Karnataka High Court
State By Kamakshipalya vs Smt Papamma on 11 September, 2020
Bench: B.Veerappa, K.Natarajan
R
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.496/2014
C/W
CRIMINAL APPEAL No.977/2013
IN CRL. A. No.496/2014
BETWEEN:
STATE BY KAMAKSHIPALYA
POLICE STATION,
BANGALORE-560079.
... APPELLANT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT
PLEADER)
AND:
1. SMT. PAPAMMA,
AGED ABOUT 63 YEARS,
W/O LATE K.B. BALARAM,
RESIDING AT No.15,
GRAMADEVATHE TEMPLE ROAD,
ADUGODI, BANGALORE-560030.
OWN VILLAGE:
KURUBARAHALLY DODDI VILLAGE,
RAMANAGARA TALUK AND DISTRICT -571511.
2. SMT. LAKSHMI,
2
AGED ABOUT 38 YEARS,
W/O RAMESH,
R/O No.6, 1ST CROSS,
ANJANEYAGUDI ROAD,
ADUGODI, BANGALORE-560030.
OWN VILLAGE:
DEVARADODDI VILLAGE,
KAILANCHA HOBLI,
RAMANAGARA TALUK AND DISTRICT-571511.
3. SRI RAMESH,
AGED ABOUT 43 YEARS,
S/O RANGARI NAYAKA,
R/O No.6, 1ST CROSS,
ANJANEYAGUDI ROAD,
ADUGODI, BANGALORE-560030.
OWN VILLAGE:
DEVARADODDI VILLAGE,
KAILANCHA HOBLI,
RAMANAGARA TALUK AND DISTRICT-571511.
... RESPONDENTS
(BY SRI S.G. RAJENDRA REDDY, ADVOCATE)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE,
1973, PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED
16.09.2013 PASSED BY THE V ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND CONCURRENT CHARGE OF
FTC-9, BANGALORE IN S.C. No.907/2011 - ACQUITTING
THE RESPONDENT /ACCUSED Nos.2 TO 4 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 498A AND 304B
OF IPC AND UNDER SECTIONS 3 AND 4 OF D.P. ACT.
3
IN CRL. A. No.977/2013
BETWEEN:
B.K. VENKATESHA,
AGED ABOUT 33 YEARS,
S/O K.B. BALARAM,
R/O HOUSE OF BASAVARAJU,
2ND MAIN ROAD, SRINIVASANAGARA,
SUNKADAKATTE,
BANGALORE-560091.
PERMANENET RESIDENT OF
KURUBARAHALLI DODDI VILLAGE,
NEAR AVERAHALLI,
RAMANGARA TALUK AND DISTRICT.
(NOW IN JUDICIAL CUSTODY)
... APPELLANT
(BY SRI S.G. RAJENDRA REDDY, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY KAMAKSHIPALYA POLICE,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
AT BANGALORE-560001.
...RESPONDENT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT
PLEADER)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE ORDER DATED 16.09.2013
PASSED BY THE V ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND CONCURRENT CHARGE OF FTC-9,
BANGALORE IN S.C.No.907/2011-CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 498A AND 304B OF IPC AND UNDER
SECTIONS 3 AND 4 OF D.P. ACT.
4
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, B.VEERAPPA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Appeal No.496/2014 is filed by the State and Criminal Appeal No.977/2013 is filed by the accused No.1 against the judgment of conviction and order of sentence dated 16.09.2013 made in S.C.No.907/2011 on the file of the V Additional City Civil and Sessions Judge, Bengaluru City, convicting accused No.1 and acquitting accused Nos.2 to 4 for the offences punishable under Sections 498A and 304B r/w 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
I. FACTS OF THE CASE
2. It is the case of the prosecution that the complainant-Krishnanaik-P.W.1 and Devibai-P.W.2 are the parents and Narasimha Naik-P.W.3 is the elder brother of deceased Netravathi, wife of accused No.1. 5 The marriage of the accused No.1-B.K.Venkatesha with the deceased-Netravathi was performed on 02.03.2008 and the marriage talks were held in the house of brother of the deceased and the accused persons told that accused No.1 is working in garments and demanded dowry of Rs.2 lakhs apart from gold ornaments, house hold articles and marriage expenses. The parents of the deceased negotiated to pay dowry of Rs.1 lakh apart from golden ring of 8.5 grams, neck chain of 16 grams, to the bride groom and another golden necklace, chain, ring, pair of leg chain, two pairs of ear studs and hangings to the bride. The marriage was performed in Maruthi Kalyana Mantapa, Kanakapura, as per the customs prevailing in both the communities. After the marriage, deceased-Netravathi was residing with her husband-accused No.1, mother-in-law/accused No.2 in House No.15, Near Gramadevate temple road, Adugodi, Bengaluru. Subsequently, they shifted the house to the first floor of the house of C.W.6-Basavaraju at 2nd Main, 6 Sunkadakatte. During her stay with accused Nos.1 to 4, Netravathi was subjected to cruelty by the accused persons for their illegal demands of more dowry, house site and other articles and when she refused to putforth the said demands before her parents, the accused persons ill-treated her and abused in indecent words and accused No.1 assaulted her like anything in intoxication and made her to starve and suffer mental agony. Netravathi used to inform all those ill- treatments to her parents over phone and they used to console her. Inspite of panchayaths conducted on both side, the accused persons did not yield to the advise and Netravathi being fed up with ill-treatment, on 21.11.2010 at about 1.30 pm, hanged herself to the ceiling fan of the house with a plastic rope and committed suicide and thereby, accused persons committed offences punishable under Sections 304B and 498A r/w 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961. 7
3. Based on the complaint filed by P.W.1, the jurisdictional police registered a case in Crime No.747/2010 against the accused persons for the aforesaid offences. The Investigating Officer, after completion of the investigation, filed the charge sheet against the accused persons. The matter was committed to the Sessions Court. The learned Sessions Judge framed common charges against all the accused persons who pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused persons, the prosecution examined P.Ws.1 to 18 and marked the documents Exs.P.1 to 16. No material objects were marked. After completion of the evidence of prosecution witnesses, the learned Sessions Judge recorded the statements of the accused persons under Section 313 of the Code of Criminal Procedure. The accused persons denied all the incriminating evidences against them. Thereafter, the accused No.1 filed additional statement 8 under Section 313(5) of the Code of Criminal Procedure and marked Ex.D.1, a portion of the complaint and examined one Renunaika as D.W.1 on behalf of the defence.
5. The learned Sessions Judge, considering both oral and documentary evidence on record, recorded a finding that the prosecution failed to prove beyond reasonable doubt that accused Nos.2 to 4 subjected the deceased Netravathi to cruelty for their illegal demands of dowry, house site and other articles and made her to starve and suffer mental agony and thereby committed an offence punishable under Section 498A r/w 34 of the Indian Penal Code; prosecution proved that accused No.1 subjected the deceased to cruelty and harassment and thereby committed an offence punishable under Section 498A of the Indian Penal Code; prosecution proved beyond reasonable doubt that the Netravathi being fed up with the harassment meted out to her by 9 accused No.1 committed suicide on 21.11.2010 at 1.30 pm in the first floor of their house by hanging herself to the ceiling fan with a plastic rope and thereby, accused No.1 committed an offence punishable under Section 304B r/w 34 of the Indian Penal Code; and the prosecution failed to prove the said charge against accused Nos.2 to 4. The learned Sessions Judge further recorded a finding that the prosecution failed to prove beyond reasonable doubt that accused Nos.2 to 4 had taken dowry from the parents of the deceased at the time of the marriage, illegally and thereby committed an offence punishable under Sections 3 and 4 of the Dowry Prohibition Act; and the prosecution proved beyond reasonable doubt that the accused No.1 committed an offence punishable under Sections 3 and 4 of the Dowry Prohibition Act. Accordingly, the learned Sessions Judge, by the impugned judgment of conviction sentenced the accused No.1 for the offences punishable under Sections 498A, 304B of the Indian Penal Code 10 and Sections 3 and 4 of the Dowry Prohibition Act, 1961, and acquitted accused Nos.2 to 4 for the aforesaid offences. Hence, the State filed Crl.A.No.496/2014 against the order of acquittal of accused Nos.2 to 4 for the aforesaid offences and the accused No.1 filed Crl.A.No.977/2013 for convicting him for the aforesaid offences, with fine.
6. We have heard the learned counsel for the parties.
II. ARGUMENTS ADVANCED BY THE LEARNED HCGP
7. Sri S.Rachaiah, learned High Court Government Pleader for the appellant in Crl.A.No.496/2014 and for respondent in Crl.A.No.977/2013 contended that the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting accused Nos.2 to 4 is erroneous and contrary to the material on record and is liable to be set-aside. He contended that, in view of the consistent evidence of P.W.1 to 6 and 8, the 11 prosecution proved beyond reasonable doubt that the accused Nos.2 to 4 have harassed, demanded and obtained dowry and thereby, provisions of Sections 498A and 304B of the Indian Penal Code would attract, as the deceased Netravathi committed suicide within seven years of her marriage with accused No.1.
8. He further contended that, in Ex.P.1-complaint dated 21.11.2010, P.W.1 has specifically stated about the harassment and the dowry taken by the accused persons. Because of the constant harassment, ill- treatment and assault made by the accused persons, Netravathi committed suicide on 21.11.2010 at 1.30 pm, at the instance of all the accused persons. Therefore, the impugned judgment and order passed by the learned Sessions Judge acquitting accused Nos.2 to 4 is liable to be set-aside and they are liable to be convicted along with accused No.1, as rightly convicted by the learned Sessions Judge.
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9. He further contended that P.W.1 has specifically stated in his evidence that after one year of the marriage of the accused No.1 with the deceased Netravathi, both of them started residing in a separate house. The same has been reiterated by P.Ws.2, 3, 5 and 6. However, nothing has been elicited in the cross-examination of P.Ws.1 to 5 about the demand for dowry and constant harassment made by the accused Nos.1 to 4. The evidence of P.Ws.6 and 8 who are the panchayathdars in the arrangement of marriage and payment of dowry and other articles at the time of marriage, is unshaken. He further contended that P.W.3-brother of the deceased has stated in his evidence that 25 days prior to the date of the incident, Netravathi was subjected to mental and physical cruelty, attracting the provisions of Section 304B of the Indian Penal Code and vehemently contended that in order to eradicate the dowry deaths, the Courts should take stern view. Therefore, he sought to allow the present Criminal Appeal.
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10. In support his contentions, Sri Rachaiah, learned High Court Government Pleader relied upon the following decisions:
(i) Mahadevappa vs. State of Karnataka reported in 2019 SCC Online SC 38, paragraphs-30, 31 and 32.
(ii) Sher Singh Alias Partapa vs. State of Haryana reported in (2015)3 SCC 724, paragraphs 8 and 9.
III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ACCUSED PERSONS
11. Per contra, Sri S.G.Rajendra Reddy, learned counsel for the appellant/accused No.1 in Crl.A.No. 977/2013 and for respondent Nos.1 to 3/accused Nos.2 to 4 in Crl.A.No.496/2014 contended that, the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge against the accused No.1 is contrary to the material on record and cannot be sustained. He would contend that the evidence of PW.1 depicts that the complaint was written 14 by the police as per the information given by P.W.1, but the evidence of P.W.14 depicts that P.W.1 lodged the written complaint. He further contended that there is no allegation in the complaint against accused No.1 with regard to demand for dowry. The learned Sessions Judge, while considering both oral and documentary evidence, has rightly come to the conclusion that the prosecution has failed to prove beyond reasonable doubt with regard to involvement of accused Nos.2 to 4 and acquitted them, and the learned Sessions Judge ought to have acquitted accused No.1 also, as there is no specific allegation made against accused No.1.
12. He further contended that the averments made in the complaint is that the deceased used to call P.Ws.1 to 3 over phone and narrate the harassment meted out to her. Admittedly, neither the phone of the deceased has been seized nor the call details are produced by the prosecution. Dowry harassment as contemplated under 15 Section 304B of the Indian Penal Code i.e., harassment "soon before her death" has not been made out by the prosecution. Absolutely there is no material against any of the accused persons about harassment or cruelty by the husband or relatives of the husband. Therefore, it cannot be called as dowry death and the punishment under Section 304B of the Indian Penal Code would not attract.
13. He further contended that there is an improvement in the evidence of P.Ws.1 to 5 which is contrary to the contents of the complaint. Therefore, the evidence of P.Ws.1 to 5 cannot be taken into consideration. They are highly interested witnesses. He pointed out that P.W.16-retired ACP, in his evidence, in categorical terms has admitted that the payment of dowry, gold ring and chain was not stated before the police by the complainant. So also, the demand for site is also not stated in the complaint by P.W.1. He further 16 pointed out that P.Ws.1, 3 and 4 never stated before the police while recording the statement under Section 161 of the Code of Criminal Procedure about dowry harassment and cruelty. The said material admission has not been disputed by the prosecution and, the learned Sessions Judge has not considered the said aspect while passing the impugned judgment and order of conviction and sentence against accused No.1.
14. He further contended that when P.Ws.1 to 3 have not stated anything in their statement recorded under Section 161 of the Code of Criminal Procedure about demand for dowry, harassment and cruelty to the deceased by accused persons and when there is no whisper about demand for dowry in the complaint except general allegation, the evidence of prosecution witnesses/P.Ws.1 to 5 clearly indicates that there is improvement and such improvement is without any basis and the same cannot be relied upon. He further 17 contended that P.W.2, the mother of the deceased has stated that, after the deceased and accused No.1 shifted from Adugodi to Sunkadakatte, her two other sons i.e., brothers of accused No.1 died and she was alone at Adugodi and therefore accused No.1 requested the deceased to shift the house. In that regard, there was some petty quarrel between the deceased and accused No.1 as the deceased was not interested to go to Adugodi. He further contended that there is no consistency in the evidence of P.Ws.1 to 5 regarding specific allegation of demand for dowry by accused No.1. Absolutely there is no material against the accused persons and they have been falsely implicated in the offence.
15. He further contended that the entire case of the prosecution is on circumstantial evidence and there are no eye witnesses. In fact, after Netravathi committed suicide by hanging herself, it is the accused No.1 who 18 admitted her to the hospital for treatment and he was taking care of his wife as a dutiful husband. Absolutely there is no material to prove that the accused persons are involved in the commission of the offence alleged against them.
16. He further contended that the custom of exchanging the gifts exists in the community of the deceased and accused No.1. The same is admitted by P.Ws.1, 2 and 3. The customary gift given at the time of marriage would not amount to dowry. Therefore, the learned counsel sought to allow the Criminal Appeal filed by the accused No.1 and dismiss the Criminal Appeal filed by the State.
IV. POINTS FOR DETERMINATION
17. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration are:
"(i) Whether the Prosecution has made out any case to interfere with the finding of fact 19 recorded by the learned Sessions Judge in acquitting accused Nos.2 to 4 for the offences punishable under Sections 498A, 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961?
(ii) Whether the accused No.1 has made out a case to interfere with the impugned judgment and order of conviction and sentence, convicting the accused No.1 for the offences punishable under Sections 498A, 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961?
18. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records, carefully.
19. The substance of the case of the prosecution is that the marriage of the deceased and accused No.1 was performed on 02.03.2008. At the time of marriage, accused persons demanded dowry. Accordingly, dowry 20 was paid along with gold and silver ornaments and after about 3 to 4 months of the marriage, the accused persons started demanding additional dowry, due to which, the deceased was forced to commit suicide on 21.11.2010. The accused No.1 while filing additional statement under Section 313(5) of the Code of Criminal Procedure, has admitted that he married the deceased on 02.03.2008 and denied the alleged demand for dowry and contended that after death of his brothers, both elder and younger, he requested his wife to shift the house from Sunkadakatte to Adugodi. Though at the initial stage, the deceased agreed to shift, later, at the instigation of P.W.3, she refused. In that context, there was little quarrel between the accused No.1 and the deceased. On 21.11.2010, since it was a Sunday, he brought mutton. While cooking, deceased started to quarrel with him. In order to put an end to the quarrel, he went out of the house. When he came back after half an hour, his wife Netravathi had hanged herself. He 21 intimated the same to P.W.3 and immediately shifted her to Sarvodaya Hospital. Neither himself nor his family members never demanded any dowry nor assaulted the deceased and never harassed the deceased either mentally or physically and no panchayaths were held in that regard.
V. CONSIDERATION
20. In order to re-appreciate the evidence of prosecution witnesses and the documents relied upon, it is relevant to consider the evidence of the prosecution witnesses.
P.W.1-father of the deceased, who lodged the complaint has reiterated the averments made in the complaint regarding demand for additional dowry by the accused persons and harassment made by them to his daughter and supported the case of the prosecution. 22
P.W.2-mother of the deceased also reiterated the averments made by P.W.1 in his deposition and supported the prosecution case.
P.W.3-Narasimha Naik, brother of the deceased reiterated the contents of Ex.P.1 and averments made by P.W.1 to the effect that there was demand for dowry and P.W.1 has paid Rs.2 lakhs cash, gold and silver ornaments during the marriage and there was constant demand for additional dowry and physical and mental harassment as was informed by the deceased to her parents through telephone.
P.W.4-Govindaraju, a relative of the deceased and panch witness to Ex.P.3-inquest mahazar supported the prosecution case.
P.W.5-Suresh, a relative of the deceased and panch witness to Ex.P.3-inquest mahazar supported the case of the prosecution.
P.W.6-Basavaraju, owner of the house where the accused No.1 and deceased were residing at 23 Sunkadakatte as tenants, has supported the prosecution case.
P.W.7-Puttamada, friend of P.W.3 has supported the prosecution case.
P.W.8-Siddaiah, friend of P.W.3 also supported the prosecution case.
P.W.9-Balanaika-witness to seizure mahazar- Ex.P.4 supported the prosecution case.
P.W.10-Krishna Naik, is the witness to Ex.P.2- recovery mahazar while vacating the house at Sunkadakatte on 19.12.2010, after the death of Netravathi.
P.W.11-Rajanna, police constable has stated that he carried the dead body of the deceased to the mortuary and handed over to P.W.1.
P.W.12-Chandranna, police constable along with P.W.15, apprehended accused No.1 on 22.11.2010. 24
P.W.13-Dr.C.K.Sumangala,conducted postmortem and submitted report as per Ex.P.8 and opined that the death is due to asphyxia as a result of hanging.
P.W.14-Harish, Police Inspector registered the case, conducted the investigation in part and handed over to P.W.16.
P.W.15-Manjunath along with P.W.12 apprehended accused No.1 on 22.11.2010.
P.W.16-D.Krishne Urs, ACP and Investigating Officer investigated the case and filed charge sheet against the accused persons.
P.W17-Mohammed Mukharam-PSI, is the witness to Ex.P.2-recovery mahazar after vacating the house of the accused No.1 after the incident.
P.W.18-K.Ranganathaih, Special Tahsildar, conducted the inquest panchanama.
D.W.1-Renukaiah, is friend of P.W.3 and witness to Ex.P.2-recovery mahazar.
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21. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge recorded a finding that, the prosecution failed to prove the alleged demand for dowry, harassment both physical and mental beyond reasonable doubt against accused Nos.2 to 4 the prosecution has proved the demand for dowry and harassment by accused No.1. The learned Sessions Judge further recorded a finding that after the marriage, both accused No.1 and the deceased resided for a short period at Adugodi where accused Nos.3 and 4 were also residing in the house. Thereafter, they shifted to Sunkadakatte and resided in a rented house belonging to P.W.6. On the suggestion made to P.W.1 to elicit the source of money to pay dowry in cash, P.W.1 has categorically answered that he sold 25 guntas of land to one Begubesarakallu Gowda for Rs.2 lakhs and out of the said amount he paid Rs.1 lakh to accused No.1. On going through the cross- examination of P.W.6, an independent witness, who is 26 the most important witness on behalf of the prosecution in this case who is not related either to the complainant or to the accused, it is elicited by the defence counsel that accused No.1 and deceased Netravathi were residing together in the rented house and they were cordial for some time. This witness has been taken by accused No.1 alone for the panchayath in between the husband and wife and also the parents of the deceased and P.W.3 in the house of P.W.3 as the deceased went away to the house of P.W.3 by leaving the company of her husband. Even on scrutiny of the entire cross- examination of P.Ws.7 and 8, it is clear that these two witnesses, except eliciting a stray admission and that some statement was not given before the police, the sworn testimony of P.Ws.7 and 8 is unshaken. Merely P.Ws.7 and 8 are the police people and PSI related to both the accused and the complainant and their testimony cannot be discarded or disbelieved. Thereby, the learned Sessions Judge acquitted accused Nos.2 to 27 4 and convicted accused No.1 for the offences made out in the charge.
22. On meticulous reading of the material on record, it is not in dispute that the marriage of the deceased and accused No.1 was performed on 02.03.2008 and the incident occurred on 21.11.2010. It is also not in dispute that P.W.1 has stated in the complaint that on 21.11.2010 at 2.30 pm, his daughter Netravathi hanged herself. Ex.P.3-inquest report states that after 1½ years of the marriage, deceased and accused No.1 were residing at Sunkadakatte and had a male child is aged 1 year 3 months. It is stated that P.Ws.2, 3 and 4 used to visit the house of the deceased at Sunkadakatte. The deceased used to inform them through telephone about the harassment meted out to her by the accused persons. Admittedly, the mobile has not been seized and the call details are not produced by the prosecution.
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23. P.W.1 in his evidence at paragraph-6 has stated that, due to the dispute between husband and wife, there was panchayath held by one Srinivas, P.W.5- Govindnaik and Krishnanaik. Admittedly, said Govindanaik, Krishnanaik, Sureshnaik have not been examined on behalf of the prosecution to prove that there was panchayath with regard to dowry harassment. It is also stated by him that he has sold 25 gunats of land for Rs.2 lakhs and out of the said amount, gave Rs.1 lakh to the accused No.1. He has stated that he is not aware of the survey number of his property and sale deed is not produced before the Court. In the cross- examination, he has admitted that the fact of selling the property and paying Rs.1 lakh to the accused No.1 has not been stated before the police. It is further admitted that in their community, it is a custom to give gift to the bride and bride groom at the time of marriage. There was a quarrel between his daughter and accused No.2 with regard to family affairs. He has stated that he is 29 not in a position to say as to when actually his daughter was harassed. After one year, the accused No.1 and his daughter were residing in a rented house at Sunkadakatte owned by P.W.6. He has visited only once. On the suggestion made by the defence that both husband and wife were living happily, he has stated that he is not aware. He has also admitted that Netravathi had come to his house for delivery of the child and she was there for nine months and during said nine months, she never informed anything about the harassment. P.W.1 has not lodged any complaint to the jurisdictional police with regard to the harassment and demand for dowry and also admitted that when deceased hanged herself, she was residing along with her husband-accused No.1 at Sunkadakatte. He has also admitted that after his daughter came for delivery, the elder brother of accused No.1 died in a road accident and he is not aware that the 2nd brother also died after 2 to 3 months. He denied the suggestion that 30 the accused No.1 requested the deceased to go to Adugodi to take care of his aged mother. He admitted the fact that where accused No.1 and deceased resided at Sunkadakatte, there were neighbours around. Admittedly, the neighbours have not been examined with regard to dowry harassment or quarrel between the couple. He also stated that he was not aware that accused No.1 admitted the deceased to the hospital for treatment, after she hanged herself. P.W.2-mother of the deceased in the cross-examination also admitted about customary gift given at the time of the marriage to the bride and bride groom. She stated that the marriage talks were reduced into writing. She has stated that P.W.1 sold the landed property of one acre. Whereas, P.W.1 has stated that he has 2 acres. She further admitted that in their community there exists custom of giving gifts to the bride and bride groom. In the cross-examination, she admitted that there used to be quarrel between deceased and accused No.1 and they 31 have not stated before the Tahsildar the fact that her daughter was driven out of the house and also admitted that about one year prior to the incident, accused No.1 and deceased were residing at Sunkadakatte in a rented house. She also admitted that herself and their family members visited the first year birthday of the male child of deceased and accused No.1 which was arranged by accused No.1. P.W.2 has also admitted that as there were nobody in the house of accused No.2 after the death of her two children, accused No.1 requested the deceased to go to Adugodi and in that context, there was misunderstanding between husband and wife. The deceased was not interested to go to Adugodi. She has also admitted that after 15 days of the incident, there was compromise and in terms of the compromise, P.W.1 and 2 demanded the accused persons to register one site out of two, in the name of the son of the deceased and to give Rs.5 lakhs. At that time, the accused 32 persons agreed to register the site in the name of the child, but refused to give Rs.5 lakhs.
24. P.W.3-Narasimha Naik, brother of the deceased has stated in the cross-examination that for about 3 to 4 months after the marriage, the accused persons were taking care of his sister. Thereafter, they started demanding for site as informed by his sister through phone. As already stated, phone has not been seized and the call details are not produced. He further stated that about 25 days prior to the incident, accused No.2 had thrown out the deceased along with the child from the house. At that time, deceased had been to the house of P.W.3 and informed that accused persons threatened to kill her and they are harassing and she does not want to go back to her husband's house. Admittedly, P.W.3 has not lodged any complaint before the police, in this regard. In the cross-examination, P.W.3 has stated that the marriage talks were not 33 reduced into writing and it is not a custom in their community, which is contrary to the evidence of P.Ws.1 and 2, who are his parents. He has stated that he has borrowed loan of Rs.80,000/-from Syndicate Bank. He can say the account number. He does not know as to how much money his father has borrowed and from whom. Whereas, P.W.1 has stated that he has sold the land and arranged the money. The evidence of P.Ws.1, 2 and 3 are inconsistent with the averments made in the complaint and there is improvement as rightly urged by learned counsel for accused No.1.
25. P.W.3 has further admitted in his cross- examination that his sister and accused No.1 shifted their house to Sunkadakatte where they were residing in first floor in the house of P.W.6. He admitted that there are adjoining neighbours and his sister was very cordial with them. Admittedly, the adjoining neighbours have not been examined, as stated above and no 34 complaint was made either by P.W.3 who is a police constable or by P.W.1. He has further stated that there was quarrel between the couple with regard to shifting of their residence from Sunkadakatte to Adugodi. Admittedly, there was no earlier complaint made against accused No.1 to 4, except the complaint for the first time, after the death of Netravathi.
26. It is the case of P.Ws.1 to 3 that from the date of marriage till the incident, for more than two years there were no complaint against the accused persons, even though P.W.3 is working in police department. It indicates that it is not dowry death. Only after the death of their daughter, P.Ws.1, 2 along with P.W.3 deliberated the matter and lodged the complaint. As can be seen from the evidence of P.W.2, after 15 days of death, there was compromise and they demanded Rs.5 lakhs and a site to the grand son, but the accused agreed to give only site and refused to pay Rs.5 lakhs. 35 The said aspect of the material evidence has not been considered by the learned Sessions Judge and thereby, committed an error in convicting the accused No.1.
27. Even assuming that at the time of marriage, the gold articles, silver articles, cloth, as stated by P.Ws.1 to 3, were given to the accused persons, they were customary gifts and does not amount to dowry as contemplated under Section 3(2) of the Dowry Prohibition Act, 1961, which reads as under:
3. Penalty for giving or taking dowry: xxxxx (2) Nothing in sub-section (1) shall apply to, or in relation to,-
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):
provided that such presents are entered in a list maintained in accordance with the rules made under this Act;36
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given."
28. Thus, the presents given at the time of marriage to the bride groom without any demand being made in that behalf and such presents being made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value 37 thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf such presents are given, does not amounts to dowry.
29. P.W.4, a relative of the deceased and panch witness to Ex.P.3-inquest mahazar has stated that immediately after seeing that the deceased had hanged herself, the accused shifted her to the hospital for treatment. He also stated that with regard to shifting of the house from Sunkadakatte to Adugodi there was quarrel. He also stated that the accused No.1 informed the deceased to shift the house to Adugodi to take care of his mother. P.W.5 also stated that accused No.1 shifted the deceased to the hospital for treatment. P.W.6-owner of the house where the accused No.1 and the deceased were residing as tenants, in the cross- examination specifically stated that 'accused and deceased were happily living' and he has not informed 38 the police about the dowry harassment by accused No.1.
30. Very interestingly, P.W.16 who is a retired ACP has stated in categorical terms in the cross-examination that the fact of demand of Rs.2 lakhs dowry, gold chain and other articles by accused No.1 has not been stated before the police while recording statement under Section 161 of the Code of Criminal Procedure. He denied the suggestion that P.W.1 has informed the police that three days prior to the incident, the deceased had informed him over phone regarding the harassment given by the accused persons. He has further stated that, it is true to suggest that P.W.2 has not stated before the police that at the time of marriage, accused persons demanded dowry, golden chain, mangalya, necklace and ring. He also admitted that the said material admission is not disputed by the prosecution. Unfortunately, though APP was representing on behalf 39 of the prosecution, he never tried to re-examine the witnesses. The admissions made by P.W.16 in the cross-examination has reached finality and binding on the parties.
31. P.W.18-Tahsildar also admitted that P.W.2 has not stated before him about the dowry, cash and other articles demanded by accused persons and the harassment given by the accused persons.
32. Though D.W.1, friend of P.W.3 and accused No.1, witness to Ex.P.2-mahazar drawn while vacating the house after the death of Netravathi, has tried to state in examination-in-chief that the deceased left a death note, admittedly, the death note was not seized by the police nor it was put in the cross-examination of any of the prosecution witnesses.
33. It is also not in dispute that P.W.13-Doctor who examined the dead body has stated in the cross- 40 examination that other than ligature mark on the neck no other injuries were found on other parts of the body. He has stated that it could be true that incomplete ligature mark will be appearing in case of suicide. The post mortem report-Ex.P.18 clearly depicts that the death is due to asphyxia, as a result of hanging.
34. A careful perusal of the aforesaid oral and documentary evidence clearly indicate that though the prosecution set up a case of dowry demand and harassment, in view of the consistent evidence of P.Ws.1 to 4 that there was custom prevailing in the family of the accused and deceased to give gifts at the time of marriage it would not amount to dowry as contemplated under Section 3(2) of the Dowry Prohibition Act, as stated supra. Even though the marriage was performed on 02.03.2008, till her death, no complaint has been registered with regard to demand for dowry and harassment, even though P.W.3, brother of the 41 deceased was working as a police constable. It clearly indicates that taking advantage of the incident, P.W.3 after deliberation with P.Ws.1 and 2, filed complaint. Absolutely there is no material produced by the prosecution to prove that there was demand for dowry and payment. The prosecution has not produced any material before the Court to establish that deceased Netravathi was subjected to cruelty by her husband or any relative of the husband, soon before her death.
35. 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:
"8. Section 304B of the Indian Penal Code which deals with dowry death, reads as follows:42
"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 43 shall 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.44
(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 45 dowry, the Court shall presume that such person had caused the dowry death.
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 46 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."
36. While considering the provisions of Sections 498A and 304B of the Indian Penal Code, this Court and the Hon'ble Supreme Court time and again held that in the absence of oral and documentary evidence to implicate the in-laws including mother-in-law, should not be inducted unnecessarily. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Sher Singh Alias Partapa vs. State of Haryana reported in (2015)3 SCC 724, para-20 held as under:
20. Now, to the case in hand. It has been contended before us, as was also unsuccessfully argued before both the courts below that there 47 was a "delay" in lodging the FIR. There is no perversity in the concurrent views that its lodgement after ten hours on the day next after the tragedy i.e. 8-2-1998 did not constitute inordinate delay such as would justifiably categorising the FIR as an afterthought or as contrived. The complainant along with family and friends had to travel to another village; he would have had to first come to terms with the tragedy, make enquiries and consider the circumstances, before recording the FIR. Equally preposterous is the argument that once the High Court had seen fit to acquit the other accused, namely, Davinder Singh (brother-in-law) and Jarnail Singh (father-
in-law) the appellant/husband should have been similarly acquitted. It cannot be ignored that the accused was not living with his parents and brother, and it is justified nay necessary to require stronger proof to implicate the family members of the husband. It has been essayed by the learned counsel for the appellant to impress upon us that the cruelty postulated in this provision has not been shown to have occurred "soon before her death". This argument, assumes on a demurrer, that statutory cruelty had, in fact, been committed. The deceased and the appellant were married in February 1997 and the former 48 committed suicide within one year; to even conjecture that it was not soon before death, has only to be stated to be stoutly shot down.
37. Admittedly, in the present case, absolutely there is no material produced by the prosecution to prove that there was dowry demand, cruelty and harassment soon before death. In the absence of the same, the contention of the learned High Court Government Pleader that there was harassment, cannot be accepted. It is also not in dispute that though P.W.3-brother of the deceased, working as police constable stated that about 25 days prior to the incident, the deceased Netravathi informed him that there was constant harassment from her husband. As stated supra, the phone has not been seized. Absolutely there is no material before the Court to prove that there was cruelty and harassment meted out to the deceased, soon before her death. Therefore, the evidence of P.W.3 cannot be accepted. 49
38. As already stated above, the customary gifts given to the bride and bridegroom at the time of marriage does not amount to dowry. P.Ws.1 to 3 have admitted that, in their community, there exists the custom of giving gift to the newly married couple.
39. The Hon'ble Supreme Court in the case of State of Karnataka vs. Dattaraj and others reported in (2016)12 SCC 331, paragraphs 18 and 19, held as under:
18. On a perusal of the statement of Tukkubai, PW 1, the mother of Savita, it is apparent that the monetary gifts given to Dattaraj and his family members, were in the nature of customary gifts exchanged during different ceremonies. But what is of extreme significance is the fact, that even the family of Dattaraj, the husband of Savita, had given four tonnes of sugarcane seeds and a bag of jowar to her family, when the family of Savita visited her matrimonial house, on the occasion of the birth of a female child. It is acknowledged by Tukkubai, PW 1, that the aforesaid gifts were taken by the family members of Savita to their 50 own village, by hiring a "tum-tum" (a horse-
drawn cart). This return gift by the family of Dattaraj was also in conformity with the customary tradition for such occasions. It seems that the two families celebrated all festivities in the spirit of their customary obligations. Both families engaged in offering gifts to each other, in accord with the prevailing practice and tradition. For this reason, the judgment rendered by this Court in Rajinder Singh case [Rajinder Singh v. State of Punjab, (2015) 6 SCC 477 : (2015) 3 SCC (Cri) 225] , which was strongly relied upon by the learned counsel for the appellant, in our considered view, would be of no avail in the determination of the projection canvassed.
19. Insofar as the demand of Rs 20,000 for the purchase of agricultural land is concerned, it is apparent that the same was allegedly made when Dattaraj was in Dubai. The said demand was allegedly made by Ningesh (respondent- Accused 2), the father of Dattaraj, when he had gone to leave Savita at her maternal home. Dattaraj is stated to have returned to India from Dubai eight to ten months, after the above demand. A female child was born to Savita about a year after the return of Dattaraj to India. After 51 the birth of the female child, Savita had remained in her maternal house, for about four to five months. Therefore, even if the above oral allegation is accepted as correct, it was a demand made about two years before the occurrence. The same was too remote to the occurrence, and therefore, would not satisfy the requirement of "soon before her death" contemplated under Section 304-B(1) of the Penal Code.
40. The Hon'ble Supreme Court in the case of Bobbili Ramakrishna Raja Yadad and others vs. State of Andhra Pradesh reported in (2016)3 SCC 309, at paragraphs 12 and 13, it is held as under:
12. In the light of the well-settled principles, it is to be seen whether the allegations in the complaint in the present case and other materials accompanying the complaint disclose the offence punishable under Section 6 of the Dowry Prohibition Act. Marriage of the first appellant and Syamala Rani was solemnised in Vizianagaram on 4-5-2007 and the couple was living in Bangalore. Appellants 2 to 6, the parents and sisters of Appellant 1 were living in Vizianagaram. It is the contention of the 52 appellants that there are no allegations in the complaint that the "stridhana articles" were given to Appellants 2 to 6 and that they failed to return the same to Syamala Rani. In Paras 3 and 4 of the complaint filed by the second respondent, it is alleged that he paid the dowry amount "to the accused and some 'stridhana articles' like double cot and other furniture and utensils required to set up a family". In the complaint, it is vaguely alleged that even after the death of the deceased Syamala Rani, the accused started threatening the complainant and that the accused offered to pay an amount of Rs.10,000 towards full and final settlement. The relevant averments in the complaint in Paras 5 and 6 read as under:
"5. The complainant submits that even after the death of the deceased the accused by keeping the dead body on one side, started threatening the complainant and his family members that if they give any report to the police, they will be killed then and there only and they offered to pay an amount of Rs.10,000 towards full and final settlement. There the complainant, who was in deep shock 53 at the death of his daughter could not answer anything but gave a report to the police.
6. The complainant submits that he led several mediations with the accused through his colleagues, whose names are mentioned below for return of the dowry, but the accused did not return the amount and other amounts, given under different heads. A duty was cast upon the accused to return those articles and amount, which were presented as dowry on demand made by the accused. The complainant reserves his right to file a fresh complaint against all the accused for return of the dowry."
By a reading of the above, it is seen that there are no specific allegations against Appellants 2 to 6 that the dowry articles were entrusted to them and that they have not returned the dowry amount and the articles to Syamala Rani. Equally, there are no allegations that those dowry articles were kept in Vizianagaram and used by Appellants 2 to 6 who were separately living 54 away from the couple in Bangalore. Even though the complainant has alleged that the dowry amount was paid at the house of the accused at Gajapathinagaram, there are no specific allegations of entrustment of the dowry amount and articles to Appellants 2 to 6.
13. Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and the first appellant were living in Bangalore at their matrimonial house. In respect of "stridhana articles" given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house. It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when Appellants 2 to 6 have been residing separately in Vizianagaram, it cannot be said that the dowry was given to them and that they 55 were duty-bound to return the same to Syamala Rani. Facts and circumstances of the case and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibition Act against Appellants 2 to 6 and there is no sufficient ground for proceeding against Appellants 2 to 6. Be it noted that Appellants 2 to 6 are also facing criminal prosecution for the offences under Sections 498-A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the criminal proceeding under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of the Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to Appellants 2 to 6, in our view, continuation of the criminal proceeding against Appellants 2 to 6 is not just and proper and the same is liable to be quashed.
41. The material evidence on record clearly depicts that after the marriage of the deceased and accused No.1, the elder brother of the accused No.1 who was in police department died and after three months, the younger brother of accused No.1 also died. Thereby, the 56 mother of the accused No.1, aged about 60 years, was residing alone in Adugodi. She was suffering from blood pressure, diabetes and had undergone uterus operation. Because of the age old ailments of accused No.2, the accused No.1 requested the deceased to shift the house from Sunkadakatte to Adugodi, to take care of his aged mother. The said fact has been admitted by P.Ws.1 to 3 and 6 in their evidence. In that context, there used to be quarrel between the deceased and accused No.1 and the deceased, being sensitive women, hanged herself.
42. "It is well settled that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the elder persons. Old age is incurable, increase of diseases, do not heal old age, protect it, promote it, extend it." Admittedly in the present case, accused No.1 alone has the responsibility to take care of his aged mother and provide her basic amenities and needs, as his two 57 brothers have died. The wife of the accused No.1- deceased Netravathi ought to have treated her mother- in-law/accused No.2 as her own mother and should have taken care of her. Instead of doing so, she has taken drastic step of committing suicide. "There are no greater gods than parents. There is no greater Dharma than compassion, there is no enemy greater than anger, there is no wealth greater than good reputation, bad reputation is death itself.
43. The duty was cast upon the accused No.1 to take care of his aged mother. In that context, he has requested his wife to shift the residence to Adugodi. That would not amount to harassment, and demand for dowry as alleged by the prosecution witnesses. There is no material produced by the prosecution to prove that soon before death there was any cruelty and harassment to the deceased by accused Nos.1 to 4. Therefore, the contention of the learned High Court 58 Government Pleader that there was constant cruelty and harassment to the deceased by the accused persons is without any basis and material on record.
44. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Sampat Babso Kale and another vs. State of Maharashtra reported in (2019)4 SCC 739, para 5, 7, 8, 14 and 20 reads as under:
5. The defence version is that Sharada belongs to a comparatively well-off family. She was residing with her husband in MIDC Colony quarter which had all facilities. The case set up by the defence is that the parents of the appellants lived in a small one room hut in Village Lonand with no facilities of toilet, etc. Appellant 1 wanted that his wife should go to look after his parents. She was not willing to do so since material comforts like TV, WC, etc. were not available in the village and the parents lived in a very small one room hutment. According to the defence, on the evening of 8-7-1989, both the appellants requested Sharada to go to the village to look after the ageing parents. Sharada, who was sensitive, got upset and for this reason committed suicide. It 59 was Appellant 1 who raised an alarm and tried to douse the fire by throwing water on Sharada. He requested the neighbours to call for an ambulance but when nobody could be contacted on phone, he along with one neighbour went to the hospital to get an ambulance. Thereafter, Sharada was taken to Sassoon Hospital, Pune where she was admitted in the Burns Ward. Unfortunately, she passed away in the morning.
7. We have heard the learned counsel for the appellants. The main argument of the learned counsel for the appellants is that the deceased was a very sensitive lady. She, as is apparent from the letters exchanged between her and her husband, was madly in love with him. She, however, did not want to go and live in a village, that too in a small one room hutment and being sensitive in nature, she committed suicide. It is further alleged that even the sister of the deceased had committed suicide. It was also contended that there are various discrepancies in the evidence and the dying declarations cannot be relied upon. It was further urged that the deceased died due to a fire in the kitchen of the house and not in the bedroom which clearly indicated that she had committed suicide. It was 60 also contended that the defence version was a probable version and once there was a doubt then benefit of doubt should have been given to the accused persons. Lastly, it was contended that the appellate court should not have lightly interfered with the findings given by the trial court.
8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, laid down the following principles: (SCC p. 432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:61
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of 62 the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having
secured his acquittal, the
presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
14. In our view, though dying declarations stand proved, the issue is whether we can convict the accused only on the basis of these dying 63 declarations. In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round.
20. Another factor which needs to be taken into consideration is that none of the witnesses from the neighbourhood have been examined. Even as per the prosecution case it was the neighbours who first raised an alarm. There is no explanation why none of them have been examined. It is also the prosecution case that the accused husband along with another neighbour went to the hospital to arrange for an ambulance. This person has not 64 been examined. The non-examination of these important witnesses leads to non-corroboration of the dying declaration. The best witnesses would have been the neighbours who reached the spot immediately after the occurrence. They would have been the best persons to state as to whether the victim told them anything about the occurrence or not.
45. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilty of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. 65
46. The evidence adduced by P.Ws.1 to 6, 8, 9 and 16 and the documents produced on behalf of the prosecution show s that there are glaring discrepancies in the evidence of P.Ws.1 to 3 does not appear to be credible. A number of inconsistencies between statements made in the complaint and the averments made in the evidence were thrown up in the cross- examination. The contradictions between the evidence and the evidence of the investigating officer make interesting reading. For every inconsistency between police statement and evidence in the Court shrouded in mystery. So much for the gaping holes in the prosecution story based on the circumstantial evidence. The doubts arising from the prosecution witnesses left too many question marks and too many unexplained circumstances, which contradicted their acceptance without corroboration. Corroboration was available in the form of documents, which was deliberately not placed on record by the prosecution. Admittedly, in the 66 present case, the prosecution has utterly failed to prove the charge made against the accused persons, beyond all reasonable doubt.
VI. CONCLUSION
47. For the reasons stated above, the first point raised for consideration in the present Appeals is held in the negative holding that the State-Prosecution has not made out prima-facie case to interfere with the impugned judgment and order of acquittal acquitting the accused Nos.2 to 4 for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Accordingly, the second point is answered in the affirmative holding that the accused No.1 has made out a case to interfere with the impugned judgment and order, convicting and sentencing the accused No.1 for the aforesaid offences.
48. Though the learned High Court Government Pleader relied upon the judgment of the Hon'ble 67 Supreme Court in the case of Mahadevappa vs. State of Karnataka reported in 2019 SCC Online SC 38, it was a case under Section 498A and 302 of the Indian Penal Code, where the husband had poured kerosene on his wife and set her on fire. The Hon'ble Supreme Court held that there are abundant material on record about the ill treatment and assault of the deceased. In those circumstances, the Hon'ble Supreme Court, based on the evidence of the relatives, convicted the accused. We have no quarrel with the law laid down by the Hon'ble Supreme Court in the facts and circumstances of the said case. In the present case, the deceased hanged herself, without there being any proof of harassment and demand for dowry. Absolutely the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Therefore, the judgment relied upon by the learned High Court Government Pleader has no application to the facts and circumstances of the present case.
68
49. The another judgment relied upon by the learned High Court Government Pleader is the case of Sher Singh Alias Partapa vs. State of Haryana reported in (2015)3 SCC 724, wherein it is held that Section 113 B of the Indian Evidence Act and Section 304B of the Indian Penal Code were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that parliament intentionally used the word "deemed" in Section 304-B to distinguish this provision from the others. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word "deem" to denote a set of circumstances which call to be construed contrary to what they actually are. Admittedly, in the present case, the initial burden of discharge is not made out by the prosecution based on the oral and documentary evidence on record and it clearly indicates that the accused No.1 is innocent. Admittedly, the charge framed in the present case is a common charge. Once 69 the learned Sessions Judge acquitted accused Nos.2 to 4, based on the same charge, cannot convict the accused No.1, as there is no material against accused No.1, except that he requested his wife to shift the house. That cannot be the reason to accept that there was cruelty or harassment or demand for dowry soon prior to death of a married woman. Therefore, the judgment relied upon by the learned High Court Government Pleader has no application to the facts and circumstances of the present case.
50. For the reasons stated above, we pass the following:
VII. ORDER
a. Criminal Appeal No.496/2014 filed by
State is hereby dismissed. The impugned judgment and order of acquittal of accused Nos.2 to 4 is hereby confirmed.
b. Criminal Appeal No.977/2013 filed by the accused No.1 is hereby allowed. The 70 impugned judgment of conviction and order of sentence dated 16.09.2013 made in S.C.No.907/2011 on the file of the V Additional City Civil and Sessions Judge, Bengaluru City, is hereby set-aside.
c. The accused No.1/appellant in Criminal Appeal No.977/2013 is acquitted for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
d. The bail bonds shall stand cancelled. The fine amount, if any, paid shall be refunded to the accused No.1.
Sd/-
JUDGE Sd/-
JUDGE kcm