Karnataka High Court
Sri. Laxman S/O Kariyappa Dhanagar vs The State Of Karnataka on 24 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:13759-DB
CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100367 OF 2017 (C)
C/W
CRIMINAL APPEAL NO. 100028 OF 2018
IN CRL.A NO. 100367/2017
BETWEEN:
1. SMT. DODDAKKA @ DODDAWWA
W/O. KARIYAPPA DHANAGAR
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: BOMMANA BUDNI,
TAL: MUDHOL, DIST: BAGALKOTE.
2. SRI.KARIYAPPA S/O LAXMAN DHANAGAR
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O: BOMMANA BUDNI,
YASHAVANT
NARAYANKAR TAL: MUDHOL, DIST: BAGALKOTE.
...APPELLANTS
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)
Digitally signed
by YASHAVANT AND:
NARAYANKAR
Date: 2023.12.12
10:37:45 +0530 THE STATE OF KARNATAKA
THROUGH PSI LOKAPUR POLICE STATION,
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR, SPP OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
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NC: 2023:KHC-D:13759-DB
CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
07.11.2017 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, BAGALKOT TO SIT AT JAMAKHANDI IN SESSIONS
CASE NO. 31 OF 2016 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498(A) OF IPC AND UNDER SECTION 4 OF D.P. ACT
BY ALLOWING THIS APPEAL, CONSEQUENTLY ACQUIT THE
APPELLANTS / ACCUSED NO. 2 AND 3 OF THE CHARGES
LEVELED AGAINST THEM IN ABOVE MENTIONED CASE IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO. 100028/2018
BETWEEN:
SRI. LAXMAN S/O. KARIYAPPA DHANAGAR
AGE 31 YEARS, OCC: AGRICULTURE, NOW NIL,
R/O: BOMMANA BUDNI,
TAL: MUDHOL, DIST: BAGALKOTE.
...APPELLANT
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH PSI LOKAPUR POLICE STATION,
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR,
SPP OFFICE, HIGH COURT OF KARNATAKA, DAHRWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED
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NC: 2023:KHC-D:13759-DB
CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
07.11.2017 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, BAGALKOT TO SIT AT JAMAKHANDI IN SESSIONS
CASE NO. 31 OF 2016 BY ALLOWING THIS APPEAL,
CONSEQUENTLY ACQUIT THE APPELLANTS/ ACCUSED OF THE
CHARGES LEVELED AGAINST THEM IN ABOVE MENTIONED
CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and also the learned Additional State Public Prosecutor, appearing on behalf of State.
These two appeals are filed separately by the accused persons. Crl.A.No.100367/2017 is filed by accused nos.2 and 3 and Crl.A.100028/18 is filed by accused no.1 challenging the judgment of conviction and order of sentence passed in SC 31/2016 dated 7.11.2017 and prayed this Court to acquit the respective appellants-accused.
2. The factual matrix of the case of the prosecution is that, the complainant in the complaint has alleged that he is -4- NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 residing in Chirlakoppa village in Badami Taluk along with his family members i.e. his wife and four children. Shilpa, the daughter of complainant, was given in marriage to accused No.1. The marriage was solemnized in Shirol in Naragund Taluk in "Samuhika Marriage' occasion. After the marriage, his daughter went to her husband's house to lead marital life. It is also allegation and charge against these appellants that, the appellants subjected his daughter for dowry harassment on the ground that at the time of marriage, Rs.25,000/- and 2 ½ tola of gold was agreed to be given to the appellants but in terms of the assurance, the complainant has not given the same. The said Shilpa was abused in filthy language by her in-laws and her husband used to assault her by hands and used to ask why she is not bringing dowry. Her in-laws abetted for such assault on the ground that she has not brought dowry from her parental house.
3. The complainant requested the in-laws not to harass his daughter but they did not heed to the request. One month prior to the incident, he along with his wife, elders met them in Lokapur APMC and advised them not to give harassment and he will give dowry as promised. It is further -5- NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 stated in the complaint that, on 3.11.2018, one innocent person informed that one dead body is lying in the land of one Yallappa Dhanagar of Bommna Budni. Immediately he along with his wife and elders went to the spot at 8.00 p.m., saw the dead body and noticed that there was a mark of blood injury on the head of Shilpa and the same was informed to the police.
4. On the basis of the complaint, the Police registered a case against the accused. Accused no.1 was arrested on 4.11.2015 and accused 2 and 3 were also arrested. Police filed charge sheet against the accused under Sections 498A, 302, 304B and 109 read with Section 34 of IPC and Section 4 of Dowry Prohibition Act.
5. The trial Court took cognizance of the offences and secured the accused persons and prosecution also lead the evidence in order to prove the charges leveled against the appellants.
6. The prosecution mainly relied upon PWs. 1 to 20 and documentary evidence of Ex.P1 to P29. Defence have not lead any evidence and no documentary evidence is marked -6- NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 before the trial Court. The prosecution has also relied upon MOs 1 to 13.
7. The trial Court, having appreciated both oral and documentary evidence, convicted the accused persons for the charges leveled against them except the offence punishable under Section 304-B IPC. Accused No.1 was sentenced for the offences punishable under Section 302 and 498A and Section 4 of D.P.Act. Accused nos. 2 and 3 are convicted and sentenced for the offences punishable under Sections 498A and Section 4 of D.P.Act.
8. Being aggrieved by the judgment of conviction and order of sentence, these two appeals are filed separately by accused no.1 and accused nos. 2 and 3, respectively.
9. The main grounds urged in Crl. Appeal No.100028/17 i.e. filed by accused no.1 is that, the trial Court has committed an error in convicting the accused for the offences punishable under Sections 302, 498A IPC believing the evidence of prosecution witnesses. The prosecution mainly relied upon the evidence of PWs. 1, 4, 5 and 6 who spoke regarding the demand of dowry contending that dowry demand -7- NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 was made at the time of marriage talks of deceased Shilpa and it is a fact that an amount of Rs.1,50,000/- is kept in FD in the name of deceased and her mother PW.4 by the accused No.1. If such being the case, there cannot be further demand of dowry after some days from the date of marriage. This basic unusual conduct of the appellants prior to the marriage clearly establishes their innocence which is overlooked by the Court below while passing the impugned judgment and order of sentence.
10. Counsel also vehemently contends that witnesses 1, 2, 4, 5 and 6 are interested witnesses and their testimony is accepted and they are none other than the parents and close relatives of deceased. There is no independent witness who spoke regarding the kind of cruelty meted out to the deceased. In the absence of reliable evidence, it is incorrect to hold that the appellants were responsible for the charges levelled against them.
11. The counsel vehemently contended that it could be seen from the medical report especially the post mortem report of deceased Shilpa that, deceased Shilpa has sustained injuries -8- NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 on her head, parietal region and the same is caused with stone according to the case of the prosecution. But, the said stone has not been seized/recovered by the Investigating Officer and it does not find any place in the material objects that are marked to prove the case.
12. Further he vehemently contends that the case rests upon circumstantial evidence. In order to prove the circumstantial evidence, there must be objective of causing of death and also the recovery. The counsel would submit that though motive is alleged with regard to non-payment of dowry, the cause of death is also doubtful. Stone is not seized and the same is not made as MO. Thus, the cause of death has not been proved.
13. Counsel would submit insofar as recovery is concerned, stone is not marked as MO. Towel was also seized and the same is not sent to FSL and no report with regard to seizing of towel. It is stated that the said towel alleged to have been used for committing the murder and the same goes to the very root of the prosecution. When the motive, cause of death -9- NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 and recovery are not proved, the question of convicting the accused for the offence under Section 302 IPC does not arise.
14. The counsel would vehemently contend that even the FIR does not disclose that with the help of towel, the deceased Shilpa had been strangulated. That was subjected to analysis and no report is placed before the Court. The counsel vehemently contended that even the demand of dowry is not based on credible evidence. Therefore, the very case of the prosecution is doubtful and inspite of it, the trial Court believed the evidence of prosecution witnesses. Thus, an error is committed by the trial Court in convicting the accused- appellants.
15. The counsel in support of his argument relied upon the judgment of Hon'ble Apex Court reported in 2010 AIR SCW 3289 in the case of Niranjan Panja vs.State of West Bengal and brought to the notice of this Court Section 27 of the Evidence Act with regard to discovery on disclosure by accused and the weapon of offence said to have been discovered and not produced, the evidence of discovery cannot be relied upon. The principles laid down in the said judgment
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 are, when the witness of discovery not stating recovery of weapon of offence was made to show to the accused, when not identified by the witness, such evidence of witnesses is unreliable. Discovery not produced before the Court and the same is disbelieved and not explained, under such circumstances, the discovery was not proved. In case on hand also, counsel brought to notice of this Court at para.8 of the said judgment wherein in the Hon'ble Apex Court discussed with regard to accepting of evidence and recovery of weapon. He has also brought to the notice of this Court the observations made at paragraph 13 of the said judgment and contends that when the prosecution has not proved its case beyond reasonable doubt, the trial Court ought not to have considered the evidence of prosecution witnesses.
16. The learned counsel also relied upon the Judgment of Hon'ble Apex Court reported in (2021) 13 SCC 716 in the case of Jaikam Khan vs. state of Uttar Pradesh wherein the Hon'ble Apex Court has held that, all statements made in the memo with regard to the confession of committing the crime would not be admissible in evidence and only such information, which distinctly relates to the discovery of facts would be
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 admissible under Section 27 of the Evidence Act, hence alleged recovery of weapon held not believable. Therefore, the learned counsel submits that the trial Court ought not to have convicted the accused persons.
17. Counsel vehemently contended that, on examination of accused, in the absence of explanation, the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Evidence Act to establish that he was not guilty. If the prosecution proves beyond reasonable doubt, giving explanation also does not arise. He brought to the notice of this Court paragraphs 58, 69 and 73 insofar as it relates to explanation under Section 313 of Cr.PC. The counsel would submit that when the prosecution has failed to prove its case beyond reasonable doubt, conviction of accused does not arise.
18. In support of his argument, the learned counsel for the appellants has brought to our notice the judgment of Hon'ble Apex Court reported in AIRONLINE 2022 SC 483 in
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 the case of Satye Singh vs.State of Uttarakhand and relied upon the observations made at paragraphs 10, 11, 15 and 16 wherein the Hon'ble Apex Court has made an observation that when prosecution having failed to prove the basic facts as alleged against the accused, the burden could not be shifted on the accused under Section 106 of the Evidence Act and question of any explanation does not arise.
19. Per contra, Sri M.B.Gundawade, the learned Add.SPP appearing for respondent-State submits that the trial Court having considered the material available on record has rightly come to the conclusion that prosecution has proved the case against all the accused persons. The marriage was performed on 26.01.2015. The death has occurred on 3.11.2015 i.e. within nine months of the marriage. He would submit that PWs 1, 4, 5 and 6 have categorically deposed that parents of deceased had assured that they would give Rs.25,000/- and two and half tola of gold. Inspite of PW.1 and other elders and family members in the village have assured that they are going to meet the demand, but the accused did not heed to their advise and committed the murder of the deceased.
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018
20. He vehemently contends that PW.9 clearly deposed with regard to cruelty meted out to the deceased. Counsel also relies on the evidence of the Doctor examined as PW.16, who categorically deposed with regard to external injuries/marks inflicted on the deceased and the death and as well as PW.10 has spoken with regard to he seeing the accused no.1 with the victim proceeding to the land.
21. PW.10 is last seen witness. He has not disputed about he seeing the accused and deceased in his examination- in-chief but, this last seen witness has turned hostile during his cross-examination. Even PW.1 had seen his daughter lying in the sugarcane crop in the land of Yellappa Dhanagar.
22. The learned Addl.SPP would vehemently contend that when accused No.1 and the deceased both were going together to the lands on the same day, he ought to have explained but the same has not been explained. He also contends, the articles which have been seized i.e. cloths of the accused No.1 also sent to FSL and the report is positive. He further submits with regard to recovery of the stone is concerned. He has relied upon the photographs and contends
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 that the stone which found at the spot is heavy stone and the same cannot be seized and allegation against the accused No.1 is that he dashed it against the head of the victim and on the stone. The blood stains were taken in a cotton cloth and the same is seized and marked as MO.3 and the same is spoken to by the Investigating Officer. The counsel also brought to the notice of this Court that Ex.P4 photographs which depict the size of the stone. The other contention of the appellants' counsel that, towel was not sent to FSL and FSL report and articles which have been sent to FSL, the towel does not find a place and no report with regard to the towel is concerned, PW.19 evidence is also clear with regard to the seizure of the same and it was subjected to Mahazar and the spot inspection is also done in the presence of the accused.
23. The learned Addl.Public Prosecutor also submits that even with regard to accused nos. 2 and 3 in-laws of deceased, at their instance only, accused no.1 has committed the offence and hence they are guilty of the offence charged against them. There is material evidence and the same has also been considered and the trial Court passed judgment of
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 conviction and order of sentence for the charges leveled against them.
24. Having heard the appellants' counsel and also the Addl.SPP for the State and also the grounds which have been urged in both the appeals as well as during the course of admission, the following points would arise for our consideration:
(1) Whether the trial Court has
committed an error in convicting
accused Nos. 2 and 3 for the
offences invoked against them under
Section 498A of Indian Penal Code
and 4 of Dowry Prohibition Act and
whether the same requires
interference by this Court?
(2) Whether the trial Court has
committed an error in convicting
accused no.1 for the offence
punishable under Section 302 and
Section 498A of Indian Penal Code
and Section 4 of Dowry Prohibition
Act and whether the same requires
interference?
(3) What order?
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NC: 2023:KHC-D:13759-DB
CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
Regarding Point No.1:
25. The appellant nos. 2 and 3 in their appeal have urged that the trial Court has committed an error in relying upon the evidence of PWs.1, 4, 5, 6 and 8 who have supported the case of the prosecution as they are interested witnesses and all are relatives. It is also important to note that PW.1 is the father of the victim and he relies upon his own evidence Ex.P1 the complaint averments. PW.4 is the mother of the victim and PW.5 is uncle of the victim. PW.6 is the elder member of the village and he also supported the case of the prosecution. PW.8 is Mediator to the Marriage and also supported the case of the prosecution. PW.7 is an elder of the village, though he spoke about the family of accused and the deceased, he did not support the case of the prosecution. PW.9 is neighbour of accused but, he turned hostile. PW.10 is also an elder and spoke about accused but, he also turned hostile and not supported the case of the prosecution. PW.11 the scribe of the complaint has stated that he wrote the complaint on the instructions of PW.1 and supported the case of the prosecution but turned hostile.
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018
26. PW.12 is the brother of accused no.3 he spoke about the relationship of accused to him and he has turned hostile. PW.13 is the Police Constable working in Lokapur Police Station. He has taken the FIR copy to the Court. PW.14 is also a Police Constable who arrested accused nos.2 and 3 and produced before the Investigating Officer. PW.15 is the Engineer, who prepared sketch of scene of occurrence. PW.16 is the Doctor working in Lokapura Primary Health Centre as Medical Officer. He has conducted postmortem of deceased. The other witness PW.17 is the Investigating Officer who has conducted partial investigation. PW.18 is PSI who was on duty in Lokapura Police Station and received the complaint and registered the FIR. PW.19 is ASP who has conducted further investigation. He has conducted inquest panchanama along with the Tahsildar who was examined as PW.20 before the Court.
27. Having perused the material available on record, particularly, evidence of PW.1 who spoke about the marriage talks held between the family of accused with complainant's family and speaks with regard to non-payment of agreed amount of Rs.25,000/- and also 2½ tola of gold. In the cross-
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 examination of PW.1, it is elicited that an amount of Rs.1,50,000/- was kept in deposit in SBI, Kulageri Cross Branch and not disputes the same. The suggestion was made that his daughter accidentally fell and sustained injuries, he has denied the same. He also admits in the complaint that he did not give any complaint prior to the incident complaining about the quarrel between his daughter and accused No.1. The other witnesses i.e. PW.4, mother of the deceased reiterated the evidence of PW.1 and PW.2 and not disputed the fact of keeping the amount in deposit in the joint name of accused and his daughter. PW.5 is also uncle of the deceased and he also speaks stating that he went to the spot on receiving the information. Though he speaks about accused nos. 2 and 3 instigating accused no.1 and when a suggestion was made that no such instigation was made, the same is denied.
28. PW.6 is the elder of the village who, in his evidence, says that he is the elder member and also participated in marriage talks and also he participated in Panchayat and advised accused persons. In the cross-examination, he admits that he cannot tell when the marriage was performed. He also says no document is prepared in connection with marriage i.e.
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 `Yadi'. He also deposed about the Fixed Deposit kept in the bank in the joint names. He says Panchayath was held 15 to 20 days prior to the death of Shilpa.
29. The other witnesses i.e. PW.8 the Mediator for the marriage also reiterates that there was assurance to pay the sum of Rs.25,000/- and 2½ tolas of gold and also says that Panchayath was held and thereafter, she was sent to matrimonial home. But, in the cross-examination, she admits that the family of complainant is not well of and the accused family are well of. All these witnesses say that Panchayath was held one month prior to the incident and they went to the spot directly. The PW.8 also admits that near the place of the body there was a stone and this witness also admits about the money kept in FD.
30. Having considered the version of these material witnesses i.e. PWs. 1, 4, 5, 6 and 8 and though these witnesses speak about the assurance given regarding payment of Rs.25,000/- and 2½ tola of gold, material available before the Court is very clear that the same was not given and hence, they were insisting to give the same and also submits that
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 Panchayath was held and having considered these materials, same does not inspire confidence in the mind of the Court. With regard to payment of Rs.25,000/- and 2½ tola of gold, which is elicited in the evidence of the prosecution that all the witnesses have categorically deposed that prior to the marriage, an amount of Rs.1,50,000/- was kept in SBI in the name of deceased and her mother by accused No.1. If really they had kept the amount in FD to the tune of Rs.1,50,000/- what was the necessity for them to demanded dowry of Rs.25,000/- and 2½ tola of gold is not explained. Nothing is before this Court except the prosecution witnesses speaking about the same and admitting the fact of amount kept in FD. Under the circumstances, the very case of the prosecution that complainant had agreed to pay an amount of Rs.25,000/- and also to give 2½ tola of gold cannot be believed. Thus, there is a force in the contention of the appellants' counsel that if there was any demand of dowry and no explanation on the part of the prosecution with regard to deposit of amount that too in the name of deceased and her mother-PW4.
31. The Investigating Officer who has conducted the investigation has been examined as PW.19. He categorically
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 says that this marriage is a second marriage and hence, an amount of Rs.1,50,000/- was kept in FD prior to the marriage and the statement of this witness clearly discloses that this is second marriage and earlier marriage was dissolved and later contracted to this marriage. When such being the case, witnesses have not spoken anything in specific about the dowry demand at the instigation of accused nos.2 and 3 and consequent assurance given on the side of the deceased family except the omnibus allegation made against the accused No. 2 and 3 that accused no.1 used to assault the deceased at the instigation of accused nos. 1 and 2.
32. We have given our anxious consideration to the material available on record to find out whether the trial Court committed an error in convicting accused nos.2 and 3 who are the appellants in Crl.Appeal No.100367/2017. In view of our above discussion, we do not find any material before the Court with regard to demand of dowry and also subjecting the deceased to cruelty by accused nos.2 and 3 and hence, this Court comes to the conclusion that judgment of conviction and order of sentence passed by the trial Court against accused No.
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 2 and 3 requires interference by this Court and also the sentence imposed upon them requires to be set aside.
Hence, we answered Point No.1 in the affirmative. Reg.Point No.2:
33. The case of the prosecution against accused no.1 is that, he had committed the murder. On perusal of material available on record and the reasons given by the trial Court, the trial Court has convicted the accused for the offences punishable under Section 302. Having perused the material witness evidence that dead body was found in the property of PW.12 and no doubt PW12 has not supported the case of the prosecution but, the fact is that, the body was in his property is not disputed. Mahazar was drawn in the very said property and Mahazar witnesses who have been examined as PWs. 2 and 3 also supports the case of the prosecution. PW.2 categorically says he went to the spot and he was present at the time of drawing of the Mahazar in terms of Ex.P5 the Inquest Panchanama and he also speaks that he has seen injuries on the head and also over the neck and there were no bangles in her hand. No doubt this witness, who says that he does not know what has been written in the Mahazar, but he also
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 deposes that he has signed the document when the Police and Tahsildar told him to make the signature but he admits that photo was taken at the time of conducting Mahazar. In the cross-examination, there is no denial of taking of photographs.
34. The other witness PW.3 who is also the witness to Ex.P2 and 3 and also photographs which were taken also reiterates the nature of injuries found on the dead body. PW.1 showed the stone and Police have drawn the Mahazar and he also identifies the seizure of objects at the spot marked at MOs. 1, 2 and MO.3. This witness is subjected to cross-examination. Except making suggestion with regard to drawing of Mahazar, nothing is elicited from the mouth of PW.3. No doubt, PWs. 1 and 4 are the father and mother of the victim but they speak about the marriage talks held prior to the marriage and also PW.1 says that his daughter used to inform them about accused subjecting her to cruelty. PW.5 has also uncle of PW.6 & 8 are the witnesses who have participated in the marriage talks and negotiations.
35. It is important to note that the prosecution mainly relied upon the evidence of PW.10 in order to prove the
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 circumstances and the last seen witness. PW.10, who is an Archak, categorically says that when he was in Kariyamma Temple in the village, he saw the deceased along with accused No.1 going to the land and on the same day, he came to know that victim was murdered and he also learnt that accused No.1 had committed her murder. This witness is treated as hostile in part and the accused counsel even not disputes the last seen theory of the prosecution by this witness. By cross-examining this witness, the evidence of PW.10 remains unchallenged, who is last seen witness and no suggestion is made that he had not seen both victim and accused No.1.
36. It is noticed that the Doctor, who is examined as PW.16, has conducted the postmortem on the deceased. In his evidence, he listed out total fifteen injuries. Out of the said injuries, injuries found on the left cheek and also right thigh both of them are crush injuries and also the injury in the right ribs is also a crush injury. He also found injuries on the right ear, on the head and also there were ligature marks surrounding the neck and crush injuries on the left shoulder. Apart from that, it is important to note that hyoid bone was fractured and there were injuries on the right hand and also all
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 over the body. The doctor has opined that these injuries are ante-mortem in nature. It is also noticed by the Doctor that there was uncontrolled urine pass and toilet was also noticed when the postmortem was conducted. He has given the report as per Ex.P18. He has opined that the death is on account of severe head injury on the back side and also due to strangulation and asphyxia. The ligature marks were found and the same may be caused by use of MO.4-jeans pant. No doubt, in the cross-examination of this witness, it is elicited that if a person falls on the stone, there are chances of sustaining such kind of injuries. He has denied the suggestion that when a woman falls, such injuries may cause due to Mangalasutra in her neck. He also says if a person falls from 4 ft. height on the stone, such injuries may cause.
37. Having perused the medical evidence, it is clear that it is a case of homicidal death and not a death on account of accidental fall, considering the injuries found on the dead body. If it is a case of an accidental fall on a stone, one or two injuries could have been sustained and not injuries almost over the face, including thigh, chest, shoulder and also the head. There was also a fracture of the hyoid bone. Hence, it is clear
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 that it is a case of homicidal death. When PW10 states that both the accused and deceased were together in the early morning and were proceeding to their land, it is important to note that the dead body was found on the land of PW12, which is outside the house. It is also important to note here that the eyeglasses of the accused were seized, and the baniyan and jeans pant of the accused were also stained with blood. The FSL report is also positive that the said clothes were bloodstained. The counsel appearing for the appellants brought to the notice of this Court that in the FSL report, which is marked at Ex.P29, there is no doubt Article No.4 is missing in the said report. Having perused the opinion at Ex.P29, it is clear that there is an opinion with regard to Article No.4, and it is not a technical error to disbelieve the case of the prosecution, since in the description of the articles, pant is mentioned as article No.4, though not in the list but in the method of analysis list, the opinion is very clear about the presence of bloodstains detected in articles No.1, 2, 3, 4, 5, 6, 7 & 8 and it was opined that the stained blood is human blood of 'A' blood group. No doubt there is force in the contention of the appellant's counsel that stone was not seized. We have
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 already pointed out that the stone available at the spot of the incident was a bigger stone, and it is clear evidence of the investigating officer, who has been examined as PW19, that he collected the bloodstains found on the stone and same was seized, which is marked at M.O.1 to 3. When such being the case, it is also not practicable to seize such a big stone depicted in the photograph marked at Ex.P4.
38. The contention of the counsel for the appellant is that stone was not seized and hence, the case of prosecution cannot be believed and the said submission cannot be accepted. The other contention of the accused is that though a towel kept under the stone was seized, the same was not sent to FSL, and the report is also silent with regard to sending the same to the FSL, which would go to the very root of the case of the prosecution.
39. Having perused the evidence of PW10, who speaks about the deceased and accused No.1 being together on the date of the alleged incident, and the evidence of PW16-doctor, it is very clear that the time since death was 16 to 20 hours, and the same matches the timings spoken to by PW10 in his
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 evidence. The accused No.1 has to explain with regard to what happened to his wife when she was with him on the alleged date of the incident in the morning. On the said day, both of them were moving together and no explanation has been given by the accused No.1. It is also important to note that the clothes of the accused No.1, which were bloodstained, were seized and he was taken to custody on the very same night. No explanation is given by accused No.1 in his statement recorded under 313 of Cr.P.C., and it is the bounden duty of accused No.1 to explain with regard to incriminating evidence available on record. The material available on record makes it very clear that the marriage of the deceased with accused No.1 was solemnized just nine months prior to death of the deceased. The prosecution has established the chain of events with regard to the PW10 witnessing both the accused No.1 and the deceased on the very same day and the time since death opined by the doctor (PW16) also links with the case of the prosecution. It is also important to note that the marriage was solemnized on 26.01.2015 and the death of the deceased took place on 03.11.2015. The witnesses in their examination-in- chief have also deposed about the panchayath held and in their
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 cross-examination, they have not denied the same. It is also important to note that during the course of cross-examination of prosecution witnesses, a defence was taken that the deceased had accidentally fallen down and sustained injuries, but how the deceased sustained nearly 15 injuries on her person is also not explained by accused No.1 if it is accidental fall. The photographs that have been produced before the Court clearly depict the seizure of the bloodstained clothes of accused No.1 and the witnesses also speak about the seizure of the same, particularly the material objects that have been marked before the Trial Court. The Trial Court has considered the evidence of PW1, PW4, PW5, PW6 and PW8. Though their evidence does not inspire confidence with regard to the demand for dowry and the panchayath that was held, the fact remains that the deceased was along with accused No.1 on the very same day of the incident. The evidence of PW10 was not disputed during the course of cross-examination and it remained unchallenged. Apart from that, the evidence of PW16- doctor also supports the case of the prosecution and how the deceased sustained injuries, found on her dead body, has also not been properly explained by accused No.1. The
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 circumstances unerringly point towards accused No.1 for commission of the murder of his wife. It is also not the defence of accused No.1 that some miscreants have committed the murder of his wife and his defence is that, she accidentally fell down and sustained injuries, which cannot be believed. The Trial Court has also taken note of all these materials available on record and has come to the conclusion that accused No.1 is guilty of committing the murder of his wife. The Trial Court has also taken note of the very suggestion made by the learned counsel for the accused during the course of cross-examination of PW8 with regard to holding panchayath. The said witness deposed regarding holding panchayath in connection with quarrel between accused No.1-husband and deceased-wife. There was a suggestion made to PW8 in his cross-examination and he deposed that a panchayath was held and both accused No.1-husband and deceased-wife were advised to be cordial, which also supports the case of the prosecution with regard to differences between husband and wife and the said circumstance also establishes the link between the motive of accused No.1 for committing murder of his wife since both of them were not in cordial terms.
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018
40. The FSL report also establishes links with regard to the seizure of bloodstained clothes belonging to accused No.1, but there is no explanation by him. The prosecution has established the chain link between the circumstances. This Court would like to refer to the decision of the Hon'ble Apex Court in State of Himachal Pradesh v. Rajkumar1 wherein the Hon'ble Apex Court has categorically held that when a chain of circumstances establishes and unerringly points to the guilt of the accused, under such circumstances, the Court can even draw an inference that the accused has only committed the offence. It also emerges from the evidence of the witnesses that the victim is the second wife of accused No.1 and prior to marriage, amount of Rs.1,50,000/- was kept in F.D. It also clearly shows that with condition of depositing money in F.D., the marriage was solemnized, and all these factors are taken note by the Trial Court. The Trial Court has not committed any error in convicting the accused No.1 for the offence punishable under Section 302 of the IPC since it is deposed by the witnesses that the accused was advised in the panchayath to be cordial with his wife. This also attracts the offence under 1 (2018) 2 SCC 69
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 Section 498-A of the IPC. But in order to prove the ingredients of offence under Section 4 of the Dowry Prohibition Act, we do not find any material, and hence, convicting the accused No.1 for the offence punishable under Section 4 of the Dowry Prohibition Act requires to be set aside.
41. In regard to the commission of offence under Section 302 and 498-A of the IPC, the Trial Court has not erred in appreciating the evidence available on record. The Trial Court has particularly taken note of the evidence of PW10- eyewitness, the medical evidence of PW16, the evidence of PW1, PW4, PW5, PW6, PW8, and also the evidence of panch witnesses PW2 and PW3, which all cumulatively establish the very role of accused No.1 in committing the murder of the deceased, and no explanation is given by accused No.1 with regard to when she was along with him and when she sustained injuries. He pretended and informed the relatives that the deceased accidentally fell down and sustained injuries. The nature of injuries found in postmortem report Ex.P18 and also the evidence of the PW16-doctor corroborate the case of the prosecution. No doubt the counsel appearing for the appellant brought to the notice of this Court the judgments that have
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 been referred to above, and the same is in respect of recovery and discovery. The said judgments will not come to the aid of the appellants-accused and the question of invoking Section 27 of the Indian Evidence Act does not arise. The prosecution has not discovered any incriminating article at the instance of the accused No.1 and the same is not applicable to the facts of the case on hand. In the case of State of Himachal Pradesh v. Rajakumar referred to supra the Hon'ble Apex Court has categorically held that, in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and though circumstances must be conclusive in nature, they unerringly point towards the guilt of the accused. Moreover, all circumstances, taken cumulatively, should form a complete chain, and there should be no gap left in the chain of evidence. It is also further observed that, while appreciating the evidence of the witnesses, the approach must be to determine whether the evidence of the witnesses read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the Court to scrutinize the evidence, particularly keeping in view the drawbacks and
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 infirmities pointed out in the evidence and evaluating them to find out whether it is against the general tenure of the prosecution's case.
42. Having analyzed the principles laid down in the judgment referred supra, the same is aptly applicable to the case on hand. Each chain link has been established by the prosecution and inference can be drawn when the cogent evidence is available before the Court. The same firmly established since there were differences between husband and wife. The marriage was taken place just nine months prior to the death of the deceased-wife. Apart from that, last seen witness evidence is also conclusive and the same is unchallenged. Several injuries i.e. 15 injuries were found on the dead body of the deceased and there is also no explanation by the accused No.1. When the bloodstained clothes of the accused No.1 were also recovered and the FSL report is also positive, non-placing of report given by the FSL will not take away the case of the prosecution and it goes to the root of the case. All other chain links are established and point towards the accused No.1 only. It is accused No.1, who committed the murder of his wife and pretended that she died on account of
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 injuries sustained by her due to an accidental fall on a stone. If she could have accidentally fallen and sustained injuries, the accused No.1 ought to have taken her to the hospital, but such an attempt was not made by him. PW10 also deposed in his evidence that both accused No.1 and the deceased were together on the date of the incident. The time since death also corroborates with the timings mentioned by PW10 and also the evidence of the PW16-Doctor that death occurred 16 to 20 hours prior to PW10 last seen the accused No.1 along with the deceased. No explanation is offered by accused No.1. If the accused No.1 has not committed murder of the deceased, being a husband and prudent person, he could have taken her to the hospital instead of informing relatives that she accidentally fell down and sustained injuries. Throughout the cross-examination of prosecution witnesses, the very same defence is taken, and such a theory of defence cannot be accepted. The materials available on record unerringly point out the guilt of accused No.1 in committing the murder of his wife. We have given our anxious consideration to the materials available on record with regard to chain of events and confirm the judgment of the Trial Court in convicting accused No.1 for the offence punishable
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 under Section 302 and 498-A of the IPC, and we answer point No.2 in the negative. In view of the above discussions, we pass the following:
ORDER
i) The appeal filed by appellants-accused No.2 and 3 is allowed and the judgment of conviction passed by the Trial Court convicting accused No.2 and 3 for the offence punishable under Section 498A and 4 of the D.P. Act is hereby set aside and they are set at liberty.
ii) The deposit of fine amount, if any, by accused No.2 and 3 is ordered to be refunded digitally to their accounts on proper identification.
iii) The bail bonds executed by accused No.2 and 3 are hereby cancelled.
iv) The appeal filed by appellant-accused No.1 is hereby allowed in-part.
v) The judgment of conviction passed by the Trial Court convicting accused No.1 for the offence punishable under Section 4 of the D.P. Act is hereby set aside and the deposit of fine amount, if any, made by accused No.1 is ordered to be
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NC: 2023:KHC-D:13759-DB CRL.A No. 100367 of 2017 C/W CRL.A No. 100028 of 2018 refunded digitally to his account on proper identification.
vi) However, the judgment of conviction and order on sentence passed by the Trial Court against accused No.1 for the offence under sections 302 and 498-A of the IPC is confirmed and the fine imposed for commission of the said offence is also maintained.
Sd/-
JUDGE Sd/-
JUDGE SK, YAN