Karnataka High Court
Tippanagouda vs State Of Karnataka on 15 September, 2023
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CRL.A No.2747 OF 2013
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.2747 OF 2013
BETWEEN:
1. TIPPANAGOUDA SANGANAGOUDA SHINNUR
AGE: 24 YEARS
OCC: TEACHER
R/O.NEKAR ONI,
GAJENDRAGAD, TQ: RON
2. SANGANAGOUDA THIPPANAGOUDA SHINNUR
AGE: 58 YEARS
OCC: NEKAR ONI, GAJENDRAGAD
TQ: RON
3. SUNDRAWWA SANGANAGOUDA SHINNUR
CHANDRASHEKAR
LAXMAN AGE: 50 YEARS
KATTIMANI
R/O.NEKAR ONI, GAJENDRAGAD
Digitally signed by TQ: RON
CHANDRASHEKAR
LAXMAN
KATTIMANI
...APPELLANTS
(BY SRI.M.B.GUNDAWADE AND
SRI.S.S.KOLIWAD, ADVOCATE)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD
THROUGH GAJENDRAGAD POLICE
...RESPONDENT
(BY SRI.PRAVEEN UPPAR, HCGP)
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CRL.A No.2747 OF 2013
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 31.07.2013 PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, GADAG, IN S.C.
NO.30/2007 FOR THE ALLEGED OFFENCES P/U/S 498-A, 304-B, 306
R/W 34 OF IPC AND SEC. 3 & 4 AND 6 OF DP ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
07.06.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Appellants/Accused Nos.1 to 3 feeling aggrieved by judgment of Trial Court on the file of Addl. District and Sessions Judge, Gadag, in SC.30/2007, dated 31.07.2013 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that marriage of accused No.1 with daughter of complainant Laxmibai was performed on 05.11.2005. Accused Nos.2 and 3 are the parents of accused No.1. Accused have demanded and -3- CRL.A No.2747 OF 2013 accepted dowry of Rs.1,00,000/- before the marriage. After some time of the marriage, all the accused started ill treating and harassing Laxmibai on demanding to get motor cycle from her parents for the use of accused No.1. On account of ill treatment and harassment of accused, being unable to sustain the same committed suicide by jumping in to the dried well within seven years of her marriage. The prosecution further alleges that all the accused have abetted by putting pressure on Laxmibai to get motor cycle from her parents and on account of such abetment of accused, the daughter of complainant Laxmibai committed suicide. On these allegations made in the complaint, the Investigating Officer after completing of investigation filed the charge sheet.
4. Accused have appeared through their counsel. The Trial Court on being prima facie satisfied of the charge sheet material framed the charge against accused for the offences alleged against them. Accused have pleaded not guilty and claimed to be tried. Prosecution to prove the allegations made against accused relied on the evidence of -4- CRL.A No.2747 OF 2013 PWs.1 to 28 and the documents at Exs.P.1 to 35, so also got identified Mos. 1 to 3, Exs.D.1 to D.3 came to be marked from the defence side.
5. On closure of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused have denied all the incriminating materials appearing against them and claimed that false case is filed. The Trial Court after appreciation of oral and documentary evidence has convicted all the accused for the offences alleged against them.
6. Appellants/accused challenging judgment of conviction and order of sentence contended that date, time not mentioned in the charge sheet and defect in charge vitiates the entire proceedings. Other than the general allegations, there is no any evidence on record to prove the deceased Laxmibai was ill treated and harassed on demand of any dowry. The contents of the complaint Ex.P.18 and the statement given by PW.18 before Taluk Executive Magistrate PW.8 as per Ex.P.19 are contrary to each others version on demand of dowry. The evidence of -5- CRL.A No.2747 OF 2013 PWs.2 and 6 would go to show that they were not present at the time of marriage settlement. The evidence of PWs.1, 18 to 20 is silent on demand of dowry. Similarly the evidence of PWs.1 and 4 regarding delivery of letter of deceased Laxmibai Ex.P.21 is unreliable. The evidence on record would go to show that accused No.1 is serving in a Government Primary School and constructed two new houses at Gajendragad which fact would demonstrate that family of accused is financially sound and there was no any question of demanding property or dowry from the parents of deceased Laxmibai. The approach and appreciation of oral and documentary evidence by the Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment of conviction and order of sentence passed by Trial Court. Consequently, to acquit all the accused from the charges leveled against them.
7. In response to notice of appeal the learned High Court Government Pleader has appeared for respondent.
8. Heard the arguments of both sides.
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CRL.A No.2747 OF 2013
9. On the basis of material evidence placed on record, the following points arise for consideration :-
1) Whether the prosecution has proved beyond all reasonable doubt that accused No.1 being the husband of deceased Laxmibai and accused Nos.2 and 3 being in-laws received an amount of Rs.100,000/-as dowry and all of you insisted by demanding to get motor cycle from her parents, thereby subjected Laxmibai to mental and physical cruelty and thus committed offence under Section 498A read with 34 of IPC?
2) Whether the prosecution further proved that daughter of complainant Laxmibai on account of ill-treatment and harassment on demand of dowry and to get motor cycle from her parents being fed up with such ill-treatment on 05.11.2005 committed suicide by jumping into the dried well thereby committed an offence under Section 304(B) read with Section 34 of IPC ?
3) Whether the prosecution further proved that on account of ill-treatment and harassment of accused and insisted to get motor cycle for accused NO.1 by way of dowry and abated Laxmibai to commit suicide due to which she committed suicide by jumping into dried well -7- CRL.A No.2747 OF 2013 thereby committed offence under Section 306 R/w Section 34 of IPC?
4) Whether the prosecution further proved that, accused have demanded and received dowry of Rs.1,00,000/- and further insisted to get motor cycle by way of dowry thereby committed the offence under Section 3, 4 and 6 of the Dowry Prohibition Act ?
5) Whether the judgment of Trial Court requires any interference at the hands of this Court?
10. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that the marriage of accused No.1 with the daughter of complainant deceased Laxmibai was performed on 05.11.2005 and deceased Laxmibai died on 05.02.2007 within seven years of her marriage and her dead body was found in the dried well. Accused Nos.2 and 3 are the parents of accused No.1 and after marriage of accused No.1 with the daughter of complainant Laxmibai they were all residing together in the same house. Accused No.1 is a teacher working in Government Primary School, Thintani -8- CRL.A No.2747 OF 2013 are the facts not in dispute and the same also can be borne out from the material evidence placed on record.
11. The prosecution alleges that accused have demanded and accepted dowry of Rs.1,00,000/- before the marriage. After some time of marriage at the instigation of accused No.1 all the accused started ill treating and harassing the daughter of complainant Laxmibai on demand of motor cycle for the use of accused No.1. On account of such ill treatment and harassment, the daughter of complainant Laxmibai being fed up with continuous torture committed suicide by jumping into the dried well. The prosecution further alleges that all the accused have abated the daughter of complainant Laxmibai and it is on account of such abatement Laxmibai committed suicide. It is further alleged that all the accused being not satisfied with the dowry of Rs.1,00,000/- given before the marriage started ill treating and harassing Laxmibai to get motor cycle from her parents.
12. The prosecution to substantiate the said allegations mainly relies on the evidence of PWs.1, 2, 6 and 18 to 20 -9- CRL.A No.2747 OF 2013 about alleged ill treatment and harassment of accused to prove the offence under Section 498A and Section 3, 4 and 6 of Dowry Prohibition Act. The prosecution also relies on circumstantial evidence in the form of PW.1 and PW.4 regarding the delivery of letter given by Laxmibai to her father PW.18 just before the death. PW.6 and PW.11 are the panch witness to the spot panchanama Ex.P.2, coupled with the evidence of PW.17 and PW.21 to prove the existence of dried well. PW.6 is co-panch witness to spot panchanama Ex.P.2 and panch witness to the seizure of note-book under seizure panchanama Ex.P.3 produced by complainant PW.18 said to have contained the handwriting of deceased Laxmibai. PW.15 and PW.28 are the doctors who have conducted autopsy of deceased Laxmibai and issued PM Report Ex.P.15 and PW.15 has given clarification of the injuries sought by Investigating Officer Ex.P.16. PW.17 FSL examiner given the report Ex.P.29 and the opinion Ex.P.30. The said evidence is sought to be corroborated by the evidence of Investigating Officers PWs.23, 25 and 26. The evidence of these witnesses will
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CRL.A No.2747 OF 2013 have to be appreciated in the light of case of the prosecution.
13. On careful perusal of the evidence of PW.15 and PW.28 and the PM Report Ex.P.15, it would go to show that the deceased Laxmibai sustained the following injuries:-
i) Contusion over the right side of forehead 6 x 5 cms. bone deep and reddish in colour.
ii) Compound fracture left wrist bones radius and ulna fracture measuring 6 x 5 cms.
and reddish in colour.
iii) Contusion over right knee joint 5 x 6 cms.
and reddish colour.
iv) Contusion over left knee joint 4x 6 cms.
and reddish in colour.
v) Abrasion over left thigh measuring 8x5cms. reddish colour.
vi) Contusion over right elbow measuring 1x1 cm. reddish in colour.
On internal examination found the following injuries:-
i) Fracture on frontal bone in the skull.
ii) Membrane of the brain was having
laceration at frontal region and right
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CRL.A No.2747 OF 2013
frontal cerebrum lacerated blood clot was present.
PW.15 is of the opinion that cause of death is due to head injuries as a result of sustained injuries. The opinion is also given as per Ex.P.16 that the external and internal injuries found at the time of PM examination of Laxmibai can be caused if a person falls from a height.
14. The evidence of Pws.1 and 4 would go to show that deceased Laxmibai having given the letter Ex.P.21 and 22 just before her death to PW.4 who in turn delivered the same to PW.18 father of deceased Laxmibai. The defence though has subjected PWs.1 and 4 to lengthy cross- examination, but nothing worth material has been brought on record during the course of their cross-examination.
15. The evidence of PWs.6 and 11 would go to show that they are the panch witnesses to the spot panchanama Ex.P.2 and PW.6 is also panch witness to the seizer panchanama Ex.P.3, whereunder, the hand written notebook of deceased Laxmibai produced by her father PW.18 has been seized. PW.17 has spoken about the
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CRL.A No.2747 OF 2013 issuance of Ex.P.17 for having issued the certificate that in the land bearing R.S.NO.40/1 C.P measuring 1 acre and 22 guntas of Unachigeri village regarding existence of well which is called as Sadar Gaddige Bhavi. The evidence of PW.21 would go to show that on hearing about the death of a women in the dried well went to spot and he has lifted the body from the well, so also found that she died due to injuries sustained by her. The defence has not elicited anything worth material to discredit their evidence. Therefore, the prosecution out of the evidence of above referred witnesses has established the death of Laxmibai due to injury sustained by her and her dead body was found in the dried well situated in R.S.NO.40/1 C.P measuring 1 acre and 22 guntas of Unachigeri village.
16. The evidence of PW.6 and the Investigating Officer PW.23 would go to show that complainant has produced Exs.P21 and 22, the letters delivered to PW.4 to the father of deceased Laxmibai PW.18 who produced the same before the Investigating Officer PW.23 and he has also produced the note book containing the hand writing of
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CRL.A No.2747 OF 2013 deceased Laxmibai Ex.P.5. The same were seized under the panchanama Ex.P.3. The defence during the cross- examination of PWs.6 and 23 have never specifically denied the seizure of Ex.P.21 and P.22, the letters of deceased Laxmibai handed over to PW.4 who in turn delivered the same to father of deceased Laxmibai PW.18, further PW.18 having produced the notebook containing the handwriting of deceased Laxmibai which were seized under the panchanama Ex.P.3. Therefore, there are no any valid reason to discard the evidence of PWs.6 and 23 regarding the seizure of Ex.P.21, P.22 and Ex.P.5 produced by the father of deceased Laxmibai PW.18.
17. The evidence of PWs.1 and 4 would go to show that they have spoken about deceased Laxmibai delivering the letter addressed to her father and uncle Ex.P.21. PW.4 has delivered the said letter to PW.18 father of deceased Laxmibai. The another letter is addressed to accused No.1 Ex.P.22. These two writings of deceased Laxmibai under Exs.P.21 and P.22 marked as QD-1, 2, 3 were subjected to FSL examination with the admitted writing of deceased
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CRL.A No.2747 OF 2013 Laxmibai in the notebook produced by PW.18 under the panchanama Ex.P.3. PW.27 FSL examiner after examining the QD-D.1 to QD.3 with the writings of deceased Laxmibai with the notebook seized under the panchanama Ex.P.3 marked as S.1 to 39 and S.1a to S.39a by the FSL examiner and gave report as per Ex.P.29 with the detailed opinion Ex.P.30 for having compared the disputed signature QD-D.1 to QD.3 and the admitted writing of deceased Laxmibai marked as S.1 to S.39 and S.1a to S.39a. The FSL examiner PW.27 has recorded the following opinion:-
"The person who wrote the red enclosed standard writings stamped and marked S.1 to S.39, S.1a to S.39a also wrote the red enclosed questioned writing similarly stamped and marked QD.1 to QD.3."
The defence though has subjected PW.27 to lengthy cross- examination nothing worth material has been brought on record to discredit his evidence recorded in Exs.P.29 and P.30. The prosecution from the above material evidence on record has proved the proper custody and delivery of
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CRL.A No.2747 OF 2013 Exs.P.21 and P.22, the hand-written letter of deceased Laxmibai which she has handed over to PW.4 just before her death, who in turn delivered the same to PW.18 the father of deceased Laxmibai. The writings in Exs.P.21 and 22 marked as QD.1 to QD.3 said to be of deceased Laxmibai was subjected to FSL examination with the writing of deceased Laxmibai in the notebook delivered by her father PW.18 which was seized under panchanama Ex.P.3. The evidence of PW.27 would go to show that he has recorded the opinion after examining the disputed and admitted writing of deceased Laxmibai as referred above, that the person who wrote S.1 to S.39, S.1a to S.39a also wrote the red enclosed questioned writings similarly stamped and marked QD.1 to QD.3. Therefore, it will have to be accepted that deceased Laxmibai written Exs.P.21 and P.22 just before her death.
18. The prosecution to prove the deceased Laxmibai was ill treated and harassed, thereby subjected to cruelty in terms of Section 498A of IPC. It would be appropriate to reproduce Section 498A of IPC for ready reference, so as
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CRL.A No.2747 OF 2013 to better appreciate the evidence on record which reads as follows:-
"Husband or relative of husband of a women subjecting her to cruelty-whoever, being husband or relative of husband of a women, subjects such women and to cruelty shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine.
Explanation:- For the purpose of this Section, "Cruelty" means-
a) Any willful conduct which is of such a nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the women; or
b) Harassment of the women where such harassment is with the view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account failure by her or any person related to her to meet such demand."
The prosecution apart from alleging that Laxmibai was subjected to mental and physical cruelty, also alleged that
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CRL.A No.2747 OF 2013 all the accused have demanded and accepted dowry in terms of Section 3, 4 and 6 of Dowry Prohibition Act. The prosecution to prove the said allegations mainly relies on the evidence of PWs.1, 2, 6 and 18 to 20. The evidence of these witnesses will have to be appreciated in the light of complaint allegations Ex.P.18.
19. On careful perusal of complaint allegations Ex.P.18, it would go to show that prosecution claims that deceased Laxmibai was subjected to mental and physical cruelty on the premises that accused were demanding to get motor cycle for accused No.1 from her parents, secondly, deceased Laxmibai was not knowing cooking and lastly, she burns lot of firewood for cooking. The prosecution to prove the said allegation relied on the evidence of PW.1 who is the senior uncle of deceased Laxmibai, PWs.2 and 6 are elderly persons who have advised the accused not to ill treat Laxmibai, PW.18 father, PW.19 mother and PW.20 brother of deceased Laxmibai.
20. The evidence of PWs.1 and 18 to 20 would go to show that they have deposed about accused have demanded
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CRL.A No.2747 OF 2013 Rs.1,00,000/- dowry before the marriage. The same was paid in two installments of Rs.50,000/- and one such installment paid prior to marriage and another Rs.50,000/- after the marriage. It is true that in their evidence there is some discrepancy as to when the amount of Rs.1,00,000/- was given on two different dates. However, their evidence is consistent enough regarding the payment of dowry amount. The accused have never denied in the cross-examination of above referred witnesses about receipt of dowry amount of Rs.1,00,000/-. It has never been suggested to them that the said amount was paid on their own which was never demanded by the accused nor it is a customary payment for the marriage of deceased Laxmibai with accused No.1. However, in spite of being not satisfied with the payment of said dowry amount started insisting deceased Laxmibai to get motor cycle from her parents. The accused have made such demand and insisted Laxmibai to get motor cycle from her parents has been spoken during the evidence of PWs.18 to 20. The same is further corroborated by the letters of deceased Laxmibai Ex.P21 and 22, wherein Laxmibai has
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CRL.A No.2747 OF 2013 expressed her frustration on demand of getting motor cycle for accused No.1 from her parents and on that score she was repeatedly ill-treated and harassed by the accused.
21. PWs.2, 6 and 18 to 20 during the course of their evidence have deposed to the effect that all the accused were ill treating and harassing Laxmibai on demand of getting motor cycle for accused No.1. The evidence of PWs.2 and 6 elderly persons would go to show that they have advised the accused not to ill-treat deceased Laxmibai, but they did not heed to their advise. The evidence of PW.18 father, PW.19 mother and PW.20 brother of deceased Laxmibai would go to show that she was harassed by the accused in the matrimonial house on the demand of getting motor cycle for accused No.1. In this regard the evidence of above referred witnesses is consistent who were all the residents of Gajendragad which is also the place of matrimonial house of deceased Laxmibai. On account of such frustration, being fed-up with the ill treatment and harassment of accused,
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CRL.A No.2747 OF 2013 deceased Laxmibai informed the same to PW.1 and PWs.18 to 20, but accused were not amenable to the advise of elderly persons PWs.2 and 6.
22. The deceased Laxmibai just before her death delivered letter Exs.P.21 and P.22 to PW.4 and he has delivered the same to her father PW.18. In view of the reasons recorded as above, based on the evidence of FSL examiner PW.27, it has been held that prosecution has proved the writing of deceased Laxmibai in Exs.P.21 and P.22 and report of FSL examiner is produced at Ex.P.29 and the opinion Ex.P.30. On careful reading of Exs.P.21 and 22, it would go to show that deceased Laxmibai has expressed her frustration that she was made to be under the mercy of accused to get two roti and the accused have made deceased Laxmibai to suffer the death of her new born daughter and she has decided to go to the place of god, where her daughter has gone, since she has no support in the matrimonial and parental house. In Ex.P.22 letter addressed to her husband narrated the ill treatment and harassment that she suffered in the
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CRL.A No.2747 OF 2013 matrimonial home. It is in the evidence of PWs.1 and 18 that while they were going through the letter Exs.P.21 and 22 in their tea hotel, PW.18 received phone call from unknown caller that his daughter died in the dried well.
23. The another circumstance of subjecting deceased Laxmibai to physical and mental cruelty is that accused have not attended to her during pregnancy and illness. It has been brought on record in the cross-examination of PW.1 that deceased Laxmibai was suffering from fits (Epilepsy) and further developed jaundice, further she was admitted to Vatsalya hospital and then shifted to KLE hospital, Belgaum for treatment. Accused were though informed about the illness of deceased Laxmibai, but they did not attend to her. It has also been elicited in the cross-examination of PW.18 that his daughter was admitted to Malagi hospital of Gajendragad, since she is suffering from fits. The new born daughter died after six days of delivery and the same is also corroborated by evidence of PW.19. During the said period accused have not attended deceased Laxmibai. There is nothing worth
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CRL.A No.2747 OF 2013 material that has been brought on record during the course of their cross-examination to disbelieve their evidence. Learned counsel for the accused has argued that accused No.1 is teacher working in Government High School and constructed two new houses in Gajendragad and the family of accused is financially sound. The said contention even if it is to be accepted as true then the same cannot to be valid ground to reject the evidence of above referred witnesses. The prosecution out of the above referred evidence has proved the fact that deceased Laxmibai was subjected to mental and physical cruelty on demand of dowry which was accepted by accused in two installments of Rs.50,000/- and the first one being paid before the marriage and second one after the marriage. In spite of it, the accused continued their ill-treatment and demanded to get motor cycle for accused No.1 and on account of such ill treatment and harassment, she has committed suicide by jumping in the dried well within the meaning of Section 498A of IPC.
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CRL.A No.2747 OF 2013
24. The prosecution apart from proving deceased Laxmibai was subjected to mental and physical cruelty, has to prove that death of Laxmibai is dowry death in terms of Section 304B of IPC with the presumption under Section 113-B of the Evidence Act, 1872. It would be profitable to refer both the provisions for ready reference which reads as follows :
"304B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown 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
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CRL.A No.2747 OF 2013 shall not be less than seven years but which may extend to imprisonment for life.
113B. 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
25. In this context, it is profitable to refer judgment of the Hon'ble Apex Court in Kailash vs. State of M.P. reported in (2006) 12 SCC 667 by referring to its earlier three Bench judgment in Kans Raj Vs. State of Punjab reported in (2000) 5 SCC 207 in para 10 has observed and held that:
"No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the disputes stood resolved and there was no evidence of cruelty of harassment thereafter.
Mere lapse of sometime by itself would not provide to
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CRL.A No.2747 OF 2013 an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under the specific circumstances of the each case and no straight jacket formula can be led down by fixing any time limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (A) of the Evidence Act. The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty of harassment concerned and
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CRL.A No.2747 OF 2013 the death in question. There must be existence of a proximate and live link."
26. The Hon'ble Apex Court in the subsequent three Bench judgment by referring to Kans Raj judgment cited Supra and the judgments in Sher Singh Vs. State of Haryana reported in (2015) 3 SCC 724, Dinesh Vs. State of Haryana reported in (2014) 12 SCC 532 and Surinder Singh Vs. State of Haryana reported in (2014) 4 SCC 129 in para 20 of the judgment recorded finding that "we, therefore, declared that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married women, would necessary be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point out otherwise".
27. In view of the principles enunciated in the aforementioned judgments of the Hon'ble Apex Court, it is evident that the term "soon before death" referred in
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CRL.A No.2747 OF 2013 Section 113-B of the Evidence Act will have to be appreciated in view of the facts and circumstances of each case. If demand of dowry is reasonably connected with or in relation to the marriage unless, the facts of given case clearly and unequivocally point out otherwise.
28. In the present case, indisputably, the marriage of deceased Laxmibai with accused No.1 was performed on 05.11.2005 and she died unnatural death on 05.02.2007 within a period of seven years from the date of marriage. In view of the reasons recorded above, it has been held that prosecution has proved that accused have ill treated and harassed deceased Laxmibai on demand of motor cycle for accused No.1. The evidence of PWs. 1 and 4 would go to show that Laxmibai soon before her death delivered letter Ex.P.21 and 22 to PW.4, who in term delivered the same to PW.18 father of deceased Laxmibai. While PW.18 and PW.1 going through the said letters in their tea hotel PW.18 received phone call that Laxmibai was found dead in the dried well. The demand of accused to get motor cycle for accused No.1 was continuous and in
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CRL.A No.2747 OF 2013 spite of PWs.2 and 6 elderly persons with PWs.18 to 20 advising accused not to ill treat and harass Laxmibai and cannot meet their demand of getting motor cycle for accused No.1, since PW.18 has got five daughters. The deceased Laxmibai has expressed her frustration of being fed up of the ill treatment of accused on demand of motor cycle and decided to put an end to her life by jumping into a dried well. The time gap between the ill treatment of accused and the death is not too late and not too stale as observed by the Hon'ble Apex Court in Kailash case referred above. The prosecution by above evidence on record has established the demand of motor cycle and related ill treatment and harassment reasonably connects the death of Laxmibai. There is no any evidence placed on record by the accused or any worth material has been brought on record in the cross-examination of the above referred witnesses that death of Laxmibai is not the proximate cause of alleged ill-treatment and harassment alleged in the complaint Ex.P.18. Therefore, necessary presumption will have to be drawn in terms of Section 113-B of the Evidence Act. In view of the above evidence
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CRL.A No.2747 OF 2013 placed on record by the prosecution, it will have to be held that prosecution has proved beyond all reasonable doubt the offence under Section 498A and 304B of IPC.
29. The prosecution also alleges that accused have abated Laxmibai to commit suicide. The prosecution has to prove by evidence on record that accused have abated Laxmibai to commit suicide in terms of Section 107 of IPC. If the evidence of material witnesses as referred above is carefully perused, then it would go to show that death of Laxmibai is due to dowry otherwise than under normal circumstances within seven years of her marriage on account of mental and physical harassment caused by accused on demand of motor cycle for accused No.1. The accused have abated Laxmibai to commit suicide and on account of such abatement Laxmibai committed suicide has not been specifically spoken by the above referred witnesses. On the other hand the evidence of PWs.2, 6 and 18 to 20 would go to show that accused were ill treating and harassing Laxmibai on demand of motor cycle. The mere death of Laxmibai by jumping into a dried
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CRL.A No.2747 OF 2013 well and evidence in that regard cannot by itself would be sufficient to draw any inference that accused have abated Laxmibai to commit suicide. In this context it is profitable to refer the judgment of Hon'ble Apex Court in Ramesh Kumar Vs. State of Chattisgarh reported in (2001) 9 SCC 618 wherein, it has been observed and held that:
"Section 498A and 306 of IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a women to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established living no other option for the women except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abated a commission of suicide by women concerned."
In view of the principles enunciated in this decision just because prosecution has proved the offence under Section 498A of IPC, it does not follow that on the same
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CRL.A No.2747 OF 2013 evidence the accused will have to be necessarily held guilty of having abated the commission of suicide by the women concerned. In the present case also there is no any required evidence to prove the alleged abatement of accused in Laxmibai committing suicide by jumping into dried well. On the other hand, the evidence on record would demonstrate that the death of Laxmibai is on account of ill treatment and harassment of accused on demand of dowry. The deceased Laxmibai having frustrated of such ill treatment and harassment decided to put an end to her life. Therefore, the prosecution has failed to bring the guilty of accused for the offence under Section 306 of IPC.
30. In the present case the prosecution alleges that accused have demanded Rs.1,00,000/- as dowry for performing the marriage of deceased Laxmibai with accused No.1. The said amount has been paid in two installment and the first installment of Rs.50,000/- was paid before the marriage and the second installment of Rs.50,000/- was paid after the marriage. The evidence of
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CRL.A No.2747 OF 2013 PWs.2, 6, and 18 to 20 would go to show that they have consistently deposed that accused have demanded Rs.1,00,000/- as dowry and the said amount has been paid in two installment and the first one of Rs.50,000/- was given prior to the marriage and second installment of Rs.50,000/- was paid after the marriage. Learned counsel for the appellants has argued that there is no evidence to prove who demanded dowry and to whom it was given. It is in the evidence of PWs.18 and 20 that they have given the money to accused No.1. Accused No.1 to 3 during the course of their statement under Section 313 of Cr.P.C. have not denied the said evidence of PWs.18 and 20 nor offered any explanation. It is only accused No.1 who has stated that he has never demanded any motor cycle from the parents of deceased Laxmibai. However, accused No.1 does not deny that he has received money of Rs.1,00,000/- as dowry in two installments as referred above. The deceased Laxmibai in Ex.P.22 has narrated that accused Nos.2 and 3 also ill treated her and she wished to go to her daughter (now dead) and such ill treatment was on demand of motor cycle and in action of
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CRL.A No.2747 OF 2013 accused Nos.1 to 3 when she was unwell, further when she lost her daughter within short time of her delivery. The cumulative effect of the above referred evidence and the circumstances brought on record by the prosecution would go to show that accused have demanded dowry and accepted the same in two installments as referred above and the prosecution has proved the factum of demanding dowry by accused and same was given to accused in two installments as referred above. The accused have further demanded and insisted to deceased Laxmibai to get motor cycle for accused No.1. The above referred evidence placed on record by the prosecution would meet the requirement of Section 3 and 4 of the Dowry Prohibition Act. In so far as the offence under Section 6 of Dowry Prohibition Act is concerned, there is no any evidence brought on record by the prosecution to prove the said offence. Therefore, the conviction of accused for the offence under Section 306 of IPC and Section 6 of D.P. Act cannot be legally sustained.
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CRL.A No.2747 OF 2013
31. Now coming to the question of imposition of sentence. The Trial Court has imposed sentence of simple imprisonment for one year and pay a fine of Rs.2,000/- each and in default of payment of fine to undergo simple imprisonment for three months for the offence under Section 498A r/w Section 34 of IPC. Accused were further sentenced to undergo simple imprisonment for seven years and pay a fine of Rs.5,000/- each in default of payment of fine to undergo simple imprisonment for 6 months for the offence under Section 304B r/w Section 34 of IPC. The sentence of imprisonment was ordered to run concurrently. The minimum sentence for the offence under Section 304B of IPC is not less than seven years. Similarly, imposed sentence for the offence under Section 3 and 4 of D.P.Act. Looking to the facts and circumstances of the case, nature of evidence on record, the factors leading to the frustration of deceased Laxmibai to put an untimely end to her life, the imposition of sentence is proportionate to the proved offences alleged against accused. Therefore, no any interference is called for in the
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CRL.A No.2747 OF 2013 order of sentence passed by the Trial Court for the said offences. Consequently, proceed to pass the following:
ORDER The appeal filed by appellant/accused Nos.1 to 3 is hereby partly allowed.
The judgment of conviction and order of sentence against accused Nos.1 to 3 for the offence Section 498A and 304B of IPC, Section 3 and 4 of D.P.Act passed by the Trial Court on the file of Addl. District and Sessions Judge, Gadag, in SC 30/2007 dated 31.07.2013 is confirmed.
Accused Nos.1 to 3 are acquitted for the offence under Section 306 of IPC, Section 6 of Dowry Prohibition Act.
The registry is directed to send back the records of the Trial Court with the copy of this judgment.
Sd/-
JUDGE gsr/mv