Karnataka High Court
Sri Basavaraju S/O Honnaiah vs State By Kyatasandra Police Station on 5 January, 2018
Equivalent citations: 2018 (3) AKR 100, (2018) 2 KANT LJ 558
Bench: Ravi Malimath, H.B.Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 5TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL NO.916 OF 2012
C/W
CRIMINAL APPEAL NO.915 OF 2012
C/W
CRIMINAL APPEAL NO.1302 OF 2012
C/W
CRIMINAL APPEAL NO.1303 OF 2012
CRIMINAL APPEAL NO.916 OF 2012:
BETWEEN:
SRI BASAVARAJU
S/O HONNAIAH,
AGED ABOUT 34 YEARS,
R/O 1ST CROSS,
BADDIHALLI,
PERMANENT R/O
BALLAGERE, HEBBUR HOBLI,
TUMAKURU TALUK AND DISTRICT.
... APPELLANT
(BY SRI K.M.SOMASHEKARA, ADVOCATE FOR
SRI C.R.GOPALASWAMY, ADVOCATE)
2
AND:
STATE BY
KYATASANDRA POLICE STATION,
TUMAKURU TALUK,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(BY SRI CHETAN DESAI, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT PASSED
BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
TUMAKURU IN S.C.NO.174 OF 2009 DATED 27.7.2012 -
CONVICTING THE APPELLANT/ACCUSED FOR OFFENCES
PUNISHABLE UNDER SECTION 3 AND 4 OF DOWRY
PROHIBITION ACT AND 302 IPC. APPELLANT/ACCUSED
NO.1 IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR A PERIOD OF 5 YEARS AND PAY FINE
OF RS.50,000/- - IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR FURTHER PERIOD OF 6 MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 3 OF DOWRY
PROHIBITION ACT. FURTHER APPELLANT/ACCUSED-1 IS
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR A PERIOD OF 6 MONTHS AND PAY FINE OF
RS.10,000/- IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR FURTHER PERIOD OF 1 MONTH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 4 OF DOWRY
PROHIBITION ACT. FURTHER APPELLANT/ACCUSED-1 IS
SENTENCED TO UNDERGO LIFE IMPRISONMENT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 IPC. ALL THE
SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT
PRAYS THAT HE BE ACQUITTED.
3
*****
CRIMINAL APPEAL NO.915 OF 2012:
BETWEEN:
1. SMT.GANGALAKSHMAMMA
W/O LAKSHMINARAYANA,
MAJOR,
R/O C.S.PURA,
GUBBI TALUK,
TUMAKURU DISTRICT.
2. SRI HONNAIAH
S/O SRI CHIKKAIAH,
AGED ABOUT 74 YEARS
3. SMT.HOMBAMMA
W/O SRI HONNAIAH,
AGED ABOUT 63 YEARS
4. SRI MARIGANGAIAH
S/O SRI HONNAIAH,
AGED ABOUT 38 YEARS
2 TO 4 ARE
R/O BALLAGERE,
HEBBUR HOBLI,
TUMAKURU DISTRICT. ... APPELLANTS
(BY SRI K.M.SOMASHEKARA, ADVOCATE FOR
SRI C.R.GOPALASWAMY, ADVOCATE)
AND:
STATE BY
KYATASANDRA POLICE STATION,
TUMAKURU TALUK,
REPRESENTED BY
4
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(BY SRI CHETAN DESAI, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
27.07.2012 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSION JUDGE, TUMAKURU IN S.C.NO.174 OF 2009 -
CONVICTING THE APPELLANTS/ ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 3 AND 4 OF
DOWRY PROHIBITION ACT. THE APPELLANTS/ACCUSED
NO.3 AND 4 ARE SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR 1 YEAR AND ACCUSED NO.2 AND 5
ARE SENTENCED TO UNDEGO RIGOROUS IMPRISONMENT
FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 3 OF DOWRY PROHIBITION ACT. THE
APPELLANTS/ACCUSED NO.3 AND 4 ARE SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS AND
ACCUSED NO.2 AND 5 ARE SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 6 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 4 OF DOWRY
PROHIBITION ACT. ALL THE SENTENCES SHALL RUN
CONCURRENTLY. THE APPELLANTS/ACCUSED PRAYS
THAT HE BE ACQUITTED.
*****
CRIMINAL APPEAL NO.1302 OF 2012:
BETWEEN:
THE STATE BY
KYATHASANDRA POLICE. ... APPELLANT
(BY SRI CHETAN DESAI, HCGP)
5
AND:
1. GANGALAKSHMAMMA
W/O LAKSHMINARAYANA,
RESIDENT OF C.S.PURA,
GUBBI TALUK.
2. HONNAIAH
S/O LATE CHIKKAIAH,
AGED ABOUT 71 YEARS
3. HOMBAMMA
W/O HONNAIAH,
AGED ABOUT 60 YEARS
4. MARIGANGAIAH
S/O HONNAIAH
ALL ARE RESIDENTS OF
BALLAGERE,
HEBBUR HOBLI. ... RESPONDENTS
(BY SRI K.M.SOMASHEKARA, ADVOCATE FOR
SRI C.R.GOPALASWAMY, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 377 OF
CR.P.C., PRAYING TO MODIFY THE ORDER OF SENTENCE
DATED 27.07.2012 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU IN
S.C.NO.174 OF 2009 AND IMPOSE ADEQUATE SENTENCE
AGAINST THE RESPONDENTS 2 TO 5 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 3 OF DOWRY PROHIBITION
ACT. THE RESPONDENT/ACCUSED NO.3 AND 4 ARE
SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 1
YEAR AND ACCUSED NO.2 AND ACCUSED NO.5 ARE
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
6
FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 3 OF DOWRY PROHIBITION ACT. THE STATE
PUBLIC PROSECUTOR PRAYS THAT THE ABOVE ORDER OF
CONVICTION MAY BE ENHANCED SUITABLY.
*****
CRIMINAL APPEAL NO.1303 OF 2012:
BETWEEN:
THE STATE BY
KYATHASANDRA POLICE. ... APPELLANT
(BY SRI CHETAN DESAI, HCGP)
AND:
1. BASAVARAJU
S/O HONNAIAH,
AGED ABOUT 31 YEARS,
RESIDENT OF 1ST CROSS,
BADDIHALLI,
PERMANENT RESIDENT OF
BALLAGERE,
HEBBUR HOBLI,
TUMAKURU TALUK - 572 120.
2. GANGALAKSHMAMMA
W/O LAKSHMINARAYANA,
RESIDENT OF C.S.PURA,
GUBBI TALUK - 572 216.
3. HONNAIAH
S/O LATE CHIKKAIAH,
AGED ABOUT 71 YEARS
4. HOMBAMMA
W/O HONNAIAH,
AGED ABOUT 60 YEARS
7
5. MARIGANGAIAH
S/O HONNAIAH
ALL ARE RESIDENT OF
BALLAGERE,
HEBBUR HOBLI - 572 120. ... RESPONDENTS
(BY SRI K.M.SOMASHEKARA, ADVOCATE FOR
SRI C.R.GOPALASWAMY, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(1)(3) OF
CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DATED 27.07.2012 PASSED BY
THE I ADDITIONAL DISTRICT AND SESSION JUDGE,
TUMAKURU IN S.C.NO.174 OF 2009 -ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 498-A OF IPC. THE APPELLANT/STATE
PRAYS THAT THE AFORESAID ORDER MAY BE SET ASIDE.
*****
THESE CRL.As COMING ON FOR HEARING THIS DAY,
RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The deceased and Accused No.1 were married on 01.11.2007 at S.L.R. Kalyana Mantappa, Nagamangala. Accused No.2 is the sister and Accused No.5 is the brother of Accused No.1. Accused Nos.3 and 4 are the parents of Accused No.1. At the time of marriage, the accused 8 demanded and received dowry in a sum of Rs.50,000/-, a gold chain, a gold finger ring and gold ornaments weighing about 120 grams. Thereafter, for a few years the husband and wife lived happily. Subsequently, the accused persons started ill-treating the deceased. They started demanding more dowry. As a consequence, a complaint was lodged by the deceased before the Police and at the intervention of the Police, the dispute was settled and accused no.1 and the deceased formed a separate residence at Bandihalli and they were residing together.
2. PW-1 is the complainant. She is the neighbour and the landlord of the house the deceased and the accused. She has stated that on 23.04.2009 i.e., on the date of the incident, the deceased came to her house at about 7.00-7.30 a.m. and had tea and went back to her house. Thereafter, the complainant went to the Polling Booth to cast her vote for the Lok Sabha Election. When the complainant was returning back to her house, she noticed accused No.1 leaving the house on his two- 9 wheeler. The door of the house of the accused was slightly opened. Thereafter, the complainant entered the house and found the dead body of the deceased. She lodged a complaint, based on which, a case was registered in Crime No.111 of 2009. Investigation was taken up. On completing the investigation, the charge-sheet was filed and five accused persons were charged for the offences punishable under Sections-3 and 4 of the Dowry Prohibition Act, and under Sections - 498A and 302 of the Indian Penal Code.
3. In order to prove its case, the prosecution examined in all 36 witnesses and marked 22 Exhibits, along with seven material objects. The defence produced Exhibit-D1, namely, the statement of Accused No.2. The accused pleaded not guilty and claimed to be tried. By the impugned judgment, the trial court convicted and sentenced the accused as follows:
"A3 and A4 are sentenced to undergo simple imprisonment for 1 year and A2 and 10 A5 are sentenced to undergo rigorous imprisonment for 1 year for the offence punishable under Section 3 of Dowry Prohibition Act .
Further A3 and A4 are sentenced to undergo simple imprisonment for 6 months and A2 and A5 are sentenced to undergo rigorous imprisonment for 6 months for the offence punishable under Section 4 of Dowry Prohibition Act .
A1 is sentenced to undergo rigorous imprisonment for a period of 5 years and pay fine of Rs.50,000/- in default to undergo simple imprisonment for further period of 6 months for the offence punishable Under Section 3 of Dowry Prohibition Act .
Further A1 is sentence to undergo rigorous imprisonment for a period of 6 months and pay fine of Rs.10,000/- in default to undergo simple imprisonment for further period of 1 month for the offence punishable under Section 4 of Dowry Prohibition Act . 11
Further A1 is sentenced to undergo life imprisonment for the offence punishable under Section 302 of IPC.
All the sentences shall run
concurrently."
4. Aggrieved by the same, the State has filed Criminal Appeal No.1302 of 2012, seeking enhancement of the sentence against accused Nos.2 to 5 and Criminal Appeal No.1303 of 2012 for conviction of accused Nos.1 to 5 for the offence punishable under Section-498A of IPC. Accused No.1 has filed Criminal Appeal No.916 of 2012 and Accused Nos.2 to 5 have filed Criminal Appeal No.915 of 2012, for setting-aside the impugned judgment and for acquittal of the accused.
5. Sri.K.M.Somashekara, learned counsel appearing for the appellants' counsel submits that the trial court misread the evidence on record. That the trial court failed to consider the material in a proper perspective and has wrongly convicted the accused. That in the absence of 12 any eye-witness to the incident, the prosecution has failed to establish every link to the facts and circumstances of the case. Hence, he pleads that the accused are not guilty of the offence and the appeals be allowed.
6. On the other hand, Sri.Chetan Desai, learned HCGP appearing for the State disputes the same. He submits that the prosecution has been able to prove its case beyond all reasonable doubt. That the evidence led-in by the prosecution is clear. That there is no perversity in the judgment of the trial court that calls for interference. He further pleads that the sentence awarded by the trial court is inadequate and that a harsher sentence of imprisonment requires to be imposed on the accused. He submits that the trial court has failed to impose a fine for the relevant Sections and pleads that his appeals be allowed.
7. Heard learned counsels and examined the records.13
8.(a) PW-1 is the neighbour and the landlord of the deceased. She is also the complainant. She has stated that there was a common wall between the houses of the complainant and the deceased. That she knows accused No.1. She has stated that the deceased used to talk to her on a number of occasions and would constantly keep coming to her house and they would have tea together. That the deceased had told her that she had lodged a complaint against the accused persons and on the advise of the Police, she and accused No.1 are residing separately. That accused No.1 would not bring appropriate provisions, milk, etc. for the house and therefore she is facing a lot of difficulties. That accused No.1 used to assault the deceased and demand to give her mangalya chain. That on 2-3 occasions, she has heard commotion in the house of the deceased. She has further narrated that on the date of the incident i.e., on 23.04.2009, was an election day to the Lok Sabha. The deceased had come to her house at 7 - 7.30 p.m. and they both had tea 14 together. Thereafter, the deceased went to her house. The complainant went to the polling booth to cast her vote and she returned at about 8.30 a.m. That when she was leaving her house, she noticed accused No.1 was inside the house. When she was returning back to her house, accused No.1 left the house on a two-wheeler. The door was slightly open. Therefore, she went inside the house and called for the deceased. There was no response. She went inside the house and found the deceased lying on the floor with a veil around her neck. During the cross- examination, she has stated that she touched the hands of the deceased and she came to know that she is not alive. After coming to know that she had died, the complainant called the relatives of the deceased and informed about the death of the deceased. She has stated about the arrival of the Police and drawing of the mahazar. She has identified the veil, which was used to commit her murder.
(b). In the cross-examination, she has further stated that at night, she would hear commotion between 15 the husband and wife and on the next day, the deceased would state about the ill-treatment given by the husband-
accused No.1. That the deceased would visit her house on a regular basis and share her agony with her. She has further stated that below the neck, on the chest portion, there was a scratch injury and her face was leaning to one side. The description narrated by PW-1 corroborates with the postmortem report and the injuries as noted by the Doctor. On a suggestion being made to PW-1 that on the date of the incident accused No.1 was not even present at the scene of the offence, the same has been denied by the witness. Moreover there is no material produced by the accused that, he was not present in his house on the date of the incident.
9.(a) PW-2 participated in the alliance of the marriage between accused no.1 and the deceased. He was also a participant in the talks of demand for dowry that took place between the family of the deceased and the accused. He has also mentioned about the harassment 16 meted out to the deceased, so far as the demand for dowry is concerned.
(b). PW-3 is the neighbour of the parental house of the deceased. He has stated that whenever the deceased would come to her parents house, she would narrate with regard to the harassment being meted on the deceased for demand of dowry.
(c). PW-4 is the panch witness to the inquest in terms of Exhibit-P2.
(d). PW-5 and PW-6 are the sister and the brother of the deceased. They spoke about the dowry demand being made by the accused, as well as the harassment being caused to the deceased.
(e). PW-7 to PW-13 are the neighbours of the present house of the deceased, who have turned hostile.
(f). PW-14 is the son of PW-1. He is also a witness with regard to the last seen theory. He has stated that 17 accused No.1 and the deceased were tenants. That the deceased would regularly visit their house and have tea with his mother. That on the date of the incident also the deceased had tea with his mother and thereafter his mother PW-1, went to the polling booth to cast her vote and about 8-10 minutes thereafter, he heard accused no.1 quarreling with the deceased. Thereafter there was no sound. He has stated that thereafter he heard accused No.1 making phone calls and moving inside and outside saying hello, hello. At about 8.10 a.m., the accused he went out on his motor bike and at about 8.20 a.m., he returned home and immediately he went away on his two- wheeler. At that time his mother, PW-1 came and after entering the house of the accused, she came back in a hurry and told him that the deceased is no more. Thereafter he also went inside the house and saw the dead body of the deceased. In the cross-examination, he has stated that he was studying 2nd PUC at that time. That he was a student of PCMB and he was required to study all 18 the time. He has stated that he has heard all these noices when he was studying for the subjects. He has further stated that he has written the complaint as a Scribe as dictated by his mother in his house. He denied the suggestion that the complaint was written at the police station as dictated by the police. He has denied the suggestion that accused No.1 was not at all present at home or in town on the date of the incident.
(g). PWs-15 to 19 are the members of Panchayat, which was convened at the behest of the police and the elders in order to settle the dispute between the deceased and the accused.
(h). PW-20 and PW-21 are panchas to the seizure of MOs. 6 and 7, in terms of Exhibit-P11. MOs 6 and 7 are the golden ring and gold chain belonging to the accused.
(i). PW-23 and PW-24 are panchas for the recovery of MO.1, the veil in terms of Exhibit-P13. 19
(j). PW-25, is the Doctor who conducted postmortem of the deceased. He has narrated the various injuries sustained by the deceased and submitted his report in terms of Exhibit-P14. He has opined that the death was due to asphyxia due to strangulation.
(k). PW-26 is the panch to the inquest.
(l). PW-27 is the photographer.
(m). PW-28 is the goldsmith.
(n). PW-29 is panch to the inquest.
(o). PW-30 and PW-31 are the constables who apprehended the accused.
(p). PW-32 is the constable who guarded the dead body
(q). PW-33 is the ASI who registered the complainant and the submitted FIR.
20
(r). PW-34 is the engineer who drew the sketch of the scene of the offence.
(s). PW-35, is the Tahasildar, who conducted the inquest.
(t). PW-36 is the Investigating Officer.
10. Based on the evidence of these witnesses, the Trial Court was of the view that the prosecution has established its case beyond all reasonable doubt. It was of the view that substantial material exists in order to prove the charge under Section 302 of IPC of having committed the murder of the deceased. It was also of the view that accused Nos.1 to 5 are guilty of the offence punishable under Sections 3 and 4 of DP Act. However, the Trial Court did not find any material to convict the accused so far as the offence under Section 498A of IPC is concerned. Therefore, the accused were acquitted of the said offence. 21
11.(a) So far as the charge under Section 302 of IPC is concerned, the prosecution relies on the evidence of PW-1 and PW-14. The evidence of both these witnesses are corroborative. PW-1 has stated that as on the date of incident, the deceased came to her house at about 7.00 a.m. to 7.30 a.m. and had tea. That the deceased narrated with regard to the harassment being caused to her on the previous night. On previous occasions also, on a number of times, the deceased had expressed the harassment being meted out on her with regard to the demand of dowry. As on the date of incident, after having tea in the house of PW-1, the deceased went back to her house. Since it was a day to cast a vote for the election to the Lok Sabha, the witness left the house at about 8.00 a.m. to cast her vote. When she returned back to her house, she noticed the accused leaving his house on his two wheeler. The door of the house was slightly opened. Therefore, she called for the deceased. Since, the 22 deceased did not respond, she went inside the house and found the dead body of the deceased.
(b). PW-14 is the son of PW-1. He was also in his house at the time of incident. He has stated that on the date of incident, the deceased came to his house and had tea with his mother. Thereafter, his mother left the house to cast her vote for the Lok Sabha election. The deceased went to her house. He heard a lot of commotion in the house of the deceased. He heard the accused over his telephone saying 'Hello, hello, hello". Thereafter, he saw the accused leaving the house on his two wheeler. About 8 to 10 minutes thereafter, accused No.1 returned back to the house and within a minute, again he left the house. At that point of time, his mother PW-1 returned to the house and noticed the door of the house of deceased was slightly open and she called for the deceased. When the deceased did not respond, she went inside the house and found the deceased was dead. His mother came back to the house and informed the relatives of the deceased about the 23 same. Thereafter, the police came there and a complaint was recorded.
12.(a) So far as the theory with regard to the accused being last seen with the deceased, is amply demonstrated by the evidences of PW-1 and PW-14. Their evidences are corroborative. Both of them speak with regard to the deceased going back to her house and thereafter, accused No.1 leaving the house of the deceased. Subsequently, accused returning to the house and within a minute or so, again the accused leaving the house and the dead body of the deceased found in the house on the date of incident, stands proved.
(b). The same is disputed by the Counsel for the defence while suggesting that accused No.1 was not present at the scene of offence when the incident took place. However, the suggestion has been flatly denied by both these witnesses. On the contrary, there is no material produced by accused No.1 to indicate his absence 24 in the house as on the date of incident. Further, it is a fact that except the deceased and accused, no one else were residing in the house in terms of the settlement in a panchayath between the deceased and the accused. According to the settlement, the accused and the deceased were living separately in the house in question. Therefore, accused No.1 left the house of his father and was residing in the rented house with the deceased. On the date of the incident also, it was the accused and deceased who were alone in the house. They were both last seen together. Immediately, the incident has taken place. Therefore, the accused should reasonably explain his presence or otherwise in the house as on the date of incident. Having failed to show any material with regard to the same, an inference requires to be drawn against him with regard to his presence.
13. Therefore, we have no hesitation to hold that the Trial Court was justified in coming to the conclusion that the prosecution has established the last seen theory 25 and that it was the accused alone who has committed the murder of the deceased. That it was he and the deceased who were in the house at that point of time. He was last seen in the company of the deceased and immediately the incident has taken place. Therefore, the evidence would clearly point out that the accused has committed the murder of the deceased. Hence, we are of the view that the findings recorded by the Trial Court in convicting accused No.1 for the offence punishable under Section 302 of IPC does not call for any interference.
14.(a) The further contention of the defence Counsel is that none of the statement of the witnesses requires to be accepted, since they are all interested witnesses.
(b) We are unable to accept the said plea. The offence alleged against the accused is one of dowry harassment. The harassment for dowry is always made within the four corners of the house. Therefore, it is the 26 family members and the close friends alone who would be aware of any dowry harassment. None of the public would be aware of any harassment. Therefore, to negate the evidence of the witnesses purely on the ground that they are related to the deceased, in our considered view cannot be accepted. We have weighed the evidence of each one of the witnesses and considered the same. Even though they were related to the deceased, we do not find that the evidence as stated by these witnesses could be disbelieved especially in view of the absence of any valid cross examination.
15.(a) It is the further contention that none of the witnesses have stated that they had actually seen any injury being caused to the deceased and therefore, the evidence cannot be accepted.
(b) Here too, we are unable to accept the said contention. It is not the case of the prosecution that any physical assault or injury for dowry was caused on the 27 deceased. It is their specific case that there was constant harassment for dowry. So also is the evidence of PW-1 who has narrated that the deceased would constantly tell her about the demand of dowry. Therefore, the contention that the witnesses have not seen any assault being meted on the deceased is irrelevant and insignificant.
16. So far as attracting the provisions under Sections 3 and 4 of DP Act is concerned, the prosecution relies on the evidence of PW-2, PW-5, PW-6, PW-16 to PW-
19. We have considered their evidences in extenso. They have clearly narrated with regard to the demand of dowry right from the time when the marriage took place. PW-5 and PW-6 was the sister and brother of the deceased who were parties to the marriage talks with regard to the demand of dowry. At the time of marriage, Rs.50,000/- in cash, gold chain and gold finger ring was given to accused No.1 and gold ornaments weighing 120 grams were given to the deceased. In spite of the same, harassment continued and on a complaint being lodged, at the 28 intervention of elders, a panchayat was convened to settle the dispute. PW-15 to PW-19 speak about the same. As a consequence of the settlement arrived at, a separate house was taken on rent, wherein the deceased and accused No.1 started to reside separately. Even after a separate house was taken, the deceased used to constantly state with regard to the harassment being meted out to her by accused No.1 and the other accused and that there was a constant demand for dowry and also a demand for a site. That accused Nos.2 to 5 were also involved in the harassment and the demand of dowry.
17. The Trial Court on considering the evidence of these witnesses was of the view that the evidence as narrated by aforesaid witnesses requires to be accepted. Therefore, while accepting the evidence, it has convicted the accused for the offence punishable under Sections 3 and 4 of DP Act. We do not find any perversity in the findings recorded by the Trial Court so far as Sections 3 and 4 of DP Act is concerned. The evidences of these 29 witnesses are clear and cogent and do not require any interpretation. There is no serious cross examination of these witnesses so far as demand of dowry and harassment is concerned. Therefore, we are inclined to accept the said evidences.
18.(a) It is further contended that even if the statement of all the witnesses are to be accepted, there are no specific allegations so far as accused Nos.2 and 5 are concerned. That the entire case is against accused Nos.1, 3 and 4. Therefore, the Trial Court has committed a perversity in convicting accused Nos.2 and 5 also.
(b). On considering this contention, we have re-examined the evidence and do not find any worthwhile evidence of these witnesses that would be sufficient to implicate accused Nos.2 and 5. Accused No.2 is the sister and accused No.5 is the brother of accused No.1. Even though the witnesses have stated with regard to the constant harassment being meted, there is no specific 30 allegations made against accused No.2 or against accused No.5 with regard to the demand of dowry. Further more, accused No.2 who is the sister of accused No.1 was living separately with her husband at C S Pura, Gubbi Taluk. Accused No.5, the brother of accused No.1 living along with his wife at Ballagere, Hebbur Hobli, Tumakuru Taluk. He is not residing with his parents.
(c). Therefore, on re-considering the evidences, we are of the view that the conviction of accused Nos.2 and 5 under Sections 3 and 4 of DP Act is misplaced. The Trial Court, in our view, committed a perversity in convicting these accused for the offences punishable under Sections 3 and 4 of DP Act. Therefore, they require to be acquitted.
19.(a) So far as the enhancement of sentence is concerned, the contention of the State is that when accused No.1 is sentenced to undergo life imprisonment, under Section-302 of IPC, he should also be directed to pay a fine.
31
(b). The Counsel for defence submits that a lenient view may be taken while imposing fine. Therefore, keeping in the mind the overall circumstances, we find it appropriate to further sentence the accused No.1 to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of IPC.
(c). So far as the sentence under Sections 3 and 4 of DP Act is concerned, the contention of the State is that the fine should be imposed in addition to imprisonment.
(d). For this too, the defence Counsel submits that a lenient view may be taken. Therefore, keeping in mind the overall circumstances, accused Nos.3 and 4 are further sentenced to pay a sum of Rs.25,000/- each for the offence punishable under Section 3 of DP Act, so also, Rs.10,000/- each for the offence punishable under Section 4 of the DP Act. The fine amount is directed to be paid before the Trial Court within a period of four weeks from the date of receipt of copy of this order and on payment of 32 such fine amount, the same shall be disbursed to the mother of the deceased Smt.Lakshmamma, Wife of Thimmaiah, resident of Bhadrapura, Madure Hobli, Doddabalapur Taluk, Bengaluru Rural District.
20. Accordingly, we pass the following:
ORDER
(i) Criminal Appeal No.916 of 2012 filed by accused No.1 is dismissed.
(ii) Criminal Appeal No.915 of 2012 filed by accused Nos.2 to 5 is partly allowed. The accused Nos.2 and 5 are acquitted of the charges under Sections 3 and 4 of DP Act.
Their bail bonds stands cancelled. The surety stands discharged.
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(iii) The conviction of accused Nos.3 and 4 under Sections-3 and 4 of Dowry Prohibition Act is affirmed. However, the sentence is modified. In addition to the sentence imposed by the trial Court, they are further sentenced to pay a fine of Rs.25,000/- each for the offence punishable under Section-3 of DP Act and they are further sentenced to pay a fine of Rs.10,000/- each for the offence punishable under Section-4 of DP Act. In default in payment of fine, accused Nos.3 and 4 shall undergo a further imprisonment for a period of six months.
(iv) Criminal Appeal No.1302 of 2012 filed by the State for enhancement of sentence against accused Nos.2 to 5 is partly allowed, in terms of the aforesaid order.
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(v) Criminal Appeal No.1303 of 2012 filed by the State for conviction of accused Nos.1 to 5 under Section 498A of IPC is dismissed.
(vi) The accused are entitled for set off for the period of detention already undergone by them in these cases.
(vii) On payment of the fine amount, the same shall be disbursed to the mother of the deceased Smt.Lakshmamma, Wife of Thimmaiah, resident of Bhadrapura, Madure Hobli, Doddabalapur Taluk, Bengaluru Rural District.
SD/-
JUDGE SD/-
JUDGE JJ/bgn