Karnataka High Court
Nurondappa S/O Gurubasappa Sahukar vs The State Of Karnataka on 16 February, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200127/2015
BETWEEN
1. NURONDAPPA S/O GURUBASAPPA SAHUKAR
AGE:33 YEARS, OCC:AGRIL
R/O AGNI VILLAGE , TALUKA SURPUR
DIST:YADGIRI
2. SANGAMMA W/O GURUBASAPPA SAHUKAR
AGE:55 YEARS, OCC:HOUSEHOLD
R/O AGNI VILLAGE , TALUKA SURPUR
DIST:YADGIRI
...APPELLANTS
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH KEMBHAVI P.S., TALUKA
SURPUR, DIST:YADGIRI,
REPRESENTED BY S.P.P
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
...RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
2
THIS CRL.A IS FILED U/S 374 (2) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED
24.11.2015 PASSED BY THE LEARNED SESSIONS JUDGE
AT YADGIRI IN SC NO. 11/2010 AND ACQUIT THE
APPELLANTS FOR THE ALLEGED OFFENCES, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The accused Nos.1 and 2 in Sessions Case No.11/2010 on the file of the Sessions Judge, Yadgiri, who suffered an order of conviction for the offences punishable under Sections 498-A, 302, 304-B and 201 read with Section 34 of the in Indian Penal Code, 1860 (for short 'IPC') and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 (for short 'D. P. Act') have preferred this appeal and they have been sentenced as under:
"The accused Nos.1 and 2 are hereby convicted and sentenced to undergo simple imprisonment for a period of 3 years and fine of Rs.5,000/- each for the offence punishable under Section 498-A of Indian Penal Code. In-default of payment of said fine amount of 3 Rs.5,000/- each, they shall undergo simple imprisonment for a period of eight months.
The accused Nos.1 and 2 are hereby convicted and sentenced to undergo simple imprisonment for a period of 7 years for the offence punishable under Section 304-B of Indian Penal Code.
The accused Nos.1 and 2 are hereby convicted and sentenced to undergo simple imprisonment for a period of 5 years and fine of Rs.60,000/- each for the offence punishable under Section 3 of the Dowry Prohibition Act, 1961. In-default of payment of said fine amount of Rs.60,000/- each, accused Nos.1 and 2 shall undergo simple imprisonment for a period of one year.
The accused Nos.1 and 2 are hereby convicted and sentenced to undergo simple imprisonment for a period of 1 year and fine of Rs.5,000/- each for the offence punishable under Section 4 of the Dowry Prohibition Act, 1961. In-default of payment of said fine amount of Rs.5,000/- each, they shall 4 undergo simple imprisonment for a period of sixty days."
2. Brief facts of the case are as under:
A complaint came to be lodged by the brother of the deceased by name Sri Iranna S/o. Basalingappa with Kembhavi police station on 10.06.2009 contending that the deceased Rajamma @ Laxmi was given in marriage to Nurondappa of Agni village, Surpur taluka. At the time of marriage, a sum of Rs.60,000/- cash and two tolas of gold and other household articles were given as dowry.
Thereafter, she joined the matrimonial home.
3. There were repeated demands for the additional amount and in that regard, there was harassment to the deceased. The elders have pacified the differences by convening panchayaths. However, the accused persons continued to harass the deceased. When the matter stood thus, at about 11.30 a.m. on 10.06.2009, when he was in his house at Gawar village along with Ninganna and Chandrashekhar, one Sanganna called over 5 phone to Ninganna stating that around 11.00 a.m., sister of the complainant has been assaulted by the accused in the agricultural land and she has been strangulated. On hearing the said information, the complainant along with Chandrashekar and Ninganna proceeded to Agni village and saw the dead body of his sister. They also smelt pungent smell from the dead body. Three birds were also found in and around the dead body of her sister. They observed that white colour froth near the mouth of the dead body. They suspected that the accused persons must have administered poison to his sister through food and therefore, he lodged a complaint to the police. The police after registering the case investigated the matter and filed charge sheet against the appellants herein and other two accused persons, who are first wife of accused No.1 and sister-in-law of the deceased.
4. The presence of the accused was secured and charges were framed by the Sessions Court. The accused persons pleaded not guilty and therefore, trial was held.
65. In order to prove the case of the prosecution, in all 25 witnesses were examined as PWs.1 to 25 and 26 documents were relied on, which were exhibited and marked as Exs.P1 to P26. Six materials objects were also marked as MOs.1 to 6.
6. On conclusion of the prosecution evidence, accused stated as contemplated under Section 313 Cr.P.C.
was recorded, wherein the accused persons have denied all the incriminatory materials found against them. Further, they did not place their version about the death of the deceased in the matrimonial house by examining themselves or by placing any written submission on record. In other words, there is no rebuttal evidence in respect of the presumptions available to the prosecution under Sections 113A and 113B of the Indian Evidence Act.
7. Thereafter, learned Trial Judge after hearing the parties in detail, passed an order of conviction against the appellants herein and acquitted accused Nos.3 and 4, who are the first wife of the accused No.1 and sister-in-law 7 of the deceased. Neither the State nor the de-facto complainant preferred any appeal against the order of acquittal insofar as accused Nos.3 and 4 are concerned and therefore, the finding recorded by the Trial Magistrate as against accused Nos.2 and 4 has become final.
8. In the appeal filed by the appellants, following grounds have been raised.
x "The impugned judgment passed by the trial court is illegal, arbitrary, contrary to the law and records of the case against the principals of natural justice.
x That the PW-1, PW-2, PW-3 and PW-4 deposes to the effect that prior to marriage, in the marriage talks A-1 and A-2 demanded Rs. 60,000/- and 02 tolas of gold as dowry. At the time of marriage, Rs. 50,000/- and 2 tolas of gold were given to the accused, and balance of Rs. 10,O00/- is to be given. PW-1 Eranna being the elder brother of Rajamma is complainant of this case. In the cross-examination, he has clearly admitted that, he has not attended the marriage talks. He has not attended the marriage of Rajamma. He personally does not 8 know as to demand and acceptance of dowry aspect. He personally does not know about the ill-treatment meted out of Rajamma at the hands of A-1 and A-2 in connection with balance amount of Rs. 10,000/- source of information for him as to ill-treatment and dowry aspect is his uncle Siddanna Ganwar, PW-2 (mother) and his brother PW-3 and PW-4 Sanganna Meti. Thus, his evidence is not helpful to the prosecution for providing demand and acceptance of Rs. 50,000/- and 2 tolas of gold and alleged ill-treatment said to have been given to Rajamma in connection with balance amount of Rs. 10,000/-, PW-2, PW-3 and PW-7 being mother and brothers of Rajamma respectively. Their evidence is not corroborated from independent source of evidence, since their evidence is having an element of interested one. The court below failed to consider the same. Hence the indulgence of this Hon'ble court is sought for.
x That it has come in the evidence of PW-1 and A-1 Noorandappa agreed to give 05 acres of land to Rajamma, so also evidence of PW-6 Devamma is to the effect that, A-1 agreed to give 05 acres of land to Rajamma (cross of 9 PW-6 at para No. 13). Further testimony of PW-4 Sangamma Meti reveals that A-1 Noorondappa owns 10 acres of irrigated land and 10 acres of dry land and A-1 is financially sound. It has also come in the evidence of P/w-4 regarding giving of 05 acres of land to Rajamma. Considering the financial condition of A-1 Noorandappa and he is a person who proposed Rajamma for marriage through PW-4 and PW-5 and Siddnna Ganwar (uncle), with a desire to have a male issue, offered 5 acres of land to Rajamma. The man who is financially sound and offered 5 acres of land to his would be wife, put a demand for Rs. 60,000/- and 2 tolas of gold as dowry, appears to be improbable and dramatic. Further, he ill-treated and harassed Rajamma his 2nd wife in connection with paltry Rs. 10,000/- is hard to believe and accept. The court below on the basis of the said evidence convicted the appellants. Hence the indulgence of this Hon'ble court is sought for. x That the prosecution is relying the evidence of PW-1, PW-2, PW-3, PW-4, PW-5,PW-6 who are related and interested witnesses and PW-9, PW-10, PW-14, PW-15 being the residents of village Agni arehenchmen of PW-4 and PW-5.
10Evidence of PW-1 as to ill-treatment said to have been given by A-1 and A-2 is hear say in nature. It is his case for thrice he gone to the matrimonial home of Rajamma along with PW-. In his presence, Rajamma was not subjected to ill-treatment by A-1 and A-2 insisting her to bring Rs. 10,000/-, may be some hot words were exchanged, but it is not in connection with the balance of Rs. 10,000/-. Para No. 9, 11 and 12 of examination-in-chief of PW-1 Eranna is to the effect that, on 3 occasions, he visited the house of Rajamma at village Agni. No untoward incident occurred in his presence in connection with balance amount of Rs. 10,000/-. At the most, it discloses the exchange of some hot words concerning the day to day domestic problems. Thus, his evidence is not helpful to the prosecution to stabling offences 498 (A) and 304 (B) of IPC, in spite of the same the court below convicted the appellants. On that ground alone the judgment passed by the court below liable to be quashed. x That the evidence of PW2 Mahadevi discloses that, she gone to the house of Rajamma at village Agni twice, first to invite her to (chatti amavasse) and second time, when she heard 11 about the ill-health of Rajamma, and she took her for treatment. On both these occasions, in her presence no untoward incident took place in connection with balance amount of Rs. 10,000/-. Source of information for her as to ill- treatment is Meti brothers (PW-4 and PW-5). Evidence of PW-3 is to the effect that, he visited the house of Rajamma to invite for attending the marriage and festivals, but A-1 and A-2 have not sent her to attend the marriage. His evidence no where discloses that in his presence A-1 and A-2 insisted to bring balance amount of Rs. 10,000/, as they told that, they will send Rajamma only if Rs. 10,000/- is paid. Say of PW-3 that, because of balance of Rs. 10,000/-. A-1 and A-2 have not sent Rajamma for marriage, is figment of imagination and not a fact.
x It is submitted that Evidence of PW-7 Ninganna is also not disclosed happening of any untoward incident in his presence in connection with Rs. 10,000/-. Evidence of PW-1, 2, 3 and 7 is hear say in nature, so as to alleged ill-treatment to Rajamma by A-1 and A-2 in connection with the said amount of Rs. 10,000/-. That the evidence of PW-1, PW-2, PW-3 and PW-7 refers to incidents alleged to have been occurred about 12 1½ years back. Their evidence being heresay in nature, are not clinching and inspires the confidence for relying to sustain charge under section 498A, 304(B) of IPC. The court below failed to considered that same which has resulted in convicting the appellants. x Second set of witnesses on which prosecution is relying on the evidence of PW-4 Sanganna Meti, PW-5 Chandrashekhar Met, PW-6 Smt. Devamma. PW-4, PW-5 and PW-6 belong to Meti family of Agni village. It is this PW-4 Sanganna and PW-5 Chandrashekhar is instrumental in arranging the marriage of Rajamma with A-l1 Noorandappa. It is they who persuaded and convicted PW-2 Mahadevi. They are the brain behind this case. It is this PW-4, PW-5 and Siddanna Ganwar uncle suppressing about ill- health and over age of Rajamma. Hurriedly arranged the marriage with A-1 at village Tilagool. PW-4 and PW-5 knew that the accused are innocent and they are not responsible for the death of Rajamma. Taking undue advantage of death of Rajamma on 10-6-2009, PW-4 Sanganna passed a false information to PW-1 implicating accused for the offence 498A, 302 of 13 IPC. to avoid the blame for the death of Rajamma.
x That it has come in the evidence of PW-9, PW- 10, PW-14 and PW- 15 (cross examination), that from the death of Rajamma, i.e., 10-6-2009 A- 1, A-2 were not staying in the village Agni. The lands of A1, became barren. PW-4, PW-5 being highly influential persons have not allowed A-1 and A-2 to stay in the village from 10-6-2009 to till to- day. So also they have not allowed A-1 to sow and plug his lands. PW- 9, PW-10, PW-14 and PW-15 are the persons who heed to the say of PW-4 and PW-5, and they are working under their thumb.
x It is the case of prosecution that, prior to the death of Rajamma on 10-6-2009, she was made to stay in a tin shed situated in the court yard of house of A-1. On perusal of Ex.P-20, dated 27-7-2009, no tin shed exists in the court yard of A-1 had there been tin shed existed in the court yard. Secondly, it would have been mentioned in the Ex. P- 20. Non mention of tin shed in Ex. P-20 itself is the evidence of the fact that such tin shed is not in existence, thus, falsifies the say of PW-9, PW-10, PW-14, PW-15 that Rajamma was made to stay in the tin shed 14 prior to her death. The evidence of PW-9 Jalasab is very much silent as to ill treatment given to Rajamma in connection with the balance amount of Rs. 10,000/-
x That, the cross examination of PW-10 Maralasidda indicates that, he is not in talking terms with Rajamma and he is not so acquainted with Rajamma, so that, she could go to the extent of informing him about her matrimonial problems. No one will ventilate about their problems personal problems before a person who is not intimate and acquainted. That the lands of PW-14 Basappa and land of Rajamma are situated in opposite direction road which leads to their lands are independent roads, there is no occasion for this witness to go in the company of Rajamma up to his land. Thus, the say of Pw-14 that on 10-6-2009 Rajamma and he moved together becomes doubtful evidence of PW 15 Mahadevamma is not clinching cogent evidence to convict the appellants for the alleged offence.
x That, as on 10-6-2009, on the basis of information lodged by PW-1 Eranna, Kembhavi P.S. registered a case bearing CR. No.62/2009 against the accused for the offences punishable 15 under section 498(A), 304 (B), 302 of IPC r/w 34 of IPC. and section 3 and 4 of Dowry Prohibition Act, 1961. Source of information for PW-1 Eranna has to contents of Ex. P1 is PW-4 Sanganna Meti, allegations made in the complaint is to the effect that A-1 Noorandappa killed Rajamma by pressing neck and giving poisoned food. That the concerned police placed charge sheet, alleging that accused mixed the poison in the food and they are responsible for the death of Rajamma.
x That During the investigation on 11-6-2009, PW-24 Reshmi Dy.S.P. recorded the statement of PW-11 Bhimaraya Uppar, PW-12 Devamma and PW-13 Ayyappa as on 11-6-2009. It is the say of PW-11, PW-12, PW-13 that on 10-6-2009, they have seen Rajamma was working in her land at about 11.00 a.m. She was eating food brought by her from home. When he gone to fetch water, he saw Rajamma was lying on the ground with froth in her mouth. In view of Ex. D-3, D-4, D- 5 marked in the statement dated 11/6/2009 of PW-11, PW-12 and PW- 13 respectively on 10-6-2009, Rajamma herself brought food with her and they have seen she was eating. It is nobody case, as on 10-6- 2009, 16 the A-1 Noorandappa brought food for her such story was developed only after lapse of or 1 ½ months i.e. on 27/7/2009.
x It is submitted that the PW-21 doctor who conducted P.M.E. of Rajamma is of the opinion as to cause of death is due to cardio respiratory failure due to organo phosphorous compound poisoning, fracture of hyoid bone is postmartum in nature. Doctor's opinion falsifies the story of prosecution witness as to Rajamma died due to pressing of neck.
x That it is the case of prosecution that on 10-6-2009 at about 11 a.m., A-1 Noorondappa brought poised food for Rajamma and gave it to Rajamma who was working in the land. The alleged poisoned food was carried by A-1 in a steel plate and two steel bowls. That the complainant Ex.P1 lodged by PW-1 discloses that near the dead body of Rajamma one steel plate and two steel bowls in which Rajamma had meals were there, it is also mentioned that, it is plate and irritant smell emitting from plate and bowls. PW1 admitted in the cross examination that he has mentioned in the complaint as to presence of 2 bowls. Plate and two bowls are the best evidence for prosecution to establish that 17 on 10/6/2009 A-1 brought poisonous food for Rajamma in this plate and bowls. If the plate and two bowls have sent for F.S.L. certainly forensic experts traced out the poisonous elements from and from plate and bowls and what kind of poisonous mixed with the food. The investigation officer has not sent those plates and bowls to F.S.L. to find out whether available in the steel plate is poisonous or not. There is no explanation from the side of I.O. as to why he has not sent these articles for F.S.L. report. Which is fatal to the prosecution case. x It is the case of prosecution two birds were dead lying by the side of dead body of Rajamma. Those dead birds were also sent for PME. and veterinary that birds were dead due to poisoning merely because these birds were lying dead by the side of dead body of Rajamma and poison found in the stomach of Rajamma and birds are one and the same, that itself is not to hold that food eaten by Rajamma is poisoned one. It has come in the evidence that, vomit substance of Rajamma was also available near dead body. Consuming of vomit by birds is also possible to cause death of birds. Except two dead birds lying near dead body, there is nothing on record 18 to show that food eaten by Rajamma is poisoned. That, the PME report discloses the presence of semi digested food in the stomach. It means Rajamma had her last meal atleast 3-4 hours earlier to her death. Opinion of the doctor negatives the contentions of PW-11, PW- 12, PW-13 as to seeing Rajamma taking food in the land at about 11 am on 10-6-2009.
x That the evidence on record is not establishing the story of giving poisoned food by A-1 to Rajamma, thus prosecution utterly failed to prove the death of Rajamma was homicidal death. That accused No.3 Parvati being first wife of A-1 not residing in the company of A1 at Village Agni. There is no cogent and clinching evidence against her. Accused No.4 Smt. Ambubai @ Shivabai being elder sister of A1, about 25 years back given in marriage to one Basalingappa of Maileshwara taluka Muddebihal. Since then, she is the resident at village Maileshwara. She submitted the documents for your honour's kind perusal which discloses that A-1 is the resident of Maileshwara lone time with her family.
x That, the evidence on record as to demand and acceptance of Rs.50,000/- and 2 tolas Gold as 19 dowry by A-1. Evidence on record as to subjecting Rajamma to ill-treatment in connection with balance amount of Rs. 10,000/- is not clinching cogent, and not reliable. x That, Rajamma (deceased) is not keeping good health suffering from Gynaeco problems and over aged, feed up with the life as she could not born a baby out of her wedlock, ended her life by consuming poison and not by alleged ill-treatment.
x That, there is in ordinate delay about 1½ months in recording the statements of PW-4, PW-5, PW,6 PW-10 and other witness.
x That the investigation is not fair, PW-4 and PW-5 with the help of I.O. (PW-25) created a new story after the lapse of 1½ months to implicate accused for the offences U/s 302 & 304 (B) IPC.
x That, the evidence on record is not clinching cogent, and reliable to bring home guilt against accused for the offences punishable U/s 498 (A), 302, 304 (B) IPC, 201 IPC R/w 34 IPC, section 3, 4, 6 Dowry prohibition Act."
20Re-iterating the above grounds, learned counsel for the appellants Sri Chaitanya Kumar Chandriki, vehemently contended that the incident as contended by the prosecution did not occur inasmuch as the dead body was found in the agricultural land and not in the matrimonial house. He also pointed out that payment of Rs.50,000/-
and two thola gold is received as a customary articles during the marriage and it may not be considered as a dowry.
9. On the contrary, he contended that since he married the deceased and deceased was the second wife of accused No.1, there was an agreement that he would transfer 5 acres of land belonging to him in favour of the deceased and therefore, question of demanding the additional dowry did not arise at all and said aspect of the matter has not been properly appreciated by the Trial Judge while passing the order of conviction and sought for allowing the appeal. Alternatively, he pleaded for showing 21 leniency at least insofar as the second appellant is concerned taking note of the fact that she is the elderly lady and mother of accused No.1.
10. Per contra, learned High Court Government Pleader opposes the appeal grounds by contending that the incident has occurred in the matrimonial house though place of incident is agricultural land. He further contended that the incident has occurred within seven (7) years of marriage and therefore, prosecution enjoys the presumption as is found under the provisions of the Indian Evidence Act. He also pointed out that every one of the prosecution evidence except PW.20, all have supported the case of the prosecution including the neighbors. In a matter of this nature, when the prosecution has discharged its burden by placing positive evidence on record, it was the duty of the accused to place their version on record and silence on the part of the accused itself speaks volume about the guilt of the accused and therefore, sought for dismissal of the appeal.
2211. He also pointed out that accused No.2 being the elderly lady in the family and the mother of accused No.1 should have come to the rescue of the deceased in pacifying the differences between the parties and should not have supported accused No.1, resulting in death of the deceased and sought for dismissal of the appeal in toto.
12. In view of the rival contentions, this Court perused the materials on record and re-appreciated the evidence on record. On such consideration, following points would arise for consideration:
1. Whether the prosecution has successfully established all ingredients to attract the offences punishable under Sections 498-A, 302, 304-B and 201 read with Section 34 of the in Indian Penal Code, 1860 (for short 'IPC') and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 beyond reasonable doubt?23
2. Whether the impugned judgment is suffering from legal infirmity, perversity and thus, calls for interference?
3. Whether the sentence is excessive?
13. In the case on hand, in order to prove the case of the prosecution the prime witness for the prosecution is the complainant himself, who is examined as PW.1 and who is the elder brother of the deceased. He deposed before the Court in line with the contents of the complaint.
He has specifically deposed that at the time of marriage of her sister, Rs.50,000/- cash and two tolas of gold was given as dowry as against the contracted amount of Rs.60,000/- dowry amount. In respect of the balance amount, there were serious differences and panchayat was also convened.
14. In his cross examination, no useful materials are elicited to disbelieve his version or to rebut the presumption available to the prosecution under Sections 113A and 113B of the Indian Evidence Act.
2415. PW.2 is the mother of the deceased and PW.3 is another brother of the deceased and they supported the case of the prosecution. PW.4 is the person, who deposed about contracting the marriage and demand of dowry and dowry amount being paid by the complainant party to the accused. PW.5 is the person who received the information from Agni village when the complainant was in Gawar village and rushed to the spot. PW.6 is the cousin sister of the deceased. She also supported the case of the prosecution. PW.7 is the cousin brother of the deceased who also supported the case of the prosecution.
16. PW.8 is the veterinary doctor, who gave report regarding the death of birds stating that the birds have died on consuming poison. PW.9 is the circumstantial witness, who was holding a pan shop in front of the house of the deceased. PW.10 is also a circumstantial witness, who spoke about the differences between the accused No.1 and deceased.
2517. PWs.11, 12 and 15 are the neighbors, who also supported the case of the prosecution and deposed about the differences and the frequent quarrel in the matrimonial home.
18. PWs.13 and 14 are the persons, who escorted the dead body and their evidence is formal in nature.
PW.16 is the panch to inquest and seizure mahazars and he supported the case of the prosecution. PW.17 is the Tahsildar, who conducted inquest mahazar. PW.18 is another doctor. PW.19 is the engineer who issued Ex.P13 spot panchanama (sketch map). PW.21 is the autopsy surgeon, who conducted postmortem on the body of the deceased and gave a report vide Ex.P15 and he has specifically deposed that cause of death is on account of consuming poison.
19. Except PW.20, all the witnesses have supported the case of the prosecution and they were put to detailed cross examination and in such cross examination, 26 the defence is unable to elicit any material so as to disbelieve the case of the prosecution to any extent.
20. It is pertinent to note that not only the relatives of the deceased but neighbors of the deceased have also supported the case of the prosecution.
Admittedly, the incident has occurred on 10.06.2009, which is well within seven years of the marriage.
Therefore, the prosecution enjoys the presumption under Section 113A and 113B of the Indian Evidence Act, which has been discussed at length in the impugned judgment at paragraph No.31, which reads as under:
"304-B. 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 27 "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 113-B of Indian Evidence Act:
113-B. 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 purposes of this section, "dowry death" shall have the same meaning as in section 304-B of the Indian Penal Code."
2821. Admittedly, as per the Post Mortem report, the death has occurred on account of consuming poison. The opinion of the doctor shows that death is due to consumption of food mixed with oregano phosphorus.
22. The FSL report shows that the seized article namely the samples collected from the body in the form of viscera did contain the poisonous substances. These aspects of the matter has been rightly appreciated by the learned Trial Judge.
23. In the cross examination of the prosecution witnesses, except suggesting that they are deposing falsely, no specific defence is taken by the accused. So also to disbelieve the case of the prosecution nor any version is placed by the accused on record to rebut the presumption available to the prosecution under Section 113B of the Indian Evidence Act.
24. The learned Trial Judge has considered the role assigned to each of the accused persons while passing the 29 impugned judgment and after critical analysis of the evidence on record, recorded a categorical finding that accused Nos.1 and 2 have harassed the deceased ultimately, resulting in death of the deceased. So also, learned Trial Judge acquitted the accused for the offences punishable under Sections 302 and 201 IPC. Prosecution did not choose to challenge that portion of the acquittal order so also, the de-facto complainant. Therefore, the question of homicidal death occurring in the matrimonial house is not proved by the prosecution. However, since it is an unnatural death in the matrimonial house though dead body was found in the agricultural land, appellants were duty bound to explain as to how that death has occurred in the agricultural land or in the matrimonial house.
24. It is pertinent to note that no such explanation is offered by the appellants herein at the time of recording the accused statement. These aspects of the matter has 30 been rightly appreciated by the Trial Judge while passing the order of conviction and sentencing the accused.
25. On re-appreciation of the above evidence on record, this Court does not find any legal infirmity or perversity in recording such a categorical finding by the learned Trial Judge. Prosecution has placed positive evidence on record to the extent possible inasmuch as, the complainant and others were residing in altogether different village than the place on incident.
26. Therefore, when the prosecution has placed sufficient evidence on record and discharged burden and accused was required to rebut the same, and in the absence of medical evidence placed by the accused, this Court is of the considered opinion that Point Nos.1 and 2 are to be answered in the affirmative and negative respectively.
27. Regarding point No.3. Trial Judge has convicted the accused for the aforesaid offences and 31 sentenced as aforesaid. No mitigating circumstances are found. Mere age of the second appellant itself is not a ground to reduce the sentence either. On the contrary, she should have taken a leading role in pacifying the difference, if any, especially when the deceased was a second alliance to accused No.1. Materials on record clearly reveal that deceased was treated worst than a servant in the matrimonial home. At that juncture, the accused No.2 should have taken a leading role and set right the things. Having not done so, at this distance of time, seeking leniency by this Court on mitigating fact of age alone cannot be considered by this Court. Accordingly, point No.3 is also answered in the negative and pass the following:
ORDER Appeal sans merit and hereby dismissed.
Appellants granted time till 10.03.2022 to surrender before the Trial Court for serving remaining part of the sentence.32
Out of the fine amount deposited, a sum of Rs.1,20,000/- is ordered to be paid to PW2-Mahadevi, mother of the deceased under due identification.
Office is directed to return the trial Court records with a copy of this order forthwith.
Sd/-
JUDGE Srt/KA