Karnataka High Court
Shri Prashanth vs The State Of Karnataka on 17 April, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.889/2012
BETWEEN:
1. SHRI. PRASHANTH
S/O LATE AMARAPPA HATTI
AGED ABOUT 34 YEARS
OCC: ENGINEER/AGRL
PREVIOUSLY AT DAVANAGERE
BUT NOW AT S.B.COLONY
SINDHANUR. ... APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PRESECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT PREMISES
BENGALURU-560 001. ... RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 10.08.2012
PASSED BY THE V ADDL. SESSIONS JUDGE, MYSURU IN
S.C.NO.3/2008 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 304B
R/W SECTION 34 OF IPC AND SECTIONS 3 AND 4 OF DOWRY
PROHIBITION ACT.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.03.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
2. This appeal is filed challenging the judgment of conviction and sentence passed for the offence punishable under Section 304B read with Section 34 IPC sentencing him to undergo rigorous imprisonment for a period of 7 years with fine of Rs.15,000/-, for the offence under Section 498A sentencing him to undergo simple imprisonment for a period of 1 year with fine of Rs.5,000/-, for the offence under Section 3 of Dowry Prohibition Act sentenced him to undergo simple imprisonment for a period of 3 years with fine of Rs.15,000/- and for the offence under Section 4 of Dowry Prohibition Act, sentenced him to undergo simple imprisonment for a period of 6 months and to pay fine of Rs.5,000/-.
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3. The factual matrix of the case of prosecution is that marriage of the deceased along with the accused had taken place on 23.11.2006 at Yashoda Nataraja Kalyana Mantapa at Mysore and marriage talks were held two months earlier to the marriage. Accused Nos.1 and 3 along with deceased, accused No.2 had demanded dowry of Rs.1 lakh and gold ornaments weighing 200 grams and one site measuring 40 x 60 feet as dowry and the same was acknowledged by accused i.e., Rs.1 lakh cash, gold neck chain, one gold bracelet, two gold rings and mangalya chain, a pair of ear stud, three gold rings and 3/4th kg of silver articles at the time of engagement and accused Nos.1 and 3 had also taken 50% of reception expenses which had taken place on 26.11.2006 at the house of accused at Davanagere. They had also taken one gold necklace weighing 50 grams and got performed the first night at hotel Sai International at the cost of complainant. It is also the allegation that accused No.1 along with deceased-accused No.2 used to harass the daughter of complainant and accused No.1 used to consume alcohol and used to abuse, harass her physically and mentally and accused No.1 used to go to tour by leaving her and used to assault her and insisting her to give amount, in lieu of 4 site measuring 40 x 60 feet agreed to be given at the time of marriage and subjected her for mental cruelty. It is also the case of the prosecution that because of this reason, even brought the deceased to perform Mangala Gowri Vratha to her parental house. That on 26.03.2007, accused No.1 took deceased B.V.Sumalatha to his house, in order to perform one more Mangala Gowri Vratha in his house at Davanagere and brought back her on 31.08.2007 and left her in her parental house at Nanjangudu and then on the next day, the deceased called as to when he would come and thereafter, she was in grief mind and she committed suicide by hanging on 02.09.2007 at about 11.00 a.m. in the room by hanging herself with the help of dhothi and the said death is unnatural death which has caused within 7 years from the date of marriage and she has committed suicide in connection with dowry harassment given by accused No.1 demanding amount in lieu of site.
4. The accused persons were secured before the Trial Court, but accused No.2 died. Hence, case was abated and accused Nos.1 and 3 have faced trial. The prosecution, in order to prove the charges leveled against the accused, relied upon 5 the evidence of witnesses P.Ws.1 to 21 and documents Exs.P1 to P24(a). On the other hand, defence also examined two witnesses as D.Ws.1 and 2 and relied upon the documents of Exs.D1 to D16 and M.Os.1 to 7 are also marked.
5. The Trial Court having considered the material on record both oral and documentary evidence, acquitted the accused No.3 for the offence under Section 304B read with Section 34 IPC, but convicted both accused Nos.1 and 3 for the offence under Sections 3 and 4 of the Dowry Prohibition Act and convicted accused No.1 for both the offences i.e., 304B and 498A IPC. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed by accused No.1, since other accused also i.e., accused No.3 passed away, as a result, the same was abated.
6. Learned counsel for the appellant in his argument would vehemently contend that no dispute that marriage has taken place on 23.11.2006 and also marriage reception was held on 26.11.2006. Learned counsel would vehemently contend that prosecution mainly relies upon evidence of P.Ws.1 to 20 and the important witnesses are P.Ws.1 to 4 i.e., parents of the 6 deceased. P.W.3 is the brother of the deceased, P.W.4 is the senior uncle of the deceased, P.Ws.5, 6 and 7 are panch witnesses. P.W.8 is the neighbourer, P.W.9 is also panch witness and so also P.W.10. P.W.11 is the Doctor, who conducted P.M. examination, P.W.12 is the Chief Officer of the Municipality, P.W.13 is the Tahsildar, who conducted inquest, P.W.14 is younger maternal uncle of the deceased and P.W.15 is wife of P.W.14. P.W.16 is the official of the company in which the accused was working. P.W.17 is Deputy Superintendent of Police of CID, P.W.18 is the person, who prepared sketch and P.W.19 is the Deputy Superintendent of Police, who conducted further investigation and P.W.20 is the Jewelry shop owner for having purchased Mangala Sutra. P.W.21 is PSI, who registered the case.
7. Learned counsel would vehemently contend that death has taken place on 02.09.2007 and D.W.1 is the elder sister of accused No.1, who has been examined as defence witness. D.W.2 is the neighbourer of accused Nos.1 and 2. Learned counsel would vehemently contend that admissions elicited from the mouth of important witnesses father and 7 mother clearly disclose that there was no cruelty or subjecting the deceased for any harassment. Learned counsel would vehemently contend that Ex.D16 is the document which clearly discloses that miscarriage has taken place, as a result, the deceased was under depression. Learned counsel would vehemently contend that in view of her depression only, the accused could not able to work and concentrate on his job, as a result, show cause notice was given and reply was given and to that effect, documents Exs.P15 and P16 are also marked and the same clearly disclose that there was a suicidal tendency of the deceased and the same is mentioned in the reply of the accused which was given prior to the death. Learned counsel would vehemently contend that the same is also spoken by P.W.16, who is the Employer of the company. Learned counsel would vehemently contend that P.W.3 is the brother of the deceased and he clearly admits that all of them went to temple on 31.08.2007 and though he says that there was demand for dowry, the same was not established and the accused lost job because of health condition of the deceased. Learned counsel would vehemently contend that on the date of committing suicide, accused was not there in the house of her parents. The 8 admission given by P.Ws.1 to 3 is very clear that there was no any demand of dowry and taking of dowry. Learned counsel would vehemently contend that Ex.P8 is in respect of Mangalya Sutra and the same is weighing 59.700 grams. But the case of the prosecution is that gold chain of 100 grams was given to accused No.1 and nothing is placed on record and the answer elicited from the mouth of witnesses is that as a custom, the gold ornaments were exchanged between bride and bridegroom side. The answer elicited from the mouth of witness is very clear that both of them were very cordial and there was no injuries and to that effect also, there is an admission.
8. Learned counsel would vehemently contend that suicide was noticed at 11.00 O' clock in the morning, but complaint was given in the evening afterthought. Learned counsel would vehemently contend that evidence of P.W.15 is contrary to the evidence of P.Ws.1 and 2 for ordering jewels and though P.Ws.1 and 2 say that ornaments were brought by P.W.15, but her evidence is contrary. Learned counsel would vehemently contend that with regard to the harassment and treating her cruelly also, no evidence. Section 304B IPC invoked 9 by the Trial Court is also not based on any material and there was no connection of cruelty and there is no material to connect the accused to Section 498A and Section 304B IPC. It is categorically admitted that they were cordial for a period of three months, but only allegation made is that thereafter they were not cordial. Learned counsel would vehemently contend that though they say that dowry was taken, but video was taken at the time of engagement as well as at the time of marriage and the same was not produced and even when the cross- examination was made, the witness says that even not ready to produce the same, if they produce the videography of the marriage and engagement, the truth would have been unearthed and no proximity to cause of death. Learned counsel would vehemently contend that in the cross-examination of Investigating Officer, who conducted investigation i.e., P.Ws.17 and 19, answers are elicited from the mouth of these witnesses with regard to omissions. Learned counsel would vehemently contend that D.W.2 is the immediate neighbour, who has been before the Court and nothing is elicited from the mouth of D.W.2. Learned counsel would vehemently contend that non- 10 examination of material witnesses is fatal to the case of the prosecution.
9. Learned counsel for the appellant, in support of his argument, he relied upon the judgment in CRL.A.NO.107 OF 2014 disposed of on 31.01.2025 by the Apex Court and brought to notice of this Court paragraph No.8, wherein discussion was made with regard to the presumption as to dowry death under Section 113-B of the Evidence Act. The Apex Court discussed that even for attracting Section 113-B, the prosecution must establish that the deceased was subjected by the appellant to cruelty or harassment for or in connection with any demand of dowry soon before her death. Unless these facts are proved, the prosecution under Section 113-B of Evidence Act cannot be invoked.
10. Per contra, the learned High Court Government Pleader for the respondent-State in his argument would vehemently contend that Ex.P1 is the marriage invitation card and no dispute that marriage was held on 23.11.2006. P.W.1- father deposed with regard to the demand of dowry and also demand for site on the ground that accused No.1 has suffered 11 loss in the business. The material also clearly discloses that P.W.2 also stated about demand of dowry and harassment. Both of them categorically depose that in the presence of witnesses, marriage talks were held and the same was attended by herself, her brother, her husband M.P. Kumara and her elder Son Vijaya Shankar and younger son Jayashankar and elder sister son Prasad and younger sister son Srikanth and Rudresh. The accused Nos.1 to 3 have demanded Rs.1 lakh and also demanded 60 x 40 feet site and demanded 200 grams gold ornaments including silver articles and also demanded to perform marriage in a luxurious manner and the same was admitted. At the time of engagement, they gave an amount of Rs.1 lakh, 2 rings, chain, bracelet and also demanded 25% of expenses of marriage reception. It is also her evidence that they purchased long chain to her daughter at Davanagere and herself and her brother wife went to jewelry shop and purchased the chain and the same stands in the name of her brother's wife Jotsna Srikanth and produced the document Ex.P8. He would vehemently contend that material clearly discloses and as deposed by the witnesses, before the incident, husband left to Mysore and went to Bangalore. P.W.3 also speaks about 12 performing the marriage and demand of dowry and revealing of payment of dowry amount, gold ornaments and abusing his sister. P.W.5 also deposes that he gave an amount of Rs.5 lakhs, in order to meet the demand of accused persons. He also brought to notice of this Court specific averments made in the complaint which is marked as Ex.P1 and also the accusation made in the charge-sheet. He also further contend that the same has been substantiated by the prosecution and Trial Court rightly convicted accused for both the offence under Section 498A and 394B IPC. Hence, it does not require interference of this Court.
11. The learned High Court Government Pleader for the respondent-State, in support of his argument, relied upon the judgment of the Apex Court in CRL.A.NO.2321 OF 2009 disposed of on 26.02.2015 and brought to notice of this Court discussion made in the judgment invoking Section 304B IPC of dowry death as well as provision of Section 113-B of Evidence Act and he also brought to notice of this Court discussion made in paragraph No.23, wherein an observation is made that what must be borne in mind is the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind 13 the great social evil that has led to the enactment of Section 304B would make it clear that expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale, but should be the continuing cause for the death of the married women under Section 304B. The learned High Court Government Pleader referring this judgment would vehemently contend that the evidence available on record is very with clear regard to the dowry demand, acceptance and also causing of harassment and meeting the deceased with cruelty.
12. In reply to this argument of learned High Court Government Pleader for the respondent-State, learned counsel for the appellant would vehemently contend that complaint averment is only with regard to demanding of site and no details in the complaint regarding harassment and subjecting her for cruelty and the case of prosecution is nothing but an improvement and answer elicited from the mouth of cross- examination of prosecution witnesses and also specific answers obtained from the mouth of Investigating Officer regarding 14 omissions are concerned, the benefit of doubt goes in favour of the accused, since there is no credible evidence.
13. Having heard learned counsel for the appellant and learned High Court Government Pleader for the respondent-State and also the principles laid down in the judgments referred (supra) by learned counsel for the appellant and learned High Court Government Pleader for the respondent-State, the points that would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in invoking Sections 498A and 304B IPC and Sections 3 and 4 of D.P Act against the appellant and whether it requires interference of this Court by exercising the Appellate jurisdiction?
(2) What order?
Point No.(1)
14. Having heard learned counsel for the appellant and the learned High Court Government Pleader for the respondent- State, this Court has to sum up the material on record before the Court keeping in view the accusation made against the accused. Though earlier complaint was filed against accused Nos.1 to 3 15 and case was registered, and now, accused Nos.2 and 3 are no more and case has been abated. Hence, this Court has to take note of the material evidence available on record as against accused No.1 only, since he is before this Court challenging the judgment of conviction and sentence.
15. This Court does not want to once again narrate the case of the prosecution regarding the accusation made against the appellant, since the same has been narrated in the beginning itself. Now this Court has to consider the evidence of P.Ws.1 and 2 and both are parents of the deceased and no dispute with regard to the fact that marriage was performed at Mysore. P.Ws.1 and 2 categorically say that in connection with the marriage, they have given advertisement in the paper and P.W.1-brother-in-law, Srikanth contacted accused and accused and Srikanth are residing at Davangere. In the month of September, 2006, the accused persons came to the house and they agreed to perform the marriage of accused No.1 along with the deceased. In the third week of September, 2006, he himself, his wife, his elder son, second son and his brother and one Kumar and sister's son Srikanth, Prasad and Rudresh all of them 16 went to house of the accused at Davangere. The accused persons and their daughter, son-in-law were there in house and in the said marriage talks, accused Nos.2 and 3 demanded Rs.1 lakh cash, 200 grams gold ornaments to accused No.1 and also a site at Davanagere measuring 40 x 60 feet and they have agreed to give the same. The evidence of P.W.2 is also similar evidence and both of them say that in the month of October, 2006, they have gave an amount of Rs.1 lakh, gold chain, bracelet and two rings and engagement was held and thereafter, they performed the marriage and reception was held on 26.11.2006 and even they met 50% of marriage reception expenses of Rs.25,000/- and demand made by accused Nos.2 and 3 and first night was also arranged in the hotel.
16. It is also the evidence of P.Ws.1 and 2 that in the month of December, 2006, they came to house and stayed in the house and also went along with elder son to Ooty, but daughter was not in mood, but she did not disclose anything and thereafter, both of them went to Davangere. In the month of March, 2007, accused Nos.2 and 3 brought their daughter and they demanded money instead of site, since they have suffered 17 loss in the business and they intended to put up complex and both accused Nos.2 and 3 left the daughter in their house and went to Davangere and instructed the daughter to get the money. At that time, their daughter told them that not to make any money arrangements, but get the site. It is also their evidence that they continued the harassment and husband used to come late night at 11.00/12.00 O'clock consuming alcohol and accused No.3 used to tell her that not to wait for her husband and take food, if she need husband, they make alternate arrangement and used to abuse her and the same was informed to them. It is also the evidence that accused came and took her back on 31st March 2007 and thereafter, daughter informed that her husband lost job, she is not happy and in-laws are abusing her. It is the evidence of P.Ws.1 and 2 that elder son was sent to bring her daughter and the daughter told that if she comes to Mysore, he would continue to drink alcohol and she will not come and accused No.2 went to Bangalore at the time of Ashada on the belief that she should not see the daughter-in-law during that period. In the month of July 2007, they came to attend Mangala Gowri Pooja, since there was Bheemana Amavasya and they performed Pooja in the presence of daughter and son-in- 18 law and one pooja to be done in the house of accused and hence, he took her back to matrimonial home and after doing Pooja, he brought her back. At that time, accused was not having job, since he was removed from job.
17. It is also the evidence that on the same day, both husband and wife went to Bandipura along with elder son, when daughter went with morning breakfast to her husband room, she was crying and on the same day, the accused left the Nanjangud to go to Bangalore to get the job and daughter revealed that accused No.1 is demanding money and does not want site and if she fails to get the money, he is going to leave her. It is also the evidence that on the next day of accused going to Bangalore, his daughter, her wife and her wife's sister all of them went to Hosahalli Shanimahathma Temple and they came back and she contacted her husband over phone and she was crying thereafter and she slept in the room. On the next day, demanded Bio-data of son-in-law and she gave the same in the presence of Karya Swami and that the same was sent through e-mail and thereafter left the home and went to Farm and at around 12.00 O'clock received the information that daughter committed 19 suicide. It is also the evidence of P.W.1 that due to rash behaviour, consumption of alcohol and that fact that accused No.1 lost the job and on account of demand made by accused Nos.2 and 3 to give money, instead of site and subjecting her for cruelty by accused, she took extreme step of committing suicide.
18. This witness was subjected to cross-examination. In the cross-examination, accused No.3 told that he is the uncle of accused No.1 and he revealed that he is doing business, but he did not enquire more. It is suggested that accused No.3 is not the relative of accused Nos.1 and 2 and the same was denied that he believed the words of accused Nos.1 and 2. P.W.1 admits that at the time of engagement and marriage they videographed and photos were also taken and photographer is his brother's son Lokesh and they are having the same and the same was not given to the police, but says that photos are shown to the police. This witness in the cross-examination when question was put whether there was any talk about giving and taking, he says that on behalf of the bridegroom, who attended the marriage talk told that let them put the gold whatever they want and also says that he did not observe whatever the gold ornaments given at the 20 time of engagement to his daughter and says that cannot produce the videography which was taken at the time of marriage and engagement. It is suggested that at the time of engagement, sister of accused No.1 gave four bangles, long chain, jumki and armlet (bajubandi), witness says that he is not aware of the same and did not observe the same and says that at the time of engagement, he has not given anything to the accused. Hence, he is not producing the videography and the said suggestion was denied. When a question was put as to whether any injuries were found on the body of his daughter, he says that only ligature mark was found on the neck and there were no other injuries. It is elicited that his daughter and accused No.1 used to go to tour together. He says that his sons also had gone along with accused No.1 and his daughter to tour at times. It is elicited in the cross-examination that when accused No.1 and his daughter came to his house, accused No.1 used to take his daughter to the temples. It is elicited that on 31.08.2007, in order to get the job, accused No.1 went to Bengaluru from his house. It is suggested that in terms of Exs.D.4 and 5 photos, sister of accused No.1 put bangles to his daughter and the witness admits the same. He admits that in 21 terms of Ex.D.3 photo, the sister of accused No.1 is tying the armlet to his daughter. It is elicited from the mouth of P.W.1 that he cannot tell who put the bracelet to accused No.1 at the time of engagement. He admits that at the time of engagement, normally bride and bridegroom will put the ring. He admits that his daughter put ring to accused No.1 at the time of engagement and the same was informed to him. It is elicited that in the statement before the CID police, he did not mention that his daughter and accused asked to give money instead of site to put up the complex.
19. P.W.2 is the mother of the deceased and this Court has already pointed out that similar evidence was given in the chief evidence of P.W.1 and this witness was also subjected to cross-examination. In the cross-examination, she admits that at the time of marriage talks, they have not demanded any particular gold ornaments to her daughter and they also did not demand anything. She says that at the time of engagement, bridegroom had put four bangles, one necklace, engagement ring, armlet, earring and leg chain to his daughter. P.W.2 admits about exchange of ring as per the custom. It is elicited 22 that she does not remember whether she had made the statement before the Tahsildar for having made the payment of money and gold ornaments. It is also elicited that before the Tahsildar she has not made any statement in terms of Ex.D.7 for having given 20 grams ring, 100 grams chain, 50 grams bracelet, cloth and also having made the payment of Rs.1 lakh. It is suggested that when both of them went to tour, abortion was taken place and the said suggestion was denied. It is elicited that deposition given by her husband that she had not sustained injuries on her nose is not correct, but there was an injury on her nose. It is elicited that two police constables came near their house at around 4.00 p.m. and she cannot tell the exact time and the police may have enquired with regard to the said incident. It is suggested that before the police and Tahsildar she has not stated anything about her daughter frequently making call and expressing fear and she sent her son to daughter's place and the said suggestion was denied.
20. P.W.3 is the brother of the deceased and he reiterates the statement in terms of P.W.1 and P.W.2 in his chief evidence. He was subjected to cross-examination. In the cross- 23 examination, he categorically admits that in the month of August 2007, accused No.1 was staying for the whole month in their house at Nanjanagudu. It is suggested that his sister always used to stay along with her husband and he says that in all family ladies will demand the same. He admits that he made the statement before the police that when he went to Gopalaswamy Hill along with his sister and accused, the accused expressed his difficulty that she is not adjusting with him and his mother and he had advised the accused. The accused expressed that he is facing difficulty and he consoled him as well as his sister and he came to know that accused also left the habit of drinking and he made such statement before the police. It is elicited in the cross-examination that whenever they used to go to any places, they used to take him or his brother along with them. It is suggested that on 09.04.2007, accused No.1 took his wife to Madikeri and though he denied, when a photo was confronted to him he admits the photo of accused No.1, his wife along with his brother and aunt's son Srikanth. He admits the photos at Exs.D.12 and 13 and also identifies his sister, brother-in-law, his brother and Srikanth in the said photograph. He admits that he went along with his sister and brother-in-law to Ooty, 24 Pondicherry, Muttati, Dharmasthala and Subramanya, but he does not remember about visiting other places. He admits that on different times they went to Gopalaswamty Betta, Bandipura, Ranganatittu, but he does not remember the dates. He admits that he himself, his brother, sister and brother-in-law all went together. He admits when a suggestion was made that if a person without working visits different places along with his wife, the husband's parents will normally scold. It is elicited in the cross-examination that at the time of marriage talks no particular demand was made regarding what gold ornaments to be given and no such talks were also held. He says that he does not remember whatever gold ornaments were given at the time of engagement.
21. P.W.4 is the person who participated in the marriage talks and he speaks about marriage talks as well as marriage talk was held in the house of the accused. He speaks about the demand made to give 200 grams of gold, 60 x 40 feet site and also to perform the marriage in a grand manner and also speaks about having given Rs.1 lakh, gold chain, bracelet and two rings. He was subjected to cross-examination. In the cross- 25 examination, he says that Rs.1 lakh was given at the time of engagement in the presence of himself, his brother, sister-in-law and purohits and says that the same was purchased at Davanagere. He admits that he has not given any statement in terms of Ex.D.9. It is suggested that due to heavy traveling, abortion was taken place and the same was denied. In the cross-examination, he admits that after coming to know about the death he went to Nanjanagudu at 12.00 p.m. It is suggested that he has given the statement that for three months after the marriage they have taken care of her in terms of Ex.D.10 and he says that he has not given such statement.
22. P.W.5 speaks about having given the amount of Rs.5 lakhs as hand loan to the parents of the deceased to perform the marriage. This witness was subjected to cross-examination. In the cross-examination, a suggestion was made that in case if any hand loan is given, normally they used to take the documents for having given the money and the witness admits the same. But he says that he has not taken any such document.
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23. P.W.6 speaks about committing of suicide and seizure of clothes.
24. P.W.7 speaks about conducting of inquest by the Tahsildar and he is a witness to Ex.P.9. During the course of cross-examination, it is elicited that he was present from 2.30 p.m. to 3.00 p.m. in the house of P.W.1.
25. P.W.8 is the doctor who went to the house of P.W.1 and examined the deceased and declared as dead. In the cross- examination she says that she did not notice any injury near the nose of the deceased.
26. P.W.9 is the medical shop owner and witness to Ex.P.6 and his signature is identified as Ex.P.6(b). He speaks with regard to seizure of photographs and marriage invitation card i.e., Exs.P.4 and 10.
27. P.W.10 is a witness to Ex.P.11 mahazar and seizure of clothes.
28. P.W.11 is the Medical Officer who conducted the post mortem examination and found the ligature mark encircling the 27 neck, in front it is above the level of thyroid cartilage and it extends obliquely upwards and backwards on the left side of the neck to a point one inch below the pinna of the left ear, it extends horizontally on the right side of the neck to the point 3 inch below the pinna of the right ear and also found a punctured wound present over the both alae of the nose. In the cross- examination, it is elicited that there were no ridges to the ligature mark that was found in the neck of the deceased Sumalatha, but it was discontinuous.
29. P.W.12 is the Chief Officer who gave the assessment extract, which is marked as Ex.P.15.
30. P.W.13 is the retired Tahsildar who conducted the inquest in terms of Ex.P.9.
31. P.W.14 is one of the witness to the marriage talks for negotiations and he says that he came to know about the deceased was not happy in the matrimonial house and that accused No.1 is in the habit of consuming excessive alcoholic drinks. He was subjected to cross-examination. In the cross- examination, he says that he has stated before the police that 28 three months after the marriage, when Sumalatha had come to his house, she had told him that accused No.1 and his associates have assaulted and ill-treated her on the ground that site in Davanagere has not been given. It is suggested that he himself, P.W.1 and P.W.2 have concocted the story that accused No.3 is the uncle of accused No.1 and brother-in-law of accused No.2 to falsely implicate him in this case and the same was denied. He admits that at the time of marriage, the deceased mother-in-law demanded dowry was stated by mistake.
32. P.W.15 is the relative of the deceased and she says that the marriage talks were held on 23.11.2006 with accused No.1 and they had given advertisement in the marriage bureau that accused No.1 is in need of a bride and P.W.2 read the same and sent the biodata and marriage talks were held. In the said marriage talk, her husband, P.W.1, P.W.2 and P.W.4 i.e., brother of P.W.1 participated, but she did not attend the marriage talk. At the time of engagement they gave gold and cash. Herself, P.W.2 and other two ladies gave gold and money to accused No.1. P.W.1 and P.W.2 gave mangalya, earring and rings and after first night they gave long necklace. At the time of 29 marriage, silver articles were also given. She says that the deceased Sumalatha passed away on 02.09.2007 and she never spoke anything about family issues with her after the marriage. However, the deceased visited her house at Davanagere twice. She says that the deceased did not ask anything about the site. But the mother of the deceased called her over the phone and told that the deceased is demanding to give site as early and also requested her to speak to P.W.1. She says that the deceased was not speaking to her directly, but she was telling to her mother and in turn, her mother was telling to her. It is her evidence that when P.W.2 came to her house she had brought some gold and the same was given to the shop and got new bangles and gave order for mangalya and also purchased some silver articles. The document Ex.P.8 was shown to her and she identified her signature and the document Ex.P.8. It is elicited that P.W.2 told her that accused No.1 was ill-treating the deceased and she asked why she did not bring it to her notice earlier. This witness was treated as hostile partly and cross examined the witness. In the cross-examination, the learned Public Prosecutor elicited the answer that P.W.1 and P.W.2 came to take her to their home on account of Ashada and at that time, 30 they also visited their house and they told that their daughter did not agree to accompany them. It is also elicited that after 4- 5 days, accused called and told her that the deceased is very possessive about her husband and because of that reason he could not attend his job and even her parents came and asked her to accompany their house and hence, she left the house and requested to advice her. It is also elicited in the cross- examination that always she trouble her husband and she was not adjusting and requested her to advice her and these are the answers elicited from the mouth of PW15 during the course of cross-examination treating the PW15 as hostile. The counsel for accused also cross examined the witness and in the cross- examination, it is elicited that at the time of marriage, bride groom people have given bangles, armlet, ring and chain and also admits that the same was given by the sister of the accused.
33. The other witness is P.W.16 who is working in Mahindra Finance as a Field Officer and he speaks about accused No.1 was working in the very same office and also says that the accused was irregular and hence, notice was given and reply was 31 also given and thereafter also the accused did not attend his job. This witness was subjected to cross-examination and confronted the document Ex.D15 and Ex.D16 show cause notice reply given by the accused and also admits that Mahindra Finance Company is customer based company. He also admits that after removal of accused No.1, he was appointed in his place and he gave the statement and he says that after marriage, he attended job for a period of 2-3 months and thereafter he was irregular to his job.
34. The other witness is P.W.17 who is D.Y.S.P who conducted further investigation in the matter and conducted the investigation by recording further statement and also seized the Ex.P8 and so also marriage invitation card as Ex.P3 and also recorded the statement Jayakanti Prasad, Srikant, Rudresh and Lokesh and also recorded the statement of Jothsna and Vijayakumar and also collected call details and recorded the statement of some of the other witnesses Suresha, Bharathi, K.V.Prabhu, Shivakumar, Srikanth, Chandrashekar and also marked Ex.P21 to Ex.P22 and also collected landline number and mobile number of accused No.1 and phone call details and this witness was subjected to cross-examination by the counsel for 32 the accused and he did not recorded the statement of Ravichandran and also he admits that he did not record the statement of persons who have participated on behalf of bride groom at the time of marriage talk. It is also suggested that the deceased was staying in her parents house two months prior to her death, but witness says that 8-10 days prior to Bheemana amavasye, she came to her parent's house and also recorded the statement of P.W.2 and not stated anything about the accused persons for demanded 3-4 kg of silver articles and also admits that PW3 not made any statement consoling his daughter. He also admits that P.W.14 made the statement that by mistake stated about the demand of the gold and also P.W.14 not stated before him demanding money instead of site and P.W.15 also not made any statement that P.W.2 and others told that at the time of engagement they gave cash of Rs.1,00,000/-.
35. The PW18 who prepared the sketch in terms of Ex.P16(a).
36. The PW19 is Addl. SP who conducted the spot mahazar in terms of Ex.P7 and so also rough sketch in terms of Ex.P23(a) and also conducting of panchanama in terms of 33 Ex.P11 and requested the PWD Engineer to prepare the sketch and also recorded the statement of photographer and witnesses and also production of photographs and marriage invitation card which are marked as Ex.P4, Ex.P5 and Ex.P6. This witness was subjected to cross-examination and in the cross-examination it is elicited that he did not enquire with the relatives of accused No.1 and also admits that he did not enquire about accused No.1 was staying in wife's house with her and also says that for having purchased the gold, complainant has not given any receipt and also he did not enquire with them. It is also elicited that Sujatha has not given any statement for having given cash of Rs.1,00,000/-, gold chain, 2 rings and bracelet at the time of engagement and so also with regard to giving of silver article about 3-4 kg and also not stated anything about marriage reception at Sai International Hotel and demanding 50% of expenses of reception. It is also elicited that Sujatha has not made any statement that deceased was making phone call and also not made any statement and accused No.1 snatched the phone and destroyed the same. It is also elicited that the Sujatha has not made any statement that two days prior to going to Bangalore when she took the morning breakfast to her 34 husband, heard the sound from the room and thereafter daughter came out crying and contacting with second marriage also not stated. It is also elicited that Vijayashankar also not made any statement with regard to the fact that always he used to consume alcohol and P.W.3 not made any statement about always she wants her husband and not adjusted with their mother and omissions are elicited from the mouth of this witness with regard to P.W.3 abusing and scolding his daughter and telling about more demand, if marriage is contacted with some other girl, they would have given more money and consoled her daughter and so also PW14 not made any statement about consuming of more alcohol.
37. The other witness P.W.20, the employee of Shantala Jewelers says that P.W.14 and P.W.15 came to their shop and ordered for Mangalyasara and purchased in the name of husband of P.W.14 and issued Ex.P8 and Mangalya chain weighing 66.864 grams worth of Rs.58,075/-. This witness was subjected to cross-examination. In the cross-examination elicited that while purchasing the gold, person who comes and placed order, their name will be written.
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38. The other witness is P.W.21 who has received the complaint in terms of Ex.P1 at 7:45 on 02.09.2007 and registration of case in terms of Ex.P24-FIR and signature is marked in respect of Ex.P24 as well as complaint Ex.P1 and also appointment of the squad for arresting of accused persons and accused Nos.1 to 3 were arrested. This witness was subjected to cross-examination and says that he cannot tell how many people came to lodge the complaint and it is suggested that the deceased was mentally disturbed and hence, the complaint was given belatedly and the said suggestion was denied.
39. The accused also examined his sister and she speaks about marriage talks and no demand of any dowry or any gold ornaments and no such talks were held, however she says that engagement was held in the house of bride and at that time, she gave bangles, armlet, long necklace and earrings at around 200 gms and she only put the same on the bride and she was having habit of once or twice tour along with her husband and also they made up their mind to take the accused No.1 to their parental house and get the job and when the accused No.1 went to Bangalore in search of job, at that time she committed suicide. 36 This witness was subjected to cross-examination by P.P. In the cross-examination the suggestions are made in the line of accusation made in the charge sheet and all suggestions are denied. It is suggested that the notice was given to him and thereafter he was removed from the job, the same was denied. It is suggested that accused No.1 used to take her tour and reply was given both of them to enjoy the tour trip.
40. The other witness is neighbor of accused and D.W.2 in the evidence says that they were cordial and there was no any misunderstanding and she also attended the marriage talks since she was a neighbor when the marriage talks were held in the house of the bride groom and her evidence is that the accused No.2 who is the mother of accused No.1 say that always they used to go to tour programme and also once she told that due to the said long tour, abortion was taken place and two months prior to committing suicide, they came to Davanagere and they have not visited Davanagere subsequently. This witness was cross-examined by learned Public Prosecutor and in the cross- examination when they went to tour and when the same was taken place, abortion was not enquired. It is elicited that if any 37 new couple used to visit tour and normally they are going to tour and there was no any force and when the mother advised not to repeat the tour programme and both the deceased and accused No.1 were not happy with the same.
41. Having taken note of both oral and documentary evidence placed on record, this Court has to examine whether ingredients of offence of 498A, 304B of IPC and Section 3 and 4 of D.P Act applies or not. Having considered P.W.1 to P.W.3 who are the parents and also the brother of the deceased and their case is that they demanded dowry as well as gold ornaments and also the site and in order to comes to such a conclusion regarding ingredients of 498A, 304B of IPC and Section 3 and 4 of D.P. Act, this Court has to re-analyze the material available on record. This Court extracted the evidence of prosecution witnesses and also it is important to note that with regard to the demand is concerned, it is not in dispute that both families visited the respective houses. In the cross-examination of P.W.1, he categorically admits that the persons who attended the marriage talks told that let them put the gold whatever they want and also says that he did not observe whatever the gold 38 ornaments given at the time of engagement to his daughter and says that he cannot produce the videography which was taken at the time of marriage and engagement. Having taken note of evidence of PW1, it is very clear that marriage talks were held that whatever the gold ornaments they want, they can put and there was no any demand and also when the suggestion was made that sister of the accused gave 4 bangles, long chain and armlet and he says that not aware of the same and did not observe the same and also categorically admits that he has not given anything to the accused. This admission takes away the case of the prosecution.
42. It is also important to note that with regard to the sister of accused No.1 put 4 bangles to his daughter photo was confronted that is Ex.D3, Ex.D4 and Ex.D5 and he categorically admits that sister of the accused No.1 is tying the armlet to his daughter and hence, it is clear that at the time of engagement and marriage, the bride groom family given the gold ornaments. Even it is the case of prosecution that they gave bracelet, but P.W.1 says that he cannot tell who put the bracelet to the accused No.1 at the time of engagement. Even he admits that 39 before the CID Police, he did not mention that his daughter and accused asked to give money instead of site put up the complex and hence, evidence of PW1 is very clear with regard to the demand of money instead of site also no such statement was made before the CID.
43. It is also important to note that in the cross- examination of P.W.2, categorically admits that at the time of marriage talks they have not demanded any particular ornaments to her daughter and they also did not demand anything and this admission takes away the case of prosecution regarding demand and acceptance and admits at the time of engagement, sister of the accused put 4 bangles, one necklace, engagement ring, armlet, ear rings and leg chain to his daughter and also admits that exchange of ring is as per the custom. It is also important to note that it is elicited that she does not remember whether she had made the statement before the Tahasildar for having made the payment of money and gold ornaments and also elicited that she has not made any statement in terms of Ex.D7 for having given 20 gms ring and 100 gms chain, 50 gms bracelet, cloth and also having made the 40 payment of Rs.1,00,000/- while making the payment before the Tahasildar. These are the admissions elicited from the mouth of PW1 and PW2 which is very clear with regard to the demand of money of Rs.1,00,000/- as well as giving of the same at the time of engagement and also whatever the gold ornaments they deposed before the Court.
44. The other witness is P.W.3 also in the cross- examination, he admits that in the month of August-2007 accused No.1 was staying for whole month in their house at Nanjanagudu and hence, it is clear that in the month of August, accused was also staying in their house and alleged incident was taken place on 02.09.2007. It is also important to note that it is emerged during the course of evidence that his sister always used to stay along with her husband and he says that in all family ladies will demand the same when the said suggestion was made, but it is clear from the evidence of P.W.1 and P.W.2 when they went to call their daughter for Ashada and daughter did not come to her parental house and instead of mother herself left the house of matrimonial home, believing that both 41 daughter-in-law and the mother-in-law should not be there together at the time of Ashada.
45. It is also important to note that it is emerged during the course of evidence that accused No.1 took his wife to Madikeri and all other places and though he denies but when the photo was confronted to him, he admits that in the photo accused No.1, his wife along with his brother, aunt's son Srikanth all had been to the tour and also when the Ex.D12 and Ex.D13 also confronted and he identifies his sister, brother-in- law, his brother and Srikanth in the said photographs and admits he went along with his sister and brother-in-law to Ooty, Pondicherry, Muttathi, Dharmasthala, Subramanya, but he does not remember visiting other places. These admissions are clear with regard to the fact that both husband and wife are cordial and apart from that while going to tour, all of them visiting the places, if no such cordiality, the question of family members accompanying the son-in-law and daughter also does not arise. It is also important to note that the document Ex.P15 and Ex.P16 clearly discloses that a show cause notice was given to the accused No.1 for having not attended the job and also the 42 evidence of P.W.16 is very clear that after the marriage he attending the job regularly but thereafter he became irregular and even after issuance of show cause notice also, he did not attend the job and hence, he lost the job. Having perused the document Ex.P16 is also very clear that due to abortion, the deceased was upset and the same reason was given for not attending the duty even before his removal when show cause notice was given and the said letter came into existence even prior to committing suicide and Court has to take note of documentary evidence available on record which suggests that the deceased was upset even not allowing her husband to attend the duty and always she wants to be with her husband.
46. It is also important to note that the other witness is P.W.4 who participated in the marriage talks and he also speaks about the demand and when the P.W.1 and P.W.2 categorically admits that they have not demanded and told them whatever they want to give, let them give. The evidence of PW4 is not credible. In the cross-examination also he categorically admits that he has not given any statement in terms of Ex.D9 since the same was confronted and also he admits that he made the 43 statement that 3 months after the marriage, they have taken care of in terms of Ex.D10.
47. It is also important to note that prosecution relied upon the evidence of P.W.5 that he advanced an amount of Rs.5,00,000/- to the parents of the deceased, but in the cross- examination he categorically admits that if any hand loan is given, he used to take the documents for having given the money, but no such document was executed by parents while taking the money and hence, the advancement of Rs.5,00,000/- to spend the money without any document also cannot be believed.
48. No doubt the P.W.11 is the Medical Officer who conducted Post Mortem examination and found ligature mark and also small punctured wound present over both alae of the nose. It is not the case of the prosecution that the accused assaulted the deceased before the incident. It is also emerged during the course of the evidence that two days prior to the committing of suicide, accused went to Bangalore in search of job since he lost the job and he being the husband went to Bangalore for search of job and even as on the date of the 44 incident also, bio-data was given and the same is spoken by P.W.1-father and there was no any incident prior to committing of suicide and before taking esteem step, there must be proximity to cause of death.
49. It is also important to note that prosecution relies upon the evidence of P.W.15 who placed an order for Mangalyasara and no doubt Mangalyasara was purchased and the same was spoken by P.W.17 employee of the Jewellary shop and the same was purchased in the name of P.W.14 who is the husband of P.W.15 and P.W.15 also treated as hostile partly and the answer elicited from the mouth of P.W.15 is also very clear that when the deceased visited Davanagere and also to her house at no point of time, she made any complaint about her husband and family members and even she says that twice visited her house but only says that she was telling through her mother regarding the accusation is concerned for the first time spoken before the Court about that two days prior to leaving Bangalore there was an incident, when the daughter took the breakfast to their room and she was scolded, but the I.O categorically deposed before the Court that the same was not 45 spoken anything by the parents that is mother of the deceased, not given any such statement and for the first time, the said evidence was introduced before the Court. In the cross- examination of P.W.19, omissions are elicited from the mouth of P.W.19 regarding theory of prosecution subjecting her for cruelty as well as consuming of alcohol and for having made the payment and whatever the gold ornaments are exchanged as per the customs it was elicited during the course of cross- examination.
50. The P.W.19 categorically says that he did not enquire with the relatives of accused regarding marriage talk. It is also elicited in the cross-examination of P.W.19 that bearing of 50% of the amount and purchasing of gold chain, 2 rings, bracelet and having handed over the same at the time of engagement including the amount of Rs.1,00,000/- was not stated before him and all these omissions are elicited from the mouth of I.O P.W.19, not only the theory that she came out from the room crying before leaving Bangalore and also not spoken anything about causing of damage to mobile phone and snatching of mobile, even during the course of cross-examination of PW9 46 regarding making of statement by PW3, snatching of mobile and also damaging the same also not spoken and the PW3 not stated anything about the same and also consuming of alcohol also not spoken by PW3 before him and no such statement was made even regarding consoling her and also P.W.14 made such statement while giving statement.
51. The other I.O who has been examined before the Court that is P.W.17 categorically admits in the cross- examination that P.W.14 made the statement that by mistake she made the statement that the mother-in-law of the deceased demanded the ornaments and so also P.W.14 not made any statement that accused Nos.1 and 2 demanded money instead of site and the answer elicited from the mouth of P.W.17 and P.W.19 clearly discloses omission with regard to an improvement made during the course of evidence by the prosecution witness and no such statements are made before the I.O. The Court has to take note of overall evidence available on record since an accusation is made for the offences punishable under Section 498A, 304B and also Section 3 and 4 of D.P Act. The Trial Court also convicted the accused for the above offences with regard to 47 the demand and acceptance of dowry as well as subjecting her for cruelty and no doubt death was taken place within 7 years of the marriage within a short span of the marriage.
52. Having considered the overall evidence available on record, though PW1, PW2, PW3, PW4, PW14 and PW15 speaks about the marriage talks and demand as well as acceptance and subjecting her for cruelty as well as the accused was consuming liquor and the evidence which have been elicited from the mouth of PW1 and PW2 during the course of cross-examination, they have categorically deposed before the Court that there was no any demand, but during the marriage talks they have told that whatever they want to give the jewels they can give and also not demanded any specific ornaments to be given to the deceased as well as bride groom and also the answer elicited from the mouth of PW3 who is the brother though he was not ready to give answer with regard to the cordiality is concerned and when the photographs are confronted, it is clear that they were going for tour, not only themselves, even taking the family of brother and sister-in-law and even cousins of the deceased to different places and they even visited Pondicherry, Muttatti and other 48 places and photos are evidenced on record when the photos are confronted to the witnesses.
53. Having considered the material on record also except the document of Ex.P.8 regarding purchase of Mangalyasuthra weighing of 66.864, no other document is placed before the Court having purchased bracelet, ring, chain weighing 100 grams to give the same to the accused as well as ring and that too Ex.P.8 is also in the name of husband of P.W.15 which was purchased and Mangalyasuthra is as per the customs, though contend that more than 200 grams of gold was given to the accused, nothing is placed on record and even it is elicited from the mouth of prosecution witnesses that sister of the accused only given the gold ornaments of bangles, armlet and rings and also elicited from the mouth of witnesses that the same was tied by the sister of the accused and regarding giving of gold ornaments to the bride groom except the ring nothing is found and hence, invoking of Section 498A of IPC subjecting her for cruelty when cordiality was found and even went with trip to different places along with family members and there was no any material to invoke Section 304B of IPC though death was 49 taken place within a span of one year and in order to bring the case within the purview of Section 3 and 4 of D.P Act also there was no any such demand and acceptance and when such material was not found, the Trial Court ought not to have comes to the conclusion that there are material to invoke Section 498A, 304B of IPC as well as Section 3 and 4 of D.P Act and committed an error in not properly appreciating the oral and documentary evidence available on record and committed an error in accepting the case of prosecution and hence, the appellant has made out the ground having considered overall material available on record that Trial Court committed an error in invoking Section 498A, 304B of IPC and Section 3 and 4 of D.P Act. Hence, this Court can exercise its appellate jurisdiction on re-appreciation of material evidence available on record particularly both oral and documentary evidence in view of admissions elicited from the mouth of prosecution witnesses and hence, I answer the point as 'Affirmative'.
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54. In view of the discussions made above, I pass the following:
ORDER
i) The Criminal Appeal is allowed.
ii) The impugned judgment and conviction passed against the accused/appellant for the offence punishable under Section 498A, 304B of IPC and Section 3 and 4 of D.P Act is hereby set-aside.
iii) If any fine amount is deposited by the appellant before the Trial Court is ordered to be released the same in favour of the appellant on proper identification.
iv) The bail bond executed by the appellant stands cancelled.
Sd/-
(H.P. SANDESH) JUDGE ST/MD/RHS