Karnataka High Court
Raghavendra vs State Of Karnataka on 1 December, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.283/2011
BETWEEN:
RAGHAVENDRA,
S/O VENKATESHAPPA,
AGED 24 YEARS,
R/AT NAGADENAHALLI,
MASTHI HOBLI, MALUR TALUK. ... APPELLANT
(BY SRI M.S. RAJENDRAPRASAD, SENIOR COUNSEL FOR
M/S. M.S. RAJENDRAPRASAD AND ASSOCIATES)
AND:
STATE OF KARNATAKA,
BY MASTHI POLICE STATION. ... RESPONDENT
(BY SRI DIWAKAR MADDUR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING THIS COURT TO SET ASIDE THE ORDER
DATED 25/26.2.2011 PASSED BY THE I ADDL.S.J., KOLAR, IN
S.C.NO.80/09 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498-A, 304-B R/W
34 OF IPC AND UNDER SECTIONS 3, 4 AND 6 OF DOWRY
PROHIBITION ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the judgment of conviction dated 25/26.02.2011 passed in S.C.No.80/2009, on the file of the I Additional Sessions Judge, Kolar, sentencing the accused for the offences punishable under Sections 498A and 304B of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 ('DP Act' for short).
The parties are referred to as per their original rankings before the Trial Court for the purpose of convenience and to avoid confusion.
2. The factual matrix of the case is that the victim deceased Padma was given in marriage to accused No.1 on 02.07.2008 and the marriage was performed in the temple. It is also the allegation that at the time of marriage negotiations, this accused, his parents and his paternal aunt had demanded Rs.1,00,000/- and 100 grams of gold as dowry and it was settled to give Rs.75,000/- and 100 grams of gold. After the marriage, the deceased Padma was leading marital life in her matrimonial house and thereafter came to know that accused No.1 had 3 already married. Accused No.1 in order to settle the issue between him and his first wife, demanded Rs.1,00,000/-. Hence, an amount of Rs.25,000/- was paid to accused No.1. Inspite of the same, the accused persons subjected the deceased Padma to physical and mental cruelty. Hence, she committed suicide on 14.12.2008 by drowning.
3. The police after registering the case, investigated the matter and filed the charge-sheet for the offences punishable under Sections 498A, 494, 304B, 306 and 302 read with Section 34 of IPC and under Section 4 of the DP Act. Though, the case was registered against accused Nos.1 to 6, accused Nos.4 and 6 were given up as no case was made out against them. Accused Nos.1 to 3 and 5 are on bail. The accused denied the charges leveled against them and claimed trial. Hence, the prosecution relied upon the evidence of P.Ws.1 to 18 and also got marked the documents at Exs.P.1 to 19. The accused was examined under Section 313 of Cr.P.C. and thereafter the accused persons did not choose to lead any defence evidence. The prosecution also relied upon M.Os.1 to 3. The Trial Judge after considering both oral and documentary evidence placed on record, convicted 4 accused No.1 and acquitted accused Nos.2, 3 and 5. Being aggrieved by the conviction and sentence, accused No.1 has preferred this appeal.
4. The main grounds urged in this appeal are that the Trial Judge has utterly failed to appreciate the material available on record, which is highly insufficient and unacceptable and interested in nature. The Trial Judge grossly erred in acting upon the evidence of the related witnesses and erred in not noticing the fact that the prosecution had utterly failed to examine the neighbours, who could have been best witnesses. The learned Sessions Judge ought to have rejected the evidence of P.W.6 on the ground that the conduct of P.W.6 was not normal and natural, as he has not given any statement to the police and after one month he stated to have made statement with COD police. The Trial Judge ought to have held that the deceased Padma had slipped and died when she had gone for washing clothes and she slipped and had fallen into the well as could be seen from Ex.P.2 - spot mahazar and Ex.P.12 - inquest mahazar.
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5. It is also contended that taking advantage of the death of Padma, P.W.1 and other relatives had hatched up a plan to rope the accused only to settle their personal accounts. It is emerged in the evidence that the deceased Padma was in love with the accused and the question of subjecting her to cruelty does not arise. The Sessions Judge also erred in not noticing the fact that the post mortem report and the evidence of P.W.4 was sufficient to hold that the deceased had died a natural death and particularly in the light of the fact that there was no external injuries found on the deceased as could be seen from the post mortem report Ex.P.13.
6. The learned counsel for the appellant reiterating the grounds urged in the appeal memorandum would contend that in Ex.P.1 the word 'ªÀgÀzÀQëuÉ' is inserted. The learned counsel also brought to the notice of this Court that in Ex.P.2 spot mahazar, it is found that bucket and cloth including the soap was found near the place where the body was recovered. The learned counsel would submit that in Ex.P.12 in column No.8 it is mentioned that the width of the canal was 12 ft. and 2 ft. depth. Hence, it is not a case of subjecting the victim for both physical 6 and mental harassment so also there was no demand or acceptance of dowry and the evidence of prosecution witnesses are relative witnesses and there are no independent witnesses.
7. The learned counsel would submit that P.W.1 is the brother of the deceased and P.Ws.2 and 3 are the parents and P.W.4 is the brother-in-law. Though P.W.5 supported the case of the prosecution, the same is not helpful to the prosecution. P.W.6 is an independent witness and he has no personal knowledge. P.W.7 is the attesting witness to Ex.P.2. P.W.8 is the gold smith who prepared the gold articles. P.W.9 is also the attesting witness to Ex.P.2. P.W.10 is the priest who performed the marriage. P.W.11 is the attestor to Ex.P.4 with regard to seizure of clothes of the deceased. P.W.12 is the engineer who prepared the rough sketch. P.W.13 is the attestor to Ex.P.12 inquest mahazar. P.W.14 is the doctor who conducted the post mortem. The evidence of P.W.14 is clear that there was a fetus of 24 weeks and marriage was held four months earlier. Hence, it is clear that prior to marriage, she was pregnant. P.W.14 also given the reasoning that death was due to asphyxia i.e., drowning. P.W.15 is the photographer who took the 7 photographs. P.W.16 is the Tahsildar who conducted the inquest. Though it is emerged that one Chandrappa had last seen the body, he has not been examined. P.W.17 is the PSI who registered the case and sent the FIR. P.W.18 is the Investigating Officer, who conducted the investigation and filed the charge- sheet.
8. The learned counsel referring the evidence of these witnesses, pointed out the contradictions in the evidence of the prosecution witnesses. The learned counsel also brought to the notice of this Court that P.W.2 says that he came to know that the deceased slipped and died when she went to wash the clothes. P.W.4 says that the relatives of the first wife of the accused had threatened the deceased and the very evidence of P.Ws.2 and 4 are contradictory to each other. No panchas were examined before the Court and no independent witnesses. The Trial Judge has convicted the accused only on the ground of suspicion and conjectures. The Trial Judge has not given any definite finding and observed it seems in coming to the conclusion that this accused had committed the offence alleged against him. Hence, the judgment of the Trial Court requires to be interfered with. The learned counsel would also submit that 8 accused Nos.2, 3 and 5 have been acquitted by the Trial Judge and the State has also not filed any appeal. While convicting this accused, the reasons assigned by the Trial Court is not based on any material. Hence, this Court has to reverse the finding of the Trial Court.
9. Per contra, the learned High Court Government Pleader appearing for the State would submit that though P.Ws.1 to 4 are relative witnesses, their evidence is consistent with regard to the demand and acceptance of dowry. Nothing is elicited in the cross-examination of P.Ws.1 to 4 to disbelieve the case of the prosecution. The counsel would submit that apart from the evidence of these witnesses, P.W.6 who is an independent witness has categorically spoken with regard to demand and acceptance of dowry. In additional to the evidence of P.Ws.1 to 4, P.W.6 evidence is consistent. P.Ws.1 to 4 and 6 have categorically deposed that dowry amount was given to accused No.2 and gold ornaments were given to accused No.1. The witnesses have spoken with regard to additional demand and also payment of Rs.25,000/- after selling the property. The 9 Court cannot disbelieve the evidence of P.Ws.1 to 4 only on the ground that they are the relative witnesses.
10. The learned High Court Government Pleader in support of his contentions, relied upon the judgment of this Court in the case of KRISHNA v. STATE OF KARNATAKA reported in (2010) 1 AIR Kar R 637. Referring this judgment the learned counsel would contend that this Court discussed in detail with regard to the penal provisions of Sections 498A and 304B of IPC and Sections 3 and 4 of the DP Act. The High Court has observed that the defence of the accused is one of total denial. He has not chosen to get any witness examined for him nor has he chosen to produce any document. Besides this, nothing is brought on record in the evidence of any of the prosecution witnesses in discharge of this burden. The accused has failed to discharge his burden of proof cast on him under Section 8-A of the DP Act. The evidence of prosecution which constitute the offences under Sections 3 and 4 of the DP Act have been successfully proved by the prosecution beyond reasonable doubt through oral and documentary evidence and upheld the judgment of the Trial Court.
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11. The learned counsel referring this judgment would contend that in the case on hand also the prosecution relied upon the evidence of P.Ws.1 to 6, particularly in respect of demand and acceptance of dowry prior to the marriage and subsequent to the marriage and the accused has not probablised his defence either by examining himself or eliciting the answers from the mouth of the prosecution witnesses.
12. The learned counsel also relied upon the judgment of the Apex Court in the case of RANJIT SINGH v. STATE OF PUNJAB reported in (2014) 1 SCC (Cri) 644. The learned counsel referring this judgment would submit that the Apex Court in this judgment held that the prosecution has successfully proved the ingredients necessary to attract the provisions of Section 304B of IPC. The evidence of physical and mental torture of the deceased from the accused is not to be discarded simply on the score of independent corroboration. No reason to differ with the conclusion of the Trial Court as affirmed by the Appellate Court that the Appellant is guilty of the offence under Section 304B of I.P.C.
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13. Learned counsel referring to this judgment would contend that in the case on hand also there are no contradictions in the evidence of P.W.1, P.W.4 and also with the answers elicited from the mouth of P.W.6, who is the independent witness and there is corroborations. Hence, there are no grounds to interfere with the findings of the Trial Court and reverse the same.
14. In reply to the arguments of the State, learned counsel appearing for the accused would submit that P.W.5 has not spoken anything about the demand and acceptance and if really the accused had demanded the money as dowry, P.W.5 who made an alliance between the accused and the victim would have been spoken the same. Hence, it is clear that there was no demand and acceptance. Therefore, prayed this Court to acquit the accused.
15. Having heard the arguments of the learned counsel for the appellants/accused and also the learned counsel appearing for the State, so also considering the grounds urged in the appeal memo and also the respective submissions, the points that would arise for the consideration of this Court are: 12
i) Whether the Trial Court has committed an error in convicting the appellants/accused for the offences punishable under Section 498A and Section 304B and Section 4 of the Dowry Prohibition Act?
ii) What Order?
Point No.(i):-
16. The factual matrix of the case is that the marriage of the victim was solemnized on 02.07.2008 and she committed suicide on 14.12.2008 on account of dowry harassment. In order to prove the fact, the prosecution has mainly relied upon the evidence of P.Ws.1 to 18 and also the documents at Exs.P1 to 19 and M.Os.1 to 3. This Court being the Appellate Court having jurisdiction to re-appreciate the evidence available on record, has to ascertain as to whether the Trial Judge has applied his mind and considered the material available on record in coming to the conclusion that the prosecution has proved the case against accused No.1 while accused Nos.2, 3 and 5 have been acquitted by the Trial Court in coming to the conclusion that the prosecution failed to prove the case against them and as there implies doubt about the involvement of accused Nos.2, 3 and 5 in the crime, the benefit of doubt was extended to them. In the 13 light of acquitting the accused Nos.2, 3 and 5, this Court has to examine as to whether the prosecution has made out the case against this accused. Since the charges are leveled against all the accused persons that they have subjected the deceased to both mental and physical cruelty which led her to commit suicide, before re-appreciating the material, first this Court would like to make a mention in nutshell the evidence of prosecution witnesses. P.W.1 is none other than the brother of the victim, P.W.2 is the father, P.W.3 is the sister and P.W.4 is the brother-in -law of the victim.
17. Having perused the testimony of these witnesses, the evidence adduced before the Court are similar with regard to performing the marriage of the deceased with accused No.1. All of them have adduced that there was a demand for 150 grams of gold and an amount of Rs.1,00,000/- and the same was settled to Rs.75,000/- and 100 grams of gold. During the time of marriage, they have given an amount of Rs.50,000/- and also the gold and the marriage was performed in the temple at Kolar. It is also their evidence that this alliance came through P.W.5. At the time of marriage talks, their relatives by name 14 K.Narayanappa (P.W.6) and their sister's husband Ramesh, their uncle Munishamappa, parents of accused and his sisters were present. There was an understanding to pay the balance amount of Rs.25,000/- during Shankranthi Festival. After the marriage, the victim Padma was cordial with her husband and thereafter, they came to know the accused No.1 had already married and having a girl child. The accused, in order to settle the dispute between him and the first wife, demanded an additional dowry amount of Rs.1,00,000/- and subjected her to both physical and mental cruelty. On coming to know about the same, they went and advised the accused. Inspite of the advise, they continued the harassment. The father of the victim had sold his property and gave the balance amount of Rs.25,000/- to the accused. Despite the payment being made, they did not stop the harassment. That on 14.12.2008, they came to know that the victim has passed away. Immediately, they rushed to the house of the accused but the accused persons were not there in the said house. The body was removed from the canal and mahazar was drawn in terms of Ex.P2 and the complaint was given in terms of Ex.P1. It is their evidence that they noticed bleeding from the ear and mouth of the victim. The dead body of the 15 victim was subjected to post mortem examination. The clothes of the deceased were also seized by drawing mahazar in terms of Ex.P4. All the photographs are also produced and marked as Exs.P5 to 10. They did not find any gold ornaments on the body of the victim. They came to know that all of them subjected her for mental and physical cruelty and committed murder and drown the body. This Court has to appreciate the answers elicited from the mouth of these witnesses.
18. P.W.1 in the cross-examination admits that while lodging the complaint, he has given the address of his residence at Bengaluru. He admits that he has not mentioned the date of marriage. He also admits that in the complaint, he did not mention that the marriage was held at temple. The engagement was held six months prior to the marriage and they have not printed the marriage invitation card. P.W.1 also admits that his sister's marriage was not performed as per the customs and also he did not attend the marriage. He admits that Ex.P5 photograph was taken in the photo studio and the relatives of the accused were not found in the photographs. He also admits that in Ex.P6, his sister is not wearing any gold ornaments. He voluntarily 16 states that she is wearing necklace. He also admits that his sister had told them that he would marry only accused No.1 and not informed anything about she being fell in love with him. But he admits that he made the statement before the COD police that his sister had informed that she would marry only accused No.1, otherwise he would go and stay with him. He also admits that on the date of marriage itself, he came to know that both of them were fell in love and the they got married in the evening. He admits that the marriage of his another sister by name Anusuyamma was also love marriage. He admits that while making the statement before the police, he did not made any statement that accused No.1 demanded an amount of Rs.1,00,000/- to settle the dispute with his first wife and in relation to the same, she was subjected to both physical and mental cruelty.
19. P.W.2, who is the father of the victim, in his cross- examination admits that his daughter had informed him that she would marry accused No.1 since they both are in physical relationship and because of that, they did not print any marriage wedding card. He also admits that he did not make any 17 statement before the Tahasildar and police with regard to the accused being brought by P.W.5, payment of dowry and gold, for having paid an amount of Rs.50,000/- to accused No.2 and about the performance of the marriage. So also he did not make any statement with regard to the prior marriage of the accused and having a girl child. It is also elicited that when they received information regarding the death of his daughter over phone, they went to the village, at that time, the people in the village were talking that her daughter slipped and died. He also admits that both of them were in love. He volunteers that after the engagement, they fell in love. In the marriage, 50 to 60 person have participated.
20. In further cross-examination of P.W.2, he also admits that his daughter had informed that she would marry only the accused. He also admits that he made statement before the COD police that her daughter had informed them that she would marry only accused and if not, she would go and stay in the house of the accused. He also admits that he did not make any statement before the Tahasildar about the demand of dowry 18 and additional dowry being made by them and also that if they fail to make payment, she would not be happy.
21. P.W.3, who is the sister of the victim, in the cross- examination admits that six months prior to the marriage, the accused persons had come to their house and she was not present at that time. Thereafter, the marriage talks were held after 10 days and in the said marriage talk, her parents, wife of Ramesh, herself and her husband were present. Her brother Narayanaswamy was not present. During the time of marriage talks, the date of marriage was fixed and it was agreed to perform the engagement at the time of marriage itself. P.W.3 also admits with regard to her sister insisted to perform the marriage with this accused. P.W.3 also admits that she has not given any statement before the police and Tahasildar that her sister was subjected to harassment and police have enquired her father.
22. P.W.4, the brother of the victim, in his chief- examination says that his maternal uncle, his father-in-law went to the house of accused to console the victim and to advise the accused. Thereafter, the victim demanded for money and hence, 19 he instructed P.W.3 to contact her. P.W.2 went and gave Rs.25,000/-. Inspite of payment of money, they did not stop the harassment. After three days of payment of money, accused No.2, who is the father of accused called him at around 2:30 p.m. and informed him that the family members of the first wife of the accused had threatened the victim and hence, she has committed suicide. In the cross-examination, he admits that he only performed the marriage of accused and victim taking the lead. He also admits that victim had informed him that he would marry only the accused No.1. He admits that he has not given any money at the time of marriage. He also admits that he has not given any statement before the Tahasildar that accused had demanded Rs.1,00,000/- to settle the dispute between him and his first wife.
23. P.W.5, in his evidence says that he himself has made the marriage alliance and the accused admitted to marry the victim. In the cross-examination, he admits that P.W.2 brought him to the Court and introduced P.W.4 Ramesh. He also admits that later, he came to know that both of them fell in love and also that P.W.2 had informed him that the said marriage shall 20 not be performed. But the daughter of P.W.2 had told that she will marry only the accused No.1.
24. The independent witness P.W.6, in his evidence says that he know the victim and her father and also says that the marriage of the victim was performed in the temple. P.W.5 had made the marriage alliance. In the marriage talk, the accused Nos.1 and 2 were present. P.W.4 M.Ramesh, Narayanaswamy, Anusuyamma and others had participated in the marriage talk. It is his evidence that in the marriage talk, they demanded 100 grams of gold and Rs.1,00,000/- as dowry and it was settled for Rs.80,000/- and 90 grams of gold and the marriage was performed in the temple in the evening at 6.00 p.m. It is also his evidence that an amount of Rs.50,000/- was given to the father of the accused No.1. i.e., accused No.2. Gold ornaments were also given. He also says that he came to know that accused had demanded Rs.1,00,000/- from the victim, for which she went and requested her parents to pay the said amount. He also says that later he came to know that the accused had already married.
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25. P.W.6 was subjected to cross-examination. In the cross-examination, suggestions were made with regard to the demand and acceptance of dowry and the participation in the marriage talks and so also that he had not given any statement before the police and those suggestions were denied. He admits that he did not make any statement before the police that the victim had informed about the demand of Rs.1,00,000/- to P.W.2 but he claims that P.W.4 told him about the harassment. In the cross-examination, P.W.6 denied the suggestion that he is falsely deposing before the Court. He also admits that both the accused and victim fell in love. It is suggested that none of them have participated in the marriage talks and decided to give the money and the said suggestion was denied. He also admits that he did not make any statement before the police that it was decided in the marriage talks to give Rs.75,000/- and 100 grams of gold to the accused, but he claims that he gave the statement in different context.
26. P.W.7 is the mahazar witness in respect of Ex.P2. P.W.8 is the one who prepared the gold ornaments. P.W.9 is also the mahazar witness to Ex.P2. P.W.10 is the one who performed 22 the marriage. There is no dispute with regard to performing of the marriage of the victim with accused No.1. P.W.11 is the mahazar witness to Ex.P4. P.W.12 is the Engineer, who prepared the sketch with regard to the location of the spot where the dead body was found as per Ex.P11. P.W.13 is witness to the inquest mahazar. P.W.14 is the doctor, who conducted Postmortem and in his report, he says that he found injuries near ear and eyes and lips and they are aquatic injuries. He also opined that the death was due to drowning. In the cross-examination, it is elicited that she was 6 months pregnant.
27. P.W.15 is the photographer and P.W.16 is the Tahasildar, who conducted the inquest in terms of Ex.P12. He deposed that he conducted the inquest on the request of the Police Sub Inspector in terms of Ex.P17. In the cross- examination, he also admits with regard to the correction in Ex.P12 that two feet depth of the canal. He also admits that P.W.3 has not given any statement regarding payment of Rs.1,00,000/-, but he says that statement was given in different context. He also admits that P.W.4 also not given any statement regarding demand of Rs.1,00,000/-.
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28. P.W.17 is the Police Sub Inspector, who registered the case based on the complaint - Ex.P1 in terms of Ex.P18. He also says that Ex.P.7 is the letter addressed to the Taluka Executive Magistrate. In the cross-examination, it is elicited that he has not mentioned the name of police official in the FIR who took FIR to Court.
29. P.W.18 is the Investigating Officer, who took up the further investigation of case and filed the charge sheet. He admits that the statements of CW.10 and CW.11 discloses that victim went to wash the clothes. He also admits that during the course of investigation, he came to know that when the victim had been to wash the clothes, they found the bucket, soap and clothes near the tank bund. He admits that P.W.6 has not given any statement before him regarding demand and acceptance of dowry of Rs.1,00,000/- and 100 grams of gold, but he gave statement that they demanded 150 grams of gold. He admits that P.W.6 did not make any statement before him that it was settled for 90 grams of gold and Rs.80,000/-. But he gave the statement that it was an amount of Rs.75,000/- and 100 grams of gold.
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30. Having perused both oral and documentary evidence placed on record, a specific allegation is made in the complaint Ex.P1 regarding the demand and acceptance of dowry, providing gold ornaments and subjecting the victim for both mental and physical cruelty. It is also the allegation that accused No.1 had already married and hence, subjected the victim for both mental and physical cruelty. There is no any allegation of demand of Rs.1,00,000/- to settle the issue between the accused and first wife in the complaint. This complaint is given by P.W.1. It is also emerged in the cross-examination of P.W.1 that he did not participate in the marriage. It is also important to note that inquest mahazar was drawn and statement of witnesses were also recorded.
31. Learned counsel also brought to my notice that in the inquest mahazar, which is marked as Ex.P12 at column No.8 there is a mention with regard to the depth and width of canal. Learned counsel also brought to my notice in Ex.P2, where there is an insertion of word 'dowry'. Learned counsel also brought to my notice Ex.P2, wherein it is mentioned that they found clothes, soap and also a bucket near the place where the body of 25 the deceased was found. In order to come to the conclusion that there was a demand and acceptance of dowry, P.W.1 says that prior to the marriage, marriage talks were held where they demanded a sum of Rs.1,00,000/- and 150 grams of gold and it was settled for a sum of Rs.75,000/- and 100 grams of gold. On perusal of evidence of P.W.6, who is the independent witness, he says that it was settled for a sum of Rs.80,000/- and 90 grams of gold. First of all P.W.1 has not attended even the marriage and hence, the question of demand cannot be accepted.
32. Having taken note of the evidence of P.Ws.1 to 4 as well as the evidence of P.W.6, who is the independent witness, their testimonies are contrary to each other with regard to the demand of dowry both in respect of amount as well as gold ornaments. P.Ws.1 to 4 claim that they agreed to give a sum of Rs.75,000/-, P.W.6 says that it was settled for an amount of Rs.80,000/- and when it comes to gold, P.Ws.1 to 4 says that it was settled for 100 grams and P.W.6 says that it was for 90 grams. It is also their evidence that the amount of Rs.50,000/- was given to accused No.2 prior to the marriage. 26
33. It is pertinent to note that P.W.1 had not participated in the marriage. It is also emerged in the evidence that the relatives of the victim were not interested to perform the marriage of victim with accused No.1. It is emerged in the cross- examination of P.Ws.1 to 4 that victim had only insisted to marry accused No.1. It is also emerged that both of them were having the physical relationship prior to the marriage. The evidence of the doctor - P.W.4 confirms the same that she was six months pregnant. The marriage was solemnized on 02.07.2008 and she committed suicide on 24.12.2008 and it was between the gap of 4 ½ months after the marriage. There is no dispute with regard to the fact that both of them fell in love prior to the marriage. It is also important to note that P.W.1 in the cross-examination categorically admits that the marriage was not performed in terms of the customary practice and also he categorically admits that photographs were taken in the photo studio and she was not wearing any gold ornaments. It is also emerged in the evidence of these witnesses that the victim had informed the family members that if they do not perform her marriage with accused No.1, she would go and stay in the house of the accused. When such being the case, the Court has to take note 27 under what circumstances, the marriage was performed, whether there was any demand with regard to the dowry.
34. P.W.1 categorically admits that he did not make any statement before the police with regard to demand of additional dowry of Rs.1,00,000/- to settle the issue between the accused and his first wife. P.W.2 also in the cross-examination categorically admits that he did not make any statement either before the Tahasildar or before the police for having paid a sum of Rs.50,000/- to accused No.2. P.W.3 also in the cross- examination admits that at the time of marriage talk only her parents, the wife of P.W.4, herself and her husband were present and her brother was not present. P.W.3 though claims that the marriage talks were held, she did not speak anything about the participation of P.W.6 at the time of marriage talks so also other witnesses. P.W.2 also not stated anything about the presence of P.W.6.
35. P.W.3 also reiterates that the victim herself insisted to marry with accused No.1. It is also elicited that she also did not make any statement before the police about subjecting her sister for harassment. The other witness, who is the brother-in - 28 law of victim, claims that the marriage talks were held and it was agreed to pay an amount of Rs.75,000/- and 100 grams of gold. It is important to note that P.W.3 says that wife of P.W.4 was present, but P.W.4 was not present. Hence, there are contradictions with regard to the participation of P.W.6 in the marriage talks. It is also important to note that P.W.4 says in the chief-examination itself that relatives of the first wife of the accused threatened the victim and hence, she committed suicide.
36. The evidence of P.W.5 is not helpful to the case of the prosecution. He has only deposed with regard to making alliance and not stated anything with regard to demand and acceptance of dowry. Though there is no effective cross- examination of P.W.6, but his evidence is contrary to the evidence of P.Ws.1 to P.W.4 with regard to the quantum of dowry and gold. As I have already pointed out from his evidence, it was settled for an amount of Rs.80,000/- and 90 grams of gold as dowry and the same is contrary to the evidence of P.Ws.1 to 4.
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37. This Court has made an observation above that P.W.1 has not participated in the marriage and not in the marriage talks. P.W.2 also does not say anything about the participation of P.W.6 in the marriage talks and the version of P.W.3 is different. The evidence of P.W.6 also cannot be accepted with regard to prior demand and subsequent demand of amount by the accused persons. As it is already pointed out with regard to the answers elicited from the mouth of P.Ws.1 to 4, they have not given any statement before the Tahasildar or Police regarding the demand of additional amount of Rs.1,00,000/- as dowry. I have already pointed out in Ex.P1 though the allegation is made that she was subjected to harassment subsequent to knowing about the first marriage, no allegations of demand of additional amount of Rs.1,00,000/- was made. Hence, it is clear that demand of additional amount of Rs.1,00,000/- is only an after thought.
38. It is also important to note as it emerged in the evidence that the victim had fell in love with accused No.1. It is also emerged in the evidence that they were having physical relationship and records also would reveal that she was six 30 months pregnant at the time of her death and marriage was held on 2.07.2008, which corroborates with the evidence of doctor - P.W.14. There is no dispute with regard to their physical relationship and also with regard to her being pregnant. When such being the circumstances and the marriage being performed in the temple abruptly without any engagement, that too in the evening in a temple, the theory of demand and acceptance of dowry cannot be accepted. The Trial Judge though discussed in length the evidence of the witnesses and came to the conclusion that the case against accused Nos.2, 3 and 5 i.e., father and brother of the victim and the friend of P.W.2 are doubtful but has not assigned any cogent reasons to convict this accused.
39. There are contradictions in the materials available before the Court with regard to demand and acceptance of dowry and there is no discussion with regard to further demand of additional dowry. Hence, it appears that the Trial Judge while acquitting the other accused and forming the opinion has come to the conclusion that this appellant/accused being the husband of the victim is guilty and has convicted. The very approach of the Trial Court is erroneous. The Trial Judge has failed to 31 appreciate both oral and documentary evidence placed on record and also the answers elicited from the mouth of P.Ws.1 to 4 and P.W.6, since they are star witnesses to the case. The other witnesses are only the formal witnesses. The medical evidence also clearly states that the cause of death of the victim is due to drowning. It is categorically admitted that the witnesses have not given any statement before the Tahasildar and Investigating Officer that there was a demand for additional amount of Rs.1,00,000/- in order to settle the issue between the first wife and the accused. The Trial Judge also did not discuss anything in detail for having acquitted the accused No.2, 3 and 5, except stating that the case against these accused persons are doubtful while coming to the conclusion in concluding paragraph. While convicting the accused No.1, the Trial Judge has not discussed in detail as to what are the incriminating evidence against accused No.1 and also failed to consider the evidence available in toto as to whether it inspires the confidence of the Court to convict the accused. No doubt, the marriage was taken place about 4 ½ months back and she committed suicide within 4 ½ months of the marriage.
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40. Having taken note of the material available on record, particularly to convict this accused, this Court does not find any incriminating evidence to come to the conclusion that she was subjected to mental and physical torture. The evidence of the prosecution that the victim was subjected to mental and physical cruelty is insufficient as it was hardly four and half months being married and there is also an admission with regard to the fact that they were cordial for some time and also no material is placed except stating that there was a demand for Rs.1,00,000/- to settle the issues between the accused and his first wife. There is no material to strengthen the case of the prosecution except the after thought evidence before the Court and the prosecution witnesses have not made statement before the police with regard to the additional payment of Rs.1,00,000/-. However, it has been categorically admitted that they have not given any such statement before the police or Tahsildar.
41. It is also important to note that Ex.P2 discloses with regard to the bucket, clothes and soap were found near the place from where the dead body of the victim was recovered. It 33 is also elicited from the mouth of witnesses that when they went to Nagadevanahalli Village, the people of the said Village were whispering that she accidentally slipped and died. The testimony of the medical witness also corroborates with the said evidence that the death is due to drowning. Though at the first instance, they claimed that she was murdered and there was no body at the house of the accused, the medical evidence is clear that it is a case of drowning and the injuries found on the body are aquatic injuries. When such being the case, the Trial Judge ought to have appreciated the material available on record in a right perspective, instead of that, the Trial Judge has picked up some materials and has come to the conclusion that the accused No.1 subjected her for mental and physical cruelty. There is no any evidence before the Court to show either he assaulted the victim or subjected her for cruelty. When all the accused and victim were residing together, it is nothing but the general allegations being made against them. When the Trial Judge has extended the benefit of doubt to other accused persons, the same benefit ought to have been extended to accused also when there is no separate evidence against the accused.
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42. Having taken note of the material available on record, in order to convict the accused, the same must inspire the confidence of the Court and in support of the same there must be credible evidence before the Court. In the absence of such inspiring and credible evidence, the Trial Judge ought not to have convicted the accused. Hence, I am of the opinion that it is a fit case to interfere with the findings of the Trial Court and to reverse the same as it is not based on any material and the reasons assigned by the Trial Judge is not a definite findings in holding that this accused is guilty of committing the offence and the prosecution has not proved the case beyond reasonable doubt to invoke the ingredients of the offences and to bring home the guilt of the accused. Hence, there is a merit in the appeal to set aside the conviction.
43. In view of the discussion made above, I pass the following :
ORDER The appeal is allowed.
The judgment and order of conviction and sentence dated 25/26.02.2011 passed in S.C.No.80/2009, on the file of I Additional Sessions 35 Judge, Kolar for the offences punishable under Sections 498A and 304B of IPC and Section 4 of the Dowry Prohibition Act, 1961 is hereby set aside.
Sd/-
JUDGE MD/PYR