Karnataka High Court
Saraswathi vs State Of Karnataka on 27 September, 2019
Bench: Ravi Malimath, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 27TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.530 OF 2013
C/W
CRIMINAL APPEAL NO.834 OF 2013
IN CRIMINAL APPEAL NO.530 OF 2013
BETWEEN:
1. SARASWATHI
WIFE OF SRI. B. KRISHNAPPA
AGED ABOUT 60 YEARS
2. NINGACHARI
SON OF LATE CHELUVACHARI
AGED ABOUT 72 YEARS
3. RAJA
SON OF NINGACHARI
AGED ABOUT 30 YEARS
4. NARASIMHA
SON OF NINGACHARI
AGED ABOUT 33 YEARS
5. GOWRAMMA
WIFE OF SWAMY
AGED ABOUT 28 YEARS
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6. MANJULA
WIFE OF RAJA
AGED ABOUT 20 YEARS
7. REKHA
WIFE OF RAJA
AGED ABOUT 20 YEARS
ALL ARE RESIDING AT
AHALYA VILLAGE
NANJANGUD TALUK
MYSORE DISTRICT. ... APPELLANTS
(BY SRI. S. SHIVAKUMAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY HULLAHALLI POLICE STATION
MYSURU DISTRICT. ... RESPONDENT
(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET
ASIDE THE JUDGMENT AND SENTENCE DATED 20.04.2013
PASSED BY THE V ADDITIONAL SESSIONS JUDGE,
MYSURU IN SESSIONS CASE NOS.208 OF 2011 AND 215
OF 2012 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 498A READ WITH
SECTION 34 OF INDIAN PENAL CODE. THE APPELLANT/
ACCUSED IS SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR TWO YEARS AND PAY FINE OF
RS.1,000/- IN DEFAULT TO PAY FINE, HE SHALL UNDERGO
SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 498A READ WITH
SECTION 34 OF INDIAN PENAL CODE.
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IN CRIMINAL APPEAL NO.834 OF 2013
BETWEEN:
STATE BY
HULLAHALLI POLICE STATION. ... APPELLANT
(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)
AND:
1. PRASANNA KUMAR @ KUMARA
SON OF NINGACHARI
AGED ABOUT 28 YEARS
2. NINGACHARI
SON OF LATE CHELUVACHARI
3. RAJA
SON OF NINGACHARI
AGED ABOUT 32 YEARS
4. NARASIMHA
SON OF NINGACHARI
AGED ABOUT 35 YEARS
5. GOWRAMMA
WIFE OF SWAMY
AGED ABOUT 30 YEARS
6. MANJULA
WIFE OF RAJA
AGED ABOUT 22 YEARS
7. REKHA
WIFE OF RAJA
AGED ABOUT 22 YEARS
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8. SARASWATHI
WIFE OF NINGACHARI
ALL ARE RESIDING AT
AHALYA VILLAGE
NANJUNGUD TALUK
MYSORE DISTRICT. ... RESPONDENTS
(BY SRI. S. SHIVAKUMAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) AND (3) OF CRIMINAL PROCEDURE CODE
PRAYING TO GRANT LEAVE TO APPEAL AGAINT THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 20.04.2013
PASSED BY THE V ADDITIONAL SESSIONS JUDGE,
MYSURU IN SESSIONS CASE NO.208 OF 2011 AND 215 OF
2012 ACQUITTING THE RESPONDENTS/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 3 AND 4 OF
THE DOWRY PROHIBITION ACT AND SECTION 302 OF
INDIAN PENAL CODE OR IN THE ALTERNATIVE SECTION
304-B READ WITH SECTION 34 OF INDIAN PENAL CODE.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 21.08.2019 COMING ON
THIS DAY, H.P. SANDESH J., PRONOUNCED THE
FOLLOWING:-
JUDGMENT
Criminal Appeal No.530 Of 2013 is filed by accused Nos.2 to 8, challenging the judgment and sentence of conviction passed for the offences punishable under Sections 498A read with Section 34 of Indian Penal Code and Criminal Appeal No.834 OF 2013 is filed by the State, challenging the judgment and order of acquittal of accused 5 Nos.1 to 8 for the offence punishable under Section 302 of Indian Penal Code or in the alternative for the offence punishable under Sections Section 304-B r/w Section 34 of Indian Penal Code and also for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act, respectively in Sessions Case No.208 of 2011 and 215 of 2012 by order dated 20.4.2013 on the file of V Additional Sessions Judge, Mysuru.
2. Before the Court below, Sessions Case No.208 of 2011 was filed against accused Nos.1, 3 to 8 on the basis of the charge sheet submitted by Dy.SP Nanjangud for the offences punishable under Sections 498-A, 302 or in the alternative Section 304-B read with Section 34 of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
Sessions Case No.215 of 2012 was filed against accused No.2 for the same offences since she was secured subsequently by the Civil Judge (Sr.Dn.) & JMFC, Nanjangud.
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3. Brief facts of the case in a nutshell are as follows:
The second daughter of C.W.1 Eshwarachar who has been examined as P.W.1 by name Roopa was given in marriage to accused No.1 Kumar @ Prasanna Kumar of Ahalya village, Nanjangud Taluk. At the time of marriage, on the demand of the accused, they had given dowry of Rs.20,000/- and one gold ring weighing 4 grams and the marriage was performed at Chikka Subbaiah Kalyana Mantapa, Mandi Mohalla, Mysore. Two months earlier to the marriage, there was marriage talks in the house of P.W.1 at Hebbadi Hundi Village of Srirangapatna Taluk. At that time, the accused had demanded dowry of Rs.50,000/- and elderly persons who had gathered in the marriage negotiations had decided to give dowry of Rs.20,000/- and one gold ring weighing 4 grams to the bridegroom and 25 grams gold ornaments to the bride.
For about 2 or 3 months, all accused i.e., accused No.1, husband of deceased Roopa, accused Nos.2 and 3 being the in-laws, accused Nos.4 and 5 being the brothers of accused No.1, accused Nos.6 to 8 being the wives of 7 brothers of accused No.1 were insisting the deceased Roopa to bring more dowry and thereby, they were harassing her physically and mentally and subjected her to cruelty. Since the accused demanded more dowry amount and were abusing the deceased Roopa in filthy and indecent language, she felt insulted. On 7.1.2011, at about 2.30 p.m., deceased Roopa poured kerosene on herself and asked accused to set fire since they were harassing her. Accused No.2 lit fire to the deceased with a matchstick, as a result, she sustained burn injuries and then deceased was admitted to K.R.Hospital, Mysore and she expired at about 11.50 p.m. on 9.1.2011. When deceased Roopa was undergoing treatment in K.R.Hospital, Mysore, MLC intimation was sent to Devaraja police station and one Head Constable Umesh Murthy i.e., P.W.21 went to K.R.Hospital, Mysore and recorded the statement of deceased Roopa after consulting the doctor with regard to her mental condition to give statement and he recorded the statement as per Ex.P26.8
P.W.21 Umesh Murthy intimated the said fact to Hullahalli police station over phone and then P.W.25 ASI Vishwanath of Hullahalli police station came to Devaraja police station and received the statement of deceased Roopa as per Ex.P26 and MLC intimation at Ex.P28 and came back to Hullahalli police station and registered the case and sent FIR to the Court. Thereafter, P.W.16 Subbanna PSI of Hullahalli police station conducted spot mahazar and he handed over the file to Dy.S.P., Nanjangud sub-Division for further investigation. P.W.24 Rajgopal Dy.S.P, Nanjangud Sub-Division investigated the matter and submitted charge-sheet against all accused for the offences punishable under Sections 498-A, 302 or in the alternative Section 304-B read with Section 34 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act. The accused persons were secured. They pleaded not guilty and claimed to be tried. The prosecution in support of its case, examined P.Ws.1 to 24 and got marked Ex.P1 to P50 and also marked material objects 1 to 5. The Court below, on considering the oral and 9 documentary evidence acquitted the accused persons for the offence punishable under Section 302 or in the alternative Section 304-B of Indian Penal Code. However, convicted the accused for the offence punishable under Section 498-A read with Section 34 of Indian Penal Code.
4. Being aggrieved by the judgment of conviction, accused Nos. 2 to 8 have filed Crl.A.No.530/2013. In the appeal it is contended that the Court below has committed an error in convicting the accused for the offences punishable under Section 498A of Indian Penal Code. Even P.W.1 and 2 have not placed any material before the Court regarding the demand and acceptance of dowry prior to the marriage and also the demand made by the accused after the marriage. It is contended that the second appellant and his sons by name Narasimha, Raja, the third and fourth appellants herein, and Swamy and Prashanth Kumar @ Kumar, the first accused herein have entered into the deed of Palu Parikathu dated 15.9.2008 by dividing the property among themselves as per Ex.D1. 10 The husband of the deceased Roopa has got a share in the aforesaid Palu Parikathu dated 15.9.2008 and began to reside in the portion of the house separately by severing all the ties with the appellants. In spite of the material on record, the Court below has committed an error in convicting the accused persons. The deceased Roopa had lodged a complaint dated 14.9.2008 in terms of Ex.P1 and she has clearly stated that her husband, the first accused used to come home in drunken state and harass her. But the role played by the appellants herein in harassing her and the words spoken or uttered by each of the appellants is completely silent in the said complaint. Even the dying declarations given by deceased Roopa Exs.P24 and P26 are inconsistent with regard to the incident alleged to have taken place on 7.1.2011 and the prosecution has miserably failed to establish and prove before the Sessions Court that the death of the deceased Roopa was caused in connection with demand of dowry and there was no harassment. In spite of it, the Court below has convicted these appellants. Even the evidence of P.Ws.1 to 4, 10 to 12 and P.W.22 11 fails to establish and prove the harassment meted out to deceased Roopa physically and mentally. Hence, the trial Court ought not to have convicted the accused persons for the offence punishable under Section 498-A of Indian Penal Code. Hence, prayed this Court to set aside the conviction and sentence passed insofar as the appellants are concerned.
5. In Crl.A.No.834/2013, filed by the State, the State would contend that the Court below has committed an error in acquitting the accused for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and Section 302 of Indian Penal Code or in the alternative Section 304-B read with Section 34 of Indian Penal Code and the reasons assigned are erroneous and the same is liable to be set aside. The trial Court has committed an error in coming to the conclusion that the prosecution has not proved the charges against the accused/respondents. Even though the prosecution has proved its case beyond reasonable doubt regarding demand and acceptance of 12 dowry and so also setting fire on the deceased, it has taken note of the fact that victim poured kerosene on herself on account of harassment meted out to her by the accused. The Court below also failed to consider the material on record regarding demand of additional dowry after the marriage and the dying declaration of the victim. Even though it has come to the conclusion that death of the victim is unnatural and is caused within 7 years from the date of marriage, it has failed to invoke Section 302 or in the alternative Section 304-B of Indian Penal Code. The trial Court has not properly appreciated the evidence on record and it has not considered the second dying declaration, which has been recorded by the Tahsildar P.W.18 and also has not properly considered the contents of Ex.D2, which in fact supports the case of prosecution to certain extent. The trial Court has failed to consider the evidence of P.Ws.1 to 4, 10 to 12 and 22 who have deposed about the demand of dowry and also conducting of panchayath. Besides two dying declarations Exs.P24 and P26, the official witnesses P.Ws.17, 18, 21 and 23 also 13 corroborates the evidence of the prosecution. In spite of the same, the Court below has failed to appreciate the evidence in right perspective. The postmortem report which is marked as Ex.P35 states that deceased died on account of 80% of burn injuries sustained by her. The evidence of P.W.13 supports the case of the prosecution. Hence, the judgment of the trial Court suffers from infirmity and calls for interference and accordingly, prayed this Court to set aside the judgment of the trial Court and convict the accused persons for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, so also, under Section 302 of Indian Penal Code or in the alternative under Section 304-B read with Section 34 of Indian Penal Code.
6. The learned counsel appearing for accused Nos.2 to 8 in his arguments has vehemently contended that when the Court below has come to the conclusion that there was no material with regard to payment and acceptance of dowry prior to and after the marriage, the 14 trial Court ought not to have convicted the accused for the offence punishable under Section 498-A of Indian Penal Code. It is also contended that it is emerged in the evidence that accused Nos.2 to 8 were staying separately and deceased and her husband were staying separately in a portion of their house and there was a partition in between the husband of the victim and accused Nos.2 to 8 and the same has not been considered by the trial Court. The Court below has committed an error in relying upon the complaints given by the victim earlier against the accused persons and the very approach of the trial Court is erroneous.
7. Learned State Public Prosecutor-2 appearing for the State would contend that the Court below though comes to the conclusion that there was harassment meted out to victim immediately after the marriage and thereafter also two complaints were given, the same was not considered and while appreciating the evidence available on record insofar as the offence under Section 15 302 of Indian Penal Code or in the alternative Section 304- B of Indian Penal Code, it has failed to appreciate the prosecution evidence in the right perspective. Particularly, it has failed to consider the dying declaration made before the Tahsildar in terms of Ex.P24. There are two dying declarations and both the dying declarations are consistent about the harassment meted out to the victim by the accused persons. In spite of that the court below has committed an error in not convicting the accused for the other charges leveled against them. Hence, it requires interference of this Court.
8. Having heard the arguments of the learned counsel appearing for the accused persons and the learned State Public Prosecutor-2 appearing for the State and on considering the oral and documentary evidence available on record, in view of the rival contentions urged, the points that would arise for our consideration are:
(i) Whether the Court below has committed any error in convicting accused Nos.2 to 8 in Crl.A.No.530/2013 for the offences punishable under Section 498-A r/w Section 16 34 of Indian Penal Code and whether it requires interference by this Court?
(ii) Whether the Court below has committed any error in acquitting accused Nos.1 to 8 for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, so also, under Section 302 of Indian Penal Code or in the alternative under Section 304-B read with Section 34 of Indian Penal Code and whether it requires interference of this Court?
(iii) What order?
9. Points Nos.1 to 3:
In a nutshell the case of the prosecution is that, the accused persons have demanded and accepted dowry prior to and after the marriage and continued to demand additional dowry and in that regard, subjected the victim to ill-treatment and harassment and committed her murder.
In order to prove the case of prosecution, the prosecution has relied upon both oral and documentary evidence. Keeping in view the rival contentions urged by the respective parties, this Court has to re-appreciate the material available on record.
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Now let us consider the oral and documentary evidence of the prosecution with regard to Sections 3 and 4 of the Dowry Prohibition Act regarding demand and acceptance of dowry amount.
10. The prosecution mainly relies upon the evidence of P.Ws.1 and 2 who are the parents of the deceased. The other witnesses are P.Ws.3, 4, 10 to 12 and 22 who are the elderly persons of Hebbadi Hundi Village of Srirangapatna Taluk who had participated in the marriage talks and for having paid the dowry of Rs.20,000/- and one gold ring weighing 4 gms to accused No.1 at the time of marriage. The other witnesses are P.Ws.5, 7, 8 and 9 who are the elderly persons of Ahalya village of Nanjangud i.e., native of accused who had participated in the marriage talks.
11. P.Ws.1 and 2 are the parents of the deceased. In their evidence they have stated that the marriage of their daughter Roopa was solemnized with accused No.1 on 5.6.2006. During marriage talks, accused demanded 18 Rs.50,000/- as dowry and also demanded to celebrate the marriage in a luxurious manner. The villagers who had participated in the talks have negotiated to give Rs.20,000/- cash as dowry and 4 gms of gold ring to accused No.1 and 25 grams of gold to the bride and the same was agreed. The marriage was performed at Mysuru. For about 2-3 months the couple was cordial. Thereafter, the accused persons have demanded Rs.1,00,000/- as additional dowry and started to harass her. Deceased Roopa revealed the said fact when P.W.1 visited her house. In this regard, panchayath was held and panchayathdars had advised accused persons not to harass her. His daughter was sent to her maternal house and after the panchayath, she was sent back to her matrimonial home. In the complaint given at the first instance police had advised the accused persons not to harass her and at that time his daughter was 4-5 months pregnant. After delivery, she was in their house for about one year and till such time, they did not come to take her daughter to their house. After sending words only they 19 came and took their daughter and thereafter, they were cordial for about three months. Again they started harassment and hence second complaint was given and again the police had called and advised the family members of the accused and obtained an undertaking from them. Thereafter, she gave birth to the second child and she was there for about six months and thereafter she was sent to her matrimonial house. One week prior to her death, she had come to her maternal house and told that accused persons are insisting to bring money to construct the house. But, she was consoled and sent to her matrimonial home. That on 7.1.2011 they received a phone call that she was set to fire by pouring kerosene by the accused persons and she was shifted to hospital. Immediately, they rushed to the hospital and on enquiry, she revealed that all the family members have poured kerosene and set fire to her. She succumbed to burn injures on 9.1.2011 at 11.50 p.m. Complaint of deceased Roopa is marked as Ex.P1 and endorsement given by the police is marked as Ex.P2. The panchanama is marked as 20 Ex.P3. The medical report is produced as per Ex.P4. The joint statement given before the police is marked as Ex.P5, letter written by the villagers of Ahalya village is marked as Ex.P6. He was subject to cross-examination.
In the cross-examination it is elicited that marriage talks were held two months prior to the marriage and formal function was made on the said day. On that day itself, they gave an amount of Rs.5,000/- and another Rs.15,000/-, gold ring, watch and clothes were given 15 days prior to the marriage. He did not give any complaint when they demanded an amount of Rs.1,00,000/- for construction of the house, but he volunteers that both the villagers sat together and conducted panchyath and advised the accused persons. He admits that in terms of Ex.P6 himself and his daughter were called to attend the meeting at Ahalya village. It is elicited that when his daughter came to his house for delivery, accused No.1 was coming and visiting the house. He did not give any complaint to police when they continued additional demand of dowry after his daughter returned to her 21 matrimonial house after delivery. But he volunteers that they have informed the same to the villagers of the accused. He admits Ex.P1 is the complaint given by his daughter. It is suggested that nothing is mentioned in the complaint Ex.P1 regarding payment of money and harassment meted out to deceased and the same is denied. He admits that in the panchayath it was decided to give a share to his son-in-law. He admits that when the accused persons were called to Hullahalli police station after the advice, his daughter was sent to her matrimonial home.
12. P.W.2 is the mother of deceased Roopa. In the cross-examination she admits that marriage talks were held 20 days prior to the marriage. But she volunteers that male members have participated in the talks and she does not remember the date. It is elicited that both the villagers sat together and suggested to perform the marriage as per customs, with dowry amount. She cannot tell as to any dowry was given on the date of marriage 22 talks when formal decision was taken to perform the marriage. She states that ring and watch were given on the previous day of the marriage and at that time several persons were there. She also reiterates with regard to the complaint given by their daughter and conducting of panchayath. She cannot tell what decision was taken in the panchayath. It is elicited that after her daughter gave birth to the second child no complaint was given regarding dowry harassment and no panchayath was conducted in that regard. The incident has taken place after 15 days of her daughter returning to matrimonial home and that deceased had gone to her matrimonial home along with her son-in-law. It is elicited that when she went to hospital, on enquiry, deceased revealed that galata had taken place in the house and all the accused poured kerosene on her and her mother-in-law lit fire using the matchstick.
13. P.W.3, in his evidence, states that he participated in the marriage talks. 8 days prior to the 23 marriage 4 grams gold ring and cash of Rs.20,000/- was given to accused No.3 who is the father of accused No.1. He also states that P.W.1 had sold his property for performing the marriage of her daughter. The accused had demanded additional dowry. At that time, a panchayath was held in the village and he also participated in the said panchayath. Both accused No.1 and his father had attended the panchayath.
In the cross-examination he admits that marriage talks were held 2-3 months prior to the marriage. The formal ceremony was held 8 days prior to the marriage and he does not know whether anything was given on the previous day of the marriage. It is suggested that P.W.1 was not having any land and he has not sold one acre of his land after 1 ½ years of the marriage of the deceased and the same was denied.
14. P.W.4, in his evidence, states that parents of accused No.1 demanded Rs.50,000/- and it was decided by the villagers to pay an amount of Rs.20,000/- and a 24 gold ring weighing 4 gms and also 25 grams gold to bride. The amount of Rs.20,000/- and a gold ring was given one month prior to the marriage and gold ornaments were given to the bride at the time of marriage. They were cordial for about three months and thereafter, demanded Rs.1 lakh as additional dowry. Later they came to know that accused persons have poured kerosene and set fire. When he enquired the injured, she told that all the accused persons have poured kerosene and lit fire.
In the cross-examination it is elicited that on the date of marriage talks itself formal ceremony was held and on that day Rs.5,000/- was given and on the previous day of marriage, clothes and an amount of Rs.15,000/- was given. He also contends that he was present when complaint was given to the police. He went to Ahalya village and participated in the panchayath held. But he has not participated in the panchayath held in his village. When the panchayathdars of their village had given notice to the panchayathdars of Ahalya village, the deceased was in her matrimonial home.
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15. P.W.10, in his evidence, states that accused persons have demanded Rs.50,000/- as cash and 4 grams of gold ring. It was decided to give Rs.20,000/- and a gold ring. The marriage was held after two months of marriage talks. He came to know through P.W.1 that they are demanding additional dowry after the marriage. He came to know a complaint was given regarding demand of additional dowry and panchayath was held and the same was participated by Marigowda, Eregowda and Raju.
In the cross-examination he has admitted that he cannot tell who all have participated in the marriage talks on behalf of the accused. But he claims that the villagers of Ahalya village have participated in the marriage talks. He did not participate in the marriage talk. He claims that 3-4 days prior to the marriage an amount of Rs.20,000/- was given at Hebbadi Hundi village and there was no any function in the house on that day.
16. P.W.11, in his evidence, states that he participated in the marriage talks, at that time, accused 26 demanded Rs.50,000/- and it was decided to give Rs.20,000/- and a gold ring of 4 grams. He states that P.W.1 gave Rs.20,000/- on the date of marriage and he also participated in the marriage. He also participated in the panchayath held at Ahalya village. P.W.1 took him to Ahalya village and also identified Ex.P6, the letter addressed to the villagers of Ahalya village. On enquiry, the victim told that her husband, mother-in-law and father-in-law have set fire to her. It is elicited from him that on the date of marriage talks itself formal function was held. Again he states that 10-15 days prior to the marriage, Rs.20,000/- and also 4 grams of gold ring was given in the presence of elders to the parents of accused No.1. He admits that in the complaint given by the victim there was no averment regarding the harassment for additional dowry and so also in Ex.P6 there was no any averment with regard to additional dowry.
17. P.W.12, in his evidence, states that he also participated in the marriage talks and claims that accused 27 demanded Rs.50,000/- and they have agreed to Rs.20,000/- and a gold ring. On the same day, Rs.5,000/- was given and later on, P.W.1 told that he gave Rs.15,000/- and gold ring was given on the day of marriage. The victim told that they are demanding Rs.1,00,000/- lakh as additional dowry and panchayath was held. In the panchayath, they were advised and the accused persons have agreed to look after her well. It is his evidence that victim told him that accused No.2 set fire to her.
In the cross-examination he admits that marriage talks were held one month prior to the marriage and Rs.5,000/- was given on that day itself in the presence of villagers. But he was not present at the time when they gave the balance amount of Rs.15,000/- and only P.W.1 told him about the payment of the said amount. He admits that he did not participate in the panchayath held in the police station.
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18. P.W.22, in his evidence, states that he also participated in the marriage talks and accused had demanded Rs.50,000/- cash and a gold ring and it was decided to give Rs.20,000/- and a gold ring weighing 4 grams. The marriage was performed in a choultry at Mysuru and an amount of Rs.20,000/- was given 15 days prior to the marriage in the house of P.W.1 to the parents of accused No.1. Thereafter, again they started demanding additional dowry. When he met the injured in the hospital, she revealed that all the accused persons and her mother-in-law gave kerosene to her and she herself got poured the kerosene on her and accused No.2, her mother-in-law lit fire to her.
In the cross-examination it is elicited that both the villagers sat together and agreed to perform the marriage as per the customs. In the panchayath they have advised not to precipitate the matter for trivial issues and asked both of them to adjust and lead the life. He admits that on the day of his visit to hospital he was not allowed to speak to the victim.
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19. Having considered both oral and documentary evidence of these witnesses, it is clear that after the marriage there was dispute between the two families and twice complaint was given to the police. It is also important to note that a panchayath was held in both the villages and accused were advised to look after the victim well. It is also elicited in the evidence of witnesses that in the police station also, accused persons were called and an undertaking was taken by the police. Regarding the demand, payment and acceptance of the dowry, the evidence of witnesses P.Ws.1 to 4, 10 to 12 and 22 is clear. All of them state that accused had demanded Rs.50,000/-, but it was agreed to give Rs.20,000/-. But regarding payment of amount is concerned, all the witnesses have given different versions with regard to time, date and quantum of payment. Some of them say that an amount of Rs.20,000/- was given on the date of marriage. Some of the witnesses says that on the date of marriage talks Rs.5,000/- was given and some of the 30 witnesses say that on the previous day of the marriage amount and gold ring was given. P.W.1 says 15 days prior to the marriage, amount was paid. There are material contradictions in the evidence of prosecution witnesses regarding this aspect and their evidence is not consistent. In view of the major contradictions in the evidence of the prosecution witnesses the very demand and acceptance of dowry is doubtful. The trial Court has considered this material while acquitting them under Sections 3 and 4 of the Dowry Prohibition Act. It is also noticed by the trial Court that in the complaint Ex.P1 given by the victim herself in the police station nothing is mentioned about the demand of dowry. So also, the witnesses who have been examined before the Court also have categorically deposed that there was no mention in the complaint Ex.P1 regarding payment of dowry prior to the marriage. Further, in Ex.P1 there is nothing on record regarding demand for additional payment of dowry. Ex.P2 endorsement was given in respect of Ex.P1 and accused persons were advised not to harass the victim. Ex.P4 discloses that 31 victim was subjected to assault on 11.09.2008 and she visited the hospital and as per the report, the injury sustained by her were simple in nature. Ex.P5 is the joint statement made by the accused persons before the police that they will not harass the victim. However, there is no any averment in Ex.P5 also regarding payment of additional dowry. Ex.P6 is the letter addressed to the elders of Ahalya village to participate in the panchayath regarding the dispute between the victim and her husband family, which is also not in dispute. All these material disclose that there was harassment to deceased Roopa, but there is no material on record regarding the demand of dowry at the time of marriage and also after the marriage. There are material contradictions even in the evidence of P.Ws.5, 7, 8 and 9 who are the elder persons of Ahalya village with regard to demand and acceptance of dowry. When it is elicited in the cross-examination of witnesses that it was decided in the marriage talks to perform the marriage as per customs and when there is no positive evidence before the Court regarding payment and 32 acceptance of dowry, the Court cannot invoke Sections 3 and 4 of the Dowry Prohibition Act. The trial Court has given its anxious consideration to the material available on record and has rightly acquitted the accused for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act.
20. Insofar as the offence under Section 302 or in the alternative Section 304-B of Indian Penal Code is concerned, no doubt, the incident has taken place within 7 years of the marriage. It is the case of the prosecution that accused persons themselves have set fire to the deceased when she brought the kerosene can being unable to tolerate the harassment of the accused persons. The accused persons themselves have told the deceased to pour kerosene on herself and when victim poured kerosene on herself, taking advantage of the same, all of them have set fire to her.
21. The prosecution relies upon Exs.P24 and 26, the dying declarations. On perusal of Ex.P26 the dying 33 declaration of the deceased which was recorded by Umesh Murthy, Head Constable of Devaraja police station who has been examined as P.W.21, in his evidence he states that after verifying the condition of the victim he recorded the statement of the injured in the hospital. While recording the statement, victim revealed that she was subjected to harassment by all the family members and when she came to know that her brother-in-law was propagating false things about her in the village, she immediately went to the house of accused persons and enquired about the same, by that time, all the family members have abused her stating that they are going to perform second marriage to her husband and the same was reiterated by her husband, as such, on 7.1.2011 due to humiliation she went with kerosene tin to the house of accused persons and the accused persons abused her again and as such, she poured kerosene on herself and one of the accused persons has set fire to her and she came out of the house and neighbours shifted her to the hospital. This document 34 shows that the same was recorded by HC 485 in the presence of the doctor.
22. The prosecution also relies upon another dying declaration which is marked as Ex.P24. The same was recorded by the Taluk Executive Magistrate on 8.1.2011 between 12.00 p.m. and 12.45 p.m. While making her statement victim says that she was taken to hospital by her father-in-law. She repeats the same in the second dying declaration regarding harassment, as to how the incident has taken place and also regarding the demand of additional dowry. She also reiterates that she was residing along with her husband separately. It is her statement that when she went with kerosene tin, her mother-in-law poured kerosene on her and lit fire by using match stick and when she screamed, all of them taking wooden club pulled her from inside the house to outside and the neighbours came and shifted her to hospital.
23. Having considered Exs.P24 and P26 there is a discrepancy with regard to setting fire in her statement. 35 In her first statement she claims that one among the accused persons have lit fire to her and in the second dying declaration she specifically says that her mother-in- law accused No.2 lit fire to her.
24. In Ex.D2, the MLC extract, relied upon by the accused, it is mentioned that 'patient says she attempted suicide by pouring kerosene and lighted with matchstick on 7.1.2011 at 2.00 p.m'. This entry was made on 7.1.2011 at 4.51 p.m. This document came into existence at the first instance when she was taken to hospital at 4.51 p.m. The other documents Exs.P24 and 26 came into existence at the later point of time on 7.1.2011 and 8.1.2011 in which different versions are given regarding setting fire to the victim. Having considered all the three versions with regard to the incident is concerned, the Court below has rightly come to the conclusion that there are contradictions in the dying declaration of the victim. If the document at Ex.D2 is considered, which came into existence when the victim was taken to hospital immediately, it was the case 36 of suicide by the victim herself. But in the subsequent two documents at Exs.P24 and P26, different versions are given. Hence, we do not find any error committed by the trial Court in acquitting the accused persons for the offence punishable under Sections 302 of Indian Penal Code or in the alternative Section 304-B of Indian Penal Code.
25. In support of the above contention, we would like to refer to the recent judgment of the Apex Court reported in 2019(3) AICLR 19 (SC) in the case of State of Rajasthan Vs. Mst. Ganwara regarding multiple dying declarations, wherein paragraphs 10 and 11 of the said judgment, reads as follows:
"10. The intrinsic worth and reliability of dying declaration can generally be judged from its tenor and contents themselves. Here in the case on hand, the so called dying declarations recorded at the behest of the deceased create huge doubt on their veracity inasmuch as there was contradictory variance as to the facts of presence of the accused at the scene of offence at the time of incident, bringing the victim to the hospital and impact of the presence and provocation of relatives and advocate at the time of recording of statement of the deceased. It is also evident from the 37 record that when PW14 made enquiries in the vicinity, no one supported the case of prosecution that the accused had put the deceased on fire. The I.O. (PW14) categorically deposed that during his enquiry, he found that at the time of incident, the accused was away from home as she went to Gopalji temple and it was the accused who first of all took the deceased to the hospital. It was also made clear by PW14, that he came to know from the neighbourhood that the deceased did not want to live at her matrimonial home and always wanted to live at her parental home. According to him, the deceased Shanti was well built woman with strong physique and the accused Ganwara was weak in comparison to the body structure of deceased Shanti. Most of the other prosecution witnesses are either relatives of the deceased or hearsay witnesses and investigating witnesses and none of them was present at the time of offence. In the light of foregoing, it can be said that the allegations levelled against the respondent in the dyingdeclarations have not been corroborated by the material witnesses.
11. Taking stock of the facts and circumstances of the case, in our view, the High Court has rightly felt that the dying declaration in the case on hand did not inspire confidence so as to award conviction to the accused. In this state of things, the Court has to give benefit of doubt to the accused as it is not safe to sustain the conviction as implicit reliance cannot be placed on the dying declaration under the peculiar circumstances of the case."38
Having considered the principles laid down in the judgment referred to supra, the facts of the above case are aptly applicable to the case on hand. We do not find any reasons to come to other conclusion than the conclusion arrived at by the trial Court regarding Section 302 of Indian Penal Code or in the alternative Section 304- B of Indian Penal Code.
26. The Court below has given its anxious consideration to both oral and documentary evidence particularly, the document Ex.P4, the wound certificate of the victim, which clearly discloses that she was subjected to assault on 11.9.2008 in her house and she has suffered injuries which are simple in nature. Apart from that, the Court below also taken note of the complaint Ex.P1 dated 14.9.2008 that immediately after taking treatment on 11.9.2008 she has given the complaint and accused persons were called and advised on 15.9.2008 itself and an endorsement is given in terms of Ex.P2. Further, Ex.P5, the joint statement of the accused persons were recorded 39 in pursuance of the complaint given to the police wherein they have given an undertaking that they will not harass her and would look after her well. Further, Ex.P6 the letter given by the villagers of Hebbadi Hundi village to the panchayathdars of the village of the accused i.e., Ahalya village regarding conducting of panchayath in the month of December 2006 itself shows that within a span of six months of the marriage, a panchayath was held. All these material support the case of prosecution with regard to invoking of Section 498-A of Indian Penal Code. No doubt, the accused and deceased were living separately at the time of the incident. But, on the date of incident, due to humiliation and harassment the victim herself had been to the house of accused Nos.2 to 8 with kerosene and incident has taken place. The Court below has considered the documentary evidence and also the evidence of the prosecution witnesses, which is consistent regarding the harassment meted out to the victim which forced her to take the extreme step. Hence, we do not find any reasons to reverse the finding of the trial Court with regard to 40 conviction of the accused persons for the offence punishable under Section 498-A of Indian Penal Code. In view of the discussions made above, we pass the following:
ORDER Crl.A.No.530/2013 filed accused Nos.2 to 8 and Crl.A.No.834/2013 filed by the State, are dismissed.
Sd/- Sd/-
JUDGE JUDGE
Bkp