Karnataka High Court
Shivappa S/O Hanumappa Bevinagidad, vs Shankaragouda S/O Shivanagouda Police ... on 19 August, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
Dated this the 19th day of August 2020
Present
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
and
THE HON'BLE MR. JUSTICE V. SRISHANANDA
Criminal Appeal No.100008 of 2015
C/w Criminal Appeal No.100016/2015
In Crl.A. No.100008/2015
Between
Shivappa,
S/o Hanumappa Bevinagidad,
Age: 41 Years, Occ: Agriculture,
R/o. Kuderimoti, Tq: Yalburga
Dist: Koppal. ...Appellant
(By Sri. M.B. Gundawade, Advocate )
And
1. Shankaragouda,
S/o Shivanagouda Police Patil,
Age: 30 Years, Occ: Agriculture,
R/o. Parapur, Tq: Gangavathi,
Dist: Koppal.
2. Shivanagouda,
S/o Kanakagouda Police Patil,
Age: 65 Years, Occ: Agriculture,
R/o. Parapur, Tq: Gangavathi,
Dist: Koppal.
3. Devamma,
W/o Shivanagouda Police Patil,
Age: 60 Years, Occ: Agriculture and
2
Household, R/o. Parapur,
Tq: Gangavathi, Dist: Koppal.
4. Yamanagouda,
S/o Shivanagouda Police Patil,
Age: 28 Years, Occ: Agriculture,
R/o. Parapur, Tq: Gangavathi,
Dist: Koppal.
5. State Of Karnataka,
By State Public Prosecutor,
High Court Of Karnataka,
Dharwad Bench, At Dharwad,
Through Kanakagiri P.S. ...Respondents
(By Sri. J.S. Shetty, Advocate for R1 to R4
Sri. V.M.Banakar, Addl. SPP for R5)
This Criminal Appeal is filed under Section 378 (4) of
Cr.P.C. seeking to set aside the judgment and order of
acquittal passed by the Prl. Sessions Judge, Koppal, dated
29.09.2014, in S.C.No.31/2013 by allowing the present
appeal and to pass a judgment of conviction and sentence
the respondents/accused for the offences punishable under
Sections 498-A, 304-B read with 34 of IPC & Sections 3, 4 &
6 of Dowry Prohibition Act.
In Crl.A. No.100016/2015
Between
State Of Karnataka
Rptd. By The Police Sub-Inspector,
Kanakagiri, Through The
Addl.State Public Prosecutor,
Advocate General Office,
High Court Of Karnataka,
Dharwad Bench. ...Appellant
(By Sri. V.M.Banakar, Addl. SPP)
3
And
1. Shankaragouda,
S/o Shivanagouda Police Patil,
Age: 32 Years, Occ: Agriculture,
R/o. Parapura,
Tq: Gangavati, Dist: Koppal
2. Shivanagouda,
S/o Kanakanagoud Police Patil,
Age: 67 Years, Occ: Agriculture,
R/o. Parapura, Tq: Gangavati,
Dist: Koppal.
3. Devamma,
W/o Shivanagouda Police Patil,
Age: 62 Years, Occ: Agriculture and
Household, R/o. Parapura,
Tq: Gangavati, Dist: Koppal.
4. Yamanagouda,
S/o Shivanagouda Police Patil,
Age: 30 Years, Occ: Agriculture,
R/o. Parapura, Tq: Gangavati,
Dist: Koppal. ...Respondents
(By Sri. J.S. Shetty, Advocate for R1 to R4)
This Criminal Appeal is filed under Sections 378(1) &
(3) of Cr.P.C. seeking to grant special leave to appeal against
the judgment and order of acquittal dated 29.09.2014
passed by the Prl. Dist. & Sessions Judge, Koppal, in
S.C.No.31/2013 and be set aside the judgment and order of
acquittal and praying to convict the respondents/accused for
the offences punishable under Sections 498-A, 304-B read
with Section 34 of IPC, and Sections 3, 4 And 6 of DP Act.
These Criminal Appeals having been heard and
reserved on 05.08.2020, and coming on for pronouncement
of Judgment this day, B.M. SHYAM PRASAD., J, delivered
the following:
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JUDGMENT
These appeals are filed calling in question the judgment dated 29 September 2014 in Sessions Case in S.C. No.31/2013 on the file of the Principal Sessions Judge, Koppal (for short, ''the Sessions Court'). The Sessions Court by the impugned judgment has acquitted the respondents of offences punishable under section 498A, 304B read with Section 34 of the Indian Penal Code (for short, 'IPC') and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 (for short, 'the DP Act'). The first of the appeals in Criminal Appeal No. 100008/2015 is filed by Sri Shivappa S/o Hanumappa, the elder brother of the deceased victim, Smt. Balamma @ Bhagyamma, who breathed her last on 07.12.2012 at Government Hospital, Gangavathi. The other appeal in Criminal Appeal No. 100016/2015 is filed by the State.
2. The investigation into the unnatural death of Smt. Balamma @ Bhagyamma is commenced with the registration of the First Information Report in Crime No. 117 of 2012 on 7.12.2012 at 2:30 PM by the Kanakagiri Police 5 Station, Gangavathi Rural, Gangavathi. The information in this regard is lodged by the deceased's elder brother, Sri Shivappa S/o Hanumappa against the respondents and five others. The deceased Smt. Balamma @ Bhagyamma is the wife of the first respondent, the second and third respondents are her parents-in-law and the fourth respondent is her brother-in-law i.e., another son of the second and third respondents. The other five named in the first information are Sri Dyammanna Gowda, Sri Mare Gowda, Smt. Hanumavva, Smt. Asanegavva (the other children of the second and third respondents) and Sri Sharane Gowda (the second respondent's younger brother). The police however, after investigation have filed the charge- sheet only against the respondents for the offences punishable under Section 498A, 304B read with Section 34 of IPC and Sections 3, 4 and 6 of the DP Act.
3. The prosecution's case is summarized thus:
3.1. The marriage between the deceased Smt. Balamma @ Bhagyamma and the First respondent was solemnized about 4-5 years prior to the month of December 6 2012. The matrimonial alliance between them was mediated by Sri Yamanurappa S/o Hanumanthappa (PW 6) and Smt. Parvathamma (who is not examined). At the time of finalisation of the matrimonial alliance it was agreed that a sum of Rs.50,000/-, two tholas of gold, a wristwatch, a cot and household articles would have to be given as dowry. The terms of the dowry were finalized in the presence of Sri Yamanurappa S/o Hanumanthappa (PW 6), Smt. Parvathamma and eight others named in the charge-sheet, but not examined as witnesses. The dowry articles and the cash were given at the time of the wedding. The husband and wife lived happily for about a year after marriage, but the respondents started harassing the deceased for additional dowry. The respondents started physically assaulting the deceased with stick and axe-handle for dowry.
3.2. The respondents would also speak ill of the deceased's family members for not paying a higher dowry.
Whenever the deceased told the complainant and the others in the family about the harassment that was being meted out to her, the family members advised her to put up and also 7 advised the first respondent not to so treat the deceased. About 4 days prior to the demise of the deceased, because the first respondent had continued demanding higher dowry, the complainant sent a sum of Rs.1,000/- with his younger brother, Sri Nagappa to pay to the respondents.
3.3. The deceased, about 8 days prior to her demise, had been to her matrimonial home to attend the puberty rites of one of her nieces, and she got the name of her friend who had attained puberty written on her right forearm in Mehendi as part of the customary rites. When the deceased returned to the respondents, on 06.12.2012 they doused the deceased's forearm with kerosene leading to burn injuries and later in the day, the respondents pinned the deceased down holding her limbs and forced her to consume insecticide.
3.4. The deceased called up Sri Nagappa, an brother, from the neighbour's mobile (PW 12) and informed him that the respondents had caused burn injuries on a forearm because she had got the name of her niece written in 8 Mehendi. The complainant immediately called up the second respondent's younger brother on his cell, who asked him to call back after five minutes. The complainant again called up the second respondent's younger brother who handed over the phone to the second respondent. The second respondent said that he was not at-home and he will go back and verify. When the complainant called back again, the third respondent took the phone and told him that the deceased and the first respondent has quarreled but they did not know the details because they were not at home. Later, the fourth respondent who came online informed the complainant that the first respondent had smeared kerosene on the deceased's forearm but he was able to protect the deceased. The respondents asked the complainant to visit them in the morning, but at around 12:30 PM, the first respondent called him over telephone and told him that the deceased had consumed poison. The complainant and his younger brother started to reach the respondent's residence at Poorapura, but when they were on their way, there were informed that the deceased had breathed her last. Therefore, they returned home.
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3.5. Next morning at about 11:00 a.m., the complainant, his parents, his younger brother and relatives, including PW 1 and PW 6, reached Kanakagiri police station and they were asked to go to Gangavathi. In the Government Hospital at Gangavathi they saw the deceased's dead body; there was frothing from her nose and mouth, the body smelt of insecticide and there was a burn injury on her forearm. Subsequently, the first information is lodged with Kanakagiri police after getting the complaint (Ex. P 6) typed on a computer near Gangavathi Court Complex.
4. The police, after investigation, have filed charge- sheet against the respondents, but excluding the five others mentioned in the first information. The learned jurisdictional Magistrate upon charge-sheet being filed has taken cognizance has committed the case for trial by the Sessions Court after ensuring compliance with the provisions of section 207 of the Code of Criminal Procedure (for short, 'the Cr.P.C.'), The Sessions Court, being of the opinion that there was material to frame charges against the respondents for the offences punishable under section 498A, 304B read with 10 34 of IPC and sections 3, 4 and 6 of the DP Act, has framed charges against the respondents for these offences. The respondents on the charges being read over have pleaded that they are not guilty and have requested for trial.
5. The prosecution has examined 17 witnesses and marked Exhibits P1 to P 14 and Material Objects in MO-1 to MO 28. The complainant and the deceased's brother, Sri Shivappa, is examined as PW5. A relative of the deceased, Sri Yamanurappa s/o Hanumantha, is examined as PW6. A friend of the deceased, Kum. Shankaramma, is examined as PW 13. The respondents' neighbour, Smt. Lalithamma, is examined as PW 12. Sri. Govindappa, a relative of the deceased through her mother and also a panch witness for Inquest Report and mahazar drawn at the place of occurrence (the respondents' residence) is examined as PW1. The other panch witness for the Inquest Report, Sri Annadani, is examined as PW 11. Sri Yamanappa (PW 2) is examined as another Panch witness for the mahazar drawn at the place of occurrence. This witness, along with Sri. Piddana Gowda, PW 8, is also examined as a witness for 11 recovery of cans of insecticide and kerosene at the place of occurrence. Sri Shanara Gowda and Sri. Kunteappa, the panch witnesses for recovery of household articles from the place of occurrence i.e., the respondents' residence are examined as PW 3 and PW 4.
6. The doctor who saw the deceased at Kanakagiri Community Hospital, Kanakagiri is examined as PW-9, and the doctor who has conducted the post-mortem is examined as PW-10. The prosecution's case being that the conversation between the complainant and the respondents in the evening of 06.12.2012 was recorded by the complainant, a panch witness for the recovery of the CD with such conversation and the memory card used to record such conversation, Sri. Bhairoji, is examined as PW 7. A Nodal Officer of M/s Airtel, Sri. Stanely Egnalo, is examined as PW 14 to establish the registration of the SIM cards mentioned by the complainant and the call details from such SIM cards.
7. The other witnesses viz., PW 15, PW 16 and PW 17, are police witnesses, and amongst them PW 15 is the 12 Assistant Police Inspector who has received the first information and registered the FIR. The Investigating Officer, Sri. D. L Hanagi, who has died after the charge-sheet is filed, could not have been examined, but the other police personnel who are examined as witnesses have spoken about the details of the investigation and have identified the signature of this investigating officer on the exhibits marked.
8. The Inquest Report/ Mahazar is marked as Exhibit P1. The seizure mahazar under which the clothes worn by the deceased at the time of her demise (M O 1 to 3) are seized is marked as Exhibit P2. The spot mahazar drawn at the place of occurrence is marked as Exhibit P3. The seizure mahazar under which the household articles (MO 6 to 26) are seized is marked as Exhibit P4. The complaint is marked as Exhibit P5. The Panchanama for seizure of CD is marked as Exhibit P6. The Post-Mortem Report and the Forensic Laboratory's Report are marked as Exhibit P8 and P9. The portions of the statements by PW 8 and PW 12 as recorded by the police and denied by these witnesses in their evidence are marked as Exhibits P7 and P 10. The call 13 records, the application submitted by the complainant and his brother, Sri Sharan Gowda, for securing Sim cards and their identity cards are marked as Exhibits P 11 and P 11 (a) to P 11 (g). The FIR is marked as Exhibit P 12. A portion of the first respondent's voluntary statement as recorded by the police is marked as Exhibit P 13. The transcription of the conversation recorded and transferred to CD is marked as Exhibit P 14.
9. The respondents, who have marked certain portions of the statements of PW 5 (the deceased's brother- complainant) and PW 6 (a relative of the deceased) as recorded by the police as Exhibits D1 to D3, have filed their statement in writing as part of their statement under section 313 of Cr.P.C. The respondents in this written statement under section 313 of Cr.P.C have stated that they are innocent of the offences alleged against them. The deceased had got written the name of a certain Hanumantha on her forearm and therefore, her brother, the complainant/PW 5, had spoken to the deceased and scolded her on the cell phone of PW 12. The deceased, who was depressed because 14 she had no children though it was more than 4 years from the date of marriage, consumed insecticide when nobody was at home. Later, when she started vomiting, the third respondent, the mother in law, and other relative shifted the deceased to Government Hospital at Musalapura, then to Hospital at Kanakagiri and subsequently to Government Hospital Gangavathi. The deceased died in Gangavathi Hospital despite the treatment. The CD relied upon by the prosecution does not contain any conversation involving them.
10. The Sessions Court, after referring to different authorities relied upon by both the learned counsel for the respondents and the public prosecutor-including the decision of the Hon'ble Supreme Court in Nilesh Dinkar Paradkar v. State of Maharashtra1 as regards the evidentiary value of conversation recorded but whose veracity is not established, has concluded that though the deceased died an unnatural death within 7 years of marriage, it is not shown that the deceased soon prior to her demise was subjected to 1 (2011) 4 Supreme Court Cases 143 15 harassment or cruelty by the respondents in connection with demand for dowry. The Sessions Court has also opined that because the prosecution has not established that the deceased soon before her death had been subjected to cruelty or harassment for dowry, presumption available under section 113B of the Evidence Act, 1872 also would not be available. The Sessions Court has also disbelieved the prosecution's case of the respondents demanding and receiving dowry.
11. The Sessions Court in acquitting the respondents of the charges against them has disbelieved the evidence of the complainant - the deceased's brother (PW 5) as regards the demand for dowry because of contradiction in the statement before the police and because of improvement in his evidence. The Sessions Court has also disbelieved the evidence of this witness because though he refers to having sent a sum of Rs.1,000/- towards additional demand for dowry through his younger brother, Sri Nagappa, and this brother informing him about the respondents rubbing kerosene on the forearm of the deceased in the afternoon of 16 06.12.2012, this younger brother is not examined as a witness. The Sessions Court has observed there are contradictions even in this regard.
12. The Sessions Court has also disbelieved the evidence of Sri Yamanurappa (PW 6) opining that his evidence about the demand for dowry by the respondents immediately after a year of the wedding and the deceased informing this witness about the same would be an improvement. The Sessions Court has further opined that the charge of demanding dowry is not established because none of the witnesses in their statement before the police has stated about the respondents assaulting the deceased, and there is no proof of payment of dowry. The Sessions Court has further opined that if household articles are given as a custom without any demand, as suggested to some of the witnesses on behalf of the respondents, the same cannot tantamount to payment of dowry.
13. The Sessions Court has concluded that the prosecution's case that the respondents rubbed kerosene on 17 the deceased's right forearm and caused burn injuries is also not established because the evidence about whose name she had got written on her forearm to arouse anger in the respondents to cause burn injuries is not consistent. The inquest report is also silent about any writing in Mehendi on the deceased's forearm.
14. The Sessions Court, after observing that recorded conversation could be a weak piece of evidence, has pointed out that the recording/memory card and much the conversation was seized by the prosecution after delay and the witnesses in whose presence these are recovered, have been cited as panch witnesses in a number of cases. Their testimony, and the failure of proper identification of the voices, renders the evidence of recorded conversation, which is transcribed as Exhibit P 17, dubious.
15. The learned Additional State Public Prosecutor and the learned counsel for the complainant, in support of their appeals, argued that the complainant had only explained the circumstances leading to the deceased's death 18 in his first information, and the complainant could not have been disbelieved because all the details were not mentioned in the first information. The learned Additional State Public Prosecutor and the learned counsel for the complainant relied upon the settled proposition that the first information need not be an encyclopedia in support of the submission that the prosecution's case could not have been disbelieved on the ground that all the details are not mentioned in the FIR or the subsequent statement before the police.
16. The learned Additional State Public Prosecutor and the learned counsel for the complainant took this Court through the evidence of PW 1 (a relative of the deceased), PW 5 (the deceased's brother and the complainant), PW 6 (another relative of the deceased) and PW 13 (a friend of the deceased) to contend that the necessary ingredients for drawing of presumption under section 113-B of the Evidence Act, 1872 were established, and that the respondents, against whom presumption would be available in law, have not placed any evidence to rebut the presumption. 19
17. The learned Additional State Public Prosecutor and the learned counsel for the complainant also argued that the Sessions Court has failed to consider the undisputed fact that the deceased was found with certain burn injuries and having consumed insecticide in the respondents' residence. But, the respondents have not explained the reason for the deceased being found with a burn injury and having consumed insecticide in their residence. The respondents, who would be obliged in law in view of the provisions of section 106 of the Evidence Act, 1872 to explain the reason for the above, have failed to explain why they did not inform the police about the deceased consuming insecticide. They emphasised that no proceedings were initiated until the complainant filed the first information as per Exhibit P.12. The learned Additional State Public Prosecutor and the learned counsel for the complainant canvassed that the failure to inform the police would be a significant circumstance which the Sessions Court has failed to consider.
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18. The learned counsel for the respondents, on the other hand, argued that the prosecution, given its case, should establish beyond reasonable doubt that the deceased prior to her unnatural death was subjected to cruelty or harassment for dowry. But the prosecution has failed to establish that the deceased was indeed subjected to cruelty for dowry immediately prior to her demise or even earlier, and unless the necessary ingredients are established, no presumption can be drawn against the accused. The evidence led by the prosecution, including the evidence of the deceased's brother (PW 5)/her relatives (PW1 and PW
6)/her friend (PW 13) is replete with improvements and contradictions which completely belie the prosecution's case and in fact, the respondents' statement under section 313 of Cr.P.C stands vindicated by the prosecution's case. The respondents and their relatives, immediately after seeing that the deceased had consumed insecticide, had taken the deceased to three hospitals as they were anxious to save the life of the deceased.
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19. The learned counsel also canvassed that the benefit of presumption of innocence that was available to the respondents during the entire trial, is reinforced by the Sessions Court's acquittal. The Sessions Court having already opined that there is no evidence against the respondents to establish their guilt beyond reasonable doubt, even if this Court, after re-appreciation of the evidence, could opine otherwise, there cannot be interference with the acquittal by the Sessions Court unless it is shown that the Sessions Court's judgment is perverse.
20. The point that arises for consideration in this appeal is:
Whether the Sessions Court's finding that the prosecution has failed to prove that the respondents are guilty of the offences punishable under Sections 498A, 304B read with 34 of IPC and Sections 3, 4 and 6 of the DP Act suffers from perversity or irregularity calling for interference by this Court in this appeal.
The point for consideration is answered against the appellants for the following reasons. 22
21. The accusation against the respondents is that the first respondent, acting pursuant to the common intention shared with the other respondents, picked up a quarrel with the deceased on 06.12.2012 at about 4 PM and rubbed kerosene on her forearm and attempted to light fire, and later in the evening the respondents caught hold of her and forcibly administered insecticide consequentially causing her unnatural death within a period of 7 years of marriage. The deceased was subjected to cruelty for dowry soon before her death. The further accusation against the respondents is that they pursuant to common intention subjected the deceased to cruelty assaulting her and demanding unlawful dowry that was likely to force her to commit suicide. The respondents also face the accusation of demanding and collecting certain dowry at the time of the wedding. Therefore, the respondents have been tried for the offences punishable under Sections 498A, 304B read with 34 of IPC and Sections 3, 4 and 6 of the DP Act.
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22. The Hon'ble Supreme Court in Rajinder Singh v. State of Punjab2, while considering the connotation and essential elements of "soon before her death" as found in Section 304-B of IPC and the expression "Dowry" as found in the DP Act and referred to in the Explanation to Section 304B of IPC, has observed as follows insofar as the ingredients for the offence under Section 304B of IPC:
"The ingredients of the offence under section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be:
(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;
(b) such death must have occurred within 7 years of marriage;
(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand for dowry."
2 (2015) 6 Supreme Court Cases 477 24 It has been enunciated that the word "soon" in the expression "soon before her death" used in section 304B of IPC as well as in Section 113-B of the Evidence Act is a relative term. But, the expression "soon before" is not synonymous with "immediately before". Days and months are not what is to be seen. A fair and pragmatic construction keeping in mind the social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time-lags may differ from case to case and all that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman. It is further enunciated that the expression dowry is a word of width and would include within it property and valuable security of any kind whatsoever and the giving of dowry and agreeing to give dowry can be at, before, or at any time after the marriage, and it can be many years after marriage is solemnized.
23. The provisions of Section 113-B of the Evidence Act reads that whenever the question is whether a person has committed 'dowry death' of a woman, and it is shown 25 that soon before her death such woman had been subjected to cruelty or harassment for, or in connection with, any demand for dowry, the Courts shall presume that such person has caused the dowry death. It follows from the aforesaid enunciation by the Hon'ble Supreme Court and the provisions of Section 113-B of the Evidence Act that once the prosecution is able to establish the aforementioned four ingredients which constitute dowry death without any reasonable doubt, there shall be presumption that the accused have caused the dowry death of the woman. It is therefore to be seen in this case, whether the prosecution is able to establish the necessary ingredients to draw presumption and examine whether the presumption available under Section 113-B of the Evidence Act is rebutted by the respondents.
24. The essential circumstances relied upon by the prosecution in this case to establish the ingredients that would constitute offence under section 304B of IPC are as follows:
a. The respondents demanded a sum of Rs.50,000, 2 tholas of gold, a wristwatch, 26 a cot and household articles as dowry and the same was paid by the deceased's family;
b. The deceased and the first respondent lived happily only for sometime after the wedding in the year 2008, but the respondents started harassing the deceased for further dowry suspecting fidelity and physically assaulting her;
c. The deceased informed the family members and they advised her to manage and continue to live with her in-laws;
d. About 8 days prior to the demise, the deceased, when she was visiting her parental house, had complained of demand for dowry by the respondents and therefore, the complainant-the deceased's brother (PW 5) about 4 days later sent a sum of Rs.1,000/- with another brother, Sri Nagappa, to be paid to the respondents; and e. The deceased in the evening of 06.12.2012 called upon other brother, Sri Nagappa, and informed him that the respondents in continuation of the cruelty and 27 harassment rubbed kerosene on the deceased's forearm suspecting her fidelity and lit fire, and this brother, Sri Nagappa informed the complainant.
25. The prosecution to establish the aforesaid circumstances relies upon the testimony of the deceased's brother-complainant, PW 5, the deceased's relatives, PW1 and PW 6 and the deceased's friend, PW 13 apart from, a record of conversation (as per transcription at Ex. P 14) between the complainant and the respondents/ the second respondent's younger brother over the cell phone of the respondents' neighbour, PW 12.
26. The deceased's brother-complainant (PW 5) has admitted in his cross-examination that he has not stated in his complaint (as per Exhibit P5) that the respondents demanded a sum of Rs.50,000/-, 2 tholas of gold, a wristwatch, a cot and household articles as dowry and the same was paid by the deceased's family. But he has stated that the amount of Rs.50,000/- was mobilised by raising loans in the name of his father and the documents in this regard have been lost. The prosecution has not examined 28 either the father or the mother, or offered any explanation as to why they have not been examined. He has stated that the discussion about payment of dowry was held about two months prior to the wedding and cites a number of persons as being present at the time of discussion, and mentions that Smt. Parvathamma was present from the respondents' side. But later admits in cross-examination, with some reluctance that Smt. Parvathamma is his relative. Smt. Parvathamma is not examined and none amongst the many mentioned as being present are examined except PW1 and PW 6.
27. This witness further states that because there was a persistent and continuing demand for dowry even after 4 years of marriage, about 4 days prior to the death, he sent a sum of Rs.1,000/-, with his younger brother, Sri. Nagappa to be paid to the respondents. But, this brother is not examined. The articles seized as being given in dowry are household articles, and the respondents, as is obvious in the cross-examination, accept that these articles were given but suggest it was given voluntarily as per the prevalent custom. 29 The witness accepts that the marriage between the deceased and the first respondent was solemnised in a mass wedding in which event the wedding of the fourth respondent was also solemnised. The fourth respondent has two children, while the deceased and the first respondent did not have any children.
28. The improvements and these circumstances, and the other circumstances as would be discussed later, renders this witness's testimony about payment of dowry at the time of the wedding and the continuing demand for dowry by the respondents even as before the demise of the deceased is very doubtful.
29. The next crucial witness is Yamanurappa (P.W.
6). He is a relative of the complainant and a resident of the same village as the deceased's brother. He has stated, in his evidence, that he mediated the talks at the time of the deceased's marriage to the first respondent and dowry in a sum of Rs.50,000/- by way of cash, 2 tolas of gold and other articles were agreed to be given. The cash of Rs.50,000/- and the other articles were handed over at the time of the 30 wedding. The deceased would tell him about the harassment and cruelty by the respondents for dowry whenever she visited her parental house. These statements appear to be improvements. Crucially, this witness states that all the talks about the dowry started after the deceased's demise. There was no quarrel about the dowry until the demise of the deceased. This witness also admits that within the community household articles are given at the time of the wedding as a custom. The Sessions Court has disbelieved the evidence of this witness in view of this witness's relationship with the complainant/deceased's brother, the improvements made while giving evidence and the aforesaid statements in the cross-examination.
30. The Sessions Court for similar reasons has disbelieved the evidence of P.W.1. The appreciation of evidence of these witnesses by the Sessions Court, in the aforesaid circumstances, is unexceptionable. Their evidence does not help the prosecution in establishing the necessary ingredients for an offence punishable under Section 304B of IPC.
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31. The prosecution, as regards the harassment to the deceased by the respondents for dowry soon before her demise, relies upon the next set of circumstances viz., the deceased visiting her parental house to attend to the puberty rites of one of her nieces and narrating to her family members that the respondents had continued to harass her for dowry. The complainant (P.W.5) sending a sum of Rs.1,000/- with his brother Sri. Nagappa to meet the continued demand for dowry. The deceased calling up her brother, Sri. Nagappa in the evening of 06.12.2012 and informing him about the first respondent rubbing kerosene on her forearm and causing burning injuries because she had got the name of her friend Shankramma on forearm written in Mehandi' when she attended the puberty rites. The later conversation between the complainant and the respondents and the second respondent's younger brother.
32. The prosecution to prove these circumstances relies upon the evidence of P.W.1, the respondent's neighbour (P.W.12), and the deceased's friend Kumari Shankramma (P.W.13) as well as P.W.6. In addition, the prosecution relies 32 upon the recorded conversation between the complainant and the respondent/the brother of second respondent as stated above. The evidence of P.W.5 is that the deceased had got the name of her friend Shankramma written on her forearm, but P.W.6, who claims close acquaintance with the deceased and her family members, in his cross-examination, states he does not know whose name the deceased had got written on her forearm. But, is categorical in denying that the deceased got written the name of certain Hanamantha. Smt. Shankramma (P.W.13) states in her evidence that the deceased had got her name written on her left forearm. It is obvious from the testimony of these witnesses that they are not consistent about the reason for the respondent's allegedly rubbing kerosene on the deceased's right forearm and causing burn injuries.
33. The post-mortem report is that the deceased had superficial suffered burn injuries on the posterior aspect of right elbow joint. The doctor who has done the post-mortem is examined as P.W.10, and she states that the burn injuries on the posterior aspect of right elbow could have been sustained 33 by the deceased while she was cooking. The Post-mortem report states that this superficial burn injury on the posterior aspect of right elbow is about 6 to 8 hours, but a closer scrutiny of report shows that the entry as regard the age of wound is an interpolation. The Inquest Report and Post- mortem do not mention about the presence of Mehendi or traces thereof on the anterior of deceased's forearm. The inconsistencies in the oral testimony of the witnesses, and the medical evidence about the injury on the posterior aspect of the elbow as against the injury on the anterior of the forearm as spoken to by the witnesses, and the failure to examine Sri. Nagappa (who is repeatedly referred to by the P.W 5) creates serious doubt about the prosecution's case that the deceased was subjected to harassment or cruelty even prior to the death of the deceased.
34. The evidence as regards the tape conversation between the complainant (P.W.5) and the respondent/ the second respondent's younger brother is very doubtful for the reasons observed by the Sessions Court. The memory card and the CD are produced before the Investigating Officer 34 about ten days after the death on 17.12.2000. The CD and the memory card are recovered purportedly in the presence of panchas who have been cited as panchas by the police, as observed by the Sessions Court, in about five cases between the years 2011-12. The delay in producing the CD/Memory card and the manner of its seizure create doubt because they accentuate the possibility of tampering.
35. Lastly, the complainant (P.W.5) states that he was informed about the death of the deceased at about 12'O clock during the night intervening 06.12.2012 and 07.12.2012 when he was on the way to the respondent's residence with his brother, Sri Nagappa, upon learning that the deceased had consumed insecticide. But, on being informed about the demise he returned back to his residence. On the next day, he and many others from his village including his brother Sri. Nagappa, initially went to Kanakagiri Police Station and from there they reached Government Hospital at Gangavathi where they saw the dead body. Subsequently, the first information is lodged at 2.30 p.m. in Kanakagiri PS. While this conduct appears very unnatural, it is borne out by the undisputed 35 testimony that the respondents and their neighbours, as stated by the respondents in their statements recorded under Section 313 of Cr.P.C, took the deceased first to Government Hospital at Musalapura, later to Hospital at Kanakagiri and subsequently to the Government Hospital at Gangavathi. These circumstances create further doubt about the prosecution's case as regards demand for dowry, the respondent's harassing the deceased for dowry, the respondents causing burn injuries on the deceased's forearm because she had got written the name of her friend on her forearm and the respondents forcing the deceased to consume insecticide.
For the foregoing discussion, this Court is of the considered opinion that there is no reason for interference in the appeals, and the appeals are accordingly dismissed.
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