Karnataka High Court
The State Of Karnataka vs Lokesh on 6 November, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.698 OF 2015
BETWEEN:
THE STATE OF KARNATAKA,
THROUGH AMRUTHUR POLICE - 572 130.
... APPELLANT
(BY SRI S. RACHAIAH, HCGP)
AND:
1. LOKESH
S/O. BILIYAPPA,
AGED ABOUT 31 YEARS,
2. BILIYAPPA,
S/O. LATE MALLAIAH,
AGED ABOUT 78 YEARS,
3. MAYAMMA,
W/O. BILIYAPPA,
AGED ABOUT 71 YEARS,
RESPONDENTS 1 TO 3 ARE
RESIDENTS OF KATTIGEHALLI VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TALUK-572 130.
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4. RAVI @ NINGAPPA,
S/O. BILIYAPPA,
AGED ABOUT 38 YEARS,
RESIDENTS OF SRIGANDHA KAVAL,
D.NO.21, LAGGERE,
BENGALURU - 58,
PERMANENT RESIDENT OF
KATTIGEHALLI VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TALUK - 572 130.
5. SUDHA,
W/O. SIDDAPPA,
AGED ABOUT 48 YEARS,
RESIDENT OF SHANTHAPURA VILLAGE,
HEBBUR HOBLI,
TUMKUR TALUK - 572 101.
6. PREMA,
W/O. LATE HARISH,
AGED ABOUT 43 YEARS,
RESIDENT OF URKEHALLI VILLAGE,
KASABA HOBLI,
KUNIGAL TALUK - 572 130.
... RESPONDENTS
(BY SRI B. KESHAVAMURTHY, ADVOCATE
FOR R-1, R-3, R-4 to R-6;
R-2-DEAD.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF THE CR.P.C PRAYING TO (a) GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 10.11.2014 PASSED BY THE FAST TRACK COURT,
TUMKUR IN S.C. NO.61/2012, ACQUITTING ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498-A, 304-B AND
302 READ WITH SECTION 149 OF THE INDIAN PENAL CODE
AND SECTIONS 3 AND 4 OF THE DOWRY PROHIBITION ACT
AND ETC.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 20.10.2020 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, NATARAJAN, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the State against the judgment and order of acquittal dated 10.11.2014 passed in S.C.No.61/2012 on the file of the Fast Track Court, Tumakuru for having acquitted respondent Nos.1 to 6 for the offence punishable under Sections 498A, 304B and 302 read with Section 149 of India Penal Code (for short 'IPC') and Sections 3 and 4 of the Dowry Prohibition Act (for short 'D.P. Act).
2. The rank of the parties before the trial Court is retained for the sake of convenience.
3. The case of the prosecution is that the Amruthur Police filed the charge-sheet against the accused persons for the above said offences on the complaint filed by the complainant-Thimmarayappa- 4 PW.1 as per Ex.P1 alleging that his daughter Dhanalakshmi was given in marriage with accused No.1-Lokesh on 23.06.2010. At the time of marriage, dowry of Rs.1,00,000/- cash, one gold neck chain and one golden finger ring and a wrist watch have been given to accused No.1 and also 20 sovereign gold to the deceased. After marriage, they lived happily for 4 to 5 months. Thereafter, the accused persons started ill- treating her physically and mentally for the petty reasons and they were telling her that her parents should have given more dowry and that accused No.1 had other alliances, who would have given more cash and jewelry and thus, they were harassing her to bring more dowry from her parental house.
4. Further case of the prosecution is that on 17.10.2011 at about 6 p.m., accused No.1 with an intention to kill the deceased-Dhanalakshmi strangulated her by tying the saree around the neck 5 and caused her death on the background that she did not bring more dowry from her maternal home. After registering the case, Police filed charge-sheet after the investigation.
5. Learned J.M.F.C., after taking cognizance committed the case to the Court of Sessions. Accused No.1 was in the custody during the trial and other accused were on bail. Trial Court after seeking the presence of the accused framed the charges for the offence punishable under Sections 498A, 302, 304B read with Section 149 of IPC and later additional charges were also framed for the offence punishable under Sections 3 and 4 of the D.P. Act. The accused denied the charges and claimed to be tried.
6. In order to prove the case of the prosecution, the prosecution in all examined 16 witnesses as per PW.1 to PW.16, got marked 20 documents as per Ex.P.1 to Ex.P.20 and 4 material objects as per M.O.1 to 6 M.O.4. After completion of the evidence of the prosecution witness, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. The case of the accused was one of the total denial and on behalf of the accused they examined defence witnesses as D.W.1 and D.W.2, but no documents were marked.
7. After hearing the arguments, learned Trial Judge found the accused not guilty for the said offences and acquitted them by passing the impugned Judgment dated 10.11.2014. Being aggrieved by the same, the State has preferred this appeal.
8. We have heard the arguments of Sri S. Rachaiah, learned High Court Government Pleader for the appellant-State and Sri B. Keshavamurthy, learned counsel for the accused-respondent Nos.1, 3, 4 to 6.
9. Learned High Court Government Pleader vehemently contended that the judgment and order of 7 acquittal passed by the Trial Court is not sustainable under the law. The Trial Court has totally ignored the evidence of PWs.1, 3, 6, 8 and 9 in respect of demand of dowry and harassment. Further, the Trial Court also not properly appreciated their evidence. The evidence of PW.11-Dr.Ravikumar and Ex.P.13-Post-mortem report clearly goes to show that the deceased died due to strangulation in the house of the accused. The deceased died within 7 years of her marriage and it was a homicidal death. Such being the case, the legal presumption is available in favour of prosecution for the offence under Sections 304B of IPC and 113B of Indian Evidence Act. Even otherwise, the accused not explained as to what happened to the deceased and found dead in his house which is in exclusive knowledge of accused No.1 as per Section 106 of the Indian Evidence Act.
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10. Learned High Court Government Pleader further contented that there was demand of dowry and harassment on the deceased. The presumption to show that there was a demand of Rs.1,00,000/- by the accused 15 days prior to the incident for the purpose of digging bore-well. PW.1-father of the deceased has categorically stated that after marriage, the accused demanded money and he himself provided auto rickshaw by borrowing loan in respect of digging bore- well. Thereby, the prosecution able to show that there was harassment by demanding dowry soon prior to the death of the deceased. Thereby, the prosecution is successful in proving the case against the accused persons. Therefore, prayed for reversing the judgment of acquittal passed by the Trial Court. He further contended that the Trial Court also ignored the recovery of M.O.1-Saree used by accused No.1 for strangulating the deceased. The same was identified by the witnesses as per M.O.4. Therefore, prayed for allowing the appeal. 9
11. Per contra, Sri B.Keshavamurthy, learned counsel appearing for accused No.1 has supported the judgment of acquittal passed by the trial Court and contended that the deceased-Dhanalakshmi though died due to strangulation but there are no external injuries either on the neck and other parts of the body to show that it is homicidal death. The complainant filed the complaint after due deliberation. PWs.3 and 9 have not whispered anything about the demand of dowry. Accused Nos.3 to 6 were staying away from accused No.1 and the deceased. Even accused No.2 was also residing separately in the same village. Accused No.1 and deceased were staying separately. Therefore, question of demand of dowry or harassment either physically or mentally by accused Nos.2 to 6 does not arise. Further contended that accused No.1 was not in the house and after the death, he came to the house. Such being the case, question of commission of murder by accused No.1 does not arise. Even without any 10 evidence, the Court cannot presume the accused was the cause for the death of the deceased. Therefore, prayed for dismissing the appeal.
12. Upon hearing the arguments of learned High Court Government Pleader for the State as well as learned counsel for the accused, the point that arises for our consideration is:
"Whether the judgment of acquittal passed by the Trial Court against accused Nos.1 to 6 acquitting them for the offence punishable under Sections 498A, 302 and 304B read with Section 149 of IPC and Sections 3 and 4 of the D.P. Act calls for any interference in the facts and circumstances of the case?"
13. Upon hearing the rival contention of the learned counsel and in order to re-appreciate the evidence on record, it is necessary to have a cursory look into the evidence adduced by the prosecution before the Trial Court which is as under:
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(a) PW.1-Thimmarayappa who is the complainant and father of the deceased gave evidence in support of his complaint made before the Police as per Ex.P.1. He has stated that the marriage of his daughter and accused No.1 was solemnised on 23.06.2010. Prior to the marriage, there was marriage talks and at that time, the accused persons have demanded Rs.2,00,000/- cash, 25 sovereign gold along with one ring and wrist watch and finally, he has agreed to give Rs.1,00,000/- and 20 sovereign gold including one gold chain. He further deposed that the dowry in the form of cash and jewelry was given at the choultry and after marriage, her daughter and accused No.1 lived happily for six months. Thereafter, the accused persons started harassing the deceased by demanding more dowry. He further deposed that accused No.1 and his family members demanded one auto rickshaw from him and insisted the deceased not to come back home without bringing the auto rickshaw. Then, he has provided auto 12 rickshaw. After 4 to 5 months, his daughter became pregnant and accused No.1 brought her back for her maternal home for delivery purpose and she gave birth to a male child. Except accused No.1, other accused persons not visited his house to see the child. Thereafter, accused No.1 took back the deceased along with the child to his house and for 15 days they were happy and again accused No.1 demanded Rs.1,00,000/- for the purpose of digging bore-well. He has also deposed that being unable to bear the harassment, his daughter came to his house and informed him about the demand. By borrowing amount of Rs.1,00,000/- from his relatives, PW.1 gave the said amount to accused No.1 and sent his daughter back to her matrimonial home. After 15 days, again the accused started harassing the deceased and after 4 to 5 days, accused caused her death and on the date of incident, he came to know that the accused caused murder of his daughter and then he went to the house of accused 13 No.1, nobody were present and the dead body of his daughter was lying. He has suspected that the accused persons would have committed murder. He lodged complaint before the Police. Ex.P.1 is the complaint, Ex.P.2 is the spot mahazar prepared by the Police, Ex.P.3 and Ex.P.4 are the invitation card and marriage photos. Exs.P.5 to P.7 are the photos of dead body. In the cross-examination, it was elicited that accused No.1 and the deceased were staying separately prior to the incident. They lived happily for six months. About 15 days prior to the incident, accused No.1 came and took the deceased along with the child to his house. Further, he confirms that he has given auto rickshaw to the accused to the welfare of accused No.1 and his daughter. He further says that he has availed loan of Rs.1,75,000/- from the Panduranga Co-operative Society and purchased auto rickshaw for accused No.1. Further, he has admitted in the cross-examination that when the accused was in the custody of the Police, the 14 Police obtained his signature for transferring the auto rickshaw in his name. He further deposed that 15 days prior to the incident, his daughter came weeping to the house and told about the demand of Rs.1,00,000/- for digging bore-well and he has paid the said amount in the presence of PW.3-Nagaraju and PW.9- Hanumegowda. He has also stated that he has borrowed Rs.50,000/- from Nanjundaiah, Rs.25,000/- from Nagaraju, Rs.25,000/- from Hanumegowda and paid to accused No.1. He further admits that while lodging the complaint, he has discussed with his relatives and further he has denied that there was no harassment on the deceased and there was no connection between the death of the deceased and accused persons.
(b) PW.2-Nanjundaiah is the panch witness to the spot prepared by the Police as per Ex.P.2. According to his evidence, he has found injuries on the dead body of the deceased.
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(c) PW.3-Nagaraju also speaks about the marriage talks, demand of dowry by the accused and payment of dowry and further harassment made by the accused to the deceased after the marriage. Also speaks about the amount provided by PW.1 to the accused and demand of Rs.1,00,000/- for digging bore-well and payment of the said amount by PW.1. Further, he has deposed that on 17.10.2011, the deceased called him over mobile phone and told him that accused were assaulting her and he kept quite thinking that it was the everyday dispute. But, later he came to know through PW.1, that the deceased is dead. He also speaks about the injury found on the dead body of the deceased and he is the witness to the inquest panchanama.
(d) PW.4-Shivalingaiah who is the nephew of PW.1 also speaks about marriage negotiation, demand and payment of dowry and further demand of additional 16 dowry and borrowing loan by PW.1 for providing auto rickshaw to accused No.1. He also speaks about demand of additional dowry of Rs.1,00,000/- by accused No.1 for the purpose of digging bore-well and death of deceased is due to assault by the accused.
(e) PW.5-Ramesh is the panch witness to the seizure of the cloth of the deceased prepared by the Police as per Ex.P.9.
(f) PW.6-Doddalakshmamma is the mother of the deceased and wife of PW.1. She also gave evidence in support of the prosecution case and in support of her husband. She further says that her daughter used to inform her about the ill-treatment made by the accused persons on her. She says that they provided auto rickshaw. Later, Rs.1,00,000/- was given to accused No.1 for digging bore-well and after seven days, she came to know about the death of her daughter. She 17 also identified M.O.4-Saree of the deceased and cloth of the deceased as per M.Os.1 and 2.
(g) P.W.7-Jagadeesh is the panch witness to the recovery of M.O.4 in the house of the accused at the instance of the accused. He has turned hostile and not supported the case of the prosecution except admitting his signature as per Ex.P.10(a).
(h) PW.8-Jayaramaiah who is the relative of PW.1 given evidence in respect of marriage negotiation, demand of dowry, demand of auto rickshaw and they provided the same. He also speaks about the payment of amount towards digging bore-well by the accused and later, he came to know about the death of the deceased. He supported the case of the prosecution.
(j) PW.9-Hanumegowda has given evidence in respect of marriage, demand of dowry, payment of dowry and later demand of additional dowry by the accused. Sending back the deceased to the parental 18 house, demand and payment of money for the purpose of digging bore-well and he further says that PW.1 borrowed money for making payment to accused No.1. Thereafter, he came to know about the death of the deceased. He also supported the case of the prosecution.
(k) PW.10-Lakshmiprasanna, Assistant Executive Engineer who prepared spot sketch of the house of the accused as per Ex.P12-Sketch of scene of occurrence. The death of the deceased in the house of the accused is not in dispute.
(l) PW.11-Dr.Ravikumar who conducted post- mortem examination on the dead body of the deceased on 18.10.2011. According to his opinion, the cause of death was due to strangulation. He issued post-mortem report as per Ex.P.13. He further says that at the request of the Police, he has examined M.O.4-saree and opined that with the help of the said saree, possibility of 19 causing strangulation and could be caused the death of the deceased.
(m) PW.12-Krishnaiah, Tahsildar conducted inquest on the dead body of the deceased in the Kunigal Hospital on 18.10.2011 in the presence of panchas and seized the clothes of the deceased. He identified Ex.P.16 is the summons issued to the panch witnesses and M.Os.1 to 3 are the clothes of the deceased.
(n) PW.13-Ramakrishna, Police constable who carried the clothes of the deceased after post-mortem examination and produced before the Investigating Officer. He also identified seizure mahazar as per Ex.P.9 and M.Os.1 to 3 are the clothes of the deceased.
(o) PW.14-Chandrashekar is another Police constable who apprehended the accused on 20.10.2011 and gave report to the Investigating Officer as per Ex.P.13-Post-mortem report.
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(p) PW.15-Mallasetty, Assistant Sub-Inspector of Police who received the complaint from PW.1 and registered the case in Crime No.176/2011 for the offence punishable under Sections 498A, 304B, 302 read with Section 34 of IPC. He identified Ex.P.1- complaint and Ex.P.3-invitation card. He also prepared spot panchanama as per Ex.P.2 and then, he sent the dead body to the hospital and requested Tahsildar to hold inquest on the dead body.
(q) PW.16-Shivarudraswamy is the Dy.S.P., who conducted the investigation and filed the charge-sheet against the accused.
14. We have perused the entire evidence on record. On perusal of the same, it is an admitted fact that the marriage of accused No.1 and the deceased was solemnised on 23.06.2010. After the marriage, she was residing in her matrimonial home and she came back to her parental home for delivery, she gave birth to a male 21 child. Thereafter, accused No.1 took back the deceased and they both stayed in the separate house at Kottigehalli village. It is also not in dispute that the said Dhanalakshmi found dead in the house of accused No.1 on 17.10.2011. As per the evidence of PW.11- Dr.Ravikumar, the death of Dhanalakshmi was caused due to the strangulation and he issued post-mortem report as per Ex.P.13. The case of the accused is total denial and contended that the accused was not responsible for the death of the deceased but failed to show how the death of the deceased caused due to strangulation. It is not the case of the accused that the deceased has committed suicide and her body was hanging but when PW.1 and other relatives went to the house of the accused No.1, the body was lying on the ground. The saree was also not found on the neck to show that it was a suicide. But on the other hand, the ligature marks shown in the Ex.P.13 indicates that the Ligature marks found Horizontally-11 cm, width 1cm, 22 5.5. cm below the chin, 3 cm below the left ear lobe - contusion wound below the chin, 3 cm below the left ear lobe - contusion wound horizontally measuring 3 cm, width 0.3 mm, 6cm below the right ear lobe - contusion wound measuring horizontally 6 cm width is 0.2 mm., and bluish discolouration of both hand nail beds. According to the opinion of the Doctor, the cause of death is due to Asphyxia as a result of ligature strangulation. During the cross-examination, it was suggested by learned counsel for the accused that there was no fracture on the larynx and trachea. Further suggestion made in the cross-examination that in the strangulation case, there should be damage of thyroid cartilage, trachea cartilage and thyroid gland would damage. But, the witness says that it is not in all the cases and other suggestion were also denied by this witness. However, the learned counsel for the accused not brought any evidence to show that the death was caused not due to strangulation and it was suicidal 23 hanging. However, from the evidence of PW.11 and Ex.P.13, it is clear that the deceased died due to strangulation and ligature mark is encircled and not oblique as in the case of suicidal hanging. However, it is not a natural death but, it is unnatural death caused to the deceased within seven years of her marriage.
15. On perusal of the evidence of PW.1, PW.3, PW.6, PW.8, PW.9 were all categorically stated that there was marriage negotiation held in the house of PW.1 prior to the marriage and during the negotiation, there was a demand of dowry for Rs.2,00,000/- and 25 sovereign gold by the accused. PW.1 agreed to give Rs.1,00,000/- and 20 sovereign gold and the same was given to the accused. All these witnesses clearly stated that after the marriage, the deceased was residing with accused No.1 in the matrimonial home and they were harassing the deceased. Thereafter, accused No.1 along with other accused demanded auto rickshaw for the use 24 of accused No.1 and they provided an auto rickshaw to accused No.1 in order to lead a comfortable life by the deceased and accused No.1. All the witnesses categorically stated about the purchase of auto rickshaw by PW.1 by applying loan from Society and given to accused No.1. It is also suggested in the cross- examination of PW.1 and Investigation Officer that when accused No.1 was in custody of Police, they obtained the signature of accused No.1 for transferring the auto rickshaw in the name of PW.1. PW.1 also admitted about obtaining the signature of accused No.1 in Form Nos.29 and 30. PW.1 has stated that he himself has provided auto rickshaw and taken back after the death of his daughter. Though all these witnesses have spoken about the demand of dowry and payment of dowry, but all of them stated that after 4 to 5 months of the marriage, the accused looked after the deceased well and the deceased became pregnant, she came to the parental home and delivered a male child. Except 25 accused No.1, other accused did not come to see the child.
16. All the witnesses have stated that the accused No.1 is said to be demanded auto rickshaw and they provided auto rickshaw only to lead a comfortable life and welfare of the deceased which amounts to additional dowry demanded by the accused No.1. In the cross-examination, all the witnesses have categorically stated that after the marriage, after 4 to 5 months, accused No.1 demanded auto rickshaw and PW.1 provided the same by borrowing loan which amounts to additional dowry demanded by accused No.1. There is sufficient evidence to show the demand of dowry prior to the marriage and there is consistency in the evidence of these witnesses regarding demand of dowry and payment of dowry prior to the marriage. However, it has suggested in the evidence that PW.1 gave gold ornaments to his daughter and a neck chain and finger 26 ring to accused No.1. PW.1 denied the suggestion that normally, it is a customary practice to give ornaments at the time of marriage which cannot be a demand of dowry or payment of dowry at the time of marriage. But, there is sufficient material placed on record by the prosecution through the evidence of PWs.1, 3, 6, 8 and 9 regarding demand of dowry, payment of Rs.1,00,000/- and 20 sovereign gold at the time of marriage and demanding auto rickshaw after 4 to 5 months of the marriage and nothing has been elicited to disbelieve the evidence of these witnesses to show that the auto rickshaw was not provided by PW.1. On the other hand, the registration certificate of the auto rickshaw got transferred in the name of PW.1 when accused No.1 was in the custody of Police which shows that there was an additional demand of dowry by the accused No.1 after the marriage.
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17. Further the evidence of PWs.1, 3, 6, 8 and 9 clearly goes to show that after providing auto rickshaw for few days, accused No.1 did not quarrel, but, again accused No.1 demanded Rs.1,00,000/- for the purpose of digging bore-well. PW.1-father of the deceased and PW.6-mother of the deceased have categorically stated that the demand of Rs.1,00,000/- for the purpose of digging bore-well and borrowed loan from his friends i.e., PWs.3 and 9 and given to the accused No.1. To corroborate his evidence, PW.3-Nagaraju also stated in his evidence that 10 to 12 days prior to the death of the deceased, accused No.1 harassed the deceased for demand of Rs.1,00,000/- and it was given by PW.1, but, in the cross-examination, nothing has been elicited to disbelieve his evidence. PW.9-Hanumegowda also stated in his evidence that accused No.1 demanded Rs.1,00,000/- for the purpose of digging bore-well. He himself paid Rs.50,000/- to PW.1 as loan and PW.1 gave the money to accused No.1 after mobilizing some 28 more amount from others. PW.4-Shivalingaiah who is the nephew of PW.1 also given evidence for payment of dowry to the accused as well as demand of Rs.1,00,000/- for digging bore-well. Nothing has been elicited in the cross-examination to disbelieve the evidence of all these witnesses. However, PWs.1, 3, 4 and 9 clearly stated regarding payment of Rs.1,00,000/- by PW.1 to accused No.1 just 15 days prior to the death of the deceased. It is also suggested in the evidence that in spite of payment of Rs.1,00,000/-, the accused still insisted the deceased to bring some more amount from PW.1.
18. On perusal of the evidence of all these witnesses it clearly goes to show that after marriage, the accused looked after the deceased well only for 4 to 5 months. Thereafter, he started demanding additional dowry and there was a panchayath held in the presence of PWs.8 and 9. PW.4 also participated in the 29 panchayath. The parents of the deceased categorically stated that the deceased came and informed PW.6- mother of the deceased about the demand of additional dowry by accused and they provided auto rickshaw and after sometime, again accused started harassing the deceased. She came weeping to her parental house and informed that accused No.1 insisted for Rs.1,00,000/- for digging bore-well and in spite of payment of Rs.1,00,000/-, again the accused started harassing the deceased. Absolutely, it is brought on record by the accused in the cross-examination to disbelieve their evidence. However, absolutely there is no evidence to show that accused Nos.2 to 6 were harassing the deceased for additional dowry prior to the death of the deceased. But the entire evidence on record depicts that accused No.1 demanded additional dowry after the marriage and he has received an auto rickshaw and thereafter, again he has demanded additional dowry of Rs.1,00,000/- for digging bore-well which was given by 30 PW.1 just 15 days prior to the death of the deceased. Thereby, the prosecution has successfully brought the evidence on record to show that there was unnatural death of the deceased occurred within 7 years of her marriage and her dead body was found in the house of accused No.1. Accused No.1 has not explained about what happened to his wife in his house.
19. In the cross-examination, learned counsel for the accused tried to elicit that accused No.1 was not in the house. He was somewhere else driving auto rickshaw, but, he has failed to enter the witness box to show where he was at the time of the death of his wife. Though, accused No.1 examined DW.1-Moodalagiriyaiah and DW.2-Lakkegowda to show accused is a good person as there was no demand of dowry. PW.1 was very poor man and has stated that he cannot give any dowry amount and the accused agreed for the same and not received any dowry amount. But these two 31 witnesses have not spoken anything about the auto rickshaw provided by PW.1 and they stated that the auto rickshaw was purchased by accused No.1 by borrowing loan. But the accused has not produced any documents to show that he has borrowed any loan from any banker or financier for purchasing auto rickshaw. DWs.1 and 2 have also not produced any documents to prove their contention that the auto rickshaw was purchased by accused No.1 himself and not provided by PW.1. The evidence of these two witnesses appears to show that accused No.1 is a good person and has not demanded any money. But on the other hand, the prosecution is successful in proving the additional demand of dowry by way of auto rickshaw and after the birth of the child, the deceased went to the house of accused just 15 days prior to the incident and in between, accused No.1 demanded Rs.1,00,000/- for digging bore-well and PW.1 paid the same. Therefore, 32 the evidence of DWs.1 and 2 is not useful to the accused to rebut the evidence of prosecution witnesses.
20. It is well settled by the Hon'ble Supreme Court in the case of Hira Lal vs State (Government of NCT of Delhi) reported in (2003) 8 SCC 80 and the Co-ordinate Bench of this Court in the case of G. K. Praveen Kumar vs. State of Karnataka in Criminal Appeal No.314/2015 dated 19.06.2020, the prosecution is required to satisfy the ingredients in respect of offence under Section 304B of IPC and Section 113B of the Indian Evidence Act and the relevant paragraph reads as under:
"44. The expression 'soon before her death' used in the substantive Sections 304B IPC and 113B of the Evidence Act was considered by the Hon'ble Supreme Court in the case of Hira Lal - vs - State (Government of NCT of Delhi) reported in (2003)8 SCC 80, wherein at paragraph-8 it is held as under:33
8. Section 304B IPC which deals with dowry death, reads as follows:
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall 34 not be less than seven years but which may extend to imprisonment for life."
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.35
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.36
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Penal Code, 1860."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death."
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21. In the present case, there is sufficient material placed on record by the prosecution by examining PWs.1, 3, 4, 6, 8 and 9 which shows that there was additional demand of dowry by accused No.1 and there was harassment soon prior to the death of the deceased and the death of the deceased is unnatural death within seven years of her marriage. Apart from that, the death of the deceased was in the house of accused No.1 and he has not explained about as to what happened to his wife and how she died. It is an exclusive knowledge of accused No.1 who resided with the deceased. Though, he tried to say that he was not in the house, he has not explained that where he was at the time of death of his wife. He has not examined any person to show whether he was driving auto rickshaw carrying any passenger. But the fact remains that he was running auto rickshaw within his village. Such being the case, accused No.1 absconding from the house also indicates that accused No.1 is the cause for 38 the death of the deceased. Though, there is no clear evidence produced by the prosecution to show that accused No.1 himself committed murder of the deceased by strangulation and M.O.4 recovered by the Investigating Officer at the instance of accused No.1 from the house of accused but it is also seen from the evidence that immediately after lodging complaint, the Police, PW.1 and relatives went to the house of accused No.1, they have not found M.O.4 in the house but subsequently, it was recovered as the accused No.1 committed strangulation by using saree. The evidence of PW.11 is also not clear regarding homicidal death of the deceased. But on the other hand, she died due to strangulation which is unnatural death within seven years of her marriage and there was harassment by way of demand of additional dowry by accused No.1 soon prior to her death. Therefore, legal presumption available to the prosecution under Section 113B of the Indian Evidence Act is not rebutted by accused No.1 39 and he has also not made any explanation in his 313 statement except total denial.
22. We have already discussed above that the death was occurred in the house of the accused No.1 which is unnatural one other than the normal circumstances and the accused No.1 has not explained what has happened to the deceased and how she died. It is an exclusive knowledge of accused No.1.
23. The Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra decided on 11.10.2006 has held at paragraph 15 as under:
"15. In Ram Gulam Chaudhary & Ors. v. Sate of Bihar (2001) 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after 40 they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference."
24. In the present case on hand, accused No.1 failed to explain as to what happened to his wife and how she met with unnatural death in his house. If at 41 all, he has not committed any offence or not harassed the deceased, as an ordinary human being and normal husband, he could have made an attempt to shift the deceased in his auto rickshaw to any of the nearby hospital, but he has not made any such attempt to shift the deceased, when she was found dead or unconscious in his home. The fact remains that accused No.1 was absconding from the house and he has been arrested on 20.10.2011. The Court can draw adverse inference against accused No.1. Therefore, considering all the material on record, the evidence of prosecution is sufficient to prove the additional demand of dowry, i.e., after the marriage by way of demanding auto rickshaw and soon prior to the death, there was harassment towards the demand of additional dowry for Rs.1,00,000/- for digging bore-well and thereby, the prosecution is successful in discharging initial burden of proof against accused No.1 that the death of the deceased is unnatural one within seven years of her 42 marriage when she was subjected to harassment due to the demand of dowry soon prior to death. Therefore, the prosecution is successful in proving the offence punishable under Sections 498A and 304B of IPC and Sections 3 and 4 of D.P. Act against accused No.1.
25. However, the prosecution has failed to prove the guilt of accused Nos.2 to 6 for the offence punishable under Sections 3 and 4 of D.P. Act and Sections 498A, 304B, 302 read with Section 149 of IPC. The Trial Court though came to the conclusion that the prosecution has failed to prove the guilt of the accused for the aforesaid offences, but failed to appreciate the evidence on record in respect of demand of dowry after the marriage, which was spoken by PWs.1, 3, 4, 6, 8 and 9 and also failed to appreciate the evidence of PW.11-Doctor and Ex.P.13-post-mortem report which shows that the deceased died within seven years of her marriage and she was met with an unnatural death and 43 dead body was found in the house of accused No.1. The Trial Court has not at all considered the death of the deceased who met with unnatural death in the house of accused No.1 and not at all raised any presumption available in favour of the prosecution both under Section 304B of IPC and Section 113B of Indian Evidence Act. The discussion made by the Trial Judge is not correct in respect of appreciating evidence of prosecution witnesses. The reason assigned by the Trial Court holding that because of the strangulation and death by hanging, there will be damage to larynx and trachea is not correct, as the strangulation is different from hanging. Therefore, the Trial Court has wrongly interpreted the hanging and confusion over the cause of death. It is the case of the prosecution that the death is due to Asphyxia as a result of strangulation and not by hanging as discussed by the Trial Court. 44
26. On over all perusal of the evidence on record, even if the prosecution has not able to show the homicidal death of the deceased, but fact remains that it was unnatural death occurred within seven years of marriage. There was harassment to the deceased by demanding dowry soon prior to her death. Therefore, we hold that the prosecution has made out a ground to interfere with the judgment of acquittal passed by the Trial Court as against accused No.1, but not made out any ground to reverse the judgment of acquittal as against accused Nos.2 to 6. Therefore, we answer to point No.1 in the partly affirmative.
27. For the aforesaid reasons, we hold that the judgment of acquittal passed by the Trial Court as against accused No.1 is required to be reversed for the offence punishable under Sections 498A, 304B of IPC and Sections 3 and 4 of D.P. Act. The judgment of acquittal passed against accused Nos.2 to 6 is required 45 to be upheld. However, acquittal against accused No.1 for the offence punishable under Section 302 of IPC also required to be confirmed. Accordingly, we proceed for the following:
ORDER
i) Criminal Appeal filed by the State is allowed in-part.
ii) The acquittal of accused Nos.2 to 6 for the offence charged is hereby confirmed.
iii) Accused No.1/appellant No.1 is found guilty for the offence punishable under Sections 498A and 304B of IPC and Sections 3 and 4 of D.P. Act.
iv) Accused No.1 is sentenced to undergo imprisonment for three years and shall pay fine of Rs.10,000/- in default, he shall further undergo imprisonment for six months for the offence punishable under Section 498A of IPC.46
(v) Accused No.1 is also sentenced to
undergo rigorous imprisonment for
seven years for the offence punishable under Section 304B of IPC.
(vi) Accused No.1 is sentenced to undergo imprisonment for five years and shall pay fine of Rs.15,000/-, in default of payment of fine, he shall undergo imprisonment for one year for the offence punishable under Section 3 of D.P. Act.
(vii) Accused No.1 is sentenced to undergo six months imprisonment and shall pay fine of Rs.15,000/-, in default of payment of fine, he shall further undergo imprisonment for one month for the offence punishable under Section 4 of D.P. Act.
(viii) All the sentences are ordered to run concurrently.
(ix) The fine amount, if any, collected from accused No.1 shall be paid to PW.1 as compensation.
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(x) Accused No.1 is entitled for set-off as
contemplated under Section 428 of
Cr.P.C.
(xi) The Trial Court is directed to secure the presence of accused No.1 and commit him to jail to serve the remaining part of sentence.
Sd/-
JUDGE Sd/-
JUDGE GBB