.O.1 to 6. After completion of evidence, the statements of the accused Nos.1 to 3 and 8 were recorded under the provisions of Section 313 of the Code of Criminal Procedure. The accused persons denied the incriminating evidence against them and not lead any evidence for their defence.
5. The learned Sessions Judge, considering the pleadings and both oral and documentary evidence on record, framed seven points for determination and recorded a finding that, the prosecution has proved that the accused No.1 being the husband of the deceased, at 9 the time of marriage, demanded `1,00,000/- dowry, 20 grams gold chain and ring, 20 grams bracelet and settled the same for `50,000/- dowry, a ring and a chain, attracting the offence punishable under Section 3 of the Dowry Prohibition Act and failed to prove the said charge against accused Nos.2, 3 and 8. The learned Sessions Judge further recorded a finding that the prosecution has proved the charge that the accused No.1 being the husband of the deceased demanded additional dowry so as to attract the provisions of Section 4 of the Dowry Prohibition Act, 1961 and failed to prove the said charge against accused Nos.2, 3 and 8. The learned Sessions Judge further recorded that the prosecution failed to prove that accused Nos.1, 2, 3 and 8 have received one pair jumki, ole and ring at the time of marriage in the form of dowry attracting an offence under Section 6 of the Dowry Prohibition Act, 1961. It is further recorded that the prosecution has proved the demand of additional dowry by accused No.1 attracting 10 an offence punishable under Section 498A r/w Section 34 of the Indian Penal Code and failed to prove the same in respect of accused Nos.2, 3 and 8. The learned Sessions Judge further recorded a finding that the prosecution has proved that the accused No.1, on 04.02.2009, quarreled with his wife Kamalamma and when C.W.23 enquired, the accused No.1 has abused him and at about 3.45 am, accused No.1 strangulated his wife Kamalamma with yellow coloured plastic rope and caused murder and thereby committed an offence punishable under Section 302 of the Indian Penal Code. It is further recorded that the prosecution has proved that the accused No.1, on 04.02.2009, at about 3.45 am, caused the murder of Kamalamma by strangulation and in order to destroy the evidence, tied her neck with the rope and further tied to the iron rod of the window and went away along with the children and thereby committed an offence punishable under Section 201 of the Indian Penal Code. Accordingly, the learned 11 Sessions Judge, by the impugned judgment, acquitted accused Nos.2, 3 and 8 and convicted accused No.1 for the offences punishable under Sections 498A, 302, 201 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Hence, the present appeal is filed by the accused No.1.
6. We have heard the learned counsel for the parties to the lis.
II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT-ACCUSED
7. Sri Hashmath Pasha, learned Senior Counsel for the appellant-accused No.1 contended that, the entire case of the prosecution is based on circumstantial evidence. The accused suspecting the fidelity of his wife and the allegation of the accused that second son is not born to him does not amount to cruelty under Section 498A of the Indian Penal Code. It is only the incompatibility of temperament due to marital discord. 12 Therefore, the judgment and order of conviction passed by the Sessions Court under Section 498A of the Indian Penal Code against the accused No.1, cannot be sustained. He further contended that the learned Sessions Judge, while acquitting the accused Nos.2, 3 and 8 from the charges under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, and Sections 498A, 302, 201 r/w Section 34 of the Indian Penal Code, ought not to have convicted the accused No.1 as there was no specific allegation against the accused No.1 of having received the amount of `50,000/- as dowry. He further contended that there is no evidence with regard to last seen theory to establish that the accused No.1 was last seen in the company of the deceased. Further, the presence of Moogamma will takes away the provisions of Section 106 of the Indian Evidence Act, as she has not been examined, nor she is an accused.
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8. He further contended that absolutely there is no material about the presence of accused No.1 at the time of occurrence of the incident. Ex.P.5-inquest panchanama, at column 3 and 4 excludes his presence. Therefore, the provisions of Section 302 and Section 201 of the Indian Penal Code would not be attracted. He further contended that, in the absence of any eye witness or any material, as there was no chain link, the impugned judgment and order of conviction based only on presumption, cannot be sustained. He further contended that in the alternative, as the accused No.1 suspected the fidelity of his wife and suspected that the second child was not born to him, he was provoked and the alleged incident has occurred and therefore, the offence does not amounts to culpable homicide amounting to murder under the provisions of Section 302 of the Indian Penal Code. It is only culpable homicide within the provisions of Part I and II under Section 304 of the Indian Penal Code.
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9. He further contended that as per the postmortem report by P.W.19, no postmortem ligature is found on the dead body of the deceased. Therefore, it is not a murder, but it is a suicide. He further contended that, if two possibilities are possible, the possibility which is in favour of the accused has to be taken. The experts opinion is only advisory in nature. Therefore, he sought to allow the appeal.
10. In support of his contentions, learned Senior Counsel relied upon the following dictums of the Hon'ble Supreme Court.
(i) Budhi Lal vs. State of Uttarakhand reported in (2008)14 SCC 647, para-13;
(ii) Attar Singh vs. State of Maharashtra reported in (2013)11 SCC 719, para-11;
(iii) Murli v. State of Rajasthan, reported in 1995 Supp (1) SCC 39, para-9 (Sec. 105 of the Indian Evidence Act) 15
(iv) Vijayee Singh and others vs. State of Uttar Pradesh reported in (1990)3 SC 190;
(v) Jose v. Sub-Inspector of Police, reported in (2016)10 SCC 519 (strangulation) para-50, 51, 52;
(vi) Sohel Mehaboob Shaikh v. State of Maharashtra reported in (2009)12 SCC 588, para- 5, 6 & 7;
(vii) Shamnsaheb M. Multtani vs. State of Karnataka reported in (2001)2 SCC 577, (Sec.498A) para-31, 38;
(viii) Murlidhar and others vs. State of Rajasthan reported in (2005)11 SCC 133, para-22;
(ix) Arvind Singh vs. State of Bihar reported in (2001)6 SCC 407, para-21,22;
(x) State of Himachal Pradesh vs. Jai Lal and others reported in (1999)7 SCC 280, para-
18,19,20;
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(xi) Tomaso Bruno and another vs. State of Uttar Pradesh reported in (2015)7 SCC 178, para-37, 38, 40, 43;
(xii) Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984)4 SCC 116, para-169 (two possibility) III. ARGUMENTS ADVANCED BY THE LEARNED ADDITIONAL STATE PUBLIC PROSECUTOR
11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment and order of conviction, contended that, in order to prove the homicidal death, the evidence of P.W.9-Doctor and the inquest report are sufficient. He further contended that, earlier incident by the accused No.1 against the deceased, the conduct of the accused No.1, one day prior to the incident spoken to by P.Ws.1 and 4 and lastly, abandonment of the second child after the incident clearly depicts the motive and 17 involvement of the accused No.1 in murdering the deceased. He further contended that, Ex.P.1-complaint, clearly depicts the demand for dowry made by accused No.1 and the money received by the accused No.1 clearly attracts the provisions of Section 498A of the Indian Penal Code. Mere acquittal of other accused persons, i.e., accused Nos.2, 3 and 8, is not a ground to challenge the conviction made against the accused No.1. He further contended that within 18 days from the date of birth of the second child, the incident has occurred murdering the deceased, so as to attract the provisions of Sections 302 and 201 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
12. He further contended that the impugned judgment and order of conviction convicting the accused No.1 for the offences made out is justified and this Court cannot interfere with the impugned judgment and order of 18 conviction, in exercise of appellate powers under Section 374(2) of the Code of Criminal Procedure.
13. In support of his contentions, learned Additional State Public Prosecutor relied upon the judgment in the case of Rampal Singh vs. State of Uttar Pradesh reported in (2012)8 SCC 289, paragraphs 11, 14, 17 and 35 and sought for dismissal of the Appeal.
IV. POINT FOR DETERMINATION
14. In view of the rival contentions urged by the learned counsel for both the parties, the only point that arises for our consideration is:
"Whether the accused No.1-appellant has made out any case to interfere or modify the impugned judgment and order of conviction convicting the accused No.1 under Section 302, 201 and 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961, in the facts and circumstances of the case?"19
V. CONSIDERATION
15. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original record, carefully.
16. The substance of the prosecution case is that, after the birth of second child, the accused No.1 started suspecting the fidelity of his wife and abandoned the second child before the temple and thereby, the commission of the offence is made out.
17. Though statement under Section 313 of the Code of Criminal Procedure was recorded, the accused persons have not taken any defence.
18. In order to re-appreciate the entire material on record including oral and documentary evidence, it is relevant to consider the sum and substance of the 20 prosecution witnesses and the material documents relied on.
19. P.W.1-Bhagyamma, mother of the deceased Kamalamma has deposed that, on behalf of accused No.1, C.W.15, 18 and 8 participated in the marriage talks and demanded dowry of `50,000/- and a motor cycle, but, they did not agree for the said demand. They have given golden ornaments in the marriage and spent about `1,00,000/- to perform the marriage. In the cross-examination, she has stated that, herself and her husband are doing coolie work and are earning `50/- and `100/- per day, respectively. After the marriage of her daughter with accused No.1, a female child was born. After few months the accused No.1 started demanding additional dowry and in that regard panchayath was conducted. After the birth of the second child, the accused No.1 refused to accept the child on the ground that it was not born to him and 21 suspected the fidelity of his wife-deceased Kamalamma and started quarreling with her. The accused No.1 also suspected that the deceased Kamalamma was suffering from TB and kept her in a room and wife of accused No.2 used to give meals to the deceased in the said room and the accused No.1 made an attempt to kill the deceased, earlier, in forest area.
20. P.W.2-Kenchabovi, father of the deceased Kamalamma has deposed in the same lines as that of his wife P.W.1-Bhagyamma. He has stated that, after one year of marriage, accused have demanded dowry and assaulted his daughter-Kamalamma. The accused persons have harassed his daughter physically and mentally and demanded dowry. The P.W.2 did not adduce any evidence against accused Nos.2, 3 and 8 with regard to the harassment.
21. P.W.3 - Papanna, relative of the deceased has stated on oath in similar lines as that of P.Ws.1 and 2. 22 He further stated that accused No.1 has harassed and ill treated the deceased-Kamalamma, and supported the prosecution case.
22. P.W.4-Manjesh, who is from the same village where the accused No.1 and the deceased were residing has stated that, the accused No.1 had quarreled with deceased Kamalamma and he saw the deceased in hanging position at the place of the incident. He has stated that earlier panchayath was conducted and further stated that Moogamma, who was residing with accused No.1 and deceased, has informed about the death of Kamalamma. The prosecution has neither examined Moogamma nor she is an accused in the case.
23. P.W.5-Poojari Hanumaiah, and P.W.6- Narayanamma, neighbours of accused No.1 have turned hostile.
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24. P.W.7-Narasimhaiah, resident of Giddenahalli, has stated about the motive of the accused who used to talk that the second child not belonged to him. He has stated that, after 2-3 years of marriage, the accused had quarreled with deceased Kamalamma and two panchayaths were conducted and accused used the suspect the character of deceased Kamalamma.
25. P.W.8-Puttamma, witness to inquest report Ex.P.5 has stated that, in the year 2009 she had been to the house of deceased as a panch. The police made inquest and at that time, Tahsildar was present.
26. P.W.9-Dr.Kumar, who conducted autopsy and issued Ex.P.9- postmortem report, has stated that the death of Kamalamma is due to Asphyxia causing obstruction to the respiratory passage due to strangulation. He further stated that one cannot hang herself using M.O.1-plastic rope. In the postmortem 24 report-Ex.P.9, he has stated that there is ligature mark around the neck.
27. P.W.10-G.Revathi Mohan, Secretary, Narendra nambige Nakshthram Ashram, where the second child of the deceased was left by Hosur Police has stated that, in the year 2009, one day, Tamil Nadu Police brought a baby aged 10 to 15 days and left the baby in the Ashram. Exs.P.6 and P.8, Panchanama, clearly depicts that after causing murder of Kamalamma, accused No.1 took the second child and left it in the forest area.
28. P.W.11-Mohan, retired Civil Engineer has stated that Exs.P.8 and 11 bears his signature.
29. P.W.12-Nagaraju, resident of Giddenahalli, where the deceased and the accused No.1 were residing, has stated on oath about the demand for dowry by accused No.1, differences between the accused No.1 and deceased and that the accused No.1 used suspect the 25 fidelity of the deceased. He has stated that on the next day of the incident, he came to know that the deceased was murdered.
30. P.W.13-Munivenkatappa, resident of Giddenahalli has turned hostile.
31. P.W.14-Sundaramma, resident of Giddenahalli has stated about the demand for dowry by accused No.1 and that he used to suspect the fidelity of Kamalamma and that the second child was not born to him.
32. P.W.15-Sunanda, resident of Giddenahalli has stated about the differences between the deceased and accused No.1 and that accused No.1 suspected the character of his wife and that the second child was not born to him.
33. P.W.16-Thimmamma, resident of Kabbala and neighbour of P.W.1 has stated that she had advised the deceased that she should live in her husband's house. 26 She has stated that the deceased used to tell her about the ill treatment by the accused No.1 and his family members.
34. P.W.17-H.V.Krishnappa, Secretary of Kallubalu Panchayath has stated that he has issued Ex.P.13, the documents pertaining to the house of Venkatesh bin Ramaiah.
35. P.W.18-Chandrashekaraiah, Station House Officer, has stated that he registered the FIR-Ex.P.14 on the basis of Ex.P.1-complaint, brought by C.W.47.
36. P.W.19-H.M.Meenakshi is the Investigating Officer who made further investigation and filed the charge sheet against the accused persons.
37. P.W.20-M.Shankarappa, is the main Investigating Officer who took further investigation on 04.02.2009 after registration of FIR has supported the case of the prosecution.
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38. P.W.21-K.Vishwanatha, Station House Officer and ASI, is the one who received the telephonic message about the death of Kamalamma and visited the spot and registered FIR.
39. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge has recorded a finding that the evidence of P.Ws.1 to 3 and 14 clearly depicts that the accused No.1 has demanded dowry and evidence of P.Ws.1 to 4, 7, 14 to 16 clearly depicts that accused No.1 has demanded additional dowry and gave mental and physical cruelty to deceased Kamalamma. The learned Judge further recorded that, the harassment and ill treatment given by accused Nos.2, 3 and 8 is not specific and vague. The said witnesses have also admitted that the accused No.1 was born to different husband to his mother. The evidence of P.Ws.1 to 4, 7, 14 to 16 is contrary to each other in respect of residence of accused Nos.2,3 and 8 along with 28 accused No.1. Their evidence do not help to prove the offence under Section 498A of the Indian Penal Code against accused Nos.2, 3 and 8 beyond reasonable doubt. But their evidence clearly proved the offence under Section 498A of the Indian Penal Code against accused No.1 beyond reasonable doubt. It is further recorded that the accused No.1 has not explained the cause of death of his wife Kamalamma in his house. Section 106 of the Indian Evidence Act, 1872, speaks that, fact within knowledge of person has to explain before the Court. The accused No.1 has attempted to explain the same. The same is not acceptable. Therefore, the Sessions Judge has held that the offence made out against accused Nos.2, 3 and 8 are not proved beyond reasonable doubt and offence made out against accused No.1 is proved beyond reasonable doubt. Accordingly, acquitted accused Nos.2, 3 and 8 and convicted accused No.1 by the impugned judgment and order of conviction.
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40. On re-appreciation of the entire material on record, it clearly depicts that the charge framed by the learned Sessions Judge dated 02.11.2011 is a common charge framed against the accused persons under Sections 498A r/w Section 34 of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. Admittedly, on the same set of evidence adduced on behalf of the prosecution, accused Nos.2, 3 and 8 are acquitted by the impugned judgment and order of conviction and the prosecution has not filed any appeal against the impugned judgment and order of acquittal of accused Nos.2, 3 and 8 and the same has reached finality.
41. The charge also clearly depicts that on 04.02.2009, accused No.1 has quarreled with his wife in the presence of P.W.13-Munivenkatappa and on the sudden provocation, he has scolded P.W.13 stating that he can do whatever he want to his wife and who is he to 30 ask. Thereby, charge under Sections 302, 201 was framed against accused No.1. Admittedly, in the present case, the evidence on record clearly depicts that as on the date of the incident, one Moogamma was also residing with the accused and deceased, but she has not been examined by the prosecution.
42. P.W.1, in her evidence has stated with regard to demand for dowry against all the accused persons. P.W.2 has stated on oath that he has not lodged any complaint against accused No.1 with regard to demand for dowry. P.W.3 has stated that accused Nos.1 to 3 have received dowry and also stated that when they went to the house of the deceased, accused persons were not there in the house and in the cross- examination, he has stated that he has no personal knowledge about the discussion with regard to demand for dowry and its payment and he has not stated before the police that accused No.1 has told before the 31 panchayathdars that the child does not belong to him. P.W.4, the adjoining neighbour of the deceased and accused No.1 has stated that about 4 to 5 years back, he came to know that deceased and accused No.1 had quarreled and deceased had visited her native place. When himself and other neighbours visited the accused house, one Moogamma was there. On enquiry, she informed that the husband and wife (accused No.1 and deceased) had quarreled in the night, but she is not aware of hanging. When they pushed the room door, noticed that the deceased was strangulated with rope to the neck and informed the relatives and police over phone. P.Ws.5 and 6 have turned hostile, as stated above. P.W.9-Dr.Kumar, in his evidence, at paragraph 4 has stated that, on 15.10.2009, the police placed a yellow plastic rope and another rope before him for examination. On examining the same, he has stated that there is possibility of ligature mark by the yellow 32 plastic rope. He has stated that the death is due to strangulation and it is nothing but homicidal death.
43. At Sl.No.4 of Ex.P.5-inquest panchanama, P.W.6 has stated that she saw the deceased alive for the last time at 8 pm on 03.02.2009 in the house of accused No.1. At Sl.No.3, it is recorded that the dead body was seen for the first time by P.W.4-Manjesh, Son of Munivenkatappa, on 04.02.2009 at 6 am. At Sl.No.7, it is stated that the dead body of Kamalamma was partially hanging.
44. In Ex.P.9-postmortem report, at Sl.No.4 with regard to external appearance of the body it is mentioned as mark of ligatures on neck, dissection etc. It is further stated that, 'received the dead body of Kamalamma, aged 26 years, moderately built and nourished, the length of the body is 5 feet 10 inches and that of the scalp hair is 35 cms, dark in colour. Eyes and mouth are partly opened. Rigor mortis present all 33 over the body'. It is further stated that, 'there is a ligature mark around the neck horizontal in direction, round the neck measuring 36cms to length, circumference, 3cms in breadth and 2½cms depth.' Ultimately it is opined that cause of death is due to asphyxia causing obstruction to respiratory passage due to strangulation.
45. The aforesaid evidence and material documents clearly proved that there was no quarrel between the deceased and accused No.1 till the pregnancy for the second child by the deceased. The accused No.1 was suspecting the character of his wife after pregnancy of second child and there was no complaint by the parents of the deceased or the deceased prior to the incident.
46. In the complaint lodged on 04.02.2009 at 1.30 pm it is specifically stated that on 03.02.2009, P.W.1 and Munivenkatappa went to Giddenahalli and gave clothes to her daughter-deceased. At that time, her daughter 34 told that accused persons without providing food, assaulted and went away. One Girish has told that, on 04.02.2009, at about 7 am, he received a phone call from P.W.4 that deceased was killed by accused persons and they visited the spot. In the complaint it is further stated that the accused persons have demanded dowry and harassed physically and mentally and killed Kamalamma on 03.02.2009 and ran away from the village. Therefore, requested to take action against the accused persons.
47. In Ex.P.5-inquest report at column No.3, to the question as to who saw the dead body of Kamalamma for first time, where and when; it is stated that the dead body of deceased Kamalamma was first seen by P.W.4- Manjesh, son of Munivenkappa at 6 am on 04.02.2009. At Sl.No.4, to the question as to who has last seen the deceased Kamalamma alive, when and with whom, it is clearly stated that at 8 pm on 03.02.2009, the deceased 35 Kamalamma was last seen alive by Narayanamma, resident of Giddenahalli. At Sl.No.7, it is stated that the dead body was in partially hanging position and strangulated. Ex.P.10-postmortem report clearly indicates that it is a homicidal death. In the voluntary statement made before the police- Ex.P.16, the accused No.1 has stated that on 06.02.2009, he killed his wife Kamalamma.
48. The aforesaid material clearly depicts the presence of Moogamma on the date of the incident. Admittedly, the said Moogamma has not been examined. Absolutely there is no material about the presence of accused No.1 at the time of occurrence of the incident. In the presence of Moogamma the present act is not attributed to accused No.1 and his presence excludes under Ex.P.5 inquest report, column 3 and 4. Even assuming strangulation, there was no previous deliberation or premeditation and the incident was a result of sudden 36 quarrel between the accused No.1 and the deceased. After delivery of the second child, as the accused No.1 was suspecting the fidelity of his wife and in those circumstances, there was altercation between the accused No.1 and the deceased which culminated in an unfortunate incident and there was no intention for the accused No.1 to kill his wife using M.O.1 and 2.
49. Exception 4 to Section 300 of the Indian Penal Code would attract to the facts and circumstances of the present case, which reads as under:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
50. A careful reading of the said provision makes it clear that for invoking Exception 4 to Section 300 of the 37 Indian Penal Code, the following four requisites must be satisfied:
(a) it was a sudden fight,
(b) there was no premeditation,
(c) the act was committed in the heat of
passion,
(d) the offender has not taken undue advantage
or acted in a cruel manner.
51. Admittedly, in the present case, it was a sudden fight between the deceased and accused No.1 i.e., wife and husband. After delivery of the second child, the accused No.1 was suspecting the character of the deceased and there was no premeditation on the part of the accused No.1 and act committed by him is in a heat of passion, using M.Os.1 and 2 on the neck of the deceased, without any premeditation. Therefore, in the peculiar facts and circumstances of the present case, it cannot be said to be a case punishable under Section 302 of the Indian Penal Code, but a case falling under Exception 4 of Section 300 of the Indian Penal Code, 38 since the accused No.1 inflicted injuries on the neck of the deceased without intention to cause her death. The act of the accused No.1 is punishable under Section 304 Part II Indian Penal Code i.e., imprisonment for ten years or fine or both.
52. On meticulous reading of evidence of the prosecution witnesses and materials on record, it would clearly depict that, occurrence of offence has undoubtedly taken place at the spur of the moment without premeditation and it cannot be said that the accused No.1 had any intention or knowledge that death is likely to happen.
53. The accused No.1 has only intended to vent his ire against deceased wife and there was no occasion for him to kill her. Taking into consideration the mitigating circumstances and plight of two children and that the deceased succumbed to the injuries on the neck, the injury or strangulation is attributable to the accused 39 No.1. The absence of any intention makes him individually answerable. Therefore, the conviction has to be under the provisions of Section 304 Part II of the Indian Penal Code.
54. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Ahmed Shah v. State of Rajasthan reported in (2015)3 SCC 93, at para-21 held as under:
21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gun. In the sudden fight, there was a scuffle.
During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. 40 Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC.
55. The Hon'ble Supreme Court, considering the provisions of Section 302 r/w Section 34 and Section 394 r/w Section 34 and Section 27 of the Indian Evidence Act, in the case of Digamber Vaishnav and another vs. State of Chhattisgarh, reported in (2019)4 SCC 522, at para-18, 19, 40, 41 and 42, held as under:
18. In Sujit Biswas v. State of Assam [Sujit Biswas v. State of Assam, (2013) 12 SCC 406 :, this Court, while examining the distinction between "proof beyond reasonable doubt" and "suspicion" has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be"
proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and 41 must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the 42 quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [see Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] ].
40. The prosecution has relied upon the evidence of PW 8 to show that the accused and victims were last seen together. It is settled that the 43 circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trustworthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik v. State of Bihar [Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] , it has been held as under: (SCC p. 385, para 31) "31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and 44 inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
42. In Kanhaiya Lal v. State of Rajasthan [Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 : (2014) 2 SCC (Cri) 413] , the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus: (SCC p.
719, para 12)
"12. The circumstance of last seen
together does not by itself and
necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity 45 between the accused and the crime.
Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
56. The Hon'ble Supreme Court has declared that the principles for sentencing and proportionality/balancing of aggravating and mitigating circumstances have to be taken into consideration while imposing imprisonment for life. In the case of State of M.P. -vs- Suresh reported in (2019)14 SCC 151, at paragraphs 13 and 14 held as under:
13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, 46 need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of.
57. Considering the entire material on record, as there was a common charge against all the accused persons with regard to Section 498A r/w Section 34 of the 47 Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, and the complaint itself clearly indicates the demand of dowry by all accused persons. Admittedly, charge against accused Nos.2, 3 and 8 has not been proved. Accordingly, learned Sessions Judge acquitted the said accused persons for the offence punishable under Section 498A r/w Section 34 of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act. The said acquittal order has reached finality.
58. The oral and documentary evidence on record clearly depicts that the deceased was not happy in her matrimonial home. But the cause for the said unhappiness was the failure on the part of her husband in understanding her feelings and not showing love and affection, for which she was yearning as well as incompatibility of their likes and dislikes. There is no greater disparity in marriage than unsuitability of mind 48 and purpose. It appears the deceased was mentally depressed in view of the act of the husband as he started suspecting her fidelity, after the birth of the second child. Though accused No.1 has committed homicidal death, within 18 days from the delivery of second child, he has not killed the second child. As stated supra, it was a sudden provocation for the accused No.1 as he suspected his wife after pregnancy of second child and there was no premeditation and an unfortunate incident occurred due to sudden quarrel between the husband and wife.
59. The Hon'ble Supreme Court, while considering the provisions of Sections 299, 300, 302 and 304 of the Indian Penal Code, in the case of Rampal Singh vs. State of Uttar Pradesh reported in (2012)8 SCC 289 at paragraph 11, 14, 29 and 30 held as under:
11. Sections 299 and 300 of the Code deal with the definition of "culpable homicide" and "murder", respectively. In terms of Section 299, 49 "culpable homicide" is described as an act of causing death: (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasises on the expression "intention" while the latter upon "knowledge". Both these are positive mental attitudes, however, of different degrees. The mental element in "culpable homicide", that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted above, it would be "culpable homicide". Section 300, however, deals with "murder" although there is no clear definition of "murder" in Section 300 of the Code. As has been repeatedly held by this Court, "culpable homicide" is the genus and "murder" is its species and all "murders" are "culpable homicides" but all "culpable homicides" are not "murders".
14. Section 300 of the Code proceeds with reference to Section 299 of the Code. "Culpable homicide" may or may not amount to "murder", in 50 terms of Section 300 of the Code. When a "culpable homicide is murder", the punitive consequences shall follow in terms of Section 302 of the Code while in other cases, that is, where an offence is "culpable homicide not amounting to murder", punishment would be dealt with under Section 304 of the Code. Various judgments of this Court have dealt with the cases which fall in various classes of Firstly, Secondly, Thirdly and Fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. Of course, the principles that have been stated in various judgments like Abdul Waheed Khan v. State of A.P. [(2002) 7 SCC 175 : 2005 SCC (Cri) 1301] , Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 818] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.51
29. From the above statement of this witness, it is clear that there was heated exchange of words between the deceased and the appellant. The deceased had thrown the appellant on the ground. They were separated by Amar Singh and Ram Saran. She also admits that her husband had told the appellant that he could shoot at him if he had the courage. It was upon this provocation that the appellant fired the shot which hit the deceased in his stomach and ultimately resulted in his death.
30. Another very important aspect is that it is not a case of previous animosity. There is nothing on record to show that the relation between the families of the deceased and the appellant was not cordial. On the contrary, there is evidence that the relations between them were cordial, as deposed by PW 1. The dispute between the parties arose with a specific reference to the ladauri. It is clear that the appellant had not committed the crime with any premeditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the appellant had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the 52 appellant went to his house, took out the rifle and from a distance i.e. from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It is true that there was knowledge on the part of the appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of the consequences of use of firearms. But this is not necessarily conclusive of the fact that there was intention on the part of the appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury.
However, the Court cannot overlook the fact that the appellant had the knowledge that such injury could result in the death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body i.e. the stomach of the deceased. As per the statement of PW 2, Dr A.K. Rastogi, there was a stitched wound obliquely placed on the right iliac tossa which shows the part of the body the appellant aimed at.
53
60. The Hon'ble Supreme Court, while considering Exception I Section 300, 302 and 304 Part I in the case of Murli Alias Denny vs. State of Rajasthan reported in 1995 Supp(1) SCC 39, para 5 held as under:
5. Having examined the circumstances on record, we are satisfied that it was the accused who inflicted injuries on the deceased person, as a result of which he died. But the learned Senior Counsel, Shri Sibal submits that there are any number of circumstances indicating that the accused acted on a grave and sudden provocation and, therefore, Exception 1 to Section 300 is attracted. We find considerable force in this submission. To start with, the prosecution evidence itself indicates that the deceased was a man of violent nature and had no regard for law and was creating terror and fear in the minds of common people. In such an aggressive mood, he must have gone to the shop of the accused. As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the 54 accused and showered virulent abuses. It may be mentioned here that we are not using the statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under Exception 1 to Section 300 IPC, particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place. Having carefully considered the entire material, we are of the view that Exception 1 to Section 300 is attracted in this case. The Exception lays down:
"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
This Exception is no doubt subject to certain limitations. In the instant case, the provocation is not sought or provoked by the accused. The medical evidence also shows that most of the injuries were found on the hips and the possibility of having received injuries by the 55 deceased during grappling cannot be ruled out. In such cases it cannot be said that the accused caused the injuries by way of an excuse for killing the deceased. Accordingly, we set aside the conviction of the appellant under Section 302, Penal Code, 1860 and imprisonment for life awarded there under and, instead, we convict him under Section 304 Part I, Penal Code, 1860 and sentence him to undergo rigorous imprisonment for 10 years.
61. The Hon'ble Supreme court, while considering the provisions of Section 302 of the Indian Penal Code, in the case of Jose Alias Pappachan vs. Sub Inspector of Police, Koyilandy and another reported in (2016) 10 SCC 519, at paragraph-50, 51 and 52 held as under:
50. Suffice it to recount that the testimony of PWs 1, 6 and 7 would evince that when the persons sent by the appellant had reached the house of the appellant to fetch the medical records of his brother Benny, they found the door open and when the deceased did not respond to their call, 56 they entered through the door and found her in a hanging posture with movements, whereupon they raised alarm on which the appellant and others rushed to the place and the body of the deceased was brought down by cutting the saree.
Though the conduct and the movements of the appellant prior thereto had been somewhat unusual and disoriented, the same per se in our estimate do not irrefutably establish his culpability.
51. The medical evidence as elaborated hereinabove also does not decisively establish the case to be of homicidal hanging. The unchallenged expositions of the doctor performing the post-mortem examination highlighting the absence of the characteristic attributes attendant on death due to homicidal hanging following strangulation further reinforce the possibility of suicide. The absence of definite medical opinion about the homicidal death of the deceased in our comprehension is a serious setback to the prosecution.
52. The evidence of the eyewitnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the 57 unnatural death of the deceased. In the absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Potta, the deceased was made to accompany DW 1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW 1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant.
62. The Hon'ble Supreme Court, in the case of Sohel Mehaboob Shaikh vs. State of Maharashtra reported in (2009)12 SCC 588, paragraphs-5,6 and 7 held as under:
5. The three circumstances brought on record by the prosecution and highlighted by the trial court and the High Court are as follows:58
"(i) Deceased Sofiya met with an unnatural death;
(ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. Accused 1;
(iii) The appellant has not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns."
6. We have gone through the evidence on record and we find that the High Court has arrived at some conclusions which, in our opinion, are based on surmises and conjectures, without there being any evidence to support the conclusions. That being so, we find that the charge against the appellant has not been established.
7. The first and third circumstances cannot be considered to be relevant either separately or collectively. So far as the second circumstance is concerned, there is no evidence to show circumstantially that the accused was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been 59 established by the prosecution. We, therefore, set aside the judgment of conviction recorded by the trial court and upheld by the High Court. The appeal is allowed.
VI. CONCLUSION
63. For the aforesaid reasons, the point raised in the present Criminal Appeal has to be held in the affirmative holding that the accused No.1 has made out a case to interfere and modify the impugned judgment and Order of conviction sentencing the accused No.1 for the offences punishable under Sections 302 and 201 of the Indian Penal Code with fine, into imprisonment for ten years or fine or with both under Section 304 Part II of the Indian Penal Code and made out a case to acquit him under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
64. On meticulous consideration of the entire evidence of prosecution witnesses and documents, clearly depicts that the husband suspected the wife after pregnancy of 60 the second child and thereby harassed mentally and physically which conduct on the part of the husband amounts to cruelty. The prosecution proved the cruelty of the accused No.1 against the deceased beyond all reasonable doubt. The learned Sessions Judge rightly convicted the accused No.1 under Section 498A of the Indian Penal Code. The appellant-accused No.1 has not made out any ground to interfere with the impugned judgment and order of conviction in respect of the said offence under Section 498A of the Indian Penal Code.
VII. RESULT
65. In view of the above, the Criminal Appeal is allowed in part.
66. The impugned judgment and order of conviction passed by the Sessions Court sentencing the appellant- accused No.1 for the offences punishable under Sections 302 and 201 of the Indian Penal Code 61 sentencing him to undergo life imprisonment with fine of `1,00,000/- and imprisonment for five years are hereby by modified.
67. The Appellant-accused No.1 is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to undergo imprisonment for a period of ten years and to pay a fine of `50,000/-, in default to undergo imprisonment for a period of two years. The accused No.1 is convicted for the offence punishable under Section 498A of the Indian Penal Code and sentenced to undergo imprisonment for a period of three years and pay fine of `2,000/-, in default, to undergo imprisonment for three months. The accused No.1 is acquitted of the offences under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
68. Both sentences shall run concurrently. 62
69. The appellant-accused No.1 is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
70. Exercising the powers under Section 357(3) of the Code of Criminal Procedure, the fine amount of `52,000/- imposed on accused No.1/appellant shall be paid to the complainant as compensation.
Sd/-
JUDGE Sd/-
JUDGE kcm