Karnataka High Court
Sri Venkatesha Reddy @ Venkatesh vs The State Of Karnataka on 29 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
-1-
CRL.A. No. 945 of 2017
C/W CRL.A.No.364 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A NO.945 OF 2017 (A)
C/W
CRL.A No.364 OF 2016 (C)
IN CRL.A.No.945/2017
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE SUB INSPECTOR,
RAYALPADU POLICE STATION,
SRINIVASPUR TALUK,
KOLAR DISTRICT,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001
...APPELLANT
(BY MRS.RASHMI JADHAV, HCGP)
AND:
1. SRI BHYRAREDDY
S/O. ERANNA,
AGED ABOUT 66.
2. SMT. LAKSHMIDEVAMMA
W/O. BHYRAREDDY,
-2-
CRL.A. No. 945 of 2017
C/W CRL.A.No.364 of 2016
AGED ABOUT 60 YEARS
3. SRI. ERAPPA REDDY
S/O. BHYRAREDDY,
AGED ABOUT 46 YEARS,
ALL ARE PERMANENT
R/O. PATHAKOTE VILLAGE,
NELAVANKI HOBLI,
SRINIVASPUR TALUK
KOLAR DISTRICT - 563 135
...RESPONDENTS
(BY SRI.K.B.K.SWAMY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 17.2.2016 PASSED
BY THE II ADDITIONAL SESSIONS JUDGE, KOLAR IN
S.C.NO.20/2009- ACQUITTING THE RESPONDENT FOR THE OFFENCE
P/U/S 498A, 304B, 306 R/W 34 OF IPC AND U/S 3, 4 AND 6 OF D.P.
ACT.
IN CRL.A.No.364/2016
BETWEEN:
SRI.VENKATESHA REDDY @ VENKATESH
S/O BHYRAREDDY
AGED ABOUT 40 YEARS
RESIDENT AT PATHAKOTE VILLAGE
NELAVANKI HOBLI
SRINIVASAPURA TALUK
-3-
CRL.A. No. 945 of 2017
C/W CRL.A.No.364 of 2016
KOLAR DISTRICT-563 135
...APPELLANT
(BY MR.K.B.K.SWAMY, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY RAYALPAD POLICE STATION,
SRINIVASAPURA TALUK,
PIN- 563 134
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU -560 001
...RESPONDENT
(BY MRS.RASHMI JADHAV, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT ORDER OF
CONVICTION DATED 17.02.2016 AND ORDER OF SENTENCE DATED
18.02.2016 PASSED BY HON'BLE II ADDL. S.J., KOLAR IN
S.C.NO.20/2009- CONVICTING THE APPELLANT/ACCUSED NO.1 FOR
THE OFFENCE P/U/S 498(A), 304(B), 306 R/W 34 OF IPC AND SEC.
3, 4, 6 OF D.P. ACT.
THESE CRIMINAL APPEALS HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 02.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI, J.,
DELIVERED THE FOLLOWING:
-4-
CRL.A. No. 945 of 2017
C/W CRL.A.No.364 of 2016
JUDGMENT
Appellant/State filed Criminal Appeal No.945/2017 challenging judgment of acquittal of accused Nos.2 to 4 and appellant/accused No.1 filed Criminal Appeal No.364/2016 challenging the judgment of conviction arising out of judgment passed by the Trial Court on the file of II Additional Sessions Judge, Kolar in S.C.No.20/2009 dated 17.2.2016.
2. Parties to both the appeals are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that sister of the complainant Lakshmi was given in marriage to accused No.1 and their marriage was performed on 28.06.2007 at Seetharama Kalyana Mantapa situated between Srinivasapura and Madanapalli cross. Accused Nos.2 to 4 respectively are father-in-law, mother-in-law and brother- -5- CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016 in-law of deceased Lakshmi. It is alleged that dowry of Rs.1,50,000/- was given in the form of cash, one Hero Honda motorcycle, 120 grams of gold ornaments at the time of marriage. The prosecution alleges that after some time of marriage, the accused have started to ill-treat and harass Lakshmi, thereby subjected her to mental and physical cruelty by asking her to bring further dowry to buy a site in Bengaluru and for the purpose of business. In order to press their such demand deceased Lakshmi was beaten and sent to her parents house. Complainant has given some amount to accused No.1 and sent deceased Lakshmi back to the matrimonial home for leading marital life. However, in spite of it accused continued to ill-treat and harass Lakshmi, since she did not bring the dowry as demanded by them. On account of such harassment and unable to bear the physical and mental torture of accused, the wife of accused No.1 Lakshmi left the house on 19.07.2008 and her dead body was found floating in the water pond inside their Mango garden. On these allegations made in the complaint, the -6- CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016 Investigating Officer having carried out the investigation filed the charge sheet for the offences under Section 498A, 304B, 306 R/w Section 34 of IPC and Section 3, 4 and 6 of D.P.Act.
4. In response to the summons, accused have appeared through their counsel. The Trial Court on being prima facie satisfied of the charge sheet materials framed charges against the accused for the offences alleged against them. All the accused pleaded not guilty and claimed to be tried. Prosecution in order to prove the charges leveled against the accused relied upon the oral testimony of PWs.1 to 24 and the documents at Exs.P.1 to P.31, so also got identified MOs.1 to 7 and the defence through the prosecution witnesses got exhibited documents at Ex.D.1 to D.12.
5. On closure of the prosecution evidence, the statement of accused under Section 313 Cr.P.C. came to be recorded. The accused have denied all the incriminating material evidence appearing against them and claimed that false case is filed. Accused No.4 got himself examined as DW.1 and relied on the documents Exs.D.13 -7- CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016 to D.21. The Trial Court after appreciation of evidence on record convicted accused No.1 for all the offences alleged against him and acquitted accused Nos.2 to 4 for the charges leveled against them.
6 . Appellant/State in Crl.A.No.945/2017 challenging the judgment of acquittal of accused Nos.2 to 4 contended that Trial Court has not properly appreciated the complaint allegations Ex.P.1 and evidence of PWs.1 to 7. The Trial Court should have taken into consideration the proximity between the complaint lodged by deceased Lakshmi against all the accused on 14.07.2008 and the date of incident 19.07.2008 in appreciating the evidence placed on record regarding deceased Lakshmi being subjected to mental and physical cruelty and as a result she has committed suicide in the water pond situated in the Mango garden belongs to accused No.2. The Trial Court has failed to draw proper inferences from the circumstances, material evidence on record and those inferences drawn by the Trial Court are perverse. Therefore, prayed for -8- CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016 allowing the appeal and convict accused Nos.2 to 4 for the offences alleged against them.
7. Appellant/accused No.1 in Crl.A.No.364/2016 challenging the judgment of conviction contended that the Trial Court has not considered the defence evidence in appreciating the evidence of prosecution witnesses and committed serious error in holding accused No.1 guilty for the offences alleged against him. The Trial Court has committed error in relying on the evidence of PWs.1 to 6 and 8 who are all blood relatives of deceased Lakshmi. Further the evidence of PW.7 who is the paramour of PW.4 sister of deceased having criminal antecedents is totally unreliable. The inconsistencies appearing in the evidence of PWs.1 to 3 regarding the demand and payment of dowry create serious doubt and it is unsafe to rely such oral testimony. The motor cycle was purchased by accused No.1 out of his own money which is evident from Ex.D.13 purchase receipt and Ex.D.14 RC book copy and there is no evidence to show that the same was purchased out of -9- CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016 the money alleged to have been given by the complaint. The deceased Lakshmi was in her parental house at the time of alleged incident and the same is evident from the admission during the course of cross-examination of PW.4. The offence under Section 304B and 306 IPC are different in nature and Trial Court has committed serious error in convicting the accused for both the offences. When the Trial Court has acquitted accused Nos.2 to 4 on the basis of same evidence on record, but committed serious error in convicting accused No.1. Therefore, prayed for allowing the appeal and to set aside the judgment of Trial Court in convicting the accused No.1 for the offences alleged against him. Consequently, to acquit the accused No.1 from the charges leveled against him.
8. In response to the notice in appeal in Crl.A.No.945/2017 respondent Nos.1 to 3 appeared through their counsel. Learned HCGP in Crl.A.No.364/2016 appeared for the respondent.
- 10 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016
9. Heard the arguments of both sides in both the appeals.
10. After hearing both the sides and on perusal of the Trial Court records, the following points arise for consideration:
1) Whether, the prosecution has proved beyond all reasonable doubt that accused Nos.1 to 4 have subjected deceased Lakshmi to mental and physical cruelty to meet their demand for dowry which is of such a nature to drive her to commit suicide, there by committed offence under Section 498A R/w Section 34 of IPC?
2) Whether, the prosecution further proved that accused have subjected deceased Lakshmi to cruelty in connection with demand for dowry and as a result on 21.07.2008 at about 10 A.M. she committed suicide by jumping into the water pond situated in the mango garden belongs to accused No.2 at Pathakote village,
- 11 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
Srinivasapura taluk, thereby committed offence punishable under Section 304B R/w Section 34 of IPC?
3) Whether, the prosecution further proved that on 21.07.2008 at 10 A.M. Lakshmi committed suicide by jumping into the water pond situated in the mango garden belongs to accused No.2 and all the accused have abated for deceased Lakshmi committing suicide due to subjecting her to mental and physical cruelty on demand of dowry thereby committed offence punishable under Section 306 R/w Section 34 of IPC?
4) whether, the prosecution further proved that accused have received cash of Rs.1,50,000/-, 150 grams of gold, Hero Honda motor cycle from the parents of deceased Lakshmi as dowry before marriage and failed to return the articles belongs to deceased Lakshmi to her parents after her death and thereby committed offences under Section 3, 4, and 6 of D.P.Act?
- 12 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016
5) Whether, the judgment of Trial Court requires any interference by this Court?
11. On careful perusal of oral and documentary evidence placed on record, it would go to show that sister of complainant Lakshmi was given in marriage with accused No.1 and their marriage was performed on 28.06.2007 at Seetharam Kalyana Mantapa situated at Srinivasapura and Madanapalli cross. Accused Nos.2 to 4 respectively are father-in-law, mother-in-law and brother-in-law of deceased Lakshmi. The deceased Lakshmi was found missing from 19.07.2008 and her floating dead body was found in the water pond inside the mango garden belongs to accused No.2, further death of deceased Lakshmi due to drowning are the facts not in serious dispute and the same also can be borne out from the evidence placed on record by the prosecution.
12. The prosecution in order to establish the charges leveled against accused must prove that deceased Lakshmi was ill treated and harassed by accused in the
- 13 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 matrimonial home on demand of dowry, further she was subjected to mental and physical cruelty due to which deceased Lakshmi committed suicide by jumping into the water pond in the Mango garden belongs to accused No.2. The death of Lakshmi was on account of abetment caused by accused due to ill treatment and harassment of accused on demand of dowry. The prosecution mainly relies on the evidence of PWs.1 to 9, PW.13 Taluka Executive Magistrate who has conducted Inquest panchanama Ex.P.13 and the independent panch witness PW.22. The prosecution also relies on the evidence of PWs.15 and 18 who have conducted autopsy of deceased Lakshmi and issuing of P.M. report Ex.P.8. The prosecution further relied on the evidence of PW.17 to prove that deceased Lakshmi was assaulted by accused and she took treatment in the hospital followed by wound certificate Ex.P.11 and intimation to police Ex.P.12 with the evidence of PW.20 who has recorded the oral complaint of deceased Lakshmi Ex.P.15 and given NCR Ex.P.16. PW.16 is the AEE who
- 14 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 prepared the sketch Ex.P.9, PWs.21, 23 and 24 are the Investigating Officers of the case.
13. Learned counsel for appellant/accused No.1 in Crl.A.No.364/2016 and also for respondent Nos.2 to 4 in the connected Crl.A.No.945/2017 has argued that evidence of PWs.1 to 6 who are the close relatives of deceased Lakshmi cannot be relied to prove any of the allegations made against accused, since they are interested witnesses. The inconsistent evidence of PWs.1 to 3 regarding demand of dowry and on that score subjecting deceased Lakshmi to mental and physical cruelty cannot be relied. The Trial Court on the same set of evidence acquitted accused Nos.2 to 4, but erroneously proceeded to convict accused No.1 which cannot be legally sustained. The motor cycle was purchased by accused No.1 out of his own income and there is no evidence to connect that the same is purchased out of the alleged dowry amount said to have been paid by accused. The prosecution has failed to establish the nexus between
- 15 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 death of deceased Lakshmi and alleged demand of dowry or on the abetment said to have been caused by accused. In so far as accused Nos.2 to 4 are concerned, the Trial Court has rightly appreciated the evidence on record and was justified in acquitting them from all the charges leveled against them.
14. Per contra, the learned HCGP for appellant in Criminal Appeal No.945/2017 and respondent in Criminal Appeal No.364/2016 has argued that prosecution by evidence on record has proved the date of marriage of deceased Lakshmi with accused No.1 on 28.06.2007 and she died on 21.07.2008 within a period of 7 years from marriage and Trial Court without invoking the presumption in terms of Section 113B of the Evidence Act has erroneously acquitted accused Nos.2 to 4. The oral evidence of PWs.1 to 7 is consistent with each other version on the allegation of deceased Lakshmi being ill-treated on demand for dowry and she was subjected to mental and physical cruelty. The deceased Lakshmi was physically assaulted
- 16 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 and took treatment in the Government hospital, Srinivasapura on 13.07.2008 at 8.00 P.M. and wound certificate Ex.P.11 and the MLC intimation given by the Doctor at Ex.P.12 on 14.07.2008, further PW.20 Siddappa visited the hospital on 14.07.2008 at 13.30 hrs. and recorded the oral complaint of deceased Lakshmi Ex.P.15 and given NCR Ex.P.16 on 14.07.2008. The proximity between the complaint filed by deceased Lakshmi and the date of present incident on 19.07.2008 from which deceased Lakshmi was missing from the house and her dead body was found floating in the water pond has not been properly anlaysed with the supporting evidence placed on record by the prosecution. The Trial Court has also failed to draw proper inferences from the circumstances, material evidence on record and the inferences drawn are perverse.
State has filed appeal Crl.A.No.945/2017 against the acquittal of accused Nos.2 to 4 passed by the Trial Court. As such, accused are to be treated as innocent till their
- 17 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 guilt is proved, as the accused have already been acquitted and enjoying the double presumption of innocency on their part.
15. Before proceeding further in analysing the evidence laid in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused from the alleged offences punishable under Sections 498A, 304B, 306 r/w. Section 34 of IPC and Sections 3, 4 and 6 of the D.P.Act. Therefore, accused have primarily the double benefit. Firstly, the presumption under law that, unless their guilt is proved, the accused have to be treated as innocent in the alleged crime. Secondly, the accused are already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed. The Hon'ble Apex Court in catena of judgments has laid down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal. It
- 18 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 would be appropriate to refer to the latest two judgments of Hon'ble Apex Court in Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The Hon'ble Apex Court in another latest judgment in Roopwanti vs. State of Haryana and Others reported
- 19 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 in 2023 SCC Online 179 wherein it has been observed and held in paragraph No.7 that :
"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of a full trial is strengthened and stands fortified. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in catena of judgments by this Court."
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed on record by the prosecution.
On perusal of complaint allegations Ex.P.1, it would go to show that sister of the complainant was given in marriage to accused No.1 about one year back who is the son of accused Nos.2 and 3. At the time of marriage,
- 20 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 1,50,000/- cash, Hero Honda motor cycle, 120 gms gold ornaments were given. They have also given one ring, neck chain and watch to accused No.1. After marriage deceased Lakshmi living jointly with accused and led happy marital life. Prior to 6 months of filing complaint all the accused were assaulting Lakshmi and insisting to get cash from her parental house to purchase site in Bengaluru and to commence business. Further, the accused were torturing and subjected Lakshmi to mental and physical cruelty and sent her to parental house for getting money. At that time, complainant and the elders paid Rs.5,000/- to accused No.1 and advised him to lead marital life with Lakshmi. However, in spite of it accused Nos.1 to 3 were torturing Lakshmi, since she did not brought money as demanded by them. The deceased Lakshmi informed the said fact to the complainant over phone and advised his sister to adjust with the family members.
On 14.07.2008 all the accused picked up quarrel with Lakshmi on the pretext that she did not bring dowry and in
- 21 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 that regard she had filed complaint to Rayalpad police station. On the said complaint of Lakshmi, police had called the accused persons and advised them not to ill- treat and harass Lakshmi, they have sent Lakshmi with accused persons to join the martrimonial home. On 20.07.2008, Raghurama Reddy s/o Venkatesha Reddy came to the house of complainant and informed that since 19.07.2008 Lakshmi is found missing, as he received phone call from accused No.4 regarding the missing of Lakshmi. Complainant and others searched for Lakshmi and on 21.07.2008 at 10.00 A.M., when they came near Mango garden, they found dead body of Lakshmi floating in the water pond (Sujal Jalanayana Kunte). Complainant alleging that all the accused ill- treated and harassed Lakshmi for bringing more dowry to get site and on account of such torture, she died in the water pond.
16. The prosecution to prove the place of incident where deceased Lakshmi committed suicide by jumping into the
- 22 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 water pond belongs to accused No.2 situated in the Mango garden, relied on the spot panchanama Ex.P.2 dated 21.07.2008, as shown by complainant PW.1 in presence of the panch witness PW.7 Raghurama Reddy. PWs.1 and 7 are the signatories to the spot panchanama drawn by the Investigating Officer PW.21 Venkate Gowda and sketch map was prepared Ex.P.18. PW.16 S M Uday Kumar is the AEE of Srinivasapura who on receiving the requisition visited the spot on 12.08.2008 and prepared the sketch Ex.P.9 of the place of incident as shown by P.C - K N Reddappa of Rayalpad police station.
On perusal of the spot panchanama Ex.P.2, it would go to show that the water pond is situated at Sy.No.202 of Pathakote Village belongs to accused No.2 and the water pond measures 40 x 40 ft. which is square in shape having depth of 10 ft. and water storage about 7 ft. There is a distance of 3 ft. from the water level to the top of water pond and the dead body was lying towards southern side about 3 ft. towards northern side. The said place is at a distance of about one and half kilometers from Pathakote
- 23 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 Village. The defence counsel though subjected this witness to cross-examination, there is nothing worth material brought on record to discredit the evidence of this witness having signed on the spot panchanama Ex.P.2 at the place of incident. It has been elicited in the cross- examination of this witness that he is involved in criminal cases and in some cases ended in acquittal and in some cases he was convicted. However, that factor alone cannot be said as sufficient evidence to discredit the evidence for having prepared spot panchanama in his presence Ex.P.2 and he has signed Ex.P2(b). Complainant PW.1 is also signatory to spot panchanama.
The defence counsel has tried to elicit in the cross- examination of Investigating Officer PW.21 Venkate Gowda that Sy.No.202 belongs to one Hanumantha Rao and not to any of the accused. It has been further elicited in the cross-examination of PW.16, S M Uday Kumar that in the sketch map Ex.P.9, Sy.No.202 was shown and thereafter it was scored out and Sy.No.201 is written. PW.16 admits that he has received the requisition Ex.P.10 wherein
- 24 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 Sy.No.202 is shown as belongs to accused. It is suggested to PW.1 that land belongs to accused No.2 is Sy.No.201 and deliberately survey number is wrongly shown as 202. The examination-in-chief of PW.3 would go to show that dead body of Lakshmi was found floating in the water pond belonging to the accused. PW.13 B Mallikarjuna, Taluka Executive Magistrate in his examination-in-chief stated that he has visited the Mango garden of accused No.2 in Pathakote Village and the dead body of Lakshmi was found floating in the water pond. PW.24 H Hanumanthappa, Investigating Officer has deposed to the effect that he has collected RTC of land bearing Sy.No.202 of Lakshmipura Ex.P.29. However, the RTC bears Sy.No.201 belongs to accused No.2. It has been no where suggested by defence to any of the above referred prosecution witnesses that water pond is not situated in any of the land either Sy.Nos.201 or 202 belongs to accused No.2. Hence, wrong mentioning of survey number in the spot panchanama Ex.P.2 and in the sketch prepared by PW.16 Ex.P.9 and also in the requisition Ex.P.10 will not take away the case of the
- 25 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 prosecution in proving the fact that dead body of deceased Lakshmi was found floating in the Mango garden belongs to accused No.2. Thus, the prosecution has proved the spot panchanama Ex.P.2 in fixing the place of incident where the dead body of deceased Lakshmi was found floating in the water pond belongs to accused No.2.
17. PW.13 B Mallikarjuna, Taluka Executive Magistrate conducted Inquest panchanama Ex.P.13 in presence of PW.22 Jayarama Reddy. PW.13 has deposed to the effect that on receiving requisition from the police station visited the Mango garden land of Pathakote village belongs to Bhyrareddy and dead body of woman about 20 years was floating and conducted Inquest panchanama Ex.P.13. PW.22 Jayarama Reddy also has deposed to the effect that Inquest panchanama was prepared in his presence Ex.P.13 and he has signed as per Ex.P.13(c). In the cross- examination he has denied that he has signed on the Inquest panchanama already prepared. Thus, prosecution
- 26 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 by the evidence of PW.13 and PW.22 has proved the correctness of the inquest panchanama Ex.P.13.
18. The prosecution to prove unnatural death of Lakshmi other than under normal circumstances relied on the evidence of PW.15 Dr. Ashok Reddy and PW.18 Dr. Varalakshmi who have conducted autopsy of the deceased Lakshmi at the spot itself. Their evidence will go to show that on the requisition received from the Taluka Executive Magistrate, conducted the PM examination of deceased Lakshmi and found the external appearance with four abrasions recorded in the PM report and opined that the cause of death of deceased Lakshmi is due to Asphyxia as a result of drowning. On the basis of the FSL report also final opinion is recorded as death is due to Asphyxia as a result of drowning. The said cause of death of Lakshmi is also not in serious dispute by the defence. Therefore, the prosecution has proved the cause of death of Lakshmi is due to Asphyxia as a result of drowning.
- 27 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016
19. The prosecution alleges that all accused have ill- treated and harassed deceased Lakshmi on demanding dowry and on account of unbearable torture of accused she committed suicide by jumping into the water pond situated in the Mango garden belonging to accused No.2. The prosecution to prove the said fact relies on the evidence of PWs.1 to 7.
20. Complainant PW.1 Srinivasa Reddy on the allegation of ill-treatment and harassment has deposed to the effect that there was marriage talks prior to three months of marriage. They have given cash of Rs.1,50,000/-, Hero Honda motorcycle, one gold neck chain, ring and watch to accused No.1 and also given 120 gms of gold ornaments to deceased Lakshmi and performed the marriage with accused No.1.
PW.1 further deposed to the effect that his sister and accused No.1 led happy married life for about 6 months and thereafter all the accused started demanding to get more money as dowry for purchasing the site in Bengaluru
- 28 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 and to commence business of accused No.1. In order to press their such demand, started ill-treating and harassing Lakshmi by abusing and she used to inform the said fact to the complainant over phone. However, complainant used to console his sister and advised to adjust in the matrimonial family. Once he has paid Rs.5,000/- to accused No.1 and advised to lead happy marital life. However, in spite of it, accused have not stopped ill- treating and harassing Lakshmi.
On 14.7.2008 accused have assaulted Lakshmi and poured kerosene on her, as such she took treatment in Srinivasapura Government hospital and filed complaint before Rayalpad police station. Thereafter police called the accused and panchayath was conducted in presence of elders, wherein the accused executed an undertaking bond that they will not ill-treat Lakshmi. Accused No.4 being enraged of all accused being called to the police station, abused the complainant and threatened him stating that he is a practicing Advocate in the High Court.
- 29 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016
21. PW.2 G V Reddappa, younger brother of complainant also deposed to the effect cash of Rs.1,50,000/-, Hero Honda motor cycle, ring and neck chain was given to accused No.1 and 120 gms. Gold was given to Lakshmi at the time of marriage. She led happy marital life for about 6 months, thereafter all the accused started ill-treating and harassing deceased Lakshmi to get additional dowry from her parents for getting site in Bengaluru and to commence business of accused No.1. His sister Lakshmi used to inform him about such ill-treatment of accused when she visited her parental house. Once PW.1 has given cash of Rs.5,000/- and advised accused No.1 to lead happy marital life with Lakshmi. However, in spite of it, accused continued to ill-treat and harass Lakshmi.
PW.2 further deposed to the effect that on 14.07.2008 at 10.00 A.M, PW.5 Chikka Naremma informed over phone that accused have assaulted Lakshmi and she is admitted to Srinivasapura hospital and immediately rushed to the hospital wherein Lakshmi was found having injuries
- 30 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 and under treatment in Government Hospital Srinivasapura. Lakshmi had filed complaint with regard to the said incident and panchayath was conducted in presence of elders and accused were warned not to ill-treat and harass Lakshmi. Accused No.4 being enraged of police calling them to the police station, administered threat to life.
22. PW.3, Sakamma - mother, PW.4 Padmavathamma, sister and PW.5-Chikka Naremma - maternal aunt of deceased Lakshmi have also deposed about the ill- treatment and harassment of accused and subjecting deceased Lakshmi to mental and physical cruelty.
23. PW.6 Iyamareddy was a mediator for the marriage of Lakshmi with accused No.1 and related to complainant, since the elder sister of deceased Lakshmi was given in marriage to his son. PW.7 Raghurama Reddy, PW.8 Munivenkatappa and PW.9 Munivenkatappa s/o. Chikkamuniswamappa during the course of their evidence have deposed about the marriage of deceased Lakshmi
- 31 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 being performed with accused No.1. At the time of marriage, cash, gold ornaments, motor cycle, watch, ring were given and after some time of marriage, all the accused started ill-treating and harassing Lakshmi to bring more money to purchase a site in Bengaluru and commencing business of accused No.1. It is true that the evidence of above referred witnesses has some variation regarding the giving of cash and the quantum of gold given at the time of marriage. Such minor discrepancies are bound to occur when they are giving evidence before Court after sufficient long time from the date of incident. However, their evidence is consistent with regard to giving of cash, gold ornaments, motor cycle as referred above at the time of marriage and after some time of marriage, all the accused started ill-treating and harassing Lakshmi, further subjected her to mental and physical cruelty.
24. The defence has suggested to PW.1 during cross- examination that it is written in the complaint about one month back his sister was sent to parental house for
- 32 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 getting money and the witness admits the said suggestion as true. It is further suggested that it is written in the complaint that Rs.1,50,000/- cash, Hero Honda motor cycle and 120 gms gold was given to Lakshmi and the witness admit the said suggestion as true. It means that the defence admits about receiving the dowry as referred above. It is contention of counsel for accused that there is not any evidence to show that all the accused were residing together in one house at Pathakote Village. PW.1 has categorically denied that accused No.1 and deceased Lakshmi were residing in the tiled roofed house and parents of accused No.1 were residing in the RCC house. PW.2 - G V Reddappa has deposed to the effect that his sister was residing in the joint family of accused. PW.3 Sakamma mother of deceased Lakshmi has deposed to the effect that all the accused together were residing. However, indisputably accused No.4 is a practicing advocate residing at Bengaluru and the same has been admitted by PWs 1 to 4. It means that accused No.1 with deceased Lakshmi, accused Nos.2 and 3 were jointly
- 33 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 residing at Pathakote Village. The contention of counsel for accused that accused Nos.2 and 3 were separately residing in RCC house is not supported by any evidence on record. In this regard, the evidence of PW.10 Tulasamma was relied by the defence counsel. It is pertinent to note that PW.10 has not supported the case of the prosecution. However, the evidence of PW.10 Smt Tulasamma would go to show that accused No.1 and deceased Lakshmi were residing separately, further accused Nos.2 and 3 were residing separately and accused No.4 is residing at Bengaluru. It has been elicited in her cross-examination that accused No.1 was residing in tiled house and admitted all the suggestions put to her by the defence. The said evidence is not supported by any other evidence placed on record. Therefore, the contention of accused that accused No.1 with his wife Lakshmi was separately residing in tiled house, whereas accused Nos.2 and 3 are residing separately in RCC house cannot be accepted.
- 34 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016
25. The prosecution has alleged that deceased Lakshmi was ill-treated and harassed, so also she was physically assaulted by the accused. The evidence of PW.17 Dr.Vivek Dorai would go to show that Lakshmi w/o.Venkatesh Reddy with the history of assault by her husband on 13.7.2008 at 8.00 p.m. in her residence appeared before him on 24.7.2008 at 11.20 a.m. and on examination of Lakshmi found the following injuries :
i) Tenderness in the left cheek
ii) Tenderness in the right and left lumbar region
iii) Tenderness in the left calf muscle
iv) Tenderness in the right forearm PW.17 opined that the said injuries are simple in nature and accordingly issued wound certificate Ex.P.11 and given MLC report Ex.P.12.
26. PW.20 Siddappa, Head constable of Rayalpad police station has deposed to the effect that on 14.7.2008 received wireless message from Srinivasapura police station on the basis of MLC received from General
- 35 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 hospital, Srinivasapura. PW.20 on informing PSI proceeded to Srinivasapura police station and after receiving the message proceeded to general hospital Srinivasapura where Lakshmi was under treatment and recorded her oral statement Ex.P.15. Thereafter, on the instruction of PSI issued NCR Ex.P.16. The evidence of PWs.1 to 3 would go to show that panchayath was held in the Police station and the accused were advised not to ill- treat Lakshmi, further taken bond from accused then NCR Ex.P.16 came to be issued. It is thereafter Lakshmi again went to matrimonial home for leading marital life.
On careful perusal of complaint allegations recorded by PW.20, it would go to show that complainant alleged that she was repeatedly being ill-treated and harassed in the matrimonial home on the demand of dowry, the accused also used to abuse her in filthy language and administer threat. On 13.07.2008 at 8.30 P.M. accused No.1 on the pretext that she is not listening to his words spilled kerosene and on screaming, she came out of the house, further informed over phone to her brother. The
- 36 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 neighbor Muniyappa advised her to go to hospital. It is only thereafter Lakshmi went to Srinivasapura hospital on the next day. The evidence of PW.17 would go to show that Lakshmi has suffered injuries noted in the wound certificate Ex.P.11. The fact that Lakshmi was treated in Srinivasapura General Hospital and she has suffered injuries as noted in wound certificate Ex.P.11, further the treating doctor PW.17 has given MLC intimation to the Police station Ex.P.12 and Lakshmi filed complaint Ex.P.15 has not been denied by the defence and the same is also certified by the oral evidence of PWs.1 to 3. The accused were called to the police station and panchayath was held in the presence of elders. PWs.1 and 2 have deposed to the effect that accused No.4 in front of the police station being enraged of his family members being called to the police station abused them and threatened. It has not been specifically denied that in pursuance of panchayat held in the police station Lakshmi was sent back to her matrimonial home.
- 37 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016
27. Accused No.4 has led his evidence as DW.1 to substantiate his contention that he is a practicing lawyer and permanently residing in Bengaluru and relied on the documents Ex.D.13 to Ex.D.21. It is the contention of accused No.4 that partition was already effected in the family on 15.10.2005 and the family properties have been partitioned Ex.D.15, ration card Ex.D.16, ID card Ex.D.17, voter ID Ex.D.18.
28. It is true that accused No.4 is a practicing lawyer residing in Bengaluru and the partition has taken place on 15.10.2005 Ex.D.15 much before the marriage of deceased Lakshmi with accused No.1. However, it does not mean that accused No.4 never visits to his native place and there was no scope for him in the alleged ill-treatment and harassment to deceased Lakshmi.
Accused No.4 during the course of his evidence did not confine himself about the partition and residing separately at Bengaluru. Accused No.4 went to the extent of making allegations against deceased Lakshmi that she was having illicit relationship with Srinatha Reddy who is the son of PW.8. The said Srinatha was pursuing his
- 38 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 marriage proposal with Lakshmi through the wife of PW.1. However, the father of complainant was opposing for the same. He has further alleged that PW.2 has taken deceased Lakshmi to Ramsamudra of Andra Pradesh for aborting only with an intention to obtain divorce and perform the marriage of Lakshmi with Srinatha Reddy. In support of such allegations other than the oral evidence of DW.1 no any oral or documentary evidence has been produced by accused No.4. Accused No.1 himself did not allege the said fact and accused No.4 has given evidence as if he is witness to the said allegations. The suggestions made in the cross-examination of above referred material witnesses of the prosecution has been denied by them. PW.3 Sakamma mother of deceased Lakshmi and PW.8 father of Srinatha has specifically denied about the marriage proposal of Srinatha with deceased Lakshmi. The conduct of accused No.4 all through out is not unblemished and he makes untenable allegations questioning the chastity of deceased Lakshmi. The said conduct of accused No.4 is
- 39 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 nothing but deceased Lakshmi was being subjected to mental cruelty.
29. Accused No.4 has contended that motor cycle was purchased by accused No.1 out of his own income and produced cash receipts Ex.D.13 and the RC book Ex.D.14. It is the specific evidence of PWs.1 and 2 that cash was given for purchasing the motor cycle and PW.1 has denied that accused No.1 has purchased the said motor cycle out of his own income. PW.1 has stated in the cross- examination that after ten days of marriage his brother and accused No.1 went together and purchased the motor cycle. PW.2 in his evidence has stated that accused No.1 has purchased the motor cycle after the marriage out of the money given by them. Accused No.1 has not denied that motor cycle was purchased after marriage on 12.07.2007. Accused No.1 during the course of his statement under Section 313 of Cr.P.C. has not claimed that he has purchased the motor cycle out of his own money. However, in spite of it accused No.4 alone wants
- 40 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 to claim that his brother out of his income purchased motor cycle. The said evidence of accused No.4 cannot be relied without there being any trustworthy corroboration documents to that effect. Therefore, the allegations that deceased Lakshmi was having illicit relation with Srinatha s/o PW.8, further without consent or knowledge of accused No.1, PW.2 carried Lakshmi to Ramsamudra in Andra Pradesh for abortion and she was in the house of her parents till her death has not been probabilised by the accused out of the evidence placed on record. The mere admission of PW.4 Padmavathamma sister of deceased Lakshmi who is residing in Uppar Halli that Lakshmi till her death was in her parental house without there being any supporting evidence from other prosecution witnesses cannot be relied to hold that prior to her death Lakshmi was residing in her parental house. On the other hand after panchayat in the police station before the elders deceased Lakshmi was sent with accused to the matrimonial home after taking necessary bond from the accused after the complaint of deceased Lakshmi. The said fact has been
- 41 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 further strengthened in view of the oral evidence of PWs.1 to 3, 8 and 9.
30. Learned counsel for accused adverted to inconsistent evidence of PWs.1 to 3 with regarding to the demand of dowry and giving cash, Hero Honda bike, chain, ring, watch at the time of marriage. The mathematical accuracy of evidence cannot be expected in an offence like this nature and particularly when they are giving evidence before the Court after quite long time after the incident. The whole of their evidence will have to be appreciated to ascertain as to whether there is any element of truth in the said allegations.
31. Learned counsel for accused also expressed doubt about search of missing Lakshmi after they alleged to have got information from PW.7 Raghurama Reddy. On careful perusal of the above referred material witnesses of the prosecution more particularly the evidence of PWs.1 to 3 the same would go to show that PW.7 Raghurama Reedy received phone call from accused No.4 about missing of Lakshmi
- 42 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 from the matrimonial home at Pathakote. PW.7 has deposed to the effect that after three days of settlement of dispute at panchayath in police station accused No.4 called him over the phone and informed that Lakshmi is missing and asked him to inform the same to Srinivasa Reddy PW.1. PW.7 further deposed to the effect that on the next day he went to the house of Srinivasa Reddy PW.1 and informed about the phone call of accused No.4 informing about missing of Lakshmi. It is on the basis of such information of PW.7, PWs.1 to 3 and others went in search of Lakshmi and on 21.07.2008 they found the dead body floating in the water pond situated in the Mango garden belonging to accused No.2.
The credibility of the evidence of this witness PW.7 was questioned in the cross-examination, since he had criminal cases against him. Out of them in some cases he was convicted and in some cases he has been acquitted. The mere fact that there were some criminal cases against PW.7 in which some cases ended in acquittal and in some cases he has been convicted cannot be a valid
- 43 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 ground to discard his evidence. The evidence of PW.7 is also further corroborated by the evidence of PWs. 1 and 2 who have deposed to the effect that on receipt of information from PW.7 regarding the missing of their sister Lakshmi from the matrimonial home, as he has received the said information through the phone call of accused No.4. The defence has not brought any material evidence in the cross-examination of aforementioned witnesses of the prosecution that PW.1 and PW.2 had knowledge about the missing of their sister other than from the information given by PW.7. Therefore, the evidence of PWs 1 to 3 that they went in search of deceased Lakshmi after receiving information from PW.7 and found the dead body of Lakshmi floating in the water pond situated at the mango garden belonging to accused No.2 has to be accepted. The said evidence has been further corroborated by the evidence of PW.1 and PW.7, signatories to the spot panchanama Ex.P.2 and the sketch prepared by PW.16 as per Ex.P.9. Further PW.13 has conducted inquest panchanama Ex.P.13 in presence of PW.22 Jayarama
- 44 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 Reddy. The search of deceased Lakshmi by PWs 1 to 3 on receiving the information from PW.7 and finding of the dead body floating in the water pond situated at Mango garden belonging to accused No.2 since has come in the natural course, the above referred doubt expressed by the learned counsel for the accused cannot be legally sustained.
32. The portion of the statement of PWs. 2, 3 and 4 as per Exs.D.2, D.4 and D.5 are relied by the accused to show inconsistency in their evidence. If the marked portion at Exs.D2, D4 and D5 are taken into consideration and appreciated with the aforesaid evidence on record then the said statements of PWs.2, 3 and 4 will not affect the case of prosecution in any manner nor it has any effect to destroy the entire case of prosecution. Learned counsel for accused also referred to the inconsistent evidence of PWs 1,2 and 3 during the course of their evidence regarding demand of dowry and payment of the same, so also the variations in the quantum of gold the same will not affect the case of
- 45 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 the prosecution so as to disbelieve the evidence of above referred prosecution witnesses.
33. Learned counsel for accused has also argued that evidence of PWs.1 to 7 cannot be relied, since they are interested witnesses and belong to the family of complainant. In most of the offence of subjecting the married woman to cruelty committed within the boundaries of the house, with in itself diminishes the chances of availability of any independent witness and even if independent witness is available whether he or she would be willing to be a witness in the case is also a big question because normally no independent or unconnected person would prefer to become a witness for a number of reasons. There is nothing unnatural for a victim of domestic cruelty to share her trauma with her parents, with his brother and sisters and other such close relatives. The evidentiary value of the close relatives is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the
- 46 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 relatives to be produced as a witness proved their evidence inspires confidence to believe. However, when the court has to appreciate the evidence of any interested witness, it has to be very cautious in weighing their evidence or in other words, the evidence of any interested witness requires a scrutiny with utmost care and caution. The court is required to address itself whether there are any infirmities in the evidence of such a witness, whether the evidence is reliable, trustworthy and inspires the confidence of the Court. Another important aspect to be considered while analyzing the evidence of interested witness is whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness/relative on a careful scrutiny by the Court is found to be consistent and trustworthy, free from infirmities or any embellishment that inspires the confidence of the court, there is no reason to place reliance on the same. In this context it profitable to refer three Bench judgment of the Hon'ble Apex Court in Maranadu vs. State, Inspector of
- 47 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 Police, Tamilnadu reported in (2008) 16 SCC 529 wherein it has been held as under :
"Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there allegations of interestedness, the same has to be established. Mere statement that relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version.
"......... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
In view of principles enunciated in this decision, the contention of learned counsel for accused that evidence of
- 48 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
PWs. 1 to 7 being family members of deceased Lakshmi are interested witnesses and their evidence has to be discarded cannot be legally sustained.
34. On critical analysis of the evidence of above referred witnesses of the prosecution, we are of the view that prosecution has proved that deceased Lakshmi was subjected to mental and physical cruelty in terms of Section 498A of Indian Penal Code by all the accused.
35. The above referred evidence on record would go to show that marriage of complainant's sister Lakshmi was performed with accused No.1 on 28.06.2007 and her dead body was found floating in the water pond situated at Mango garden belonging to accused No.2 on 21.7.2008. Undisputably the sister of complainant, Lakshmi died within 7 years of marriage. In view of the reasons recorded as above, it has been observed and held that deceased Lakshmi was subjected to mental and physical cruelty. The question is as to when the prosecution having successfully established the charge of cruelty as
- 49 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 enumerated in Explanation (b) of Section 498A of IPC and also the fact that the deceased committed suicide within 7 years of marriage, whether the accused can also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act was directly under consideration before the Hon'ble Apex Court in the case of Gumansinh alias Lalo alias Raju Bhikhabhai Chauhan and Another vs. State of Gujarath reported in (2021) SCC Online 660. The Hon'ble Apex Court by referring to its earlier three Bench judgment in the case of Ramesh Kumar vs. State of Chhattisgarh reported in (2001) 9 SCC 618 extracted paragraph No.12 of the judgment which reads as follows :
"This provision was introduced by criminal law (II) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married woman were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within four corner of matrimonial home and hence was not available to anyone outside the
- 50 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) woman has committed suicide (ii) such suicide has been committed within a period of 7 years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is also permissive as the employment of expression "may presume"
suggests. Secondly, the existent and availability of the above said three
circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to regard to 'all the other circumstances of the
- 51 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
case'. A consideration of all other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression-'The other circumstances of the case' used in 113-A suggests the need to reach a cause and effect relationship between the cruelty and society for the purpose of raising a presumption. Last but not the least, the presumption is not a irrebutable one. In spite of a resumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'may presume' used in 113-A is defined in Section 4 of the Evidence Act, which says - 'whenever it is provided by this Act that court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it'."
The Hon'ble Apex Court having appreciated the fact with regard to the existence of three conditions i.e., the woman has committed suicide, such suicide has been committed within a period of 7 years from the date of her marriage,
- 52 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 the charged accused had subjected her to cruelty and in the absence of any rebuttal evidence or material in the cross-examination of the prosecution witnesses held that where the prosecution successfully established the charge of cruelty as laid down in Explanation (b) of Section 498A of IPC, the accused can also be held guilty for the offence under Section 306 of IPC with the aid of Section 113-A of the Evidence Act.
36. The Hon'ble Apex Court in Gumansinh's case (supra) referred Ramesh Kumar case (supra) wherein it is held that :
"Section 498A and 306 of IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a women to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established living no other option for the women except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498A IPC it does not follow that on the
- 53 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
same evidence he must also and necessarily be held guilty of having abated a commission of suicide by women concerned."
In view of the principles enunciated in this decision just because prosecution has proved the offence under Section 498A of IPC, it does not follow that on the same evidence, the accused will have to be necessarily held guilty of having abetted the commission of suicide by the women concerned. Therefore, the prosecution has to establish the nexus between cruelty and suicide committed by Lakshmi, so as to attract penal action in terms of Section 306 of Indian Penal Code against all accused.
37. The evidence of PWs. 1 to 3 would go to show that deceased Lakshmi was ill-treated and harassed by accused on demand for dowry and she used to inform about such ill-treatment to her brother PW1. It is in the evidence of PWs. 1 and 2 that once cash of Rs.5,000/- was given to accused No.1 and he has advised to lead marital life with deceased Lakshmi. However, being not satisfied with the
- 54 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 said amount accused No.1 was harassing Lakshmi to get more money for purchasing site and commence business in Bengaluru. She has also informed the said fact to her brother PW1 who advised her to adjust in the matrimonial life.
The deceased Lakshmi on 13.7.2008 due to assault on her, took treatment in General Hospital Srinivasapura on 14.7.2008 at 11.20 a.m. The said fact is evidenced from the evidence of PW.17- Dr.Vivek Dorai and the wound certificate Ex.P.11. PW.17 has also given MLC intimation to Srinivasapura Police station Ex.P.12. In turn, Srinivasapura Police sent wireless message to Rayalpad Police station. PW.20-Siddappa, HC, on visiting Srinivasapura Police station collected the intimation and after going to the General Hospital Srinivasapura, recorded the complaint of deceased Lakshmi as per Ex.P.15. On the said complaint, panchayath was held before the elders and Lakshmi was sent to matrimonial home after taking bond from accused. The deceased Lakshmi in her complaint Ex.P.15 has specifically alleged against accused No.1 alone
- 55 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 that he is repeatedly abusing and assaulting her for pressing his demand for getting money from her parental house, further administered threat. It is further alleged that father of Lakshmi in shock of such ill-treatment meted out to his daughter, died and questioned accused No.1 that how she can bring money from her parental house. There is not any reference of accused No.4 in the said complaint.
Indisputably on such complaint of deceased Lakshmi panchayath was held in Rayalpad Police station before elders. PWs 1 to 3 and 8 and 9 have substantiated the said fact further that deceased Lakshmi was sent to matrimonial home. However, learned counsel for accused adverting to the admission of PW.4 in the cross- examination, who is the elder sister of deceased Lakshmi, argued that deceased Lakshmi till her death was in her parental house. If that is so, why deceased Lakshmi took treatment in General hospital Srinivasapura on 14.7.2008 due to the injuries sustained by her on account of assault by accused No.1 or the presence of injury on Lakshmi as
- 56 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 per wound certificate Ex.P.11 has not been explained by the accused. It has been elicited in the cross-examination of PW.1 that distance between Pathakote and Srinivasapura is about 15 kms. Indisputably, the matrimonial home of deceased Lakshmi is Pathakote village and her parental house is in Dasarathimmanahalli. If at all deceased Lakshmi was in her parental house till her death then why she should go to Pathakote only for jumping into the water pond belongs to accused No.2. There is also not any other evidence on record to prove that after panchayath in Rayalpad police station, she did not go to the matrimonial home. It is not the case of the accused that after the panchayath in Rayalpad police station, PWs 1 to 3 took Lakshmi to her parental house. Therefore, in the absence of any corroborative evidence, it cannot be accepted that deceased Lakshmi was in her parental house till her death.
38. Looking to the above referred evidence on record and the death of Lakshmi within seven years of marriage on
- 57 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 account of she being subjected to mental and physical cruelty, further the time gap between the incident of assault on 13.7.2008 and she went missing from her matrimonial home on 19.7.2008, further the dead body of deceased Lakshmi was found floating in the water pond situated at Mango garden belongs to accused No.2 on 21.07.2008, further in view of proximity of time between the incident of cruelty and the death of Lakshmi necessary presumption in terms of Section 113A and 113B of Indian Evidence Act will have to be drawn in the absence of any other evidence on record in view of the principles enunciated in the aforementioned judgments. The conduct of accused No.1 all throughout and the above referred evidence on record would go to show that it is on account of abetment caused by accused No.1, the sister of complainant, Lakshmi committed suicide.
39. The prosecution has proved by virtue of above evidence on record that accused Nos.1 to 4 have subjected deceased Lakshmi to mental and physical cruelty within
- 58 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 the meaning of Section 498A of IPC. On account of ill- treatment and harassment of accused No.1 and repeatedly picking up quarrel with deceased Lakshmi, further assaulted on her, due to which she was under treatment in General Hospital Srinivasapura as per the evidence of PW.17 and the wound certificate Ex.P.11. The said ill- treatment and harassment of accused No.1 was on demand of getting more money from her parents for purchasing site and commencing business of accused No.1 in Bengaluru.
40. The evidence placed on record by the prosecution in the form of evidence of PWs.1 to 7 would revolve around only against accused No.1 and it is on account of physical assault to Lakshmi and insisting her to get more dowry from her parental house for purchasing site in Bengaluru and to commence business of accused No.1. It has also been brought on record in the cross- examination of PWs.1 and 2 that once accused No.1 was paid with an amount of Rs.5,000/- to lead marital life with
- 59 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 Lakshmi. However, in spite of it accused No.1 continued to ill-treat Lakshmi. The said demand of accused No.1 is for benefit of himself and accused Nos.2 to 4 have no any role and the evidence against them is insufficient to draw any presumption in terms of 113A and 113B of Indian Evidence Act.
41. The Trial Court has not properly appreciated the evidence on record with regard to the allegations made against accused Nos.2 to 4 for the offence under Section 498A of IPC. Therefore, acquittal of accused Nos.2 to 4 for the offence under Section 498A of IPC cannot be legally sustained and the acquittal of accused Nos.2 to 4 for the remaining offence does not call for any interference. The Trial Court was justified in convicting accused No.1 for the offences alleged against him.
42. The Trial Court though has found accused No.1 guilty for the offence under Sections 498A, 304B and 306 of IPC r/w. Section 34 of IPC and Section 3, 4 and 6, of D.P. Act it by exercising of its judicial discretion
- 60 -
CRL.A. No. 945 of 2017C/W CRL.A.No.364 of 2016 convicted accused No.1 for rigorous imprisonment for 7 years with fine of Rs.50,000/- and in default to undergo imprisonment for 6 months for the major offence under Section 304B of Indian Penal Code and did not choose to impose separate sentence for the remaining offences. We do not wish to interfere with the imposition of sentence as ordered by the Trial Court.
43. In view of the findings recorded as above, the appeal filed by the State in Crl.A.No.945/2017 is required to be partly allowed for convicting accused Nos.2 to 4 for the offence under Section 498A of IPC. The Criminal Appeal filed by accused No.1 in Crl.A.No.364/2016 is dismissed. Accordingly, we proceed to pass the following :
ORDER Criminal Appeal No.364/2016 filed by accused No.1 is hereby dismissed.
Criminal Appeal No.945/2017 filed by the State is hereby partly allowed.
- 61 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
The judgment of acquittal dated 17.2.2016 passed by II Additional Sessions Judge, Kolar in S.C.No.20/2009 acquitting the accused Nos.2 to 4 for the offence punishable under Section 498A of IPC stands set aside.
Accused Nos.2 to 4 are convicted for the offence under Section 498A R/w. Section 34 of IPC.
The acquittal of accused Nos.2 to 4 for the remaining offences passed by the Trial Court is confirmed.
The bail bond of accused Nos.1 to 4 and that of their surety shall stand cancelled.
Call on to hear on the quantum of sentence.
.
Sd/-
JUDGE Sd/-
JUDGE
- 62 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
HEARING ON SENTENCE Learned HCGP, present before the Court and Sri K.B.K.Swamy, learned counsel for respondents/accused Nos.2 to 4 appears through video conference. Heard both sides on quantum of sentence.
The learned counsel for respondents/accused Nos.2 to 4 submits that accused Nos.2 and 3 are age old parents of accused No.1 and accused No.4 is the only person who has to look after his family. Therefore, prayed for taking lenient view, while imposing the sentence including enlarging the accused under the Probation of Offenders Act, 1958.
Per contra, learned HCGP for the appellant/State submits that on account of deceased Lakshmi being subjected to cruelty, the evidence on record would demonstrate that accused Nos.2 to 4 do not deserve any leniency.
It is the sentencing policy that the sentence ordered must be proportionate to the proved offence against the accused. The imposition of sentence shall be neither
- 63 -CRL.A. No. 945 of 2017 C/W CRL.A.No.364 of 2016
exorbitant nor flee bite sentence. In the present case, accused Nos.2 to 4 are found to be guilty for the offence under Section 498A of Indian Penal Code. Looking to the facts and circumstances of the case, coupled with the allegations against accused Nos.2 to 4 in subjecting deceased Lakshmi to cruelty, we are of the opinion that accused Nos. 2 to 4 are not entitled to the benefit of Probation of Offenders Act. Hence, we proceed to pass the following :
ORDER ON SENTENCE Accused No.2 - Bhyrareddy s/o.Eranna, accused No.3-Lakshmidevamma w/o.Bhyrareddy, accused No.4- Erappareddy s/o.Bhyrareddy all are permanent residents of Pathakote Village, Nilavanki Hobli, Srinivasapura Taluk are sentenced to undergo simple imprisonment for a period of two years and pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo additional imprisonment for three months each for the offence under Section 498A of Indian Penal Code.
- 64 -CRL.A. No. 945 of 2017
C/W CRL.A.No.364 of 2016 Accused Nos.2 to 4 are entitled for the benefit of set- off under Section 428 of Cr.P.C. for the period having undergone by them in judicial custody, if any, in the matter.
On realisation of fine amount, the entire fine amount is ordered to be paid to PW.1-Srinivasareddy as compensation who is the brother of deceased Lakshmi.
Accused Nos.1 to 4 shall surrender before the Sessions Court within 30 days from today.
Accused are entitled for free copy of this judgment immediately.
Registry to transmit a copy of this judgment along with Sessions Court records to the concerned Sessions Court immediately for compliance. .
Sd/-
JUDGE Sd/-
JUDGE rs/GSR