Karnataka High Court
H.N. Basavanneppa vs Santosh S/O Ramchandrappa Haliyal on 24 August, 2023
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NC: 2023:KHC-D:9484-DB
CRL.A No. 100170 of 2017
C/W CRL.A No. 100078 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100170 OF 2017 (A-)
C/W
CRIMINAL APPEAL NO. 100078 OF 2018
IN CRL.A.No.100170/2017
BETWEEN:
H. N. BASAVANNEPPA S/O. NAGAPPA,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: CHITTUR, TQ: SORAB, DIST: SHIMOGGA.
...APPELLANT
[BY SRI. R. M. JAVED, ADVOCATE (AMICUS CURIAE)]
AND:
SAMREEN
AYUB
DESHNUR 1. SANTHOSH S/O. RAMCHANDRAPPA HALIYAL,
Digitally signed by
SAMREEN AYUB
AGE: 33 YEARS, OCC: SERVICE,
DESHNUR
Date: 2023.08.30
R/O: HEBBALLI BADAVANE, RAJIVNAGAR,
03:16:45 +0530
HUBBALLI.
2. RAMCHANDRAPPA S/O. HANMANTAPPA HALIYAL,
AGE: 61 YEARS,
OCC: RETIRED RAILWAY EMPLOYEE,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
3. MALLAMMA W/O. RAMCHANDRAPPA HALIYAL,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
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CRL.A No. 100170 of 2017
C/W CRL.A No. 100078 of 2018
4. SHIVARAJ S/O. RAMCHANDRAPPA HALIYAL,
AGE: 30 YEARS, OCC: BUSINESS,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
5. THE STATE OF KARNATAKA,
R/BY WOMEN POLICE STATION,
HUBBALLI-DHARWAD, BY S.P.P,
HIGH COURT BENCH, AT: DHARWAD.
...RESPONDENTS
(BY SRI. K. M. SHIRALLI, ADV. FOR R1 TO R4,
SRI. M. B. GUNDWADE, ADDL. SPP FOR R5)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C., SEEKING THAT THE JUDGMENT OF ACQUITTAL
PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE
DHARWAD SITTING AT HUBLI IN S.C.NO. 117 OF 2012 DATED
21.01.2017 KINDLY BE SET ASIDE BY CONVICTING THE
ACCUSED / RESPONDENTS NO. 1 TO 4 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498(A), 323, 304(B), 302 READ
WITH SEC. 34 OF IPC AND UNDER SEC. 3 AND 4 OF D.P.ACT.
IN CRL. A.No.100078/2018
BETWEEN:
THE STATE OF KARNATAKA,
POLICE OF WOMAN POLICE STATION,
HUBBALLI-DHARWAD, REPRESENTED BY THE STATE
PUBLIC PROSECUTOR, HIGH COURT, DHARWAD.
...APPELLANT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
AND:
1. SANTHOSH S/O. RAMCHANDRAPPA HALIYAL,
AGE: 29 YEARS, OCC: R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
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CRL.A No. 100170 of 2017
C/W CRL.A No. 100078 of 2018
2. RAMCHANDRAPPA S/O. HANMANTAPPA HALIYAL,
AGE: 57 YEARS, OCC: NOT KNOWN,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
3. MALLAMMA W/O. RAMCHANDRAPPA HALIYAL,
AGE: 49 YEARS, R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
4. SHIVARAJ S/O. RAMCHANDRAPPA HALIYAL,
AGE: 26 YEARS, R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
...RESPONDENTS
(BY SRI. K. M. SHIRALLI, ADV. FOR R1 TO R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO
APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 21.01.2017 PASSED BY THE V ADDL.
DISTRICT & SESSIONS JUDGE, DHARWAD, SITTING AT
HUBBALLI IN S.C.NO.117/2012 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498(A), 323, 304(B), 302 R/W SEC.34 OF
IPC AND SEC.3 & SEC.4 OF DOWRY PROHIBITION ACT.
THESE APPEALS, COMING ON FOR FINAL HEARING ON
07.08.2023 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
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NC: 2023:KHC-D:9484-DB
CRL.A No. 100170 of 2017
C/W CRL.A No. 100078 of 2018
JUDGMENT
The appellant/complainant has assailed the judgment of acquittal dated 21.01.2017 in S.C.No.117/2012 passed by the V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, by filing Crl.A.No.100170/2017 seeking conviction for the accused persons by setting aside the impugned judgment.
2. So also the State of Karnataka represented by Addl. State Public Prosecutor has preferred Crl.A.No.100078/2018 with a prayer to convict the accused/respondents for the offences punishable under Sections 498A, 323, 304B, 302 r/w 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act (for short 'the D.P.Act') by setting aside the impugned judgment so passed by the same Court in S.C.No.117/2012 dated 21.01.2017.
3. Both these appeals arise out of a common judgment. Therefore, they are clubbed together. Common argument is heard and therefore, common judgment is passed.
FACTS OF THE CASE
4. That one H.N.Basavanneppa s/o Nagappa resident of Chittur village, Soraba taluk, Shivamogga district, lodged a -5- NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 complaint on 25.01.2012 at 3.30 p.m. by appearing before the SHO of Women police station, Dharwad, alleging that, he performed the marriage of his daughter Suchitra with accused No.1 on 22.08.2010 as per the rites and rituals prevailing in the community by presenting dowry in cash to the extent of Rs.5,00,000/-, gold ornaments weighing 270 grams and silver articles weighing 2 kgs. He also has paid Rs.3,00,000/- as advance towards dowry amount. He also gave Rs.67,000/- towards purchase of clothes to the bridegroom. The said dowry was decided by the elderly members. For two months after marriage, the accused No.1 being the husband, accused Nos.2 and 3 in-laws and accused No.4 being the brother of accused No.1 and son of accused Nos.2 and 3 looked after Suchitra well. Thereafter, accused No.1, her husband started ill-treating Suchitra. Accused Nos.2 to 4 also started ill-treating and harassing the married women for one or the other reasons. Even they together used to assault Suchitra and demand to bring more dowry.
5. This fact was informed by Suchitra to him. Therefore, complainant with elderly members of his village, by name T.K.Dharmappa, Mallappa and K.B.Mallikarjunappa of -6- NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 Balligavi village and others came to Hubballi and requested not to assault or harass his daughter. As there was a request by accused No.1 that he wants to construct a house, therefore, to that effect by way of additional dowry, Rs.2,00,000/- was given by the complainant to accused No.1.
6. A specific allegation is made by the complainant that on 25.01.2012 at about 7.30 a.m., in the morning his daughter Suchitra called him over telephone and informed that her husband, her in-laws and brother of her husband i.e., accused Nos.1 to 4 are harassing and ill-treating her. Therefore, she requested the complainant to come and take her back. But, the complainant informed that there is a jatra in their village and thereafter he will come and take her and requested her to adjust with the family. He also advised her.
7. When this was the state of affairs, the brother of the complainant, H. Kariyappa at about 10 a.m. on that day, called the complainant and informed that his daughter Suchitra had hanged herself in the house of her husband and died. On getting such information, complainant, his wife and his relations like Nalamurthy, Revanappa and other relatives -7- NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 rushed to Hubballi to the house of accused No.1. They noticed the dead body of Suchitra in the middle room of the house and she was made to sleep on the floor. The strangulation was still there. Thus, it is alleged that in between 7.30 a.m. and 10 a.m., these accused persons because of not bringing more dowry harassed and assaulted her, and by using veil they had killed her. With these allegations, a complaint came to be filed which was registered in Cr.No.10/2012 of Women police station and the criminal law was set in motion.
8. The Investigation Officer after performing the formalities of the investigation and after completion of the investigation, filed the charge-sheet against accused persons for the offences punishable under Section 498A, 323, 304B and 302 r/w 34 IPC and Section 3 and 4 of the D. P. Act.
9. Before the Sessions Court to substantiate the case of the prosecution, prosecution in all examined 11 witnesses and got marked Ex.P.1 to P.24 with respective signatures thereon and during the course of cross-examination, Ex.D.1 to Ex.D.7 were got marked on behalf of the defence. At the time -8- NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 of recording evidence, the clothes being worn by the deceased were marked as M.O.1 to M.O.5.
10. Having heard the arguments of both the side, the learned trial Court found the accused not guilty of the aforesaid offences and acquitted them.
11. It is argued by the learned counsel for the complainant and the State that, there is no proper appreciation of evidence by the trial Court. Though the complainant and other witnesses have supported the case of the prosecution and have given credit worthy evidence, but discarding such a good and legal evidence, the learned trial Court has acquitted the accused persons. It is submitted that these accused persons being the husband and in-laws so also brother of accused No.1 respectively though looked after the deceased well for two months, but thereafter they started harassing and ill-treating her. They used to demand her to bring more dowry. Already, the complainant had paid in all Rs.7,00,000/- by way of cash towards dowry, 270 grams of gold ornaments and 2 kgs of silver articles to perform the pooja. Being dissatisfied with the said dowry, these accused persons by demanding more dowry -9- NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 have harassed, ill-treated a married woman and it compelled her to inform her parents. There was advice by the complainant and elderly members to treat the deceased well but, accused Nos.1 to 4 on that ill-fated day strangulated and killed her. Thus, it is submitted that the trial Court has not appreciated the evidence judicially and as the death has taken place within 7 years of marriage, the presumption was not drawn against the accused persons.
12. It is submitted that though there are minor contradictions and omissions in the evidence of the prosecution witnesses, they would not shake the basic consistent evidence of ill-treatment and harassment attributed against deceased by the accused persons. Therefore, taking us through the evidence recorded by the trial Court, it is prayed by both the learned counsels to set aside the impugned judgment of acquittal and it is prayed to pass the judgment of conviction and sentence against them.
13. Learned counsel for the appellants relied upon the following judgments of Hon'ble Apex Court in support of their submissions.
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CRL.A No. 100170 of 2017
C/W CRL.A No. 100078 of 2018
i) STATE OF MADHYA PRADESH VS. JOGENDRA
AND ANOTHER1
(ii) CRIMINAL APPEAL No.12/2013 [Arising out of
Special Leave Petition (Crl.) No.2038/2012] DECIDED ON 03.01.2013.
14. As against this submission, the learned counsel for the respondents/accused in both the appeals relied upon the findings of the trial Court and he too, took us through the various evidence of the prosecution witnesses and according to him, as per the findings of the trial Court, the accused are not guilty. As there is no acceptable legal evidence, the learned trial Court passed an order of acquittal of the accused Nos.1 to 4 which requires no interference by this Court. He submits to dismiss both the appeals.
15. We have given our anxious consideration to the arguments of both the sides. Perused the records.
16. Before adverting to the other aspects of the case, it is necessary to discuss the admitted facts - that there was 1 (2022) 5 SCC 401
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 marriage of accused No.1 with deceased Suchitra on 22.08.2010 at Veerabhadreshwara Kalyan Mantapa, Shiralakoppa, in Shikaripura taluk, Shivamogga district. Accused No.1 is the son of accused Nos.2 and 3 and brother of accused No.4. This relationship is not denied.
17. It is the case of the prosecution that at the time of performing the marriage of Suchitra with accused No.1, the complainant PW-1 gave cash of Rs.5,00,000/- towards dowry and 270 grams of gold ornaments and 2 kgs. of silver articles. Subsequently, he has also paid further cash of Rs.2,00,000/- with a request to the accused persons to look after his daughter well. Though there is denial of such a fact by the accused persons, but in view of the evidence brought on record, there is no proper and specific defence putforth by the accused persons so as to rebut the aforesaid factum of receipt of the dowry stated above.
18. It is the case of the prosecution that on 25.01.2012 at 7.30 a.m., Suchitra called her father and informed about the harassment and ill-treatment. Her father told her that he will come and take her back in few days as there was a jatra in
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 their village. But, on the said day itself, at 10 a.m. he received a message from his elder brother Kariyappa stating that Suchitra died by hanging. On hearing this shocking news, complainant with his wife and others rushed to Hubballi and noticed dead body of his daughter in the house of accused. After confirmation of the harassment and death, he lodged the complaint.
19. So far as death of Suchitra is concerned, prosecution relies upon complaint averments at Ex.P.1, photographs of the deceased at Ex.P.4, inquest panchanama as per Ex.P.10 and P.M. report as per Ex.P.14. Ex.P.14, the P.M. report shows the injuries on the person of the deceased. It is noticed that on dissection of neck, the structures underlying the ligature mark were found pale and glistening. The Forensic Expert has given an opinion that this piece of veil is found as a ligature material and the said strangulation is possible by using the said veil and the said veil could withstand the weight of the body. On perusal of all these documents, it is proved that deceased has not suffered a natural death but it is one of suicidal in nature.
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20. The allegation of the prosecution is that because of demand of dowry there was a persistent continuous harassment done by these accused persons and because of that, she had committed suicide within 7 years of marriage. There is no proper explanation as per the submission of the learned counsel for the appellants that what made the deceased to commit suicide. It was cross-examined to the witnesses that, the deceased was worrying about her brother who was unemployed and about her parental house. Because of this, she was depressed and could not withstand such a depression though accused No.1 her husband treated her well, took care of her every demand and accused Nos.2 to 4 never ill-treated or harassed her. But, all the suggestions so directed to the witnesses have been denied by the witnesses as per the submission of learned counsels for the appellants in both the appeals.
21. Now, we have to ascertain whether the prosecution is able to establish the guilt of the accused to the hilt or not.
22. PW-1 - H.N.Basavanneppa is none other than the father of the deceased. He corroborates the contents of his
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 complaint in his evidence on oath by way of examination-in- chief. It is his evidence that one Mallikarjunappa wrote contents of Ex.P.1 but he died one year after the death of his daughter, Suchitra. In addition to the contents of Ex.P.1 to show about his financial capacity to pay the dowry by way of cash, gold ornaments and silver articles etc., he has produced 4 RTC extracts standing in his name. With regard to his financial capacity, there is no denial of this fact by the defence.
23. In the course of cross-examination, he admits that accused No.1 being the husband of deceased, is a M.Tech graduate. Initially, he was working at Hosapete Engineering College. Thereafter, he is now working at Bhoomareddy Engineering College. To the suggestions directed to him with regard to the employment of accused No.1, PW-1 never denies but he deposes that it may be that he is now working with Bhoomareddy Engineering College and had worked at Hospete Engineering College. Even about the employment of accused No.2 and 4, he gave similar answers.
24. It is suggested to PW-1 that, there was certain hesitancy to perform the marriage of the deceased to the
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 bridegroom of northern Karnataka. Even there was an intention to perform the marriage of deceased with one Sandesh being relative of his wife. But, these suggestions are denied by him.
25. PW-1 categorically admits that his elder brother Kariyappa was working as a Manager in KVG Bank at Hubballi and he also participated in the marriage talks of his daughter. He admits that at the time of marriage, the said Kariyappa was working at Hubballi. One Gopalakrishna being his relative was working at HESCOM in Hubballi. But deposes ignorance about working of one Shivanna as a teacher in Hubballi. He knows one Chandrappa. He deposed ignorance that house of his brother Kariyappa, Gopalakrishna and Shivanna teacher were situated in the same layout where accused are residing. He says that at the time of marriage talks, there was no written document about giving and taking of any money or dowry. On perusal of the entire cross-examination directed to PW-1, he has deposed so many ignorance.
26. It is the defence of the accused that, after marriage, accused No.1 got admission of his wife to M.Com. course. PW-1 admits that, his daughter had completed first
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 year M.Com. But, deposed ignorance about admitting his daughter to the second year M.Com; so also getting ATM debit card to his daughter. To prove the said aspect of participation of the marriage talks of all the aforesaid persons, getting the account with Corporation Bank and also possessing the Election Identity Card and Aadhar Card, accused have produced Ex.D.1 to Ex.D.6. While marking these documents, no little finger was raised by the prosecution. From these documents, it is very much clear that the aforesaid persons participated at the time of marriage talks and accused No.1 has opened the bank account with Corporation Bank in the name of the deceased. So also got her Aadhar Card, Election Identity Card at the address where accused No.1 and his family members are residing. Marriage photographs are marked on behalf of the prosecution are at Ex.P.20 to Ex.P.23. It is submitted that, deceased got married with full consent and there is no depression on the face of deceased. The contents in the photographs corroborates the said submission.
27. When accused No.1 got admission of his wife deceased Suchitra to the M.Com. post graduation course and got a savings bank account with Corporation Bank and she was
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 provided with a ATM debit card, the assertions that there was harassment and ill-treatment by the accused persons to bring more dowry definitely pales into insignificance and cannot be accepted as the truthful allegations against the accused persons.
28. Even the complaint is silent as to which accused used to harass the deceased in which manner. It has come in the evidence that, because of acquisition of the property by the Air Port authorities, the family of the accused got compensation of Rs.35 lakhs. They constructed a new house named "Siddaroodha Nilaya" of which, house warming ceremony was scheduled before the death of deceased. Even accused No.4 had scheduled Sathyanarayana pooja on the occasion of inauguration of his own clinic as he was a B.A.M.S. graduate. These facts are not denied by PW-1.
29. PW-1 denied the suggestion that when the said incident took place in the morning, accused No.1 had been to his college, accused No.2 went to his employment, accused No.3 to Ranebennur and accused No.4 had been to his clinic. He denied these suggestions. Even he deposed ignorance of
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 intimating about the incident to the Vidya Nagar police station by accused Nos.1, 2 and 4.
30. It is suggested that before committing suicide Suchitra wrote a note stating that she was responsible for her suicide. PW-1 states that he is not agreeing with the hand writing on the suicide note. He denied the suggestion that, his elder brother Kariyappa informed about the said note written by the deceased. He denied the suggestion that though Kariyappa informed about the said note but PW-1 assaulted accused Nos.1 to 4. He denied the further suggestion that at the time when PW-1 and others came to the house, at the same time, accused No.3 also came from Ranebennur. He denied the suggestion that the said death note was torn by PW-
1.
31. It has further come in the evidence of PW-1 that about 25 days prior to the incident, deceased Suchitra called him on telephone. It is recited in the complaint that, at 7.30 p.m. on the day of incident, Suchitra called him and informed about the harassment and ill-treatment on her and requested PW-1 to come and take her back to her parental house. But, in
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 page No.10 of cross-examination, he deposed that about 25 days prior to the incident, she called him. Further, it is his evidence that accused had snatched her mobile phone. When accused persons had snatched her mobile phone, from which mobile phone she called PW-1 is not stated by this PW-1. The Investigation Officer has not collected the said mobile phone or collected call details to show that really deceased Suchitra called her father at 7.30 a.m. on that ill-fated day. A lengthy cross-examination is directed to this PW-1. He has deposed so many ignorance.
32. Further, the vital witnesses as rightly suggested in the cross-examination that his elder brother Kariyappa, Gopalakrishna, Shivappa and Chandrappa were not arrayed as charge-sheet witnesses. So also Mallikarjunappa. It is suggested that as they knew about the affairs of the family of the accused persons and there was no harassment or ill- treatment to the deceased, therefore, the aforesaid persons were not arrayed as charge-sheet witnesses. But, this suggestion is denied by PW-1.
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33. From the evidence spoken by PW-1, it can be gathered that the nearest relative of the deceased was Kariyappa, the elder brother of PW-1. The aforesaid Gopalakrishna, Shivappa and Chandrappa were known to the deceased. If really there was any harassment and ill-treatment in the manner alleged by the complainant, the human tendency is to inform the nearest relative or family friend available in the vicinity. Evidently, the aforesaid persons used to reside in the same locality/lay-out. They would have been the best persons to say about the alleged harassment or ill-treatment. In the absence of arraying them as witnesses by the prosecution, no attempt was made by the prosecution to summon the said witnesses by filing an appropriate application which is definitely fatal to the case of the prosecution. The truth would have come out about the allegation so made by the complainant, whether true or false. In the absence of examining the said witnesses, it is hard to believe the evidence of PW-1.
34. PW-2 - Adiveshappa Hanchi is a pancha to Ex.P.8 under which the veil worn by the deceased was seized. PW-3 Ameer Ahmed is a pancha to Ex.P.9 under which clothes worn
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 by deceased marked as M.O.1 to M.O.5 were seized. There is no denial of this fact by the prosecution.
35. PW-4 - Dharmappa participated in the marriage talks and stated with regard to the giving of dowry to accused No.1. PW-5 Shri Nalamurthy Motobenne, also participated in the marriage talks and as per his evidence, at the instance of PW-1, he accompanied him. He was not present when accused were advised to look after deceased well. PW-6 Harish was the inquest pancha to Ex.P.10 and he is a hearsay witness with regard to the suicide committed by deceased. PW-7 Nirmala Amaravathi was the police constable who reached FIR with Ex.P.11 to the Magistrate. PW-8 Manjunath Guddada Hosalli @ Raikar is the goldsmith who prepared the gold ornaments as per the say of PW-1 and has issued 7 receipts. He prepared the said gold ornaments. According to the evidence of these witnesses, they participated in the marriage talks and were present when inquest panchanama was prepared and gold ornaments were prepared. To that extent, we believe their evidence.
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36. PW-9 Dr.Adam Ali Nadaf is the doctor who conducted the post mortem and noticed a complete ligature mark measuring 33 cms X 3 cms over the upper part of the neck, above the level of thyroid cartilage, situated 5 cm below right ear lobule 5 cms below chin and 6 cms below left year lobule. A knot mark measuring 2 cms X 1.5 cms present 3 cms below and 1.5 cms right of centre of chin. He is of the opinion that as per the FSL report, death was due to hanging and because of asphyxia. The factum of death of deceased by hanging is not disputed by the defence.
37. PW-10 Siddramappa Biradar, was the Tahsildar and he conducted the inquest panchanama as per Ex.P.10 in the presence of panchas. According to him, there was no difficulty for recording statement of his staff Surendra Hukkeri who wrote the panchanama. He denied all other suggestions.
38. PW-11 is the Police Inspector who conducted investigation and filed the charge-sheet.
39. On perusal of the evidence of this PW-11, we find that there is no recital with regard to giving of Rs.5 lakhs in cash and 270 grams of gold in Ex.P.1 complaint. She
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 categorically states that the said cash and gold ornaments were given to accused No.1 as 'varopachara'. In the cross- examination, it is elicited that there are so many lacunas in conducting investigation by this Investigating Officer. It is the custom in the community to present certain gold ornaments and cash as 'varopachara'. This cannot be termed as dowry demand, in the absence of cogent and acceptable evidence lead by the prosecution.
40. In a case of this nature, it is the bounden duty of the prosecution to prove that, it is accused and accused alone committed the offence of ill-treatment and harassment to a married woman within 7 years of marriage and cogent and acceptable evidence shall have to be brought on record to prove the guilt of the accused because Section 304B and 498A of IPC are not mutually exclusive.
41. These provisions deal with two distinct offences. It is true that 'cruelty' is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty' but having
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 regard to the common background to these offences, the meaning of 'cruelty' or harassment, will be the same as given in Explanation to Section 498A IPC under which 'cruelty' by itself amounts to an offence and is punishable.
42. Under Section 304B IPC, it is the 'dowry death' that is punishable and such death should have occurred within 7 years of the marriage but no such time period is mentioned in Section 498A and the husband or his relative would be liable for subjecting the woman for 'cruelty' any time after the marriage. Further, a person charged for and acquitted of Section 304B of IPC can be convicted for offence punishable under Section 498A without charge being there, if such a case is made out.
43. On careful reading of the provisions of the IPC with regard to such offences, it is a bounden duty of the prosecution to prove certain ingredients to attract the provisions of Section 304B of IPC.
i) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances,
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ii) such death should have occurred within 7 years of her marriage,
iii) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband,
iv) such a cruelty or harassment should be for or in connection with the demand of dowry and
v) to such cruelty or harassment, the deceased should have been subjected soon before her death.
44. In this case, the marriage of deceased Suchitra was performed with accused No.1 on 22.8.2010. She died on 25.01.2012 which was within 7 years of marriage. This fact is not disputed by both the side. So far as unnatural death of deceased i.e., suicide by hanging by the deceased is also not disputed. But, the deceased was subjected to cruelty or harassment by her husband or relative is clearly missing in this case. The law says that to prove the said offence of cruelty or harassment, the deceased should have been subjected soon before her death is not proved in this case. Evidence of PW-1 though states that there was a call by deceased at 7.30 a.m. on that ill-fated day about intimating the harassment and ill-
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 treatment by the accused persons is not brought on record by the investigating agency. The evidence is that there was a call by deceased about 25 days back prior to the incident. Kariyappa, the paternal uncle of the deceased being the elder brother of PW-1 and other elderly persons stated supra were not informed by deceased about the so-called cruelty or harassment by the accused persons. They would have been the best persons to speak about the said harassment or ill- treatment. As stated supra, they have not been arrayed as witnesses.
45. Further, Smt. Seethamma, the mother of the deceased though arrayed as CW-16, is not examined by the prosecution. In a case of this nature, when there is persistent and consistent harassment and ill-treatment on the deceased, the normal conduct of deceased was to inform such harassment and ill-treatment to her mother first. But, there is no evidence brought on record either through the evidence of PW-1 or through the evidence of other witnesses, about intimating CW- 16 the mother of the deceased. It is fatal to the case of the prosecution.
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46. As stated supra, in a case of present nature, it is the bounden duty of the prosecution to prove the ingredients of Section 113B of the Evidence Act and Section 304B of the Indian Penal Code. Cruelty and harassment of the victim by accused No.1 being the husband, accused Nos.2 and 3 being her in-laws and accused No.4, the brother of accused No.1 is not duly proved in accordance with law. In the absence of such evidence, even on re-appreciation of the evidence by this Court, we do not find any infirmity or illegality in appreciating the evidence by the trial Court.
47. Though the learned counsel for the complainant and learned Addl. SPP took us through various evidence so adduced by the prosecution, on perusal of the same and re-appreciating the same, we find no force in their submission. Reading the citations relied upon by the appellants, with due respect, the principles laid down in the judgments relied upon by the learned counsel cannot be justifiably applicable to the present facts of the case.
48. No doubt, it may not be out of place to mention that 'dowry' which is a deep rooted social evil appears to the
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 cause of so many unfortunate deaths of young ladies. It is an offence brutal and barbaric. It is generally committed inside the house and more often, with a circumstance to give an impression that it was a suicidal death. There will be all found attempt to cover up such offence by the family members rather than to expose it. Therefore, the Government of India has brought legislations from time to time to protect women and to punish those who commit atrocities on them. Therefore, in the year 1961, the Dowry Prohibition Act came into force. By amendment to criminal law in the year 1983, Chapter XXA was introduced in the penal code with section 498A creating a new offence of cruelty.
49. We have already noted Section 304B of IPC and its essential ingredients, so also 113B of the Evidence Act. As per the definition of these Sections though there is a presumption as discussed, there is no cogent and relevant evidence so as to connect the accused persons in the commission of crime in the manner alleged by the prosecution. Accused No.1 is from a qualified family and there are no direct allegations made by the prosecution that what was the role of each accused which made the deceased to hang herself to commit suicide. In the
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 backdrop of above legal proposition, if we look to the facts of the case, it is clearly established that prosecution has not proved its case beyond all reasonable doubt.
50. The law is that, in criminal cases, even if a slightest doubt arises in the case of prosecution, that benefit has to be extended to the accused persons. The deceased might have spoken about her position to her mother and would have informed her relative and family friends at Hubballi. Those persons are not arrayed as witnesses and mother CW-16 was not examined.
51. It is the bounden duty of the prosecution to discharge initial burden of establishing the prima facie guilt of the accused beyond all reasonable doubt and such guilt in this case is not proved. Therefore, we do not find any error in the judgment of the trial Court to interfere and set aside the impugned judgment passed by trial Court in acquitting the accused persons which are assailed by complainant and State. Therefore, the appeals filed by the complainant as well as State are liable to be dismissed. Resultantly, we pass the following:
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NC: 2023:KHC-D:9484-DB CRL.A No. 100170 of 2017 C/W CRL.A No. 100078 of 2018 ORDER a. Appeal filed by the appellant-complainant in Crl.A.100170/2017 and the appeal filed by the State in Crl.A.100078/2018 are dismissed, b. The judgment passed by the 5th Addl. District and Sessions Judge, Dharwad, sitting at Hubballi in S.C.No.117/2012 dated 21.01.2017 is affirmed, c. Order regarding disposal of properties is maintained, d. Intimate the final order to the trial Court forthwith, e. Bail bonds executed by accused Nos.1 to 4, if any, stand cancelled.
Send back the trial court records along with copy of the judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE JM List No.: 1 Sl No.: 46