Karnataka High Court
State Of Karnataka vs Sri.B.V.Prasanna Kumar on 27 January, 2022
Bench: K.Somashekar, P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1234/2016
BETWEEN:
STATE OF KARNATAKA
BY KOLAR RURAL POLICE STATION,
KOLAR.
REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
... APPELLANT
(BY SMT. K.P.YASHODHA, HCGP)
AND:
1. SRI.B.V.PRASANNA KUMAR,
S/O VENKATESH REDDY,
AGED ABOUT 29 YEARS,
R/O BALAGERE VILLAGE,
SUGATUR HOBLI,
KOLAR TALUK-563 101.
2. SRI VENKATESH REDDY
S/O LATE NARAYANAPPA,
AGED ABOUT 59 YEARS,
R/O BALAGERE VILLAGE,
SUGATUR HOBLI,
KOLAR TALUK-563 101.
3. SRI VENKATARATHNAMMA
W/O VENKATESH REDDY,
2
AGED ABOUT 56 YEARS,
R/O BALAGERE VILLAGE,
SUGATUR HOBLI,
KOLAR TALUK-563 101.
... RESPONDENTS
(BY SRI. SRINATHA B.V., ADV., FOR
SRI. M.R. NANJUNDA GOWDA., ADV., AND
SRI. R.V. SHIVANANDA REDDY., ADV., FOR R1-R3)
-------
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED
28.09.2015 PASSED BY THE II ADDL. S.J., KOLAR IN S.C.NO.177/2011
- ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 498A, 304B, 306 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, P.N.DESAI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal lays challenge to the judgment of acquittal passed by learned II Addl. District and Sessions Judge, Kolar in S.C.No.177/2011 dated 28th September 2015, whereunder accused Nos.1 to 3 are acquitted for the offences punishable under sections 498A, 304B and 306 r/w 34 of Indian Penal Code, 1860 (hereinafter referred as 'IPC' for short).
2. The brief facts of the case are as under:-
The marriage of one Kavitha who is deceased in this case took place with one Raju, S/o. Muniyappa on 02.08.2009. After eight days of the marriage, said Kavitha disappeared. Then the 3 family members of Kavitha came to know that said Kavitha was in love with one Prasannakumar, S/o. Venkatesh Reddy of Belagere village, Kolar, who is accused No.1 in this case and she remarried Prasannakumar. It is further contended that the elders of Kolar Town held panchayath before Kolar Town Police and in the presence of elders and by consent, her marriage with Prasannakumar was permitted and her earlier marriage with one Raju was cancelled in the court of law. Accordingly, both accused No.1 Prasannakumar and Kavitha started residing together at Beligere village, Kolar Taluk. It is allegation of the prosecution that accused Nos.2 and 3 who are the father and mother of accused No.1 were causing harassment to deceased Kavitha and were insisting her to bring money from her parents' house as they have made lot of loan. Accordingly, the accused caused both physical and mental cruelty on her. In the mean-while, deceased Kavitha became pregnant and she gave birth to a male child. Even after birth of the child, ill-treatment and harassment continued. Deceased Kavitha informed the same to her parents and also to her relatives. She also informed her mother that accused tried to take away her life.4
3. As deceased Kavitha could not bear the mental cruelty and harassment meted out to her by the accused to bring dowry and other property documents, on 05.07.2011, in the afternoon, she committed suicide by hanging. In this regard, Narayan Swamy-PW-11 lodged a complaint with the police as per Ex-P8. Said complaint was received by PW-19 P.N. Ganesh and he registered the case in Cr.No.253/2011 for the offences punishable under sections 498A, 304B of I.P.C, sections 3 and 4 of Dowry Prohibition Act, 1961(for short hereinafter referred as 'D.P. Act') and accordingly sent the FIR Ex-P15 to the court, copy of FIR to his higher officers and handed over further investigation to Dy.S.P. H.P. Rajanna-PW-20. Dy.S.P PW-20 verified the investigation done so far. Then he visited the place of offence and sent requisition to the Tahasildhar, Kolar for conducting inquest mahazar. Then he sent the deadbody of Kavitha to SNR Hospital, Kolar for conducting post-mortem. He also drew place of offence panchanama as per Ex-P5. He also conducted place of panchanama where the deceased committed suicide and also seized the material objects such as M.O.1 rope and M.O.2 plastic rope at the time of the mahazar. He also recorded the statement of the witnesses. On the same day, accused No.1 was arrested 5 and was produced before him. Then he recorded further statement of the witnesses, collected inquest report and also the post-mortem report. PW-20 secured the sketch of scene of offence place from PWD Department and also collected the house property extract from Panchayat Development Office, as per Exs-P11 and P12 in respect of house of the accused. Then, he secured the opinion of the Doctor from SNR Hospital as per Ex-P10 and after completing the investigation, filed the charge sheet against the accused for the offences stated above.
4. Learned Magistrate after complying the provisions of sections 207 and 208 of Code of Criminal Procedure, (for short hereinafter referred to as 'Cr.P.C.') committed the case to the sessions Court under section 209 Cr.P.C. Learned Sessions Judge framed the charges after hearing the prosecution and the accused and posted the case for evidence.
5. On behalf of the prosecution, 21 witnesses were examined as PWs-1 to 21 and got marked 17 documents as Ex-P1 to P17. Ex-D1 statement of PW-6 was also got marked during cross-examination by the accused, the prosecution got identified two material objects as M.O.1 and M.O.2. Thereafter, 6 statement of the accused as required under section 313 (1) (b) Cr.P.C. was recorded. The accused totally denied the circumstances appearing against them in the evidence of the prosecution witnesses. After hearing the arguments, the learned sessions judge acquitted the accused which is under challenge in this appeal by the state.
6. We have heard Smt. K.P. Yashoda, learned HCGP for appellant-State and Sri. Srinatha. B.V., representing Sri. M.R. Nanjunda Gowda, learned counsel and Sri. R.V. Shivananda Reddy, learned counsel for respondent Nos.1 to 3.
7. It is argued by learned HCGP that the impugned judgment and order of acquittal passed by the trial court is contrary to law and evidence on record. Therefore, the same is liable to be set-aside. Learned HCGP further argued that the trial court ought to have appreciated the evidence and relating circumstances appearing against the accused which have been the chain of circumstances leading to an inference that accused No.1 alongwith other accused subjected the deceased to cruelty for bringing dowry and loan documents. Learned HCGP further argued that the trial court has not properly appreciated the 7 evidence of PWs-10, PW-11 and PW-12 who are the father and other close relatives. Learned HCGP submitted that wrong appreciation of evidence by the trial court has resulted in substantial miscarriage of justice and prays to set-aside the judgment of acquittal and convict the accused as per law.
8. Against this, learned counsel Sri. Srinatha B.V., for the respondents/accused argued that the prosecution witnesses have not supported the charge levelled against the accused. The evidence of the prosecution witnesses shows that the accused are not responsible for the death or the suicide of deceased Kavitha. It is self-act of deceased Kavitha herself which has resulted in her death. Learned counsel further argued that the trial court has rightly considered the evidence and properly appreciated the evidence in proper perspective and has come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and by giving benefit of doubt has rightly acquitted the accused. Learned counsel further argued that this appeal is against judgment of acquittal and the appellate court will be slow in interfering with the judgment of acquittal, unless trial court judgment is perverse, capricious or illegal and not based on sound principles relating to 8 appreciation of evidence. Therefore, learned counsel argued that the appeal deserves to be dismissed.
9. We have perused the appeal memo, judgment of the trial court and also evidence on record.
10. The learned sessions judge has raised three points for determination and has referred to the evidence of the witnesses one by one and has held that the evidence does not disclose that the death of deceased Kavitha is due to cruelty or harassment caused either by accused No.1 or by his family members. Learned sessions judge has considered both oral and documentary evidence and has came to the conclusion that absolutely there is no evidence or grounds to hold that accused have committed the offences as alleged. There is no corroboration in the evidence with reference to the charge levelled against the accused. The sessions court has come to the conclusion that the prosecution has failed to prove the guilt.
11. In order to attract the offences under Sections 498A, 306 and 304B I.P.C and Sections 113A, 113B of Indian Evidence Act, 1872, it is essential that the prosecution has to prove the ingredients of "cruelty" as defined under Section 498A IPC i.e., 9 cruelty immediately prior to committing suicide or death and for meeting unlawful demand of dowry or unlawful demand for any property and valuable security. The death must have been occurred with seven years of marriage, then only the presumption under Section 113A and Section 113B of the Evidence Act can be raised. In order to appreciate the essential ingredients for proof of the said offences, it is necessary to refer to these sections in Indian Penal Code, 1860 and Indian Evidence Act, 1872 which reads as under:
Section 498A of IPC. Husband or relative of husband of a woman subjecting her to cruelty -Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. - For the purpose of this section, "cruelty" means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] 10 Section 304B of IPC. Dowry death -
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. - For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.] Section 306 of IPC. Abetment of suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 113A of Indian Evidence Act.
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.
11Explanation. - For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal code (45 of 1860).] Section 113B of Indian Evidence Act.
Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation. - For the purpose of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).]
12. In the light of these sections, we have considered the essential requirements for proof of offences under Sections 498A, 304B and 306 of IPC. The prosecution allegation is that accused persons treated the deceased Kavitha with cruelty for fulfillment of unlawful demand. Therefore, it is necessary for prosecution to prove cruelty as defined under section 498A IPC that deceased Kavitha was subjected to cruelty by the husband or relative of husband and such cruelty consisted of either harassment of the woman with a view to coerce her meeting a demand for dowry, or (2) a wilful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life may be 12 physical or mental. In order to attract the provisions of Sec.304- B of IPC, prosecution has to prove that (a) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances (b) such death must have occurred within seven years of her marriage; (c) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(d) such cruelty or harassment must be for or in connection with demand for dowry; and (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death. If those ingredients are proved, the court has to presume that such a person has caused dowry death.
13. Under section 306 of IPC, the prosecution has to prove commission of suicide by deceased and that the accused have abetted commission of such suicide. Section 107 of IPC defines abetment. According to section 107 of IPC, there must be instigation to commit an offence or engaging in a conspiracy to commit it or intentionally aiding a person to commit it. Whether there is any evidence to show that the married woman was treated with cruelty which could fall within the ambit of Sec. 107 IPC, there must be mens rea or community of intention. Without 13 the knowledge or intention, there can be no abetment and the knowledge and intention must relate to the crime and the assistance must be something proximate and something more than a mere passive acquiescence.
14. So, keeping in mind these principles and the arguments advanced by both sides, we have re-appreciated the evidence on record.
15. PW-1 Gopamma in her evidence has stated that she came to know that deceased Kavitha committed suicide by hanging herself in the house of her husband and except that, she has not supported the case of the prosecution. Similarly, PW-2 Sonnamma has also stated that about one and half years before she giving evidence, she came to know that deceased Kavitha committed suicide by hanging herself. PW-3 Manjulamma has given similar evidence. The prosecution has treated all these three witnesses who are neighbourers as hostile witnesses and cross-examined them at length, but nothing helpful to the prosecution is elicited in their cross-examination. They have clearly stated they have not given statement before the police as per Ex-P1, Ex-P2 and Ex-P3 respectively.
14
16. PW-4 Nagarathnamma is the Aunt of deceased Kavitha. She has stated that earlier the marriage of deceased Kavitha took place with one Raju. After 10 days of the marriage, Kavitha came out of her husband's house and married accused No.1 Prasannakumar at a temple. Thereafter, she was residing with accused No.1. They were residing happily. After some days, she came to know that deceased committed suicide by hanging herself, but she does not know the reason as to why deceased Kavitha committed suicide. The prosecution has treated this witness also as hostile witness and cross-examined her at length, but, nothing useful is elicited. She has stated that she has not given statement before the police as per Ex-P4.
17. PW-5- Narahari is relative of deceased Kavitha. He has also given similar evidence as that of PW-4 Nagarathnamma. He has stated that he came to know through phone of CW-3 Rajesh that deceased Kavitha has committed suicide. PW-5 has stated that CW-2 has informed him that accused were asking her to bring dowry and documents relating to the land. He has stated that though no mahazar was conducted in his presence, he has identified his signature at Ex-P5(a) and Ex-P6(a) mahazar. The prosecution has treated this witness as hostile witness and cross- 15 examined him on recovery of M.O.1 and M.O.2 and panchanama, but he has not supported the case of the prosecution. In the cross-examination by the counsel for the accused also, he has stated that after marriage of deceased Kavitha with accused No.1, for about six months, they were not in contact with deceased Kavitha. He has also stated that accused are having properties and sufficient income. This witness is a hearsay witness and his evidence will not help the prosecution in any way to prove the case.
18. PW-6 Susheelamma is Aunt of deceased Kavitha. She has stated that after marriage of deceased Kavitha with one Raju, Kavitha ran away with accused No.1. She came to know that she married accused No.1-Prasannakumar at Chowdeshwari temple. She has stated that Kavitha informed her over phone that accused were harassing her to bring documents of her land. In the cross-examination, she has stated that she has not given statement before the police as per Ex-D1. Her evidence is vague and general without any particulars about nature of cruelty or particulars of cruelty and harassment. Her evidence will not help the prosecution to prove the guilt.
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19. PW-7 Ravindra Prakash and PW-8 Suresh are witnesses for seizure panchanama Ex-P6. They have not supported the prosecution and nothing is elicited in their cross-examination by the prosecution after treating them as hostile witnesses.
20. PW-9- Yelachamma is the witness for inquest panchanama. She has stated about signing inquest as per Ex-P7, but she has clearly stated that she does not know what is written by the police in inquest mahazar Ex-P7.
21. PW-10 Sarojamma is the mother of deceased Kavitha. In her evidence, she has stated about deceased Kavitha's marriage with one Raju of Cheluvinahalli village. Then after sometime, she came to know that deceased Kavitha ran away from her matrimonial home and married Prasannakumar-accused No.1 and Kavitha is residing in the house of accused No.1. She has further stated that the accused were insisting deceased Kavitha to bring property documents in respect of their land. Accused intended to take loan on the said land as they had borrowed loan of Rs.20.00 lakhs from others. This evidence has no basis at all. Absolutely there is no material to show whether the accused have borrowed Rs.20.00 lakhs as loan and from 17 whom they have borrowed the loan and whether these accused are having any loan itself is not proved. Absolutely no iota of evidence is placed before the Court to show the same. Therefore, such vague and general evidence will not help the prosecution. She has further stated that when she was in Bengaluru, she came to know about deceased Kavitha committing suicide. In the cross-examination, she has admitted that both accused and herself belong to the same village. She has also stated that after deceased has left the house, they met her after three months. Due to insult to them in the village, they left the village and started to reside at Bengaluru. It appears that this witness was not in contact with deceased Kavitha as she ran away from their house. Her evidence does not give any particulars or instances of cruelty. Simply stating that accused were asking deceased Kavitha to bring property documents belonging to her will not help the prosecution to show that there was any dowry harassment or cruelty by the accused. There is no physical cruelty as alleged or stated by this witness. So her evidence will not help the prosecution in any way.
22. PW-12 Anitha is the elder sister of deceased Kavitha. She has also stated that after marrying Raju, deceased Kavitha 18 ran away with accused No.1. Thereafter, her father gave a complaint. Later she came to know that both accused No.1 and deceased Kavitha have married. Her evidence shows that she is not having contact with deceased Kavitha nor deceased has informed PW-12 about her marriage with accused No.1. PW-12 has also given vague evidence that accused were asking her to bring Rs.20.00 lakhs which is not the case of the prosecution. No particulars as to when such demand was made or as to how she came to know about the demand is not stated. She has stated that this was informed to her by her mother. It is evident this witness was not in contact with deceased Kavitha as she left their house after marrying Raju. Her evidence has no merit at all.
23. PW-11 Narayanaswamy is the father of deceased Kavitha. He has deposed in his evidence that deceased Kavitha after one week of marrying Raju, ran away from her house. She did not return even after one week. He searched for her and then he lodged the complaint in this regard. Subsequently, he came to know that deceased Kavitha married accused No.1 and they were living happily for a period of one year. A male child was also born from the marriage of Kavitha and accused No.1. PW-11 has simply stated that accused were insisting deceased Kavitha to 19 bring dowry, so she committed suicide. Hence, he lodged the complaint. His evidence is totally contradictory and inconsistent with the evidence of other witnesses and also charge levelled by the prosecution. When he was not in talking terms with the deceased, then how he came to know that accused were insisting her to bring dowry is not known. This witness was treated partially hostile by the prosecution regarding seizure of M.O.1. His cross-examination reveals that he came to know through somebody that accused No.1 married Kavitha. He has also admitted that he has lodged the complaint stating that accused have kidnapped his daughter but the police did not take any action. That deceased Kavitha and accused No.1 came to their village after three months, then they left for Bengaluru. Even he has stated that after marriage with accused No.1, deceased Kavitha visited his house and they were living happily. He does not know what is written in the complaint. Therefore, his evidence will not help the prosecution to prove any of the ingredients of either "cruelty" or dowry harassment demand by accused.
24. PW.13 - Dr. Mehaboob Shariff has conducted the post-mortem over the deadbody of deceased Kavitha. In his 20 evidence, he has stated that there was a ligature mark on the neck of deceased Kavitha. The death of the deceased occurred due to asphyxia as a result of hanging. PW.13 has given the post-mortem report as per Ex.P9. As requested by police, he has given opinion about the death of deceased as per Ex.P10. Of-course, it is not disputed that deceased Kavitha died by committing suicide by hanging herself with the help of a rope.
25. PW.14 - Vinod is the Panchayath Development Officer who has stated about producing the Khatha Extract and Demand Register Extract of house of accused No.2 as per Exs.P11 and P12.
26. PW.15-Chowdareddy and PW.16-Venkateshreddy are the witnesses for inquest mahazar. Both of them have not supported the case of the prosecution.
27. PW.17 - Sonappa and PW.18 - J.N.Harish have only signed the inquest mahazar/Ex.P7 and their signatures were marked as Exs.P7(b) and Ex.P7(c) respectively.
28. PW.19 - P.N.Ganesha/PSI stated about registering the FIR - Ex.P15 and sending the same to the Court. 21
29. PW.20 - H.P.Rajanna, Dy.SP has conducted part of the investigation and recorded the statement of witnesses. PW.20 has stated that PWs.1, 2, 3 and 4 have given their statements before him as per Exs.P1 to P4. In the cross- examination, PW.20 admitted that one Mr. Naveen wrote the complaint-Ex.P8, but he was not cited as a witness.
30. PW.21 - Dr. B.R.Dayananda is the Tahsildar, Kolar who conducted the inquest over the dead body of deceased Kavitha and drew the inquest mahazar as per Ex.P7.
31. Therefore, on perusing the entire evidence of prosecution, it is evident that earlier the marriage of deceased - Kavitha was performed with one Raju. It is stated by the witnesses that the deceased was in love with accused No.1 - Prasannakumar. Immediately after eight days of the marriage of deceased Kavitha with Raju, she voluntarily left the house of said Raju without informing either her husband, in-laws or her parents. In fact, the father of deceased Kavitha lodged a missing complaint to the police in this regard. Subsequently, deceased - Kavitha married accused No.1/Prasannakumar. It is also evident that unable to bear the humiliation and insult meted 22 out by the villagers in this regard to the parents of deceased - Kavitha, they left the said village and started residing in Bengaluru. Therefore, after the deceased had married accused No.1, she had no association with her parents. Deceased Kavitha and her parents were not in talking terms. When she herself left the house of her husband - Raju and voluntarily married accused No.1, the question of accused either demanding dowry or harassing deceased Kavitha to bring amount or document regarding property does not arise. They have no reason to insist deceased Kavitha to bring property documents to obtain loan. No evidence is placed to show any property either in the name of deceased Kavitha or in the name of her parents. On the other hand, it is in the evidence that accused are having properties and they are well settled in life. In the absence of any proof regarding deceased Kavitha having any property, simply stating that accused were insisting deceased - Kavitha to bring the amount and to bring the document relating to her properties or bring a sum of Rs.20,00,000/- from her parents' house will not help the prosecution to show that the accused have committed the offence of cruelty as defined under Section 498A of IPC or offence under the provisions of 306 and 304B I.P.C. 23
32. Admittedly, deceased - Kavitha committed suicide by hanging herself. It is the defence of the accused that as the parents of deceased Kavitha left the village, due to the humiliation by villagers, deceased Kavitha in that depression herself committed suicide.
33. There is no evidence either oral or documentary produced to show the particulars of harassment and nature of cruelty caused to deceased - Kavitha. The entire evidence of prosecution witnesses is vague and general one. There is no corroboration in the evidence of witnesses examined on behalf of prosecution with the charge leveled against the accused. On the other hand, their evidence is inconsistent and contradictory with the material particulars. The neighbours of the accused have not supported the prosecution. They have not stated anything about ill-treatment or harassment by the accused. As the relationship of deceased Kavitha and her parents was not cordial and when they were not in talking terms, the question of deceased Kavitha informing her parents about any demand of dowry, harassment or cruelty by accused does not arise. Absolutely, there is no legally admissible evidence to show that the accused were coercing deceased Kavitha to meet their unlawful demand to get 24 the property from her parents' house or to bring money. Admittedly, both accused and deceased Kavitha lived happily after the marriage as evident from the evidence of father of deceased Kavitha. From their marriage, they also got a child. It is stated by learned counsel for the respondent that the child is with accused No.1/Prasannakumar only and he is taking care of the child and looking after the child. It is also stated that he has not married any women for the second time after the death of deceased - Kavitha.
34. Therefore, on perusal of ingredients of Section 498A IPC, which deals with cruelty by husband or relative, it is evident that absolutely the prosecution has failed to prove that the accused subjected deceased Kavitha to cruelty or caused any harassment with a view to coerce her to meet their any unlawful demand. Further the ingredients of Section 306 IPC is also not attracted as absolutely there is no evidence to show that accused have either caused cruelty or harassment so as to drive her to commit suicide. Though, the legal presumption is available that the death of deceased Kavitha occurred within seven years from the date of her marriage in the matrimonial house, but the allegations of cruelty or harassment are not at all proved. There 25 is no evidence to show that accused have harassed deceased Kavitha or subjected her to cruelty in connection with demand of dowry by husband or his relatives.
35. It is settled principle of law that initial burden of proof is always on the prosecution. The prosecution has to prove that there was cruelty and harassment in connection with demand of dowry soon before the death of the deceased. The demand of dowry should be as defined under Section 2 of Dowry Prohibition Act. Ofcourse, the question of demand of dowry before marriage or after marriage does not arise, as both accused and deceased Kavitha were in love and the deceased - Kavitha voluntarily agreed to marry accused No.1. Therefore, the question of any harassment or causing of cruelty to deceased Kavitha by accused No.1 in demand of dowry after their marriage does not arise. So simply giving vague and general evidence that the accused insisted deceased Kavitha to bring documents relating to property and a sum of Rs.20.00 lakh to meet their unlawful demand will not help the prosecution.
36. If the oral and documentary evidence placed before the court is perused, it is evident that there is no proximity or 26 connection between the death of deceased Kavitha and the allegations made by the prosecution against the accused. There is neither oral evidence nor circumstantial evidence to show that the accused have committed the offence as alleged. Simply because the death of deceased Kavitha occurred within seven years from the date of her marriage, is not a ground to presume that it is the accused who are responsible for death of deceased Kavitha.
37. On the other hand, it is evident that the evidence of the prosecution witnesses suffers from improbabilities, inconsistencies and contradictions about material particulars. It is settled principle of law that the prosecution has to prove its case beyond all reasonable doubt. There is lot of difference between 'may be true' and 'must be true'. If from the evidence of the prosecution, two views are possible, then the view favorable to the accused will have to be accepted. If the evidence of prosecution witnesses creates a doubt in the mind of court, the benefit of doubt should be given to the accused. 27
38. As discussed above, learned sessions judge has given elaborate reasons and arrived at a finding of acquittal of the accused.
39. The Hon'ble Supreme Court while dealing with the power of the appellate court in interfering with the judgment of acquittal held that unless the judgment of trial court is perverse, illegal and not based on sound principles regarding appreciation of evidence, the appellate court shall not interfere in the judgment of acquittal. Because the judgment of acquittal gives double presumption of innocence to the accused.
40. In this regard, the Hon'ble Supreme Court has laid down the general principles regarding interference, the power of the appellate Court in an appeal against judgment of acquittal by the trial court.
41. The Hon'ble Supreme Court in a decision in the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], at para-8 has held thus:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which 28 is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very
strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate 29 court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
42. In view of the principles stated by the Hon'ble Supreme Court in the decisions referred above and on re-assessing the entire evidence of prosecution witnesses, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The learned sessions judge has considered the entire evidence meticulously and has come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and acquitted the accused by giving benefit of doubt. We 30 find that the judgment of acquittal passed by the trial court is neither illegal, perverse, erroneous nor the judgment has resulted in miscarriage of justice. Absolutely, there are no grounds to interfere in the judgment of acquittal. The appeal being devoid of merits is liable to be dismissed. Accordingly, we pass the following:
ORDER
1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. stands dismissed.
2. Consequently, the judgment of acquittal dated 28.09.2015 passed by learned II Addl. District and Sessions Judge, Kolar in S.C.No.177/2011 against the respondents/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
Sd/-
JUDGE Sd/-
JUDGE *mn/-HJ