Karnataka High Court
Sri Thimmaiah vs State Of Karnataka By on 6 March, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1673 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 1673 OF 2016
C/W
CRIMINAL APPEAL NO.691 OF 2016
BETWEEN:
STATE OF KARNATAKA
BY MIDIGESHI P.S.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 01.
...APPELLANT
(BY SRI. K.S. ABHIJITH, HCGP, ADVOCATE)
AND:
1. THIPPESWAMY,
S/o NARASIMHAIAH,
AGED ABOUT 30 YEARS,
R/at GAMPLAHALLI VILLAGE,
Digitally MIDIGESHI HOBLI, MADHUGIRI TALUK,
signed by TUMKUR DISTRICT - 572 132.
SUMITHRA
R
2. LAKSHMAMMA
Location:
HIGH W/o NARASIMHAIAH,
COURT OF AGED ABOUT 55 YEARS,
KARNATAKA R/at GAMPLAHALLI VILLAGE,
MIDIGESHI HOBLI, MADHUGIRI TALUK,
TUMKUR DISTRICT - 572 132.
3. LAKSHMINARASAMMA
W/o SHIVASHANKARAPPA,
BEHIND KEB OFFICE,
HINDUPURA ROAD,
MADAKASHIRA TOWN - 515 301.
...RESPONDENTS
(BY SRI. BHARATH KUMAR.V FOR R1 TO R3, ADVOCATE)
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CRL.A No. 1673 of 2016
CRL.A. FILED UNDER SECTION 378(1) & (3) OF THE CODE OF
CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT OF
ACQUITTAL PASSED BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT MADHUGIRI IN S.C. NO.241/2011 DATED 22ND
DECEMBER 2015 FOR THE OFFENCE PUNISHABLE U/S 498 (A), 304
(B) R/W 34 IPC AND 3 AND 4 OF THE DOWRY PROVISION ACT AND
ETC.
-----
IN CRIMINAL APPEAL NO. 691 OF 2016.
BETWEEN:
SRI. THIMMAIAH,
S/o.LATE.KADIRAPPA,
AGED ABOUT 52 YEARS,
NO.191, 17TH CROSS,
B.R.I. COLONY, MAGADI ROAD,
DASARAHALLI,
BENGALURU - 560 079.
...APPELLANT
(BY SRI. KALEEMULLAH SHARIFF ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
MIDIGESHI POLICE STATION,
MADHUGIRI TALUK.
2. SRI. THIPPESWAMY,
AGED ABOUT 26 YEARS,
R/at GAMPALAHALLY VILLAGE,
MEDIGESHI HOBLI, MADHUGIRI TALUK,
TUMKUR DISTRICT - 572 133.
3. SMT. LAKSHMAMMA
W/o.NARASIMHAIAH,
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CRL.A No. 1673 of 2016
AGED ABOUT 50 YEARS,
R/at GAMPALAHALLY VILLAGE,
MEDIGESHI HOBLI, MADHUGIRI TALUK,
TUMKUR DISTRICT - 572 133.
4. SMT. LAKSHMINARASAMMA
W/o.SHIVASHANKARAPPA,
AGED MAJOR,
BEHIND K.E.B. OFFICE,
HINDUPURA ROAD,
MADAKASIRA TOWN - 515 301.
ANDHRA PRADESH STATE.
...RESPONDENTS
(BY SRI.K.S.ABHIJITH, HCGP FOR R1
SRI. BHARATH KUMAR V,. FOR R2 TO R4 ADVOCATES)
-----
CRL.A. FILED UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGEMENT
AND ORDER OF ACQUITTAL DATED 22.12.2011 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MADHUGIRI, IN
S.C.NO.241/2011 FOR OFFENCES PUNISHABLE UNDER SECTION
498(A),304 READ WITH SECTION 34 OF THE IPC AND SECTION 3
AND 4 OF THE DOWRY PROVISION ACT AND ETC.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY
VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
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CRL.A No. 1673 of 2016
COMMON JUDGMENT
1. Criminal Appeal No.1673/2016 is preferred by the State
assailing the impugned judgment dated 22.12.2015 passed in
S.C.No.241/11 on the file of IV Additional District and Sessions
Judge, Tumkuru District, to sit at Madhugiri, acquitting Accused
Nos.1 to 3 for the offences punishable under Sections 498A,
304B r/w.34 of IPC and Section 3 and 4 of the DP Act.
Criminal Appeal No.691/16 is preferred by PW2-Sri
Thimmaiah, father of the deceased-Smt Rukmini assailing the
impugned judgment dated 22.12.2015 passed in
S.C.No.241/11 on the file of IV Additional District and Sessions
Judge, Tumkuru District, to sit at Madhugiri, acquitting Accused
No.1 to 3 for the offences punishable under Sections 498A,
304B r/w.34 of IPC and Sections 3 and 4 of the DP Act. Since
these criminal appeals are arising out of the same impugned
judgment passed by the Trial Court and that the parties are one
and the same, both these criminal appeals are heard together
and disposed of by this common judgment.
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CRL.A No. 1673 of 2016
2. Brief facts of the prosecution case is that :
Accused No.1-Thippeswamy is the husband of the deceased-
Rukmini (CW.1), Accused No.2-Smt.Lakshmamma and accused
No.3-Smt.Lakshmi Narasamma are mother-in-law and sister-in-
law of the deceased respectively. The marriage of accused
No.1 and deceased Rukmini was solemnised on 7.5.2009 and
during the marriage, accused were demanded one gold finger
ring, one gold chain and Rs.30,000/- cash and the parents of
the deceased fulfilled the demand. But prior to the date of
marriage, twice the marriage was postponed, as the accused
were demanding additional dowry amount of Rs.15,000/- from
the parents of deceased. After the marriage, deceased
Rukmini started to live in matrimonial house at Gampalahalli
village, Midigeshi Hobli, Madhugiri Taluk and she lived only for
a period of two years. During her stay at Gampalahalli village,
she was tortured for and in connection with the demand of
dowry from her in-laws and her husband. Further, accused
persons were harassing the deceased physically and mentally
for want of more dowry and the deceased, unable to bear the
harassment, on 10.6.2011 at 6.00 a.m., committed suicide by
drowsing kerosene on her and set herself ablaze. Immediately
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CRL.A No. 1673 of 2016
she was shifted to Hospital and admitted on 10.6.2021, where
she gave her statement before the Tahsildar Sri B. Ahobalaiah
(PW11) as per Ex.P8. Hence, PW16-Manjunath U.R., the then
PSI of Midigeshi Police station registered the case in Crime
No.44/2011 for the offence under Section 498A r/w.34 of IPC
and Section 3 and 4 of the DP Act on the basis of Ex.P-8.
CW.1-Smt.Rukmini did not respond to the treatment and
succumbed to the injuries on 16.6.2011 at 9.00 p.m. Hence,
the Midigeshi police registered the case against the accused for
the offences punishable under Section 498A, 304B r/w.34 IPC
and Sections 3 and 4 of the DP Act.
3. On 17.6.2011, the Tahsildar - PW11 visited the hospital and
conducted Inquest Panchanama as per Ex.P2. The body was
sent for post mortem examination and report was made as per
Ex.P5 by Dr.Rudramurthy (PW7), wherein, it was opined that
death is due to septicaemia as a result of burn injuries
sustained. Thereafter, the police visited the spot, drew the
mahazar as per Ex.P6 and made certain seizures in the
presence of PW8-Lingappa and PW9-Aswathappa. Further,
during the course of investigation, PW14-Chandrashekar and
PW15-Retired Deputy Superintendent of Police-Pradeep Kumar
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CRL.A No. 1673 of 2016
recorded the statements of the witnesses, arrested the accused
persons, completed the Investigation and filed charge sheet
against accused persons.
4. After the completion of investigation and filing of charge
sheet, the case was committed to the Court of IV Additional
District and Sessions Judge, Tumkuru, to sit at Madhugiri and
the learned Sessions Judge framed charges against accused
No.1 to 3 for the offences punishable under Sections 498A,
304B r/w.34 of IPC and Sections 3 and 4 of the DP Act and
explained the same to accused persons; they pleaded not guilty
to the charges and they claimed to be tried.
5. In order to prove the charges against the accused,
the prosecution, in all, examined 16 witnesses as per
PWs.1 to 16, got marked 22 documents as per Exs.P.1 to
P.22 and the material objects as per MOs.1 to 5.
6. After completion of the evidence on behalf of the
prosecution, the statements of the accused persons as
contemplated under Section 313 of Cr.P.C were recorded by the
trial court. The accused persons denied all the incriminating
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CRL.A No. 1673 of 2016
evidence against them, but did not lead
any defence evidence.
7. Based on the aforesaid pleadings, the learned Sessions
Judge, framed the following points for consideration (in fact,
wrongly framed as under)
(1) Whether the prosecution has proved beyond all
reasonable doubt that there was illicit relationship
between the accused and juvenile offender for the past
one year and there was trouble from son of CW1 and
accused No.2 i.e. present accused by name Harish to the
said relationship, on 24.2.2012 at 6.30 p.m. the accused
person with the help of juvenile offender, son of CW1 and
accused No.2 i.e. present accused was taken to the bund
of naalku kannina tore halla situated near the land of
Banadarangaiah of Jayanagar village situated at A M Kaval
and as per the instructions of present accused, the
juvenile offender forcibly strangled the neck of Harish
causing his death and thereby the accused has committed
the offence punishable under Section 302 of IPC?
(2) Whether the prosecution had proved beyond all
reasonable doubt that at the time, date and place
mentioned above, after committing the murder of her son
with the help of the juvenile offender, at her instructions,
the body of her son was burnt by pouring kerosene on it
and setting it afire with an intention to conceal the crime
and thus the accused committed the offence punishable
under Section 201 of IPC ?
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CRL.A No. 1673 of 2016
8. As the trial Court had wrongly framed the points for
consideration, we have framed the same as under:
1. Whether the prosecution proved its case beyond
all reasonable doubt that Accused Nos.1 to 3 were
harassing CW1-Rukmini, while she was alive, in
connection with demand of dowry, thereby
committed an offence punishable under Section 498A
of IPC?
2. Whether the prosecution further proved that
Accused Nos.1 to 3 demanded one gold chain, one
gold finger ring and cash of Rs.30,000/- from PW2-
Thimmaiah and received the same, after sometime
before the performance of marriage, again accused
persons were demanded additional dowry amount of
Rs.15,000/- from parents of CW1-Rukmini and
received the same, in spite of it, soon before the
death of Rukmini, Accused Nos.1 to 3, were harassed
CW1 physically and mentally in connection with
demand of dowry, thus, CW1 committed suicide,
hence, accused have committed an offence
punishable under Section 304B R/w. 34 of IPC and
Sections 3 and 4 of the DP Act ?
9. The Trial Court after considering the entire evidence on
record, has recorded a finding that, the prosecution has failed
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CRL.A No. 1673 of 2016
to prove that, Accused No.1-Sri Thippeswamy, husband of the
deceased-Rukmini (CW1) married her and prior to marriage,
there was marriage talks, wherein accused No.1 and 2 had
demanded PW2-father of the deceased a dowry of one gold
finger ring, one gold chain and Rs.30,000/- cash and PW2 had
agreed for the same and on 23.4.2009, marriage was fixed and
marriage invitation was also printed, but accused persons
refused to go ahead with the marriage on the ground that
dowry given was insufficient and again talks were held and
accused persons demanded one gold chain, one gold finger ring
and Rs.45,000/- cash as dowry and PW2 agreed for the same
and accused persons received the same from parents of CW1
and ultimately marriage took place and in spite of it, accused
persons were harassing the deceased physically and mentally
for want of more dowry.
10. The Trial Court further held that, the prosecution failed to
prove that accused have harassed CW1-Rukmini both physically
and mentally in connection with demand of dowry, thus, CW1
poured kerosene on herself, set fire, sustained burn injuries
and hence was shifted to Govt. Hospital, Tumkuru, for
treatment and on 16.6.2011, CW1 succumbed to the injuries,
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CRL.A No. 1673 of 2016
there by death of CW1-Rukmini occurred within 7 years of her
marriage, in connection with demand of dowry and soon before
her death, accused persons have harassed her physically and
mentally.
11. Hence, the Trial Court acquitted the accused persons for
the alleged offences, holding that, prosecution failed to prove
its case beyond all reasonable doubt.
12. Aggrieved by the judgment of acquittal passed by the Trial
Court, State has preferred Criminal Appeal No.1673/2016 and
father of deceased-Sri Thimmaiah-PW2, has filed Criminal
Appeal No.691/2016.
13. We have heard learned counsels for the parties to the lis,
who have taken us through the material evidence placed on
record.
14. In support of the appeal-Crl.A.1673/2016, learned HCGP for
the State vehemently argued and submitted that the impugned
judgment and order of acquittal recorded by the learned
Session Judge is contrary to law, facts of the case and the
evidence on record. The reasons assigned by the learned
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CRL.A No. 1673 of 2016
Session Judge while passing the impugned judgment and order
of acquittal are erroneous and hence reached to a wrong
conclusion resulting in substantial miscarriage of justice. The
learned HCGP further submits that, PW2-father of the
deceased, PW3-mother of the deceased and PW4-brother of the
deceased, all are consistent in their evidence about the demand
of dowry and cruelty that the deceased was subjected to at the
hands of the accused. The independent witnesses i.e., PWs 5
and 6 have also supported the demand of dowry at the time of
marriage, but these points have not been considered by the
Trial Court. The learned Trial Judge ought to have drawn
presumption as the deceased died an unnatural death within
seven years from the date of marriage in connection with the
demand of dowry and hence, failure to draw the presumption,
would lead to miscarriage of justice. Though the prosecution
has proved its case, the Trial Court has acquitted the accused.
The learned HCGP further submits that, the Tahsildar is
examined as PW11 and through him Ex.P8-dying declaration
was got marked and it is very clear from the evidence of
PW11 that the deceased poured kerosene herself and set
ablaze on 10.06.2011 and died on 16.06.2011 and thereafter
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CRL.A No. 1673 of 2016
the deceased, has also given her statement as to how she was
subjected to cruelty prior to her death, but however, the Trial
Court, ignoring to consider the dying declaration, has acquitted
the accused which has resulted in miscarriage of justice. The
learned HCGP would further submit that based on the dying
declaration alone, the Trial Court ought to have convicted the
accused, but it has acquitted the accused. The learned HCGP
further submits that the Court cannot search for an
independent witness in matrimonial cases as the cruelty and
demand of dowry would be subjected and demanded within the
four corners of the house. In this regard, parents are the
proper persons to state about the cruelty, harassment and also
regarding any demand of dowry etc., but the Trial Court has
failed to appreciate this aspect. The learned HCGP in support
of his contentions, has relied upon the judgment of the Hon'ble
Apex Court in Ashok kumar V/s State of Rajasthana
reported in 1991(1) SCC 166, wherein the Hon'ble Apex
court has held that, dowry death is a crime of its own kind,
where the elimination of daughter-in-law becomes immediate
necessary if she or her parents are no more able to satisfy the
greed of the husband or in-laws and make the boy available
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CRL.A No. 1673 of 2016
once again in the money market. The learned HCGP further
relied upon the judgment of the Hon'ble Apex Court in
Rajkumar V/s State of M.P. reported in 2005 Crl. L.J
1037, wherein the Hon'ble Apex Court has held that, in case of
dowry death, the family members of the victim are the best
witnesses and only they can depose what the treatment was
given to the victim. However, in the instant case, the deceased
herself made complaint to police, therefore, absence of
supporting evidence of any independent witness will not cause
any dent to the prosecution case and the prosecution need not
prove the case beyond all reasonable doubt as the statutory
presumption is readily available in this case. In fact, the
accused ought to have rebutted the presumption by giving
strong and cogent evidence, failure to rebut the same, would
cause serious infirmity and though the Prosecution has proved
the case beyond all reasonable doubt, Trial Court failed to
appreciate it and has wrongly acquitted the accused.
Therefore, the impugned judgment calls for interference by this
Court by re-assessing the evidence and to convict the accused.
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CRL.A No. 1673 of 2016
15. The learned counsel for the appellant (PW2) in
Crl.A.No.691/2016 submitted that the Trial Court has failed to
see that, in order to prove the aspect of demand of dowry
made by the accused and its acceptance, prosecution has
examined PWs 2 to 6, who have categorically spoken to the
aspect of demand made by accused Nos. 1 and 2, demand
being met by PW2 and also the aspect of acceptance of amount
and jewelries by accused. However, though there are minor
discrepancies in the testimony of PWs 2 to 6, by no stretch of
imagination, will go to the root of the matter and therefore,
these witnesses examined by the prosecution have supported
the prosecution version. Further, the Trial Court has failed to
appreciate the evidence of PWs 5 & 6, who are the independent
witnesses, present during the marriage talks and also had
spoken about convening of panchayath. The said witnesses
have categorically spoken about the aspect of harassment
being met to the deceased at the hands of accused Nos.1 to 3
after the marriage by demanding additional dowry. The
learned counsel would further submit that the Trial Court has
misled itself in appreciating the evidence on record and failed to
appreciate the oral testimony of PWs 1 to 6, who have
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CRL.A No. 1673 of 2016
categorically spoken on the aspect of demand, acceptance and
harassment meted out to the deceased at the hands of accused
Nos.1 to 3 and the Trial Court has not given cogent reasons for
disbelieving their evidence and therefore, the reasoning
assigned by the Trial Court in acquitting the accused are not
proper and it requires reconsideration.
Further, the reasons assigned by the Trial Court to
disbelieve Ex.P8-complaint is not proper as the defence has not
elicited any material to disbelieve the contents of Ex.P8 either
from the mouth of PW11 or PW7 or PW13. On the other hand,
PW7 and PW11 have categorically spoken on the aspect of the
victim narrating the facts and affixing her LTM on Ex.P8.
Therefore, the evidence led by the prosecution on the aspect of
recording of dying declaration is consistent but the Trial Court
has assigned reasons on a flimsy ground. The learned counsel
further submits that the Trial Court has not given proper finding
with regard to presumption as to the death of deceased, which
took place within 7 years of her marriage in the house of
accused under suspicious circumstances with regard to demand
of dowry even when the prosecution was able to prove its case
beyond reasonable doubt. But the Trial Court has not
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CRL.A No. 1673 of 2016
considered the presumption available under Section 113B of
the Indian Evidence Act, though the prosecution has discharged
its initial burden. Further, the Trial Court ought to have shifted
the burden on accused to explain the death of deceased, as the
death took place in the house of the accused when all the
accused were present at the time of incident. The learned
counsel further submits that the accused have not furnished
their explanation under Section 313 of Cr.P.C. Further, the
Trial Court has failed to see that as some witnesses are
relatives of the victim and some minor discrepancies have crept
in their evidence and that cannot be ground to reject their
evidence as untrustworthy and the Trial Court ought to have
analyzed and scrutinized the same with due care and caution
before accepting or acting upon the same. Further, the Trial
Court has failed to consider the fact that, as death occurred in
the house of the accused, the accused are under the obligation
to explain about the manner of incident as it resulted in death
as contemplated under Section 106 of the Indian Evidence Act.
The counsel further submits that the investigation officer
recovered the material objects from the house and at the
instance of accused vide M.Os 1 to 5; though PWs 8 to 10 have
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CRL.A No. 1673 of 2016
not supported the case of prosecution, the contents of Ex.P21-
FSL report clearly speaks of the presence of kerosene in M.Os 1
to 4, which were seized from the place of incident. Further, the
reasoning assigned by the Trial court are not well founded in
the circumstances of the case and therefore, viewed from any
angle, the judgment and order of acquittal passed by the trial
Court is quite contrary to the material on record. On all these
grounds, Appellant, PW2-Thimmaiah prays to allow the appeal
and convict the accused for the offences punishable under
Sections 498A, 304B r/w.34 of IPC and Sections 3 and 4 of the
DP Act.
16. The learned counsel for accused submitted that the
judgment and order of acquittal passed by the trial Court is in
accordance with law and prays to dismiss the appeals.
17. In view of the rival contentions urged by the learned
counsel for the parties, the points that would arise for
consideration in the present appeals are :
"1. Whether the prosecution as well as PW2 proved their
case beyond all reasonable doubt that, Accused No.1 and 2
demanded dowry of one gold finger ring, one gold chain
and Rs.30,000/- cash and PW2 had agreed for the same
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CRL.A No. 1673 of 2016
and on 23.4.2009 marriage was fixed and again the
accused demanded more dowry and hence, PW2 again paid
Rs.15,000/- as additional amount (in all rupees 45,000/-)
in the form of dowry and even after marriage, Accused
No.1 and 2 harassed CW1-deceased Rukmini physically and
mentally in connection with demand of dowry?
2. Whether the prosecution and PW2 further proved that
on 10.6.2011 at 6.00 a.m., CW1 poured kerosene and set
herself on fire in her husband's house, due to which she
has sustained burn injuries and thereafter, succumbed to
the injuries on 16.6.2011 at 9.00 P.M., as Accused No.1
and 2 harassed her mentally and physically and therefore,
she committed suicide within seven years from the date of
marriage?"
3. Whether the prosecution and PW2 proved that the
judgment of acquittal passed by the Trial Court requires
interference by this Court ?
18. We have given our anxious consideration to the arguments
advanced by the learned counsels for the parties and perused
the entire material including the original records carefully.
19. The substance of the prosecution case is that, marriage of
accused No.1-Thippeswamy was performed with deceased-
Rukmini and during marriage, Accused Nos.1 and 2 had
demanded PW2 one gold chain, one gold finger ring and
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CRL.A No. 1673 of 2016
Rs.45,000/- cash. After the marriage, their relationship was
cordial and thereafter, accused started to harass CW1
physically and mentally and therefore, CW1 committed suicide
on 10.6.2011.
20. In order to re-appreciate the material on record, including
the oral and documentary evidence, it is relevant to consider
the sum and substance of evidence of the prosecution
witnesses.
21. PW.1 - B.M. Sathyendra Rao, Assistant Engineer in his
evidence has deposed to the fact that on 14.6.2011, the
investigating officer requested him to visit the spot and prepare
the sketch of the scene of offence. Accordingly, he visited the
spot and prepared the sketch as per Ex.P1.
22. PW.2 - Thimmaiah, the father of the deceased, deposed
that during the year 2009, there were marriage talks between
the family of accused persons and family of PW2 and marriage
of Accused No.1 and his daughter-CW1 Rukmini was fixed on
23.4.2009. During that period, Accused No.1 and 2 were
demanded one gold finger ring, one gold chain and Rs.30,000/-
cash in the form of dowry and PW2 agreed the same. In spite
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CRL.A No. 1673 of 2016
of that, the accused persons were harassing his daughter
physically and mentally. Thus, unable to bear the harassment,
she committed suicide. He further deposed that soon after the
death of his daughter, case has been registered, police visited
the spot, conducted spot Panchanama and they also collected
marriage invitation card as per Exs.P3 and P4. PW2 has
undergone intensive cross examination by the counsel for
accused, in the cross examination, he admitted that, PW3-
Shusheelamma and PW4-Shiva are his wife and son
respectively. Accused persons are their distant relatives and he
has been residing in Bangalore since 25 years and accused
No.1 was working as Electrician in Bangalore, CW1-Rukmini
completed PUC. He categorically admitted that, he is not aware
of the date of marriage talks held, he does not have the
documents to show that he purchased 8 grams of gold neck
chain and 6 grams of gold finger ring, he does not have
documents to show that he paid cash to accused no.1 and he
does not have documents to show that, he incurred marriage
expenses for a tune of rupees 1.5 lakh, he further admitted
that, during the life time of Rukmini, he has not lodged any
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complaint to the police to substantiate that, accused persons
were demanding dowry amount.
23. PW3-Smt Shusheelamma, mother of the deceased, in her
evidence, reiterated the averments made in the deposition of
PW.2. She further deposed that as Accused Nos.1 and 2
harassed her daughter, they paid Rs.60,000/- for starting a
textile shop at Hosakere village and after a couple of days,
again Accused No.1 started harassing her daughter and
therefore, they financed to set-up a chicken stall in the name of
Accused No.1 at their village. PW3 further deposed to the fact
that Accused No.1 further demanded to pay additional dowry or
else, demanded the deceased to get divorce from the Court. In
this regard, PW3 and her husband-PW2 had gone to the house
of CW1, advised their daughter and Accused No.1. But accused
continued to harass her daughter. She further deposed that
soon after receipt of information, herself and her husband came
to the hospital and saw her daughter, her body was almost
burnt, thus she enquired with CW1, thus she revealed that,
accused No.3-Lakshminarasamma had caught hold of her
hands, accused No.2-Lakshmamma poured kerosene on her
and accused No.1 set fire on her and after 6 days of the
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CRL.A No. 1673 of 2016
incident, Rukmini died. PW3 has undergone cross examination,
in the cross examination, she had admitted that, accused No.1
informed her about the incident, accused No.1 and 2 brought
CW1 Rukmini from Gampalahalli village, got admitted her in the
hospital. She further admits that, after the marriage, the
relationship of accused No.1 and Rukmini was cordial for one
year. She has not lodged any complaint against accused
persons regarding the alleged harassment made by them.
Further she has not placed any documents to show that, herself
and her husband paid amount to accused No.1 for running
chicken stall.
24. PW4-Shiva, younger brother of the deceased and son of
PW2 and 3, has deposed in line of PWs. 2 and 3, by reiterating
the averments made in the depositions of PWs 2 and 3 and
corroborates their oral testimony.
25. PW5-Narasimha Murthy, independent witness, in his
evidence deposed to the fact that, he attended the marriage
talks, he observed that accused persons were demanding one
gold finger ring, one gold chain and Rs.30,000/- cash, again
accused were demanding dowry for a sum of Rs.15,000/-.
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CRL.A No. 1673 of 2016
Though PWs 2 and 3 paid cash of Rs.45,000/- and met out
their demands, however, accused did not stop harassing the
deceased physically or mentally and thus, daughter of PWs 2
and 3 committed suicide.
26. PW.6-Smt. Rathnamma, relative of deceased has deposed
in line of PW.5.
27. PW.7-Dr.S. Rudramurthy who conducted autopsy on the
dead body of deceased- Rukmini and has issued Ex.P5-Post
Mortem report. He has deposed that there were burn injuries
on various parts of the body of the deceased to an extent of
40% to 60% and has opined that, the death might have
occurred due to infection caused on account of the burn
injuries.
28. PW.8- Lingappa is a pancha for the spot mahazar-Ex.P6
and though he identifies his signature on it, has deposed that
he does not know the contents of it and the said witness is
treated as hostile.
29. PW.9-Ashwathappa, spot mahazar (Ex.P6) witness has
turned hostile to the case of the prosecution.
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30. PW.10-Guddirappa, seizure mahazar (Ex.P7) witness has
turned hostile to the case of the prosecution.
31. PW.11- B.Ahobalaiah, Retired Tahsildar, in his evidence,
deposed to the fact that, as per the request of I.O, he recorded
the dying declaration of deceased-Rukmini as per Ex.P8 in the
presence of the duty doctor, after he certified that Rukmini was
capable of giving declaration. He further deposed to the fact, on
16.06.2011, as per the request of I.O, he visited the hospital
and conducted inquest Panchanama as per Ex.P2. PW11 has
been cross examined, in the cross examination, he admits that
he cannot remember the date of request made by police for
recording the statement of victim and he is not aware as to the
medical officer, who was present on the day of recording
statement of victim, the Tahsildar has not personally recorded
statement of victim, but his staff recorded, however his staff
was neither examined before Trial court nor cited as witness in
the charge sheet, he further admitted that, in Ex.P8 there is no
reference about date of recording statement of victim, further
LTM of victim not marked and identified by Tahsildar.
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32. PW.12-Chandrashekhara. A, witness to Ex.P7-Mahazar, has
turned hostile to the case of the prosecution.
33. PW.13- L.N. Charan, ASI of Midigeshi police station, in his
evidence deposed that, as per the instructions of his higher
authorities, he had gone to Tumkuru District Hospital, to
ascertain whether the injured-Rukmini was fit to give statement
or not, accordingly, he requested the medical officer, as to
whether injured-victim was fit to give statement or not, and he
also requested the Taluka Executive Magistrate, Tumkuru, for
recording the statement of the victim. Accordingly, on the
same day, at 2.00 P.M., the Tahsildar recorded the statement
of the victim in the presence of the doctor.
34. PW.14-K.R. Chandrashekar, Police Inspector, partly
investigated the case.
35. PW.15- B.Pradeep Kumar, Deputy Superintendent of
Police, investigated the matter and filed charge sheet against
accused persons.
36. PW.16-Manjunatha V.R, Sub Inspector of Police, received
the statement of victim Rukmini from PW13 and registered the
case.
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37. Based on the aforesaid oral and documentary evidence on
record, accused No.1 to 3 is acquitted for the offences
punishable under Sections 498A, 304 r/w. 34 of IPC and
Sections 3 and 4 of DP Act.
38. Under such circumstances, we examined the provisions of
Section 304(B) of IPC, the basic ingredients to attract the
provisions of Section 304-B IPC are as follows:
(1) that the death of the woman was caused by any
burns or bodily injury or in some circumstances which
were not normal;
(2) such death occurs within 7 years from the date of
her marriage;
(3) that the victim was subjected to cruelty or
harassment by her husband or any relative of her
husband;
(4) such cruelty or harassment should be for or in
connection with the demand of dowry; and
(5) it is established that such cruelty and harassment
was made soon before her death.
39. In view of the fact, circumstances and evidence led by the
prosecution, it is just and necessary to analyze Section 304-B
IPC, which deals with "dowry death", which reads as follows:
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"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, (4) such cruelty or harassment should
be for or in connection with the demand of dowry; and (5)
it is established that such cruelty and harassment was
made soon before her death."
40. Further, Section 113-B of the Evidence Act is also relevant
for the case at hand. Both Section 304-B IPC and Section 113-
B of the Evidence Act has to be looked into for drawing
presumption.
"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 had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for
dowry, the court shall presume that such person had
caused the dowry death.
Explanation.-For the purpose of this section, 'dowry death' shall have
the same meaning as in Section 304-B of the Penal Code, 1860."
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41. In the instant case, the counsel for the appellant mainly
relied upon the oral testimony of PWs 2 to 5. PW2
Thimmahaiah, who is none other than the father of deceased,
PW3-Shusheelamma is mother of deceased and PW4- Shiva is
brother of the deceased and PW5 and 6 are the relatives of the
deceased. As per the prosecution case, PW5-Narasimhamurthi,
attended the marriage talks held between the family of accused
and deceased, he observed that accused persons were
demanded one gold finger ring, one gold chain and Rs.30,000/-
cash, again accused were demanded additional dowry for a sum
of Rs.15,000/- and received the same from parents of
deceased. Though PWs 2 and 3 paid cash of Rs.45,000/- and
met out demands of accused, however, accused did not stop
harassing the deceased physically or mentally and thus,
daughter of PWs 2 and 3 committed suicide, but, in the cross
examination, he pleads that he cannot say the date of marriage
talks, he cannot say the persons who were attended the
marriage talks and he is unable to say, where panchayaths
were held. Therefore, his evidence cannot support the
prosecution case rather his evidence diluted the version of
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prosecution case. PW6-Rathnamma is none other than sister in-
law of PW3. Hence, she appears to be an interested witness.
42. It is well settled law that, the evidence of interested
witnesses requires careful scrutiny to discover falsehood,
embellishment or exaggeration, which must be eschewed. The
Hon'ble Apex Court in the case of Dalbir Kaur vs. State of
Punjab reported in AIR 1977 SC 472, interested witnesses
means, it postulates that the person concerned must have
some direct interest in seeing that, the accused person is
somehow or other convicted because he has some animus
against the accused or for some other reason. A witness is
independent, unless he springs from a source likely to be
tainted.
43. In fact, the case of prosecution is that, deceased-Rukmini
was tortured for and in connection with the demand of dowry
from her in-laws and her husband, further, accused persons
were harassing the deceased physically and mentally for want
of more dowry and the deceased unable to bear the
harassment, on 10.6.2011 at 6.00 a.m., committed suicide by
pouring kerosene on her and set herself ablaze. But on
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perusal of evidence of PWs 2 to 4, they have completely
changed the story and deposed that CW1 Rukmini told them
that she did not commit suicide whereas, the accused persons
have poured kerosene on her and set fire. According to PW2,
accused No.2- Lakshmamma caught hold of hands of deceased
Rukmini, accused No.3-Lakshminarasamma poured kerosene
on the deceased-Rukmini and accused No.1-Thippeswamy set
fire on her. But, according to PW3-Smt Susheelamma and PW4-
Shiva, accused No.3-Lakshminarasamma caught hold of hands
of deceased Rukmini, accused No.2-Lakshmamma poured
kerosene on the deceased-Rukmini and accused No.1-
Thippeswamy set fire on her. Therefore, this is completely a
different version which is contradictory to prosecution version.
There is no consistency in the testimony of PWs 2 to 4 as to the
role played by accused Nos.1 to 3. Further, the oral testimony
of PWs 2 to 4 contradicts the oral testimony of PW11-
Ahobaliah, the Tahsildar who recorded the statement of CW1-
Rukmini and evidence of IO.
44. Further, on perusal of evidence of PW11, it appears that ,
PW11 who recorded statement of Rukmini as per Ex.P8 and
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also conducted inquest as per Ex.P2. On perusal of Ex.P8-
dying declaration, the contents of Ex.P8 transpires that, "on
9.6.2011 at 10.00 a.m, mother-in-law of Rukmini i.e., accused
No.2 abused Rukmini saying that "Go and die else where" and
on further perusal of Ex.P8, it appears that, on 10.6.2011 at
6.00 a.m., deceased Rukimini told her mother-in-law (accused
no.2) that, she would quit matrimonial house and would go to
her village, then, accused No.2 told her that, "It does not
matter, if she remain in the house or quit the house, thus,
deceased Rukmini poured kerosene on her body, set fire." This
is the sum and substance of the dying declaration. But, the
contents of dying declaration or the allegations made by CW1-
Rukmini in her statement (Ex.P8) has not been deposed to by
PW11-Tahsildar on oath before the Court. But, on perusal of
Ex.P9, the letter of I.O addressed to Medical Officer, District
Hospital, Tumkur, requesting him to give opinion as to
condition of victim and whether she was in a fit condition to
give statement and in the history, it is clearly mentioned as,
when CW1-Rukmini was about to lit the kerosene oil stove, she
sustained burn injuries. Hence, there is material contradictions
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in the contents of Ex.P8-dying declaration and Ex.P9-the
requisition of police addressed to the medical officer.
45. The counsel for respondents No.1 to 3 (Accused Nos.1 to
3) vehemently argued that, in the facts and circumstances of
the case, exhibit P8, the purported dying declaration cannot
form the sole basis to convict the respondents, as Ex.P8 is
surrounded with doubtful circumstances, the same cannot be
acted upon to be the solitary basis for conviction in the absence
of any corroboration. The counsel further submits that in the
absence of a medical certificate attesting to mental fitness of
the deceased before recording of the dying declaration, Ex.P8-
dying declaration cannot be relied upon as the person who
recorded dying declaration i.e. scribe has not been examined
nor cited him as witness. According to PW11, Ex.P8 was
recorded in his presence and he has not stated that Ex.P8 was
recorded by him. Therefore, there is contradiction in the
version of PW11 and the contents of Ex.P8. Further, the doctor
who certified the mental condition of deceased-Rukmini has not
been cited as witness nor he has been examined, in order to
corroborate the contents of Ex.P8.
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46. In the instant case, the prosecution case revolves around
the evidentiary value of purported dying declaration (Ex.P8)
dated 10.6.2011. But, PWs 2 to 4, parents of Rukmini,
completely changed the case of prosecution and deposed
contrary evidence to the dying declaration. Now, the evidence
of PW11 is available, who was present at the time of recording
the dying declaration. But the evidence of PW11 also does not
inspire the confidence of the Court to believe his version.
47. Section 32 of the Indian Evidence Act contemplates for
dying declaration i.e., Section 32 deals with previous statement
made by persons falling under (a) deceased person, as to cause
of his or her death. In case of Jayamma and another vs.
State of Karnataka reported in (2021) 6 SCC 213, the
Hon'ble Apex Court has held in paragraphs 14 to 17 as under :
14. Before we advert to the actual admissibility and
credibility of the dying declaration (Ext. P-5), it will be
beneficial to brace ourselves of the case law on the
evidentiary value of a dying declaration and the sustenance
of conviction solely based thereupon. We may hasten to
add that while there is huge wealth of case law, and
incredible jurisprudential contribution by this Court on this
subject, we are consciously referring to only a few
decisions which are closer to the facts of the case in hand.
We may briefly notice these judgments.
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14.1. In P.V. Radhakrishna v. State of Karnataka12, this
Court considered the residuary question whether the
percentage of burns suffered is a determinative factor to
affect the credibility of a dying declaration and the
probability of its recording. It was held that there is no
hard-and-fast rule of universal application in this regard
and much would depend upon the nature of the burns, part
of the body affected, impact of burns on the faculties to
think and other relevant factor.
14.2. In Chacko v. State of Kerala13, this Court declined to
accept the prosecution case based on the dying declaration
where the deceased was about 70 years old and had
suffered 80 per cent burns. It was held that it would be
difficult to accept that the injured could make a detailed
dying declaration after a lapse of about 8 to 9 hours of the
burning, giving minute details as to the motive and the
manner in which he had suffered the injuries. That was of
course a case where there was no certification by the
doctor regarding the mental and physical condition of the
deceased to make dying declaration. Nevertheless, this
Court opined that the manner in which the incident was
recorded in the dying declaration created grave doubts to
the genuineness of the document. The Court went on to
opine that even though the doctor therein had recorded
"patient conscious, talking" in the wound certificate, that
fact by itself would not further the case of the prosecution
as to the condition of the patient making the dying
declaration, nor would the oral evidence of the doctor or
the investigating officer, made before the court for the first
time, in any manner improve the prosecution case.
14.3. In Sham Shankar Kankaria v. State of Maharashtra14,
it was restated that the dying declaration is only a piece of
untested evidence and must like any other evidence satisfy
the Court that what is stated therein is the unalloyed truth
and that it is absolutely safe to act upon it. Further, relying
upon the decision in Paniben v. State of Gujarat15, wherein
this Court (at SCC pp. 480-81, para 18) summed up
several previous judgments governing dying declaration,
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the Court in Sham Shankar Kankaria14,reiterated: (Sham
Shankar Kankaria14, SCC pp. 172-73, para 11)
"11. ... (i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (See Munnu Raja v. State of M.P. [Munnu
Raja v. State of M.P.16);
(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav
[State of U.P. v. Ram Sagar Yadav17 and Ramawati Devi v.
State of Bihar18.);
(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants
and was in a fit state to make the declaration. (See K.
Ramachandra Reddy v. Public Prosecutor19.);
(iv) Where dying declaration is suspicious, it should not be
acted upon without corroborative evidence. (See Rasheed
Beg v. State of M.P.20);
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it
is to be rejected. (See Kake Singh v. State of M.P.21);
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. (See Ram Manorath v. State
of U.P.22);
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(See State of Maharashtra v.Krishnamurti Laxmipati
23
Naidu .);
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (See Surajdeo Ojha v.
State of Bihar24.);
(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
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declaration look up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and
conscious state to make the dying declaration, the medical
opinion cannot prevail. (See Nanhau Ram v. State of
M.P. 25);
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. (See State of U.P. v. Madan
Mohan26.);
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time must
be preferred. Of course, if the plurality of dying declaration
could be held to be trustworthy and reliable, it has to be
accepted. (See Mohanlal Gangaram Gehani v. State of
Maharashtra27.)"
15. It goes without saying that when the dying declaration
has been recorded in accordance with law, and it gives a
cogent and plausible explanation of the occurrence, the
Court can rely upon it as the solitary piece of evidence to
convict the accused. It is for this reason that Section 32 of
the Evidence Act, 1872 is an exception to the general rule
against the admissibility of hearsay evidence and its Clause
(1) makes the statement of the deceased admissible. Such
statement, classified as a "dying declaration" is made by a
person as to the cause of his death or as to the injuries
which culminated to his death or the circumstances under
which injuries were inflicted. A dying declaration is thus
admitted in evidence on the premise that the anticipation of
brewing death breeds the same human feelings as that of a
conscientious and guiltless person under oath. It is a
statement comprising of last words of a person before his
death which are presumed to be truthful, and not infected
by any motive or malice. The dying declaration is therefore
admissible in evidence on the principle of necessity as there
is very little hope of survival of the maker, and if found
reliable, it can certainly form the basis for conviction.
16. We may also take note of the decision of this Court in
Surinder Kumar9. In the said case, the victim was admitted
in hospital with burn injuries and her dying declaration was
recorded by an Executive Magistrate. This Court, first
doubted whether the victim could put a thumb impression
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on the purported dying declaration when she had suffered
95-97% burn injuries. Thereafter, it was noted that "at the
time of recording the statement of the deceased ... no
endorsement of the doctor was made about her position to
make such statement", and only after the recording of the
statement did the doctor state that the patient was
conscious while answering the questions, and was "fit to
give statement". This Court lastly noticed that before the
alleged dying declaration was recorded, the victim in the
course of her treatment had been administered Fortwin and
Pethidine injections, and therefore she could not have
possessed normal alertness. It was hence held that
although there is neither a rule of law nor of prudence that
the dying declaration cannot be acted upon without
corroboration, the Court must nonetheless be satisfied that
the dying declaration is true and voluntary, and only then
could it be the sole basis for conviction without
corroboration.
17. Consistent with the cited principles, this Court refused
to uphold the conviction in Sampat Babso Kale v. State of
Maharashtra28. The dying declaration in that case was
made by a victim who had suffered 98% burn injuries, and
the statement was recorded after the victim was injected
with painkillers. This Court adopted a cautious approach,
and opined that there were serious doubts as to whether
the victim was in a fit state of mind to make the statement.
Given the extent of burn injuries, it was observed that the
victim must have been in great agony, and once a sedative
had been injected, the possibility of her being in a state of
delusion could not be completely ruled out. Further, it was
specifically noted that: (SCC p. 744, para 14)
"14. ... the endorsement made by the doctor that the victim
was in a fit state of mind to make the statement has been
made not before the statement but after the statement was
recorded. Normally it should be the other way around."
(emphasis supplied)
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48. Admittedly, present case is based on dying declaration and
as per the dying declaration, accused No.2 abetted the
deceased , hence, deceased poured kerosene and lit fire on her
person. Whereas, in the instant case, father, mother and
brother of the deceased (PWs 2 to 4), have resiled and clearly
stated that accused poured kerosene on the deceased Rukmini
and set fire and hence she sustained burn injuries and thereby
not supported the prosecution case in line of Ex.P8, purported
dying declaration and thereby, completely repudiated the
prosecution case and their version runs contrary to the
evidence of PW11-Tahsildar and the Police Officer-PW15,
Pradeep Kumar.
49. The litmus test, therefore, is, whether the victim has made
the statement as per Ex.P8 and if so, whether such statement
can be the solitary foundation for conviction of the
respondents?
50. Admittedly, the narration of events in the dying declaration
is so accurate that, even a witness in the normal state of mind
cannot be expected to depose with such precision. Further, the
purported dying declaration is not in a question and answer
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format. There is sufficient evidence on record that victim had
been administered sedative pain killers as she sustained 40%
to 60% burn injuries on all vital parts of her body, it cannot be
legitimately inferred that she was reeling in pain and was in
great agony and possibility of her being in a state of delusion
and hallucination cannot be completely ruled out.
51. In the backdrop of the above said contentions of the
learned counsels for the parties and the evidence placed on
record, we may refer to a few decisions of Hon'ble Apex Court
in regard to the jurisdiction and limitations of the Appellate
Court while considering the appeal against an order of
acquittal.
52. In Tota Singh v. State of Punjab reported in (1987) 2 SCC
529, the Hon'ble Apex Court in para 6 has held as under : )
"6. ... The jurisdiction of the appellate court in dealing with
an appeal against an order of acquittal is circumscribed by
the limitation that no interference is to be made with the
order of acquittal unless the approach made by the lower
court to the consideration of the evidence in the case is
vitiated by some manifest illegality or the conclusion
recorded by the court below is such which could not have
been possibly arrived at by any court acting reasonably
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and judiciously and is, therefore, liable to be characterized
as perverse. Where two views are possible on an appraisal
of the evidence adduced in the case and the court below
has taken a view which is a plausible one, the appellate
court cannot legally interfere with an order of acquittal
even if it is of the opinion that the view taken by the court
below on its consideration of the evidence is erroneous."
53. In State of Rajasthan v. Raja Ram reported in [(2003)
8 SCC 180, the Hon'ble Apex Court has held that :
"7. ... The golden thread which runs through the web of
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to his
innocence, the view which is favorable to the accused
should be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an
innocent. [Further, it is held that] in a case where
admissible evidence is ignored, a duty is cast upon the
appellate court to re-appreciate the evidence in a case
where the accused has been acquitted, for the purpose of
ascertaining as to whether any of the accused committed
any offence or not. The principle to be followed by the
appellate court considering the appeal against the
judgment of acquittal is to interfere only where there are
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compelling and substantial reasons for doing so. If the
impugned judgment is clearly unreasonable, it is a
compelling reason for interference."
54. In Surajpal Singh v. State reported in 1951 SCC
1207, the Honble Apex court has held as under :
"7. It is well established that in an appeal under
Section 417 CrPC [old], the High Court has full power
to review the evidence upon which the order of
acquittal was founded, but it is equally well settled
that the presumption of innocence of the accused is
further reinforced by his acquittal by the trial court,
and the findings of the trial court which had the
advantage of seeing the witnesses and hearing their
evidence can be reversed only for very substantial and
compelling reasons."
55. In Aher Raja Khima v. State of Saurashtra
reported in AIR 1956 SC 217, the accused was
prosecuted under Sections 302 and 447 IPC. He was
acquitted by the trial court but convicted by the High
Court. Dealing with the power of the High Court against an
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order of acquittal, Bose, J. speaking for the majority, the
Hon'ble Apex court has held as under :
"1. ... It is, in our opinion, well settled that it is not enough
for the High Court to take a different view of the evidence;
there must also be substantial and compelling reasons for
holding that the trial court was wrong."
56. In the case of unnatural death of a married woman, as in a
case of this nature, the husband could be prosecuted under
Sections 302, 304-B and 306 of the Penal Code. The distinction
as regards commission of an offence under one or the other
provisions as mentioned hereinbefore came up for
consideration before Hon'ble Apex Court in Satvir Singh v.
State of Punjab reported in (2001) 8 SCC 633 as follows :
"21. Thus, there are three occasions related
to dowry. One is before the marriage, second is at
the time of marriage and the third is 'at any time'
after the marriage. The third occasion may appear
to be an unending period. But the crucial words are
'in connection with the marriage of the said parties'.
This means that giving or agreeing to give any
property or valuable security on any of the above
three stages should have been in connection with
the marriage of the parties. There can be many
other instances for payment of money or giving
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property as between the spouses. For example,
some customary payments in connection with birth
of a child or other ceremonies are prevalent in
different societies. Such payments are not
enveloped within the ambit of 'dowry'. Hence the
dowry mentioned in Section 304-B should be any
property or valuable security given or agreed to be
given in connection with the marriage.
22. It is not enough that harassment or
cruelty was caused to the woman with a demand for
dowry at some time, if Section 304-B is to be
invoked. But it should have happened 'soon before
her death'. The said phrase, no doubt, is an elastic
expression and can refer to a period either
immediately before her death or within a few days
or even a few weeks before it. But the proximity to
her death is the pivot indicated by that expression.
The legislative object in providing such a radius of
time by employing the words 'soon before her
death' is to emphasize the idea that her death
should, in all probabilities, have been the aftermath
of such cruelty or harassment. In other words,
there should be a perceptible nexus between her
death and the dowry-related harassment or cruelty
inflicted on her. If the interval elapsed between the
infliction of such harassment or cruelty and her
death is wide the court would be in a position to
gauge that in all probabilities the harassment or
cruelty would not have been the immediate cause of
her death. It is hence for the court to decide, on the
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facts and circumstances of each case, whether the
said interval in that particular case was sufficient to
snuff its cord from the concept 'soon before her
death'."
57. In Hira Lal v. State (Govt. of NCT of Delhi) reported
in (2003) 8 SCC 80 the Hon'ble Apex Court observed thus :
"9. ... The expression 'soon before her death' used in the
substantive Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression 'soon
before' is not defined. A reference to the expression 'soon
before' used in Section 114 Illustration (a) of the Evidence
Act is relevant. It lays down that a court may presume that
a man who is in the possession of goods 'soon after the
theft, is either the thief or has received the goods knowing
them to be stolen, unless he can account for their
possession'. The determination of the period which can
come within the term 'soon before' is left to be determined
by the courts, depending upon facts and circumstances of
each case. Suffice, however, to indicate that the expression
'soon before' would normally imply that the interval should
not be much between the cruelty or harassment concerned
and the death in question. There must be existence of a
proximate and live link between the effect of cruelty based
on dowry demand and the death concerned. If the alleged
incident of cruelty is remote in time and has become stale
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enough not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence."
58. In view of the above proposition of law and decisions cited
supra, in the present case, we have independently analyzed
and scrutinized the evidence of the material witnesses and
found that there is practically no evidence to show that there
was any cruelty or harassment meted out against the deceased
for or in connection with the demand of dowry.
59. The learned Trial Judge has appreciated the evidence of
PWs 1 to PW16 in its right perspective and concluded that the
evidence of these witnesses has not been established that
deceased-Rukmini was ever being harassed or ill-treated by the
accused for bringing inadequate and insufficient dowry at the
time of her marriage with accused No.1 or that the accused
ever demanded dowry articles from the parents of the deceased
before she committed suicide.
60. It is also to be noticed that the Trial Court on the basis of
evidence has chosen to acquit all accused persons on the
ground that, the prosecution has failed to prove the allegations
of ill-treatment, harassment and demand for dowry, the
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evidence against all accused is insufficient and inconsistent with
each other. This deficiency in the evidence proves fatal to the
prosecution case. In the aforementioned situation, the
provisions of Section 304-B IPC and Section 113-B of the
Evidence Act could not be attracted to hold accused persons
guilty of the offence of dowry death and/or cruelty in terms of
Section 498-A IPC. The prosecution, therefore, must be held to
have failed to establish any case against accused persons.
Further, the appellant in Crl.A.691/2016 also has failed to
establish any case against the accused persons, as alleged by
him in the appeal.
61. The Hon'ble Apex Court in the case of HARENDRA
NARAIN SINGH vs. STATE OF BIHAR reported in AIR
1991 SC 1842, has held that if there are two views possible
from the evidence on record, one pointing to the guilt of
accused and another to the innocence of accused, then, the
view, which is favourable to the accused, is to be accepted and
benefit of doubt shall be given to the accused. The Learned
Sessions Judge placing reliance on the aforesaid judgment of
the Hon'ble Apex Court, has given benefit of doubt to
respondents/accused Nos. 1 to 3.
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62. There is no embargo on the Appellate Court reviewing the
evidence upon which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with because the
presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs
through the web of administration of the Justice in criminal
cases is that if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to the
accused should be adopted. The paramount consideration of
the Court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from acquittal of the
guilty is no less than from the conviction of an innocent. This
ratio is laid down in the case of RAMANAND YADAV vs.
PRABHUNAT JHA and in the case of C.K. DASE GOWDA AND
OTHERS vs. STATE OF KARNATAKA, reported in (2003) 12
SCC 606.
63. Having given our careful consideration to the above stated
submissions made by the learned counsel for the parties and in
the backdrop of the evidence discussed hereinabove and tested
in the light of the principles of law highlighted above, it must be
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held that the evaluation of the findings recorded by the Trial
Court do not suffers from any manifest error and improper
appreciation of the evidence on record. Therefore, the
judgment of the Trial Court, acquitting the accused persons is
sustainable in law.
64. For the reasons stated above, we are of the considered
opinion that, the evidence led by the prosecution, in regard to,
the involvement of accused persons, in the death of Rukmini is
not proved beyond reasonable doubt by the prosecution.
Further, the State as well as PW2 have also consequently failed
to establish the guilt of accused persons. Considering all these
above aspects, we are of the considered opinion that the
learned Sessions Judge has rightly held that the prosecution
has failed to prove the guilt of respondents No.1 to 3 beyond all
reasonable doubt and rightly extended the benefit of acquittal
to respondents No.1 to 3. We do not find any grounds to
interfere with the well crafted judgment passed by the Trial
Court.
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65. In the result, we pass the following order:
ORDER
i) The appeals are dismissed;
ii) The judgment of acquittal passed by the IV Additional District and Sessions Judge, Tumkuru, to sit at Madhugiri in S.C.No.241/2011 dated 22.12.2015, acquitting respondents 1 to 3 for the offence punishable under Sections 498A, 304B r/w 34 of IPC and Section 3 and 4 of Dowry Prohibition Act is, confirmed.
Sd/-
JUDGE Sd/-
JUDGE rs