Karnataka High Court
State Of Karnataka vs Rajshekhar S/O Veerappa Shettar on 2 February, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL No.100422 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY POLICE SUB-INSPECTOR,
WOMEN POLICE STATION,
HUBLI-DHARWAD, DHARWAD DISTRICT,
THROUGH ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI.V.S. KALASURMATH, HCGP)
AND:
1. RAJSHEKHAR S/O VEERAPPA SHETTAR
AGE:45 YEARS, R/O MIRAJKAR BUILDING,
3RD CROSS, TABIBLAND, HUBBALLI,
DIST-DHARWAD, PIN CODE-580020.
2. CHANNAMMA W/O VEERAPPA SHETTAR
AGE:70 YEARS, R/O MIRAJKAR BUILDING,
3RD CROSS, TABIBLAND, HUBBALLI,
DIST-DHARWAD, PIN CODE-580020.
3. NIRMALA W/O MUKESH PUROHITH
AGE:38 YEARS, R/O MIRAJKAR BUILDING,
Crl.A.No.100422 of 2019
2
3RD CROSS, TABIBLAND, HUBBALLI,
DIST-DHARWAD, PIN CODE-580020.
4. PARVATI W/O YAMANAPPA BEDASUR
AGE:60 YEARS, R/O MURAIHALLI PLOT,
ADARAGUNCHI, TQ:HUBBALLI,
PIN CODE-580020.
5. RAJRAJESWARI @ RAJESWARI @ AMARAVVA
W/O RAJASHEKAR SHETTAR T,
AGE:25 YEARS, R/O MIRAJKAR BUILDING,
3RD CROSS, TABIBLAND, HUBBALLI
NOW AT CHALAGERI SHETTAR ONI,
TQ:KUSHTAGI, DIST:KOPPAL,
PIN CODE-583277.
... RESPONDENTS
(BY SRI.GOURISHANKAR MOT, ADVOCATE FOR R1 TO R5)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 10.05.2019
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD, SITTING AT HUBBALLI IN SC NO.163/2017; TO
SET-ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
10.05.2019 PASSED BY I ADDL. DISTRICT AND SESSIONS
JUDGE, DHARWAD SITTING AT HUBBALLI IN SC NO.163/2017
AND CONVICT AND SENTENCE THE RESPONDENTS FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498A, 323, 307
READ WITH SECTION 34 OF IPC AND SECTIONS 3 AND 4 OF
THE DOWRY PROHIBITION ACT, 1961 IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING AND RESERVED FOR JUDGMENT ON 20.01.2023,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
DR.H.B. PRABHAKARA SASTRY J., DELIVERED THE
FOLLOWING:
Crl.A.No.100422 of 2019
3
JUDGMENT
The State has filed this appeal under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973 challenging the judgment of acquittal dated 10.05.2019 passed by the learned I Additional District and Sessions Judge, Dharwad, sitting at Hubballi (hereinafter for brevity referred to as 'Sessions Judge's Court') in S.C.No.163/2017, acquitting the accused of the offences punishable under Sections 498A, 307, 323 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and Sections 3 and 4 of Dowry Prohibition Act, 1961 (hereinafter for brevity referred to as 'DP Act').
2. The summary of the case of the prosecution in the Sessions Judge's Court was that, accused No.1-Rajashekhar by suppressing his marriage with accused No.5-Smt. Rajrajeswari @ Rajeswari @ Amaravva married PW-8(CW-4)-Drakshayani R Shettar on 24.11.2005. At the time of the marriage, accused No.1 had received a sum of `10,000/- and half tola of gold as dowry. After the marriage, PW-8(CW-4) went to her matrimonial home and started living with her husband (accused No.1). After few months of the marriage, the accused started ill-treating PW-8(CW-4) and subjecting her to cruelty by demanding to get a sum of `50,000/- as additional dowry from her Crl.A.No.100422 of 2019 4 parents house. She was also subjected to physical assault by the accused. That being the case, on the night of 19.05.2013 at about 2.30 a.m. (20.05.2013), all the accused in furtherance of their common intention, attempted to cause the death of PW-8(CW-4) by strangulating her using a saree while she was sleeping in her room in her matrimonial home situated at 3rd cross, Tabibland near garden at Hubballi, within the limits of appellant's Police Station and thus, they have committed the offences punishable under Sections 498A, 307, 323 read with Section 34 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
3. In order to prove the guilt against the accused, the prosecution got examined twelve (12) witnesses as PW-1 to PW-12 and got marked the documents from Exs.P-1 to P-15(b). From the accused's side, no witness was examined but one document i.e. a certified copy of the Sale Deed dated 03.04.2007 was marked as Ex.D1. After Crl.A.No.100422 of 2019 5 hearing both side, the learned Sessions Judge's Court, by its judgment dated 10.05.2019, acquitted the accused of the offences punishable under Sections 498A, 323, 307, read with Section 34 of IPC and Sections 3 and 4 of the DP Act. Challenging the same, the State has preferred the present appeal.
4. The respondents/accused are being represented by their learned counsel.
5. The Sessions Judge's Court records were called for and the same are placed before this Court.
6. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
7. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
8. The points that arise for our consideration in this appeal are:
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(i) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 being the husband, accused No.5 being the first wife of accused No.1 and accused Nos.2 to 4 being the relatives of accused No.1, after few days of marriage of PW-8(CW-4)-Drakshayani with accused No.1 i.e. from 24.11.2005 till 2.30 a.m. of 20.05.2013, in furtherance of their common intention, subjected PW-8(CW-4) to physical and mental cruelty by willful conduct in their house situated near the garden at 3rd cross, Tabibland, Hubballi, within the limits of appellant's Police Station, with an intention to coerce her to meet their illegal demands for money and valuables to be brought by her from her parents house, in the said process, the accused assaulted PW-8 (CW-4) and also on 20.05.2013 at about 2.30 a.m., attempted to cause her death by strangulating her with the help of a saree, with such intention and under such circumstances that if by that act, had the accused caused the death of PW8(CW4), they would have been guilty of the murder and thereby they have committed the offences punishable under Sections 498(A), 323, 307 read with Section 34 of IPC?
(ii) Whether the prosecution has proved beyond all reasonable doubt that accused Nos.1 to 5 at the Crl.A.No.100422 of 2019 7 time of the marriage of PW-8(CW-4) with accused No.1 demanded and received a sum of `10,000/- and half tola of gold from PW-1 (CW-1) as dowry and continued their demand pestering PW-8(CW-4) to bring the additional dowry from her parental house and thus, have committed the offences punishable under Sections 3 and 4 of the DP Act?
(iii) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
9. The present appeal is filed by the State challenging the judgment of acquittal of the accused from the alleged offences punishable under Sections 498A, 307, 323 read with Section 34 of IPC and under Sections 3 and 4 of the DP Act. Since as per criminal law, the accused are presumed to be innocent until their guilt is proved and further the accused, in the instant case, have already been benefited by the impugned judgment of acquittal in their favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter. Crl.A.No.100422 of 2019 8 The Hon'ble Apex Court, in its judgment in CHANDRAPPA AND OTHERS Vs. STATE OF KARNATAKA, reported in (2007) 4 SCC 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal, was pleased to observe at paragraph 42.(4) and paragraph 42.(5) as below:
"(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
In SUDERSHAN KUMAR Vs. STATE OF HIMACHAL PRADESH reported in (2014) 15 SCC 666, while referring Crl.A.No.100422 of 2019 9 to Chandrappa's case (supra) the Hon'ble Apex Court at para 31 of its Judgment was pleased to hold that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal, the Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
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."Crl.A.No.100422 of 2019 10
The above principle laid down by it in its previous case were reaffirmed by the Hon'ble Apex Court in Ravi Sharma Vs. State (Government of NCT of Delhi) and another reported in (2022) 8 SCC 536.
10. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
11. Learned High Court Government Pleader for the appellant-State in his arguments submitted that the material charge sheet witnesses have supported the case of the prosecution. He further submitted that father of the victim and also the victim(PW-8) herself have stated that the accused had attempted to cause the death of PW-8, however, the learned Sessions Judge's Court did not appreciate the evidence of these material witnesses including the evidence of PW-1, PW-8, PW-9 and PW-10 in their proper perspective. He further submitted that the payment of sum of `5,000/- made to accused No.1 has been admitted by the accused, as such, there is a demand Crl.A.No.100422 of 2019 11 and acceptance of dowry. However, the learned Sessions Judge's Court without appreciating the evidence on these aspects in a proper perspective, has erred in pronouncing the judgment of acquittal, which deserves to be set-aside and the appeal deserves to be allowed as prayed.
12. Per contra, learned counsel for the respondents/accused in his arguments submitted that the details of the alleged demand and acceptance of dowry including the manner and mode of demand of dowry have not been stated by the complainant at the earliest point of time in his complaint. Even the alleged demand of `50,000/- as additional dowry has also not been stated by the complainant both in his complaint and in his alleged further statement. He also submitted that the alleged demand of dowry has not been revealed before the doctor (PW-2) at the first instance by the alleged victim (PW-8). Even in the alleged Dying Declaration at Ex.P10 also, there is no whisper about the alleged demand for dowry. There is no evidence at all to show that when and in what manner, PW-8 Drakshayani was subjected to cruelty by Crl.A.No.100422 of 2019 12 the accused. Therefore, considering these aspects and several inconsistencies in the case of the prosecution, the learned Sessions Judge's Court has rightly acquitted the accused of the alleged offences, which does not warrant any interference at the hands of this Court.
13. Among twelve (12) witnesses examined by the prosecution, PW-1(CW-1)-Shankrappa Kurthakoti, PW-8 (CW-4)-Drakshayani R Shettar, PW-9(CW-5)-Parvatevva S Kurthakoti are the material witnesses. Among them, PW-1 and PW-9 are stated to be respectively the father and mother of the alleged victim (PW-8). The evidence of PW-1, PW-8 and PW-9 that the marriage of PW-8 was performed with accused No.1 in the year 2005 has not been denied in their cross-examination. The evidence of these three witnesses that accused No.5-Rajrajeshwari @ Rajeswari is the first wife of accused No.1, as such, PW-8 is the second wife of accused No.1 has also not been denied in the cross-examination of these witnesses. However, the evidence of these three witnesses that at the time of the marriage of PW-8 with accused No.1, the said Crl.A.No.100422 of 2019 13 fact of previous marriage of accused No.1 with accused No.5-Rajrajeswari and subsistence of their marriage was suppressed, is denied by the accused. The evidence of PW-8 and PW-9 that accused Nos.2 and 3 are respectively the mother and sister of accused No.1, accused No.4 is the sister of accused No.2 is also not denied from the accused side. Thus, it is in the light of the undenied statement of the witnesses about the matrimonial relationship between PW-8 and accused No.1 and relationship among the accused interse, the case of the prosecution is required to be analysed.
14. The case of the prosecution is that at the time of the marriage of PW-8 with accused No.1-Rajashekhar, a sum of `10,000/- in cash and half tola of gold were given to the accused as Dowry. Further, it is also their case that demanding additional dowry of `50,000/- to be brought by PW-8 from her parental house, the accused were subjecting PW-8-Drakshayani to ill-treatment and cruelty till the alleged incident of attempt to murder at about 2.30 a.m. of 20.05.2013.
Crl.A.No.100422 of 201914
PW-1, PW-6, PW-8 and PW-9 in their evidence were shown to have stated about this aspect of demand and acceptance of dowry and subjecting PW-8 to cruelty and ill-treatment by the accused demanding additional dowry.
15. PW-1/informant and father-in-law of accused No.1 in his evidence has stated that at the time of the marriage, as asked by the accused, a sum of `10,000/- in cash and half tola of gold was given as dowry. Sometime after the marriage of his daughter(PW-8), accused No.1 to 4 started asking her to bring additional dowry and in that connection, they were assaulting and abusing her and the same was told to him (PW-1) by none else than his daughter (PW-8). This witness has also stated that after the delivery of second child by PW-8(CW-4) in her parents house, the accused did not come and take her back to her matrimonial home. They did it because the dowry was not given to them. It was 15 to 20 days prior to the date of incident, he could manage to arrange a sum of `5,000/- and gave the same to his son-in-law (accused No.1) and sent his daughter (CW-4) to her matrimonial home, still, Crl.A.No.100422 of 2019 15 the accused continued subjecting her to cruelty. It was on 20.05.2013 at about 6 a.m., his son-in-law(accused No.1) telephoned to him stating that Drakshayani(CW-4) attempted to commit a suicide and she has been shifted to KIMS Hospital. Then, he(PW-1) went to KIMS Hospital and found her daughter (PW-8) in Intensive Care Unit (ICU). Thereafter, he lodged a complaint as per Ex.P-1 alleging that the accused were subjecting their daughter to cruelty in connection with the dowry. The witness also identified a saree at MO-1 stating that it was the same saree that was tied to beam in their house.
In the cross-examination, this witness has stated that his daughter told that the accused had attempted to kill her since they were not happy with the part payment of a sum of `5,000/- made to accused No.1. The denial suggestion made to him from the accused side was not admitted as true. However, the witness has stated that he has not lodged any complaint with respect to the alleged assault upon his daughter by the accused. He Crl.A.No.100422 of 2019 16 could not give the exact date of the alleged payment of `5,000/-.
16. PW-6 (CW-2)-Imamsab Rajesab Nadaf, who claims that he knows the complainant (PW-1) and his family, has stated that at the time of marriage negotiations, he was present and it was negotiated about giving gold and utensils. However, he does not know how much of gold and cash was given to the accused. He also stated that after the marriage of PW-8(CW-4), he came to know that the accused were subjecting her to ill-treatment by demanding her to bring additional dowry and in that connection, when Drakshayani(PW-8) had been to her parental house, the panchayat was held and she was sent back to the accused. In his cross-examination, denial suggestions were made to him were not admitted as true by this witness.
17. PW-8(CW-4)-Drakshayani, wife of accused No.1 and the alleged victim in the incident, has stated that at the time of her marriage with accused No.1, a cash of `10,000/- and half tola of gold was given. After the Crl.A.No.100422 of 2019 17 marriage, she came to know that accused No.5- Rajrajeswari @ Rajeswari is the first wife of accused No.1. All the accused started ill-treating and assaulting her asking her to bring additional dowry of `50,000/-. However, after knowing about the same, her father gave a sum of `5,000/- to her husband stating that he could not meet their demand in their entirety. Even after that, the accused continued to ill-treat her.
In her cross-examination, denial suggestion made to her was not admitted as true by PW-8. It was admitted and elicited in her cross-examination that she too was a widow of one deceased Basanagouda Muddanagoudru, resident of Shirur. Though the witness denied the suggestion that after the death of her first husband, she sold the property fallen to the share of her husband to one Sri. Sangaiah Siddramaiah Shirahattimath under a registered Sale Deed, but contended that she had given up her properties. However, a certified copy of the registered Sale Deed dated 03.04.2007 showing the sale of Crl.A.No.100422 of 2019 18 immovable property in favour of Sri. Sangaiah Siddramaiah Shirahattimath was confronted to the witness and was got marked as Ex.D-1. Thus, an attempt was made by the defense side that the witness is not revealing the truth, as such, her conduct is not appreciable.
18. PW-9(CW-5)-Parvatevva S Kurthakoti, mother of PW-8 and wife of PW-1, in her examination in-chief has stated that at the time of the marriage, on the saying of the accused, a sum of `10,000/- in cash and half tola of gold was given and marriage was performed. After the marriage, accused No.1 to 4 were asking her daughter to bring additional dowry and in that connection, they were ill-treating her. This witness has also stated that in one such occasion, they went to brother-in-law of this witness and took a sum of `5,000/- as loan and the same was given to the accused, still, the accused did not satisfy and were subjecting their daughter(PW-8) to ill-treatment. The denial suggestion made to her in the cross-examination was not admitted as true by this witness.
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19. The above evidence of PW-1, PW-6, PW-8 and PW-9 though prima facie go to show that at the time of the marriage, as demanded by the accused, a sum of `10,000/- and half tola of gold was given to accused No.1 as dowry. However, a careful analysis of the evidence of these witnesses with respect to the alleged demand and taking of dowry shows that none of these witnesses have given any details as to on what date, at which place and in whose presence, the alleged marriage negotiations took place. None of these witnesses have stated as to who are all the persons that were present in the alleged marriage negotiations. Whether all these four witnesses i.e. PW-1, PW-6, PW-8 and PW-9 were present in the said negotiations and who were the persons that were present from the accused side at the time of the alleged marriage negotiations, has also not been stated by any of these witnesses. Though PW-1, PW-6, PW-8 and PW-9 have called the alleged amount said to have been paid to the accused as Dowry, however, none of these witnesses have stated as to how they called the said amount as the Crl.A.No.100422 of 2019 20 alleged payment of dowry. They have not specifically stated as to the existence of any demand in that regard and what was the demand that was made from the accused side and what were the terms that were finally agreed. It is those details, if available, would help in assessing and finding as to whether such marriage negotiations had taken place and whether any demand for valuables were made by the accused and also whether any valuables including the cash were accepted by the accused, so that the same can be called as 'Demand and Acceptance of Dowry'. However, though repeatedly PW-1, PW-6, PW-8 and PW-9 have stated that the accused were given with the dowry and they were demanding for additional dowry, but, in the absence of necessary and basic details, it cannot be made out that any such demand was made by the accused, that too in the form of a Dowry. Interestingly, PW-8, the wife of accused No.1 in her cross- examination though had stated that at the time of the marriage, a sum of `10,000/- in cash and half tola of gold was given, but she has not stated in her examination in- Crl.A.No.100422 of 2019 21 chief that the said valuables were given as Dowry. She has also not stated about any demand from the accused side for those valuables.
Apart from PW-1 not stating about the alleged demand and taking of dowry, PW-8 also has not stated about the demand and taking of dowry by the accused, even in her first statement said to have been given by her on 25.05.2013 in the presence of the doctor at the hospital, where she was admitted with the history of alleged attempt to suicide. Though recording of the said statement has been corroborated by PW-3(CW-11)- Veerabhadrappa R Kandagal, the then Assistant Sub-Inspector of the complainant's police station, but as observed, the said statement is totally silent about the alleged demand and acceptance of dowry and also alleged cruelty said to have been meted upon PW-8, subsequent to her marriage with the accused No.1. The best witness, who could have spoken about the alleged demand and acceptance of dowry and cruelty in connection with the dowry at the earliest point of time was none else than PW-8 herself. Though she had an opportunity in her statement at Ex.P10 Crl.A.No.100422 of 2019 22 to speak about the same, she has not whispered anything about the alleged demand and acceptance of dowry and subsequent cruelty in connection with the alleged demand for additional dowry by the accused. Even after a lapse of sufficient time, the said witness even in her evidence before the Court also has not stated that the said amount of `10,000/- and half tola of gold was given as dowry to the accused. None of the witnesses have specifically stated that the alleged valuables were given at which place, on which date and in whose hand and also in whose presence. Thus, except repeatedly using the word 'Dowry' by these witnesses, they could not throw any light on the alleged demand and taking of dowry by the accused. Therefore, merely because PW-1, PW-6, PW-8 and PW-9 have stated that dowry was given to the accused, by that itself cannot be held that the prosecution could able to establish that there was any demand and acceptance of dowry by the accused.
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20. It is also the allegation of the prosecution that PW-8 (CW-4) was constantly subjected to cruelty by the accused and she was also being assaulted by the accused, thus, the accused have committed the offences punishable under Sections 323 and 498A of IPC.
21. It is again relying upon the evidence of PW-1, PW-6, PW-8 and PW-9, the learned HCGP for the appellant/State in his arguments submitted that since these witnesses in clear terms have stated about the accused assaulting PW-8 and subjecting her to cruelty, the alleged offences punishable under Sections 323 and 498A of IPC stands proved.
Learned counsel for the respondents/accused in his arguments submitted that the evidence of these witnesses are very vague and bald, which do not even give the details of a single instance of the alleged assault and demand for additional dowry by the accused, as such, the learned Sessions Judge's Court has rightly acquitted the accused of the alleged offences.
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22. PW-1 and PW-9, who are the parents of the alleged victim (PW-8), PW-6 a person known to the family of PW-1, and PW-10 the uncle of PW-8 have spoken about the alleged ill-treatment said to have been given by the accused to PW-8. However, the evidence of all these witnesses is based on the information said to have been given to them. Though PW-1 and PW-9 have stated that they came to know about the ill-treatment meted to their daughter(PW-8) in her matrimonial home through PW-8 herself, but, PW-6 and PW-10 have only stated that they came to know that the accused were causing irritation to PW-8 Drakshayani. Neither of these two witnesses (PW-6 and PW-10) have stated the source of their knowledge about the alleged irritation said to have been given by the accused to PW-8. Therefore, even though PW-6 and PW-10 have stated that they came to know that PW-8 was suffering irritation from the accused in her matrimonial home, since the said information has got no basis and also the alleged information does not give any details as to the nature of the alleged irritation or ill-treatment, if it can be Crl.A.No.100422 of 2019 25 called so, the evidence of PW-6 and PW-10 would not take the case of the prosecution to its expected end of proving the alleged offences punishable under Sections 323 and 498A of IPC.
23. PW-1 and PW-9, the parents of PW8- Drakshayani have stated that they came to know that the accused were troubling her daughter demanding additional dowry, in which connection, PW-8 Drakshayani herself had stated to them when she had been to their house on 2 to 3 occasions. These witnesses have also stated that in that connection in the presence of elders, a panchayat was also held. PW-1 has also stated that in connection with the demand for additional dowry, the accused were even assaulting and abusing their daughter (PW-8).
The above evidence of PW-1 and PW-9 so also the evidence of PW8 are bereft of any details as to when and how the accused were subjecting PW-8 to cruelty and were assaulting her. Undisputedly, there is a gap of 7 ½ years from the date of the marriage to the date of the alleged offence of attempt to commit the murder of PW-8. Thus, Crl.A.No.100422 of 2019 26 in the said long period of 7½ years, if PW-8 was subjected to cruelty in connection with the demand for additional dowry and that she was also assaulted by the accused, primarily either PW-8 or her parents would have after some period of tolerance taken appropriate steps including for legal redressal in the form of lodging any police complaint. No doubt, in all circumstances of family dispute between the wife or daughter-in-law in her matrimonial home with the other members in her husband's family, it cannot be expected that immediately and necessarily the police complaint is required to be lodged, still, in the facts and circumstances of the present case, when according to PW-1 and PW-9, the alleged ill-treatment against their daughter(PW-8) was constantly continuing in her matrimonial home and panchayath said to have been held in that regard could not secure any relief to the affected, then it was expected of PW-1, PW-9 or PW-8 to take further required steps in ensuring the safe marital life of PW8. Admittedly, no such step has been taken in that regard.
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24. Though not PW-1 and PW-9 or PW-10, it was at least for PW-8, who is alleged to be the victim in the case to give necessary and required details about the alleged cruelty said to have been meted out to her from the accused. If according to the alleged victim (PW-8), the alleged cruelty was a continuous process stretching to a longer period, the witness could have narrated at least a few instances of the alleged cruelty. As such, mere statement of the alleged victim i.e. PW-8 that she was subjected to irritation or ill-treatment by the accused and the evidence of PW-1, PW-9 and PW-10 that they came to know that PW-8 Drakshayani was subjected to some irritation or trouble in her matrimonial home, would by themselves not sufficient to hold that there was any cruelty meted out upon PW-8 by the accused.
The above observation gains support in view of the observations made with respect to Sections 3 and 4 of the DP Act observing that the prosecution could not able to prove that any demand or acceptance of dowry was made by the accused. Thus, when the prosecution could not able Crl.A.No.100422 of 2019 28 to prove the alleged demand of dowry, say of PW-1, PW-9 and PW-10 that the accused were demanding additional dowry of `50,000/- and also the evidence of PW-8 Drakshayani that she was subjected to trouble/cruelty by the accused, who demanded additional dowry of `50,000/- is without any material to substantiate or corroborate their statements. As such, it is not safe to jump to any conclusion merely based upon the evidence of PW1, PW-8 and PW-9 and PW-10 and to hold that the accused subjected PW-8 to cruelty.
25. Another charge with which the accused were charged by the learned Sessions Judge's Court was for the offence punishable under Section 307 of IPC. According to the prosecution, on the date 20.05.2013 at about 2.30 a.m., the accused in furtherance of their common intention attempted to commit the murder of PW-8 (CW-4) Drakshayani in their house by attempting to strangulate her with the help of a saree.
26. The first witness, who has spoken about the same is PW-1 (CW-1) Shankarappa Kurthakoti, father of Crl.A.No.100422 of 2019 29 the alleged victim (PW-8). The said witness in his evidence has stated that on the date 20.05.2013 at about 6 a.m., his son-in-law (accused No.1) telephoned to him and informed that his wife Drakshayani (PW-8) attempted to commit a suicide and she has been admitted to KIMS Hospital. Hearing the same, this witness joined by his wife (PW-9) went to the hospital. Their daughter (PW-8) was found in ICU and she was unconscious. Thereafter, he lodged a complaint at Ex.P-1 alleging that due to cruelty meted upon her daughter (PW-8) by the accused, she attempted to commit suicide. This witness has further sated that on 24.05.2013, when his daughter (PW-8) regained consciousness, the police and doctor enquired her, at which she revealed all details before them stating that it was the accused, who attempted to hang her with a saree and to kill her, and at that time she fell unconscious. Stating so, the witness has stated that since he (PW-1) could not meet the demand of additional dowry of `50,000/-, the accused attempted to hang his daughter and kill her with the help of saree. He also identified the Crl.A.No.100422 of 2019 30 marriage photographs of his daughter and her photograph in the hospital at Exs.P2 to P4 and also marriage invitation card at Ex.P5. In his cross-examination, apart from denying what this witness stated in his examination in- chief, it was also suggested to him that Drakshayani attempted to commit suicide by herself, however, the witness has not admitted the said suggestion as true.
27. PW-9, mother of Drakshayani (PW-8) has also repeated in her evidence what her husband (PW-1) has stated. She has also stated that it is hearing from her daughter (PW-8), she came to know that the accused attempted to kill her by hanging her with the help of a saree.
28. PW-10, uncle of PW-8 though had stated that he visited PW-8 Drakshayani in the hospital, but he did not come to know as to what was the reason for her to attempt to commit suicide. He has stated that after she (PW-8) regained consciousness she told him that, the accused in the morning had given her Boondi Laadu(a kind of sweet) and after eating the same, she did not come to know as to Crl.A.No.100422 of 2019 31 what has happened. However, this witness in his examination in-chief itself has stated that according to him, it was an attempt for suicide, otherwise he would not have stated that he did not come to know as to why she attempted to hang herself.
Thus, the evidence of PW-1, PW-9 and PW-10 about the alleged attempt by the accused to cause the death of PW-8, is only based upon the alleged information said to have been given by PW8 to them.
29. PW-8 Drakshayani in her evidence has stated that on 19.05.2013, since morning all the accused had initiated quarrel with her with respect to their demand for additional dowry. The said quarrel continued till she went to sleep in the night. On the said night before she could go for sleep, the accused had given her Boondi Laadu (sweet dish) and after eating the same, she did not come to know what has happened. It was only on 25.05.2013, she regained consciousness in the KIMS Hospital, at that time, she had sustained swelling on her neck and it was paining. Crl.A.No.100422 of 2019 32 In the afternoon, she gave her statement before the police stating that the accused attempted to hang her and kill her. It is only thereafter, the father (PW-1) who had already lodged a complaint with the police came to know that it was an attempt by the accused to kill her. Stating so, the witness identified her alleged statement before the police at Ex.P10.
30. PW-3 (CW-11) V.R. Kandagal, the then Assistant Sub-Inspector of complainant's police station has stated that based upon the order of his Superior on 25.05.2013, he recorded the statement of Drakshayani (PW-8), who was admitted in KIMS hospital for treatment. After ascertaining from the doctor that she was in a fit condition to give statement, he recorded her statement in the presence of the doctor. The witness further stated that PW-8 Drakshayani stated before him that she was sleeping along with her daughter on the night of 19.05.2013, thereafter it was only on 25.05.2013, she regained consciousness. The witness has also stated that PW-8 told him that she does not know as to what has happened. Crl.A.No.100422 of 2019 33 Further, when he asked her as to how all these things had happened, Drakshayani (PW-8) told that it was the accused including one Shilpa attempted to kill her by hanging her. The witness has identified the said statement at Ex.P10 and the requisition given by him to the doctor as per Ex.P15.
31. A perusal of Ex.P10 which is shown to be the statement of Drakshayani (PW-8) which is running in few lines in a small paragraph would only go to show that the witness has stated that on 19.05.2013 at 11 p.m., she taking her daughter with her slept and thereafter on 24.05.2013, she came to know that she was in the hospital and she does not know as to what happened. It is further shown that the act is done by the accused (six names including the present accused have been shown). In the last sentence, it is also shown that she came to know that those persons attempted to kill her by hanging her with the help of saree. The doctor is shown to have endorsed on the said statement stating that the statement was given in his presence. Though the accused have denied the Crl.A.No.100422 of 2019 34 genuineness and correctness of the said statement, still, even if the said statement is taken into consideration, it can be noticed that nowhere in the said statement, the witness has stated that as to on what basis, she has arrived at a conclusion that it was the accused who attempted to kill her by hanging. The exact words used by her "she came to know" necessarily requires as to how and when she came to know that the accused had attempted to kill her. She has not stated that it is her experience and she has seen that the accused has attempted to kill her by hanging her. In the very same statement at Ex.P10 as well in her evidence, she has categorically stated that on the night of 19.05.2013, after when she went to sleep along with her daughter in her matrimonial house, she could not know as to what happened and she regained consciousness only on 25.05.2013 (at one place, she has stated the date as 24.05.2013). Thus, at least 5 to 6 days continuously she was not conscious. The evidence of PW-1 and PW-9 also shows that she was not in consciousness from 20.05.2013 till 25.05.2013.
Crl.A.No.100422 of 201935
32. PW-2 (CW-9) Dr. Umesh Angadi has stated that on 20.05.2013 at about 4.10 a.m., Drakshayani (PW-8) was brought to KIMS Hospital, Hubli where he was working as Medical Officer by her husband-Rajshekhar (Accused No.1). The patient was brought with the history of attempt for suicide using a saree. He could find injuries on her body which were, hanging mark over the anterior aspect of neck measuring about 8 x 2 cms, dark brown in colour, thereafter, he referred the patient to medicine department for further treatment. According to him, the patient was treated till 4.6.2013. However, this witness, who has identified the wound certificate said to have been issued by him at Ex.P8 and the case sheet at Ex.P9, has nowhere stated that Drakshayani (PW-8) was unconscious for a period from 20.05.2013 upto 25.05.2013. The case sheet at Ex.P9 which runs into 33 pages also does not specifically mention that the injured was in a condition to speak. Though at some places it says that the patient was in conscious, however, in all the Crl.A.No.100422 of 2019 36 places simultaneously, it also says that the patient was irritable. From a perusal of the said case summary sheet, it cannot be clearly made out that PW-8 Drakshayani was unconscious from 20.05.2013 to 25.05.2013. However, the evidence of none else than Drakshayani herself (PW-8) and her parents (PW-1 and PW-9) and also the evidence of PW-10 clearly go to show that PW-8 Drakshayani was not in her conscious for at least 4 to 5 days. Even the Investigating Officer, Neelavva Rudrappa Chalavadi (PW-11) (CW-13) also has stated that when she visited the patient in ICU unit at the hospital, she was not in a fit condition to give her statement, but it is only on 25.05.2013 when the patient recovered, her statement was recorded in the presence of the doctor. These witnesses by themselves make clear that from the night of 19.05.2013 till 25.05.2013, PW-8 Drakshayani was not in a condition to speak and that, according to herself, she was unconscious. PW-8 had also stated in her evidence that it was after she eating Boondi Laadu (Sweet) on the night of 19.05.2013, she does not know as to what Crl.A.No.100422 of 2019 37 has happened and she regained consciousness only on 25.05.2013. Therefore, even though the doctor (PW-2) has noticed the hanging mark measuring 8 x 2 cms on her neck when she was brought to the hospital on 20.05.2013 at 4.10 a.m., but PW-8 victim has not seen that she had been hanged by the accused or even according to her, she was not in her conscious at that time and was not aware as to what has happened. Thus, the evidence of these witnesses and the medical evidence though creates a doubt about the act of hanging, the same cannot be ruled out as a suicidal act or it could also be attempted to kill.
In such a situation, when there are two possibilities for committing an act and more particularly, when even according to PW-8 Drakshayani, she does not know as to what had happened, but she came to know that the accused had attempted to hang her, it is highly unsafe to arrive at a conclusion that PW-8 Drakshayani was attempted to be killed by hanging by anyone including the accused. As such, the defence of the accused which had taken throughout the case including the cross-examination Crl.A.No.100422 of 2019 38 of PW-1, PW-8 and PW-9 that it was an attempt for suicide by PW-8 Drakshayani herself, cannot be brushed aside. It is for the reason that even according to the doctor (PW-2), it was accused No.1 who brought PW-8 Drakshayani to the hospital for treatment on 20.05.2013 at 4.10 a.m. and secured her immediate medical treatment. If really the accused, who were large in number, had any intention to cause the death of PW-8 Drakshayani, they could have easily succeeded in their attempt, since even according to PW-8 she had lost her consciousness on the night of 19.05.2013 after eating Boondi Laadu (Sweet). Therefore, there is not only the absence of any intention upon the accused to cause the death of PW-8 but also there is no evidence to hold that the attempt was made by anyone to kill PW-8 and the said attempt was made by none else than the accused. In such a situation, when two views are possible, it is always safe to accept with the view which is beneficial to the accused. In the instant case, apart from being two views, there is also strong doubt in the case of the prosecution in the alleged act of the accused Crl.A.No.100422 of 2019 39 attempting to cause the death of PW-8. As such, the benefit of doubt is also required to be given to the accused. Since the Sessions Judge's Court after appreciating the evidence placed before it has arrived at the same finding observing that the prosecution has failed to prove the alleged charges leveled against the accused, we do not find any error in it warranting any interference at the hands of this Court.
33. Accordingly, we proceed to pass the following:
ORDER The Appeal stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
Sd/-
JUDGE Sd/-
JUDGE JTR