Karnataka High Court
The State Of Karnataka vs Sri Pandukumara on 29 November, 2023
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CRL.A No. 2151 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 2151 OF 2017
BETWEEN:
THE STATE OF KARNATAKA
BY SALIGRAMA POLICE STATION
K R NAGARA TALUK
MYSORE DISTRICT, MYSURU
REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01.
...APPELLANT
(BY SRI.M.R.PATIL, HCGP)
AND:
1 SRI PANDUKUMARA
Digitally S/O LATE KEMPE GOWDA
signed by AGED: 35 YEARS,
SANDHYA S
Location: High
AUTO DRIVER
Court of
Karnataka 2. SMT PARVATHAMMA
W/O LATE KEMPE GOWDA
AGED ABOUT 60 YEARS,
ACCUSED NOS.1 AND 2 ARE
R/O ANKANAHALLI VILLAGE
K R NAGARA TALUK
3. SMT RANI
W/O NINGARAJE GOWDA
AGED ABOUT 39 YEARS,
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CRL.A No. 2151 of 2017
4. SMT VIJAYALAKSHMI
W/O RANGASWAMY
AGED ABOUT 39 YEARS,
ACCUSED NOS.3 AND 4 ARE
R/O MUDALABEEDU VILLAGE
K R NAGARA TALUK-571602
5. SMT YASHODHA
W/O MOHAN
AGED ABOUT 37 YEARS,
R/O HARIHARAPURA VILLAGE
K R PET TALUK
MANDYA DISTRICT-571426
...RESPONDENTS
(BY SRI. SHARATH S GOWDA, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) & (3) CR.P.C PRAYING
TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT AND ORDER OF ACQUITTAL DATED 11.07.2017
PASSED IN S.C.NO.166/2012 BY THE V ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MYSURU FOR THE OFFENCE P/U/S
498(A) AND 306 R/W 34 OF IPC BESIDE U/S 4 OF DOWRY
PROHIBITION ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State/appellant has preferred this appeal against the judgment of acquittal dated 11.07.2017 passed in Sessions Case No.166/2012 by the Court of V Addl. -3-
NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 District & Sessions Judge, Mysuru. (hereinafter referred to as 'Sessions Court' for short).
2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Appellate Court.
3. Brief facts of the case are that:
The Saligrama Police registered a case on the basis of the complaint filed by the PW.1-A.T.Gopala, wherein it was alleged that his third daughter Deepu was given in marriage to the accused No.1-Pandu on 20.05.2009. It is stated that they had loved each other and she had eloped with him and the marriage was performed at Bhaskara Temple at Saligrama. The family members of the complainant had not attended the said marriage as they were not consenting for the same. The marriage was performed at the instance of Janardhana, Shankara, Raje Gowda, Shivanna, Jayarame Gowda and Somanna, etc,. It is stated that there were differences between the family of the complainant and the accused in respect of the said -4- NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 marriage about one year the said Deepu and the accused No.1 lived cordially.
4. Further, it is stated that whenever his daughter i.e., Deepu, used to meet complainant, she was complaining that her in-laws and her co-sisters were treating her with cruelty by beating her and abusing her. They were also demanding dowry. It is stated that the said harassment was also informed to the wife of the complainant and therefore, the complainant had informed the same to the villagers and the villagers advised the accused to behave properly. It is stated that on 09.12.2011 at about 9.00 p.m., when the complainant was in the house, one Rangappa informed him that the daughter of the complainant has been taken to the hospital and therefore, the complainant and some other villagers went to the house of the accused and none of the accused or the deceased Deepu were in the house. Therefore, they enquired one Vishakanta and came to know that on some suspicious circumstance, the deceased -5- NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 had been taken to the hospital at Saligrama and therefore, he immediately went to Saligrama Government Hospital and found that the body of the deceased Deepu was kept in the hospital and after seeing the body, it was found that there were injuries on the body. It is stated that there was also injury on the neck and therefore, the complainant and his family members suspected that the accused had created some ruckus and might have beaten the deceased and hanged her and committed the murder of the deceased Deepu. It was also stated that the body was taken to the hospital in an Auto rickshaw bearing No.KA- 17-A-487 in a stealthy manner and therefore, suitable action was sought against the culprits. The complainant also mentions that the deceased had a boy child.
5. After filing of charge sheet, the learned Magistrate took cognizance of the offence and further, the case was committed to the Sessions Court and the same was registered in S.C.No.166/2012.
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6. In pursuance of the summons, the accused appeared before the Court and the charges were framed against the accused for commission of offence punishable under Section 498A, 306 r/w Section 34 of Indian Penal Code,1860 and Section 4 of Dowry Prohibition Act, 1961 (hereinafter referred to as 'DP Act' for short).
7. Additional charge is also framed against the accused for the commission of offence punishable under Section 304B read with Section 34 of Indian Penal Code and the same was read over to the accused and he pleaded not guilty and claims to be tried.
8. To prove the guilt of the accused, the prosecution has examined 32 witnesses as PWs.1 to 32, 25 documents were got marked as Exs.P1 to P25 and 8 material objects were got marked as M.Os.1 to 8. On closure of prosecution side evidence, the Sessions Court has recorded the statement of accused under Section 313 of Cr.P.C. The accused has totally denied the evidence of prosecution witnesses. Accused No.1 has submitted his -7- NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 written statement and other witnesses have also endorsed the same. But the accused have not adduced any defence evidence or oral evidence. But during the course of cross- examination of prosecution witnesses, 6 documents were got marked as Exs.D1 to D6. CW.6 is reported to be dead and therefore, he cannot be examined and was given up by prosecution. On hearing the arguments, the Sessions Court has acquitted the accused for the commission of offence punishable under Sections 498A, 306 read with Section 34 of Indian Penal Code and Section 4 of D.P. Act. Being aggrieved by this judgment of acquittal, the State/appellant has preferred this appeal.
9. Learned High Court Government Pleader Sri. M.R.Patil submits that the Sessions Court has framed additional charge for the commission of offence punishable under Section 304B read with Section 34 of Indian Penal Code. It is clear from the very fact that the Sessions Court has neither acquitted nor convicted the accused for the said offence which is clear from the operative portion -8- NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 of impugned judgment as it is silent about it. On the basis of the complaint filed by PW.1-A.T.Gopala, Saligrama Police have registered the case in crime No.159/2011 for the offences punishable under Section 498A, 302 r/w Section 34 of Indian Penal Code and Section 3 and 4 of D.P.Act. After completion of investigation, the investigating officer has submitted the charge sheet against the accused for the commission of the aforesaid offences. That on 17.12.2014, the Sessions Court has framed the additional charge for the commission of offence punishable under Section 304B read with Section 34 of Indian Penal Code. The Sessions Court has not taken into consideration the commission of offence punishable under Section 304B read with Section 34 Indian Penal Code. The marriage of the deceased with accused No.1 was solemnized on 20.05.2009 and the date of alleged incident is on 09.12.2011. Within seven years of marriage, the death of deceased Deepu occurred. Hence, the Sessions Court has framed additional charge for the commission of offence punishable under Section 304B read with Section 34 -9- NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 Indian Penal Code. The Sessions Court has not properly appreciated the evidence on record and passed the impugned judgment of acquittal. On all these grounds, he sought to allow this appeal by setting aside the judgment passed by the Sessions Court and convict the accused for the commission of offence punishable under Section 498A, 306, 304B read with Section 34 of Indian Penal Code and Section 4 of DP Act.
10. As against this, learned counsel for respondent/accused submits that though the Sessions Court has not discussed anything about the provisions of Section 304B read with Section 34 of Indian Penal Code, it has elaborately discussed the evidence available on record in accordance with law and facts and gave a finding that there is no mental or physical harassment to the deceased by accused No.1 prior to the alleged commission of offences. The Sessions Court has clearly held that the prosecution has failed to prove the guilt of accused for the commission of offence punishable under Sections 498A,
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 306, 304B read with Section 34 of Indian Penal Code and under Section 4 of D.P.Act. Without any mental or physical ill-treatment and also any demand of dowry by the accused, the question of committing the offence punishable under Section 304B read with Section 34 of Indian Penal Code does not arise. Even though the Sessions Court has not pointed out as to the commission of offence punishable under Section 304B read with Section 34 of Indian Penal Code which amounts to irregularity and not an illegality, only on the basis of irregularity or error in the impugned judgment, this Court cannot set aside the judgment passed by the Sessions Court. In this regard, learned counsel for the accused/respondents relied on the provisions of Section 465 of Cr.P.C., which provides that the judgment of acquittal shall not be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the judgment, unless it is opined by this Court that the failure of justice, in fact, has been
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 occasioned. In this regard, he also relied on the following decisions of the Hon'ble Apex Court:
i. Nasib Singh v. State of Punjab and Anr. (AIR 2021 SC 5175);
ii. State of M.P. v. Bhooraji and Others [(2001) 7 SCC 679].
Further, he submits that the Sessions Court has properly appreciated the evidence on record in accordance with law and facts and there are no grounds to interfere with the impugned judgment of acquittal. On all these grounds, he sought to dismiss the appeal.
11. To substantiate his arguments, he relied on the decisions of the Hon'ble Apex Court in the case of -
i. Bansilal v. State of Haryana [(2011) 11 SCC 359]; ii. Kans Raj v. State of Punjab and Others [(2005) 5 SCC 207].
12. Having heard the arguments on both sides and on perusal of records, the following points would arise for my consideration:
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 i. Whether the appellant/state has made out a ground to interfere with the judgment of acquittal dated 11.07.2017 passed in Sessions Case No.166/2012?
ii. What order?
13. My finding to the above points are as under:
i. in the negative ii. as per final order Regarding point No.1:
14. I have carefully examined the impugned judgment and material placed before this Court.
15. It is the case of prosecution that the Saligrama Police registered a case on the basis of the complaint filed by PW.1-A.T.Gopala, wherein it was alleged that his third daughter Deepu was given in marriage to the accused No.1-Pandu on 20.05.2009. It is further stated that they loved each other and she had eloped with him and later
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 the marriage was performed in Bhaskara Temple at Saligrama. The family members of the complainant had not attended the said marriage as they have not consented for the same. The marriage was performed at the instance of Janardhana, Shankara, Raje Gowda, Shivanna, Jayarame Gowda and Somanna, etc,. It is stated that there were differences between the family of complainant and the accused in respect of the said marriage. For about 1 year, the said Deepu and accused No.1 lived cordially.
16. Further, it is stated that on two to three occasions when his daughter met him, she was complaining that her in-laws and her co-sisters were treating her with cruelty by beating her and abusing her and they were demanding dowry. It is stated that the said harassment was also informed to the wife of the complainant and therefore, the complainant had informed the same to the villagers and villagers advised the accused to behave properly. It is stated that on 09.12.2011 at
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 about 9.00 p.m., when the complainant was in the house, one Rangappa informed him that the daughter of the complainant has been taken to the hospital and therefore, the complainant and some other villagers went to the house of the accused and none of the accused were in the house. Therefore, they enquired one Vishakanta and came to know that on some suspicious circumstance the deceased had been taken to the hospital at Saligrama and therefore, they immediately went to Saligrama Government Hospital and found the body of the deceased Deepu was kept in the hospital and it was found that there were injuries on the body. It is stated that there was also an injury on the neck and therefore, the complainant and his family members suspected that the accused might have beaten the deceased and hanged her. It was also stated that the body was taken to the hospital in an Auto rickshaw bearing No.KA-17-A-487 in a stealthy manner and therefore, suitable action was sought against the culprits. The complainant also mentions that the deceased had a male child.
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17. To prove the guilt of the accused, the prosecution has examined 32 witnesses as PWs.1 to 32, 25 documents were got marked as Exs.P1 to P25 and 8 material objects were got marked as M.Os.1 to 8. On closure of prosecution evidence, the Sessions Court has recorded the statement of accused under Section 313 of Cr.P.C. The accused has totally denied the evidence of prosecution witnesses. Accused No.1 has submitted the written statement and the other witnesses have also endorsed the written statement filed by accused No.1. But the accused have not adduced any defence evidence or oral evidence. But during the course of cross-examination of prosecution witnesses, 6 documents were got marked as Exs.D1 to D6. CW.6 is reported to be dead and therefore, he was not examined before the Court. On hearing the arguments, the Sessions Court has acquitted the accused for the commission of offence punishable under Section 498A, 306 read with Section 34 of Indian Penal Code and Section 4 of D.P. Act.
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18. A perusal of the entire records, makes it clear that on the basis of the complaint filed by PW.1- A.T.Gopala, Saligrama Police have registered case in Crime No.159/2011 against the accused for the commission of offence punishable under Section 498A, 302 read with 34 of Indian Penal Code and Section 3 and 4 of D.P.Act.
19. After completion of investigation, investigating officer has submitted charge sheet for the commission of offence punishable under Section 498A, 306 read with 34 of Indian Penal Code and Section 4 of D.P.Act. The Sessions Court has framed charges on 17.10.2012 for the commission of offence under Section 498A, 306 read with 34 of Indian Penal Code and Section 4 of D.P.Act. Thereafter, the Sessions Court has framed the additional charge for the commission of offence punishable under Section 304B read with Section 34 of Indian Penal Code. The Sessions Court has not taken into consideration the commission of offence punishable under Section 304B read
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 with Section 34 of Indian Penal Code. Now, the question for consideration is:
"Whether this Court has power to remand the matter to the Sessions Court for disposal or can it re-appreciate the evidence on record and dispose of the matter in accordance with law?"
20. In this regard, it is relevant to mention here the provision of Section 465 of Cr.P.C. which reads as under:
"465. Finding or sentence when reversible by reason of error, omission or irregularity
(i) subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
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21. Before appreciating the evidence on record, it is necessary to mention here that as to the power of Appellate Court defined under Section 386 of Cr.P.C. In this regard, it is useful to refer to the dictum of Hon'ble Apex Court in the case of Nasib Singh (supra), wherein at paragraphs 20 to 22A, it observed therein:
"20. Section 386 of the CrPC defines the powers of the Appellate Court and is extracted below:
"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
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(c) in an appeal for enhancement of
sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." (emphasis supplied) Under clause (a), the Appellate Court is empowered inter alia in an appeal from an order of acquittal:
(i) To reverse such order and direct that a further inquiry be made; or
(ii) That the accused be re-tried or committed for retrial; or
(iii) Find him guilty and pass sentence on him according to law. The power of the Appellate Court to order a retrial is also recognized in clause (b)(i) in the context of an appeal from a conviction and in clause
(c)(i) in an appeal for enhancement of sentence.
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21. The scope of the power of the Appellate Court to direct a re-trial has come up before this Court for interpretation in several decisions. The judgment of a Constitution Bench in Ukha Kolhe v. State of Maharashtra9 has dealt with the issue extensively. In that case, the appellant was tried before the Judicial Magistrate for the offence of rash and negligent driving while under the influence of liquor thereby causing the death of one person and injuries to four others and for offences under the Motor Vehicles Act. The Trial Judge held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap and acquitted him of the offences under the Motor Vehicles Act and the Penal Code. But he held that the evidence established that the appellant had consumed illicit liquor and committed an offence punishable under Section 66(b) of the Bombay Prohibition Act. The appellant was convicted and sentenced to imprisonment for three months and was directed to pay fine. On appeal, the Sessions Court set aside the order of the trial court and ordered a retrial on the ground that a "fair and full trial" had not taken place. The revision was summarily dismissed by the High Court which led to the appeal to this Court. Justice J.C. Shah, speaking for the Constitution Bench observed:
"11. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier (1964) 1 SCR 926 proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. [..]" The Court held that though undoubtedly the trial before the Magistrate suffered from irregularities and the evidence led was deficient on important aspects; that could by itself not be a sufficient ground for directing a retrial. If additional evidence was to be brought on the record, a retrial was not required and the procedure prescribed by Section 428(i) of the 1898 Code could have been resorted to.
22. The above extract emphasizes that a retrial would not be ordered unless the Appellate Court is satisfied that:
(i) The court trying the proceeding had no jurisdiction;
(ii) The trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or
(iii) The prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the Appellate Court considers it appropriate to order a retrial. Another feature which emerges from the above decision is that an order of retrial wipes out from the record the earlier proceeding and exposes the present accused to another trial. It is for that reason that the court has affirmed the principle that a retrial cannot be ordered merely on the ground that the prosecution did not produce proper evidence and did not know how prove their case.
22A. The next decision of significance is of a two Judge Bench in State of M P v. Bhooraji 10 . In that case eleven persons
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 were charge-sheeted for offences including Section 302 read with Section 149 IPC and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused were convicted under Sections 148, 323 and 302/149 IPC and sentenced to imprisonment for life by the Additional Sessions Judge. During the pendency of the appeals before the High Court of Madhya Pradesh, the Supreme Court held in a decision in Gangula Ashok v. State of A P 11, that committal proceedings are necessary for a specified court under the SC/ST Act to take cognizance of the offences to be tried. Initially in the State of Madhya Pradesh, a Division Bench had adopted the same position in 1995. This judgment of the Division Bench was overruled by a Full Bench in 1996. In view of the decision of this Court in Gangula Ashok (supra), the convicted persons moved the High Court to quash the trial on the ground that the Court of Session had no jurisdiction to take cognizance of and try the case in the absence of an order of committal by the Magistrate. The High Court upheld the contention and ordered that (2001) 7 SCC 679 (2000) 2 SCC 504 the entire trial must be quashed and directed retrial. The issue before this Court was whether the High Court necessarily should have quashed the proceedings on account of the declaration of the law by this Court. Justice K.T. Thomas writing for a Bench consisting of Justice K.G Balakrishnan and himself stated that the Appellate Court can send the case for retrial only when there is a 'failure of justice' and the court must be conscious of the huge pendency of cases in the trial court."
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22. On careful examination of the impugned judgment, the learned Public Prosecutor who has appeared before the Trial Court has argued as to the provisions of Sections 113B and 106 of the Indian Evidence Act and Section 304B of Indian Penal Code. In this regard, the learned counsel appearing on behalf of the accused relied on decisions of Hon'ble Apex Court which are as under:
i. Sher Singh Alias Vs. State of Haryana [(2015) 3 Supreme Court Cases 724];
ii. Major Singh Vs. State of Punjab (2015 CRL.LJ 2593);
iii. Shri Raju Ghosh and Ors. Vs. State of Assam [2016(1) Crimes 82(Gau)];
iv. Smt. Sadhana Dixit v. State of Chattisgarh [2016 CRL.LJ 2244].
23. Keeping in mind the arguments submitted on both sides as to the commission of offence punishable under Section 304B of Indian Penal Code and also Section 113B of the Indian Evidence Act, the Sessions Court, has elaborately discussed about the evidence of prosecution witnesses and passed the impugned judgment of acquittal.
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 The non-mentioning of commission of offence punishable under Section 304B read with Section 34 of Indian Penal Code in the operative portion of the judgment, is only irregularity and omission and it does not cause any failure of justice as contemplated under Section 465 of Cr.P.C. Further, keeping in mind the provisions of Section 465 of Cr.P.C., so also, the decisions relied upon by the learned counsel for the accused/respondents, in my view, it is not just and proper to remand the matter to the Sessions Court for disposal in accordance with law.
24. Coming to the case on hand, in paragraphs 11 and 15 of the impugned Judgment, the Sessions Court has observed as under:
"11. In support of his contention, he placed reliance the decision in the case Sher Singh Alias Partapa, wherein it was held that the prosecution has to show by preponderance of probabilities that the deceased wife was treated with cruelty based on dowry demands by appellant soon before her death and there must be a live link and S.C.No.166/2012 proximity between the cruelty emanating from dowry demand and death of the woman. In para-25 and 26 the Apex Court observes as below:-
"The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the appellant had treated the deceased with cruelty connected with dowry
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 demands. It is only if the answer is in the affirmative will the Court have to weigh the evidence produced by the appellant to discharge beyond reasonable doubt, the assumption of his deemed guilty.
In the present case, the complainant had admitted that there were no demands for dowry either at the betrothal or at the time of marriage. He had deposed only one alleged demand of dowry. The real brother of the deceased also in his cross-examination had admitted that no dowry demands were made prior to or at the time of marriage. He also deposed about a panchayat, having been convened regarding the dowry demands, which included the maternal uncle of the deceased as well as the complainant, who categorically stated that no such panchayat took place. In the normal course dowry demands are articulated when the marriage is agreed upon and is certainly reiterated at the time when it is performed and such demands continue into a couple of years of matrimony. In normal course, if a woman is being tortured and harassed, she would not remain reticent of this state of affairs and would certainly repeatedly inform her family. This is especially so before she takes the extreme step of taking her own life. But these had not happened in this case. Added to this are the inconsistencies and contradictions between the statements of the complainant and the real brother, the deceased with regard to the panchayat and the presence and knowledge of the maternal uncle of the deceased about the dowry demands. The version of the appellant was put to the deceased's brother and denied, namely, that the deceased was hot-tempered, wanted him to shave his hair, forced him to live separately from his parents, wanted him to shift to another place and start a business, all of which were against his wishes. In his examination under Section 313 Cr.P.C., the accused has proffered details of his defence. This is not a case where he has merely denied all the questions put by the Court to him.
It is for these reasons that it has to be held that the prosecution has not shown/presented and/or proved even by preponderance of probabilities that the deceased had been treated with cruelty emanating from or founded on dowry demands. It is in the realm of a possibility that the ingestion of aluminium phosphate may have been accidental. Because of the insufficiency or the unsatisfactory nature of the facts or circumstances shown
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 by the prosecution, the burden of proving his innocence has not shifted to the appellant, in the present case."
He further relied on the decision in the case Major Singh Vs. State of Punjab, wherein it was held that the word 'soon before her death' should be proximate and should be a live link regarding the cause of death. He further relied on the decision in the case Smt.Sadhna Dixit Vs. State of Chhattisgarh, wherein it was held that when the demand for dowry should be soon before the death and if it is separated by various acts like going abroad and returning and there is a gap more than 2 years, the said dowry demand becoming the cause of death is remote. He also relied on the decision in the case of case Shri Raju Ghosh and Others Vs. State of Assam, wherein it was held that when the charge for the offence U/s.304(B) of I.P.C. is not proved beyond all reasonable doubt, the accused deserves an acquittal on benefit of doubt.
15. In the cross-examination the nature of the relationship between the accused and the deceased and also with the PW.1 and PW.2 is elicited in detail. It is elicited that the PW.1 has about 11 siblings and only 8 are surviving. It is suggested that the four of his brothers and sisters have died by committing suicide and he denied the same. Even his father allegedly died by consuming poison. It is suggested that his brothers-Nagaraju and Sathya, sister- Indira and another sister-Indira, also died by suicide and he denies their suicidal death. He pleads ignorance that his brother Prabhakara and his wife Bharathi were arrested and they were in Jail for sometime and he also pleads ignorance that they were arrested in connection with a bride burning case. It is pertinent to note that even he denies about any knowledge as to whether his brother-Prabhakara had married or not. Therefore, it is evident that the PW.1 is evading some of the answers, which reflect on his credibility. Regarding the economic status, he admits that the accused No.1 has about 1-00 acre of the agricultural land and admit that financially his family is better than the accused. He denies that prior to the marriage and after the marriage there were several quarrels between the accused and the family of the PW.1.
This evidence is directly contradicting the documents produced by the accused U/s.313 of Cr.P.C. It may be seen that there were several such complaints filed by the
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 accused No.1 that he was being threatened by the family of the PW.1. Therefore, the evidence of PW.1 appears to be truthful in the real sense but the quarrels were at his instance. He has made improvements to suit his case and it can't be said to be a natural one."
25. PWs.1 and 2 who are the parents of deceased, have deposed that the deceased fell in love with accused No.1 and they got married against their will. After the marriage of deceased with accused No.1, they were not in talking terms with the deceased.
26. PW.2 has also stated in her evidence that they did not know the name of child born to the deceased and she has clearly admitted that they have not performed any ceremony during the pregnancy of the deceased. After the death of deceased, the body of the deceased buried in the agricultural land of accused No.1 and the son of deceased is in the custody of accused No.1 which shows that there was no cruelty between the accused, deceased, PWs.1 and 2 and family members. This evidence of material witness of PWs.1 and 2 are sufficient to come to the conclusion that there is no physical or mental
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 harassment by accused No.1. PW.24 - medical officer has clearly deposed that there are no external injuries found on examination of deceased dead body. As per FSL report, the probable cause of death is due to asphyxia as a result of hanging. In this regard, the Sessions Court in paragraph Nos.18 to 28, has observed as under:
"18. In the cross-examination it is elicited that her marriage with the PW.1 was also a love marriage and she had also eloped with him. She has denied the same. She admitted that none of the family members had gone for the marriage of the accused and she also admits that PW.3 is a political leader and he is also a Director of the Milk Union. She admits that many of the family members of the PW.1 have committed suicides and the wife of PW.3 also died. She pleads ignorance that the wife of PW.3 died due to burning and the case was pending against the PW.3. It is also elicited in the cross-examination that the body of the deceased had been buried in the agricultural land of the accused No.1. It is elicited that the child of the deceased is with the accused. The locality and the topography of her house that with reference to that of the accused No.1 has been elicited in detail. In the cross-examination on 29/09/2015 in para 18 to 23, certain important aspects have been elicited. PW.2 admitted that she is also Director of the Milk Union in the locality and she pleads ignorance that accused No.2 was an Auto Rickshaw driver and he used to bring milk from adjoining villages and supplies the same
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 to the Milk Dairy. Therefore, since he was an Auto Rickshaw driver, the PW.1 and PW.2 were not intending to give their daughter in marriage to the accused No.1. She also admits that the deceased had given birth to a child, but very surprisingly she pleads ignorance about the name of the child. If at all the deceased and the PW.2 were close enough and the deceased was disclosing about the harassment meted out to her, definitely the PW.2 would have had the knowledge of the name of the child. One can't expect a grand-mother not to remember the name of the child of her daughter if they were close enough. Therefore, this evidence of PW.2 speaks a lot about the untruthfulness.
19. It is also elicited that they never had called the deceased when she was pregnant and they had not performed any of the rituals. She admits that she never tried to bring her grand-son i.e.,son of the accused No.1 to her house. In para- 21 it is elicited that there was a bandi festival and there was a quarrel between the first daughter of the PW.1 and the deceased and there was also an assault on the deceased. She denies that the deceased had taken treatment in the Government Hospital, Saligrama and the complaint was lodged by the accused No.1 to the Police. She pleads ignorance that the PW.3 had intervened and pacified and compromised the matter. She admits that accused are having less than 1/4th of the land held by the PW.1 and PW.2. She admits that when the deceased went and married the accused No.1, she had abused the deceased in public. The various incidents in which the deceased was abused by PW.1 and PW.2 are suggested and she has denied them even though the Police complaints produced by the accused
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 provide corroboration to the suggestion made to PW.2. It is evident that she has given certain evasive answers when it was suggested that accused No.1 used to pay certain amount into the account of the deceased. In para-24, it is suggested that her two other sisters had taunted the deceased at the time of the bandi festival a few days prior to the incident saying that one of the sister had married an Advocate and another sister had married a Teacher, but the deceased had married only an Auto Rickshaw driver and therefore it is better that she should die. She denies about the said incident and says that the deceased was not pained by the said incident. Thus, the evidence of PW.2 show that there was an incident, wherein her two sisters have abused her and commented that she is only a wife of the Auto Rickshaw driver. Such incident appears to be frequent and the suggestion in the cross-examination get support from the Police acknowledgements, which have been produced by the accused. Whereas the prosecution versions do not get any support except from the interested testimony of the witnesses.
20. The evidence of PW.3-A.T.Somashekara, who happens to be the brother of PW.1 shows that the marriage of the deceased and the accused No.1 was a love marriage and marriage was performed in the Police Station when the PW.30 was the P.S.I. He only says that there was a harassment, but his evidence is half hearted in alleging that there was harassment by the accused. He says that after about one year of the marriage, he does not know how the deceased was being looked after by the accused. Therefore, he was treated hostile by the prosecution, but in the cross-
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 examination he supported suggestions made by the learned Public Prosecutor. However, in the cross-examination of the learned Public Prosecutor is not able to elicit that the deceased had any external injuries and the PW.3 had seen such external injuries. In the cross-examination by learned Counsel for the accused, he admits that he is politically active and belonging to the J.D.S. He admitted that his brother A.T.Nagaraju had committed suicide, but denies that his sister-Indira also committed suicide. He is also a little evasive in telling the cause of death of his brothers and sisters. He admitted that his brother A.T.Prabhakara had a criminal case of bride burning against him. He admitted that he is Director of the Milk Union and he admits that he came to know about the love affair of the accused No.1 and the deceased. He pleads ignorance that there was any quarrel between the deceased and her sisters a few days prior to the incident. He denies that by his political clout no criminal cases were being filed against PW.1 whenever the accused No.1 gave complaint to the Police. He denies that he had given any statement as per Ex.D.6 before the Police, which is to the effect that the deceased was informing him about the dowry harassment. It is evident that the PW.3 do not want to disclose that he had intervened and had seen that no case is being registered at the instance of the accused No.1.
21. The PW.4-Rangappa and PW.5-Dinesh are the brothers of the PW.2. The evidence of these witnesses is only to the effect that they came to know about the suicide and PW.2 was informing them that accused were harassing the deceased. Therefore, their evidence is only hearsay and their evidence can't be of much relevance to the case. They had no
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 direct contact with the deceased and the deceased had not told about the harassment meted out by the accused to her. Therefore, when the PW.2 has already been examined, the hearsay evidence of PW.4 and PW.5 is not of much relevance. Conspicuously they admit that the PW.3 is a political leader and he is leader in the village as well as Director of a Milk Union, etc. Therefore, the political clout of PW.3 have been supported by evidence of PW.4 and PW.5, it has to be held that PW.3 was well within the knowledge of the various aspects of the matter but he is selective in deposing before this Court.
22. The evidence of PW.6-Nataraju shows that he was spot mahazar witness and he pleaded ignorance has to why the PW.1had not come for the marriage. Regarding the incident he states that at about 7-00 P.M., the deceased went inside and closed the door and the child informed that she had hanged herself. He heard that accused No.1 and 2 were shouting and screaming that the deceased should open the door and therefore he went near their house and forcibly opened the door with a rod and by that time the deceased had hanged herself. Immediately she was removed and the PW.3 was called to the spot and she was shifted to Government Hospital, Saligrama and later she died. Since he did not support the prosecution version, he treated hostile by the prosecution. He denies in the cross-examination that there was any instigation by the accused to commit suicide. The cross-examination also shows that the deceased as well as the accused are his relatives.
23. PW.8-Malini happens to be the sister of the deceased.
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 She pleads ignorance has to who were all staying in the house of the deceased. She says that the deceased used to call her over phone and informed that accused were harassing her. She is not sure in which year the deceased was married. She says that she can't ask her parents about the dowry and therefore the deceased was asking the PW.8 to help her to get the dowry from the PW.1 and PW.2. She was treated hostile by the prosecution and when suggested about the physical harassment and mental harassment, etc., she has supported the same. In the cross-examination by learned counsel for the accused, the incident during Bandi festival has been elicited and she denies the suggestions.
24. PW.9-Malathi is another sister of the deceased and she has also stated on the similar lines as stated by PW.8. She says that only twice the deceased had called her after the marriage. Her evidence shows the bitterness she had against the deceased and therefore it is very difficult to accept that the deceased used to share her intimate things with her sisters PW.8 and PW.9. The PW.8 and PW.9 were also supporting the PW.1 and therefore it is not possible to accept that they had any intimacy with deceased. When there was no such intimacy and the relationship between the deceased and PW.8 and PW.9 was full of bitterness, it is not possible to this Court to accept that the deceased was disclosing about the harassment given by the accused to her. The cross- examination of PW.9 also show the various non-cognizable cases and the various incidents during festival, etc,. the cross-examination elicits that when the deceased was pregnant, the rituals were not performed by the parents of the deceased. It is relevant to note that in this part of the
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 state a ritual during the first pregnancy is an intimate and touching incident in the life of the woman. The PW.1 and PW.2 and PW.8 and PW.9 admit that no such rituals were performed when the deceased was pregnant. They give reason that the deceased had married against their wish and therefore they did not perform any such rituals. If such is the enmity, it is very difficult to accept that the deceased used tocomplain about the behavior of the accused No.1 to 6 to PW.1 and PW.2. First of all they had not kept such relationship with the deceased. Therefore, their evidence that the deceased used to tell about the ill-treatments given by the accused appears to be an embellished and improved story built later to the suicide of the deceased.
25. The evidence of other witnesses i.e., PW.10 to PW.20 show that all these witnesses have supported the accused and there is absolutely no evidence which goes against the accused. The PW.21 and PW.22 are mahazar witnesses in whose presence the ornaments found on the body of the deceased were seized by the Investigating Officer. Both these witnesses have turned hostile.
26. The evidence of PW.24-Dr.M.Teena shows that there was ligature mark transversely situated and no other external injuries were found on the body of the deceased. She has given a report that the death was due to asphyxia. Therefore, her evidence also contradicts the evidence of PW.1 and PW.2, who say that they had seen external injuries on the body of the deceased. Therefore, the evidence of PW.1 and PW.2 is nothing but an exaggeration and full of embellishment. There is no reason to doubt the evidence of PW.25 and PW.26-
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 Dr.T.Vinaykumar. PW.26 had helped the PW.25 in the autopsy of the deceased.
27. The next relevant and important evidence is by PW.30. Apart from the various investigation, which he has done, there are certain important aspects elicited in the cross- examination. He admits that he was the P.S.I. when the marriage of the accused No.1 and the deceased took place. He admits that PW.3 supported the marriage and with the help of the elders, the marriage was performed at Bhaskara temple. He also admitted that he had been to the said marriage. He also admitted that the PW.1, PW.2, PW.4, PW.5, PW.8 and PW.9 had opposed the marriage and the husband of the PW.9 had severely criticized the marriage. He also admit that there were several panchayats were held between the accused and the PW.1 and PW.2. The evidence of PW.30 speaks a lot about the manner in which the PW.1, PW.2, PW.8 and PW.9 had taken the severe exception to the marriage.
28. Thus, the above evidence clearly show that on one side the prosecution alleged that the accused had assaulted the deceased and there was a demand for dowry as the PW.1 and PW.2 were wealthy people. The PW.1, PW.2, PW.8, PW.9 and PW.4 and PW.5 support the prosecution version. On the contrary, the evidence of other witnesses does not support the prosecution version and the PW.3 half heartedly supported the prosecution version. The evidence of the Investigating Officer shows that there was a severe opposition by PW.1 and PW.2 and other members of their family and several times he had conciliated the matter. In
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 view of these factual circumstances, it is very difficult to accept that the deceased used to disclose about the alleged harassment and cruelty shown by the accused No.1 to 6 towards her. If she had no such good relationship with the PW.1 and PW.2, the question of she complaining against the accused do not arise. The PW.1 and PW.2 and other members of their family had not kept such relationship with the deceased. Therefore, the believability of the evidence of PW.1, PW.2, PW.4, PW.5, PW.8 and PW.9 has been severely dented. The evidence of PW.1 and PW.2 out rightly denied the documentary evidence produced by the accused and it also denied the fact that PW.30 had tried to conciliate the matter in the Police Station. Therefore, the prosecution version that the accused had demanded dowry has severe lacuna and the circumstances point out that accused could not have demanded the dowry at all.
The deceased had no such relationship with the PW.1, PW.2, PW.8 and PW.9 and she had voluntarily left the house along with accused No.1 and married him. Therefore, the very contention that accused had demanded dowry does not get sufficient acceptance and the circumstances show the otherwise. Except demand for dowry, there is no other allegations against the accused. When the accused No.1 and the deceased had entered into a love marriage, which was performed in a temple with the assistance of the Police and there was also a marriage in the Police Station as stated by PW.30, it is unthinkable that the accused demanded dowry from PW.1 and PW.2. On the contrary there was a quarrel between the PW.8, PW.9 and the deceased a few days prior to the incident and there are several such incidences as evidenced by the acknowledgements issued by the Police
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 Station to the accused. The acknowledgements are dated 15/07/2009, 17/07/2009, 14/03/2009 and 20/08/2009. The endorsements by the Police Station show that the quarrel was between the deceased and the PW.9 and the PW.8 and PW.9 were warned by the Police. Under these circumstances, the evidence of PW.8 and PW.9 and also the evidence of PW.1 and PW.2 can't be accepted to be gospel truth. They had no such relationship with the deceased under which the deceased could have disclosed about the alleged harassment by the accused. It appears that filing of such type of complaints is an abuse of process of the Court by taking advantage of lenient legislations in favour of the women. Hence, this Court comes to a definite conclusion that the prosecution has failed to establish the charges leveled against the accused. Consequently, the Points No.1 to 3 are answered in the 'Negative'."
27. The Sessions Court has elaborately discussed the entire evidence of prosecution witnesses in accordance with law and facts. Even after re-appreciating/re- examining/re-considering of the evidence on record, so also keeping in mind the decisions relied upon by the learned counsel for accused/respondents, I do not find any illegality or infirmity in the judgment of acquittal passed by the Sessions Court. Hence, I answer the point No.1 in negative.
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NC: 2023:KHC:43281 CRL.A No. 2151 of 2017 Regarding Point No.2:
28. For the aforesaid reasons, I proceed to pass the following:
ORDER
1. Appeal dismissed.
2. The judgment dated 11.07.2017 passed in Sessions Case No.166/2012 by the Court of the V Addl. District & Sessions Judge, Mysuru is confirmed.
3. Respondent/accused Nos.1 to 5 are acquitted for the commission of offence punishable under Section 498A, 306, 304B read with Section 34 of Indian Penal Code and also Section 4 of D.P.Act.
4. Registry is directed to send a copy of this judgment along with the Sessions Court records to the Sessions Court forthwith.
Sd/-
JUDGE SSD