Karnataka High Court
The State Of Karnataka vs Vijay Kumar S/O Hari Rathod And Ors on 22 September, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL No.200083/2015
BETWEEN:
The State of Karnataka
Through Aurad-B Police
Rpted. by its Addl. State Public Prosecutor
... Appellant
(By Sri Prakash Yeli, Addl. SPP)
AND:
1. Vijay Kumar S/o Hari Rathod
Age: 28 years, Caste: Lamani
2. Bhikkubai W/o Hari Rathod
Age: 48 years, Caste: Lamani
Occ: Household
3. Hari S/o Munna Rathod
Age: 60 years, Caste: Lamani
Occ: Agriculture
4. Ramesh S/o Hari Rathod
Age: 35 years, Caste: Lamani
All R/o Deshmukh Thanda
Crl.A.No.200083/2015
2
Tq. Aurad
5. Smt. Sunita W/o Kishanrao Chauhan
Age: 22 years, Caste: Lamani
Occ: Household, R/o Gudpalli Thanda
6. Suresh S/o Hari Rahtod
Age: 24 years, Caste: Lamani
Occ: Agriculture, R/o Deshmukh Thanda
Tq. Aurad.
... Respondents
(By Sri Sanjay A. Patil, Advocate)
This Criminal Appeal is filed under Section 378(1) (b) of
the Code of Criminal Procedure, 1973, praying to grant leave to
appeal against the judgment and order dated 19.01.2015
passed by the Addl. District & Sessions Judge, Bidar, in
Sessions Case No.104/2013 whereby acquitting the
respondents-accused for the offence punishable under Section
498-A, 304-B IPC and Sections 3, 4 and 6 of D.P. Act, set aside
the judgment and order dated 19.01.2015 passed by the Addl.
District & Sessions Judge, Bidar, in Sessions Case No.104/2013
whereby acquitting the respondents-accused for the offence
punishable under Sections 498-A, 304-B IPC and Sections 3, 4
and 6 of D.P. Act and convict and sentence all the respondents/
accused for the offence punishable under Sections 498A, 304-B
IPC and Sections 3, 4 and 6 of D.P. Act, in the interest of justice
and equity.
This appeal coming on for final hearing, through
physical hearing/video conference, this day
Dr.H.B.Prabhakara Sastry J., delivered the following:
Crl.A.No.200083/2015
3
JUDGMENT
The State has filed this appeal under Section 378 (1)
(b) of the Code of Criminal Procedure, 1973 challenging the judgment of acquittal dated 19.01.2015 passed by the learned Additional District and Sessions Judge, Bidar (hereinafter for brevity referred to as the 'Sessions Judge's Court') in S.C.No.104/2013, acquitting the accused of the offences charged against them.
2. The summary of the case of the prosecution in the learned Sessions Judge's Court was that deceased Smt. Aruna was given in marriage to accused No.1- Vijaykumar and their marriage was solemnised on the date 28.05.2012. At the time of marriage, a sum of `1,00,000/- (as per the charge sheet the demand was for a sum of `1,50,000/-, however, the charge framed in the learned Sessions Judge's Court was for `1,00,000/- only) and 1 tola (ten grams) of gold was given to the accused from the bride's side, as dowry. After the marriage, Smt. Aruna went to her matrimonial home at Deshmukh Crl.A.No.200083/2015 4 Thanda, Taluka Aurad, District Bidar and started residing along with all the accused. For about two months after her marriage, the accused treated her well. However, thereafter all the accused started subjecting her to ill- treatment and cruelty, both physically and mentally, by insisting her to bring additional dowry of a sum of `2,00,000/-, 5 tolas of gold and a motor cycle. Deceased Aruna, being not able to tolerate the cruelty meted to her by the accused, saw an unnatural death on the date 11.04.2013 at about 8.30 p.m. Her dead body was found in the open well belonging to one Smt. Sangamma W/o Rachappa situated in land bearing Sy.No.174/A. In that connection, a crime came to be registered in the appellant - police station in their station Crime No.74/2013 against all the respondents herein on 11.04.2013. After completing investigation, the appellant
- police filed charge sheet against all the respondents herein arraigning them as accused Nos.1 to 6, for the offences punishable under Sections 498-A, 304-B read with Crl.A.No.200083/2015 5 Section 149 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as the 'IPC') and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 (hereinafter for brevity referred to as the 'D.P. Act').
3. In order to prove the guilt against the accused, prosecution got examined twenty eight (28) witnesses as PW-1 to PW-28 and got marked documents from Exs.P-1 to P-20 and got produced material objects from MO-1 to MO-5. From the accused side, four witnesses were examined as DW-1 to DW-4 and no documents were marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 19.01.2015, acquitted all the accused of the offences punishable under Sections 498-A, 304-B of IPC and Sections 3, 4 and 6 of the D.P. Act. Challenging the same, the State has preferred the present appeal.
Crl.A.No.200083/20156
5. The respondents/accused are being represented by their learned counsel.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
9. The points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that at the time of marriage of deceased Smt. Aruna with accused No.1-
Vijaykumar, which was held on 28.05.2012 at Deshmukh Thanda, within the limits of complainant - police station, the accused demanded and accepted a dowry in the form of Crl.A.No.200083/2015 7 a sum of `1,00,000/- and 1 tola of gold and retained the said dowry with themselves and thereby have committed the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961?
(ii) Whether the prosecution has proved beyond reasonable doubt that accused No.1, joined by accused Nos.2 to 6, after the marriage of Smt. Aruna with accused No.1 on 28.05.2012 and she joining accused in her matrimonial home at Deshmukh Thanda, within the limits of complainant - police station, subjected said Smt. Aruna to cruelty, insisting her to bring an additional dowry of a sum of `2,00,000/-, 5 tolas of gold and a motor cycle and thereby committed an offence punishable under Section 498-A of the Indian Penal Code, 1860?
(iii) Whether the prosecution has proved beyond reasonable doubt that on the date 11.04.2013 at about 8.30 p.m., Smt. Aruna wife of accused No.1 met with an unnatural death due to drowning and her dead body was found in the open well in the land belonging to Smt. Sangamma W/o Rachappa situated in Sy.No.174/A within the limits of complainant - police station and all the accused subjecting the deceased Smt. Aruna to cruelty in Crl.A.No.200083/2015 8 connection with their demand for dowry, soon before her death, have caused the dowry death of Smt. Aruna and thereby committed an offence punishable under Section 304-B of the Indian Penal Code, 1860?
(iv) Whether the judgment of acquittal dated 19.01.2015 passed by the learned Sessions Judge's Court warrants any interference at the hands of this Court?
10. Learned Additional State Public Prosecutor, in his argument, submitted that PW-15, PW-16, PW-19, PW-20 and PW-21 are the family members and PW-22 to PW-25 being the independent witnesses, have categorically stated about demand and acceptance of dowry by the accused. They have also spoken about the dowry death of deceased Smt. Aruna. Admittedly, her death has taken place in an unnatural manner, within seven years of the date of her marriage with accused No.1. Therefore, there is a presumption that the death of Aruna was dowry death and the evidence led by the prosecution has established that it was the accused and accused alone who have caused the said dowry death of Smt. Aruna. However, the Crl.A.No.200083/2015 9 learned Sessions Judge's Court, without appreciating the evidence placed before it in its proper perspective, on the other hand picking up few stray words from here and there and without noticing the material part of the evidence of the prosecution witnesses, has erroneously pronounced the judgment of acquittal. With this, he submitted that the said judgment deserves to be set aside and the accused deserve to be convicted for the alleged offences. In his support, he relied upon few judgments of the Hon'ble Apex Court, which would be referred to at the relevant portion of the judgment hereafterwards.
11. Learned counsel for the respondents/accused, in his very brief argument, submitted that he would concede that deceased Aruna was married to accused No.1
- Vijaykumar on 28.05.2012 at Deshmukh Thanda within the limits of complainant - police station and that accused Nos.2 and 3 are the mother and father, accused Nos.4 and 6 are the brothers and accused No.5 is the sister of accused No.1. He also submitted that the accused admit Crl.A.No.200083/2015 10 that Smt. Aruna died an unnatural death on 11.04.2013 in the night at about 8.30 p.m. However, he submitted that accused Nos.4 and 6 are the residents of Mumbai, eking their livelihood and accused No.5 is a married lady residing in her husband's house which is at a distant place than the house of accused No.1. It is only accused Nos.1, 2 and 3 who were residing along with the deceased Aruna in their house at Deshmukh Thanda within the limits of complainant - police station. Learned counsel further submitted that there is no proximity between the alleged cruelty said to have been meted to deceased Smt. Aruna and her death on 11.04.2013. He further submitted that, in order to prove the alleged telephonic contact between the deceased and her mother, the prosecution should have placed the documents like call register. As such, in the absence of the same, the evidence of the mother of the deceased is not believable. He also submitted that evidence of DW-1 and DW-4 establishes that accused are innocent of the alleged offences.
Crl.A.No.200083/201511
Finally, stating that in case two views are possible, the one beneficial to the accused to be accepted, the learned counsel submitted that the impugned judgment does not warrant any interference at the hands of this Court.
12. Among the twenty eight (28) witnesses examined by the prosecution from PW-1 to PW-28, PW-15 (CW-9)- Jalinder, PW-16 (CW-1) - Shanta Bai, PW-19 (CW-6)- Udhav, PW-20 (CW-7) - Prakash, PW-21 (CW-8)- Shanker, PW-22 (CW-12) - Waman, PW-23 (CW-13) - Neelkant, PW-24 (CW-15) - Ashok, PW-25 (CW-16) - Babu Rao have spoken about the marital relationship between accused No.1 - Vijaykumar and deceased - Smt. Aruna as husband and wife respectively and the relationship of accused Nos.2 to 6 with accused No.1 and also about the deceased Smt. Aruna residing with her husband i.e., accused No.1 in her matrimonial home at Deshmukh Thanda within the limits of the complainant - police station. Their evidence regarding the solemnisation of the Crl.A.No.200083/2015 12 marriage of deceased Smt. Aruna with accused No.1 - Vijaykumar on the date 28.05.2012 at Deshmukh Thanda within the limits of complainant - police station and accused Nos.2 to 6 being the family members of accused No.1, have remained un-denied and undisputed. Even DW-1 - Chandrakanth, DW-2 - Dhanubai, DW-3 - Ganpathi and DW-4 - Ramesh, who himself is accused No.4, have also stated about the marital relationship between accused No.1 and deceased Smt. Aruna and the relationship of the other accused i.e., accused Nos.2 to 6 with accused No.1. Thus, it stands as an admitted fact that deceased Smt. Aruna was given in marriage to accused No.1 - Vijaykumar on the date 28.05.2012 and that after her marriage she was residing in her husband's house at Deshmukh Thanda within the limits of complainant - police station.
13. According to the prosecution, at the time of marriage, the accused demanded from the parents of the deceased Aruna, a dowry of a sum of `1,50,000/- and 1 Crl.A.No.200083/2015 13 tola of gold. The said demand was met by the parents of deceased Smt. Aruna.
PW-16 - Shanta Bai the mother of the deceased, PW- 19 - Udhav the father of the deceased, PW-20 - Prakash the brother of the deceased, PW-21 - Shanker the elder brother of PW-19, thus the senior paternal uncle of the deceased, have stated in their evidence about the demand for dowry made from the accused and acceptance of the dowry by them. PW-16, PW-19, PW-20 and PW-21 have uniformly stated that during the marriage they paid a dowry of a sum of `1,50,000/- besides 1 tola of gold to accused No.1. Even though it was elicited in their cross- examination that the entire family of PW-16 and PW-19 i.e., the parents of the deceased was depending upon the earnings from the coolie work and that their family comprises of eight persons and also that they earn `50/- to `100/- per day per head, however, nothing was suggested to the witnesses that due to their alleged low income, they were unable to pay any amount to the accused, much less, Crl.A.No.200083/2015 14 a sum of `1,50,000/- as dowry. However, in the cross- examination of these witnesses, an admission was elicited to the effect that they offered 1 tola of gold during the marriage of Smt. Aruna according to the custom. However, with respect to the alleged payment of `1,50,000/- (in the charge framed, the amount paid is shown as `1,00,000/- only), neither any specific denial suggestions were made to these witnesses nor any statements favourable to the accused was elicited.
14. After the family members of the deceased, the other witnesses who speak about the alleged demand for dowry and its acceptance are PW-22 - Waman, PW-23 Neelkant, PW-24 - Ashok, PW-25 - Baburao and PW-3 (CW-11) - Bansilal S/o Khira Naik. All these witnesses have uniformly stated that at the time of the marriage of deceased Aruna with accused No.1, a sum of `1,50,000/- dowry and 1 tola of gold was offered to accused No.1. PW-22, PW-23, PW-24 and PW-25 have not stated as to how they came to know about the alleged payment of Crl.A.No.200083/2015 15 dowry to the accused No.1. On the other hand, in their cross-examination, PW-22 and PW-23 have further stated that the dowry was passed a month prior to the marriage. Except making a general denial suggestion that no dowry and gold was offered to accused No.1, no further effort was made from the accused side to shaken the evidence of these independent witnesses about their knowledge of acceptance of dowry by the accused No.1.
PW-3 - Bansilal S/o Khira Naik, in his examination-in- chief, has stated that at the time of marriage talks he was present. CW-1 (PW-16) agreed to pay dowry of `1,50,000/- and 1 tola of gold, besides providing one motor cycle. He heard that the dowry was paid prior to the date of marriage. Since this witness, who according to the prosecution, was expected to speak about the alleged dowry death of the deceased and since he did not speak about the same, the prosecution was permitted to treat this witness has hostile and cross-examine him. However, he did not further support the case of the prosecution, Crl.A.No.200083/2015 16 which had thus read over his alleged statement said to have been given before the Investigating Officer as per Ex.P-3. This witness was not cross-examined from the accused side, as they submitted that they have no cross- examination of the witness. Therefore, the entire evidence of PW-3 that he was present at the marriage talks and a dowry of a sum of `1,50,000/- and 1 tola of gold was agreed to be given to the accused by PW-16 and that the said dowry was paid prior to the date of marriage, has remained un-denied and undisputed. This witness by stating that CW-1 (PW-16) agreed to pay the dowry of `1,50,000/- to the accused shows that it was only on demand by the accused, otherwise the question of CW-1 (PW-16) agreeing would not have arisen.
15. Thus, the evidence of the family members of the deceased, including her parents, i.e., PW-16, PW-19, PW-20 and PW-21 and the evidence of independent witnesses i.e., PW-22, PW-23, PW-24 and PW-25 and more importantly the un-denied evidence of independent witness Crl.A.No.200083/2015 17 i.e., PW-3, would prove beyond reasonable doubt that accused, more particularly, accused No.1 had demanded and accepted a sum of `1,50,000/- as dowry. Even though 1 tola of gold given by the parents of the deceased to accused No.1, if treated as given as per custom, however, the huge cash amount of `1,50,000/- paid to the accused proves to be a dowry given to accused No.1 at his demand which was accepted by him.
16. Admittedly, it is nobody's case that either 1 tola of gold given to the accused or a sum of `1,50,000/- given to the accused No.1 was transferred to the deceased during her lifetime or to her parental family after her death. Thus, the said dowry amount remains with the accused No.1 only. However, the learned Sessions Judge's Court, ignored these important portions of the evidence of these material witnesses and more particularly the un- denied evidence of independent witness i.e., PW-3, which made the learned Sessions Judge's Court pronouncing the judgment of acquittal with respect to Sections 3, 4 and 6 Crl.A.No.200083/2015 18 of the D.P. Act. Since the said finding of acquittal of accused No.1 for the offences punishable under Sections 3, 4 and 6 of D.P. Act is proved to be erroneous, the same deserves to be reversed and accused No.1 deserves to be held guilty of the alleged offences punishable under Sections 3, 4 and 6 of the D.P. Act. However, since it is not the evidence of the above said material witnesses including PW-16, PW-19, PW-20, PW-22 to 25 and PW-3 that demand for dowry was made by the remaining accused Nos.2 to 6 and was accepted by them, the finding of the learned Sessions Judge's Court that guilt against those accused Nos.2 to 6 for the offences punishable under Sections 3, 4 and 6 of D.P. Act is not proved, does not call for any interference.
17. It is not in dispute that deceased Smt. Aruna died an unnatural death on the date 11.04.2013. It is also not in dispute that her dead body was found in the water of the well of Smt. Sangamma W/o Rachappa in her land bearing Sy.No.174/A. The evidence of PW-16, PW-19, PW- Crl.A.No.200083/2015 19 20, PW-21 on this aspect has remained un-denied. Even the evidence of PW-22 to PW-25 that after hearing from PW-19 about the death of Aruna they went to the open well and found the dead body of Smt. Aruna which was removed from the well, has not been specifically denied in their cross-examinations. PW-16, PW-19, PW-20 and PW- 21 have called the said death as killing of Aruna and throwing her in the well. However, their statement that Aruna was killed and was thrown in the well was denied in their cross-examination. But the evidence of these witnesses that the death of Smt. Aruna had taken place on 11.04.2013 and it was an unnatural death, has remained un-denied.
The evidence of PW-12 (CW-31) - Sri Venkanna that he drew inquest panchanama as per Ex.P-12 on the dead body of deceased Smt. Aruna on 12.04.2013, in his capacity as the Executive Magistrate of Aurad was further corroborated by the evidence of PW-17 (CW-4) - Bansilal S/o Ramji Jadhav and PW-18 (CW-5) - Raja Bai, who have Crl.A.No.200083/2015 20 stated that the inquest panchanama as per Ex.P-12 was drawn. Though these two witnesses in their cross- examination from the accused side admitted a suggestion as true that they do not know the contents of Ex.P-12, but immediately they stated that they had told the police to prepare Ex.P-12. With this they denied that they do not know the contents of Ex.P-12 and that they have put their signature at the instance of the police. Thus, the evidence of the Executive Magistrate as PW-12, the evidence of PW- 17 and PW-18 as panchas to the inquest panchanama at Ex.P-12, further corroborates that an inquest panchanama was drawn as per Ex.P-12. The said inquest panchanma at Ex.P-12 shows that the panchas have opined that the death of the deceased was a murder. It suspects the accused of committing the murder of deceased Aruna and throwing her dead body in the well. However, PW-15 (CW-
9) - Jalinder in his evidence has stated that death of deceased was due to drowning. The said statement has remained un-denied.
Crl.A.No.200083/201521
Further PW-11 (CW-32) - Dr. Praveen Kumar who conducted postmortem examination of the dead body of the deceased and issued postmortem report as per Ex.P-10, has observed following eleven injuries on the deceased:
(i) Bruises measuring 3 x 1 cm on chin region
(ii) Bruises measuring 2 x 1 cm on the right side of the neck
(iii) Abrasion measuring 1 x 1 cm on left elbow posterior
(iv) Abrasion measuring 2.5 cm x 1 cm on middle portion of the right arm
(v) Abrasion measuring 4 cm x 1 cm on left side of scapula region
(vi) Abrasion measuring 3 cm x 4 cm over left arm
(vii) Nibbling over right external pinna of the ear
(viii) Nibbling over left external pinna of the ear
(ix) Nibbling over right side of the neck
(x) Abrasion measuring 2 x 2 cm on right side of the chin
(xi) Abrasion measuring 2 x 2 cm on left side of the chin He opined that injury Nos.1 to 6 were ante-mortem and injury Nos.7 to 11 were postmortem. About the cause of death, the witness has opined that the same was due to Crl.A.No.200083/2015 22 drowning in the water. After getting the report from the forensic laboratory about the viscera sent to them for examination, where the residues of volatile poisons, pesticides, drugs, alkaloids and toxic metal ions were not detected, the doctor gave his final opinion regarding the cause of death stating that the death was due to drowning.
Thus, the medical evidence also go to establish that the death of deceased Smt. Aruna was otherwise than under normal circumstance as such an unnatural death. Admittedly, the said death has occurred within a year from the date of the marriage of the deceased with accused No.1.
18. The next question that remains for consideration would be as to whether the deceased Smt. Aruna was subjected to "cruelty" by all the accused soon before her death and whether her death could be called as "dowry death" caused by all the accused?
Section 498-A of the IPC defines cruelty in the following terms:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being Crl.A.No.200083/2015 23 the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend 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 woman; or
(b) harassment of the woman where such harassment is with a 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 of failure by her or any person related to her to meet such demand."
Section 304-B of the IPC reads as below:
"304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.Crl.A.No.200083/2015 24
Explanation.- For the purposes 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 shall not be less than seven years but which may extend to imprisonment for life."
19. In the judgment relied upon by the learned Additional State Public Prosecutor for the appellant - State, in the case of G.V. Siddaramesh Vs. State of Karnataka reported in (2010) 3 Supreme Court Cases 152, the Hon'ble Apex Court, while dealing with Section 498-A of the IPC, was pleased to observe in paragraph 24 of its judgment that, "cruelty" can either be mental or physical. It is difficult to straitjacket the term "cruelty" by means of a definition, because "cruelty" is a relative term. What constitutes cruelty for one person may not constitute cruelty for another person.
20. In the case of Bansi Lal Vs. State of Haryana reported in (2011) 11 Supreme Court Cases 359, with Crl.A.No.200083/2015 25 respect to "dowry death" under Section 304-B of the IPC, the Hon'ble Apex Court was pleased to observe in paragraph 17 of its judgment that, while considering the case under Section 498-A (sic Section 304-B), cruelty has to be proved during the close proximity of time of death and it should be continuous and such continuous harassment, physical or mental, by the accused should make life of the deceased miserable which may force her to committee suicide.
In paragraph 20 of the very same judgment, the Hon'ble Apex Court further observed that, the expression "soon before her death" has not been defined in either of the statutes. Therefore, in each case, the Court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death.
21. In the case of Surinder Singh Vs. State of Haryana reported in (2014) 4 Supreme Court Cases 129, Crl.A.No.200083/2015 26 with respect to Section 113B of the Indian Evidence Act, 1872, (hereinafter for brevity referred to as "the Evidence Act") and Section 304-B of the IPC, the Hon'ble Apex Court was pleased to observe that for presumptions contemplated under both these Sections to spring into action, it is necessary to show that cruelty or harassment was caused soon before the victim's death. The question is, how "soon before"?. This would obviously depend upon the facts and circumstances of each case.
It further observed in the same case that, cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to outside world. It observed that the said list was illustrative Crl.A.No.200083/2015 27 and not exhaustive. It further observed that physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on mind of a woman. Therefore, "soon before" is a relative term. In matters of emotions, there cannot be fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death. Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such a demand and the date of death, test of proximity will have to be applied. But it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of Court within confines of law.
22. It is keeping in mind the above principles laid down by the Hon'ble Apex Court in the said judgments, the evidence of the witnesses both from the prosecution side as well as defence side is required to be analysed. Crl.A.No.200083/2015 28
23. In this connection, the first set of witnesses whom the prosecution examined projecting them as the relatives of accused Nos.1 to 6, as such, they know the marital life of the deceased Smt. Aruna with the accused No.1 and his family members are, PW-4 (CW-18) - Aravinda, PW-5 (CW-22) - Kashirama, PW-6 (CW-20) - Chander, and PW-7 (CW-21) - Bheemarao.
All these witnesses, uniformly in their evidence, stated that accused Nos.1 to 6 and CW-1 (PW-16) - mother of deceased Smt. Aruna are their relatives and that they know both the deceased Smt. Aruna and the accused persons. However, they stated that, they do not know the quantum of dowry and gold offered to the accused No.1 and whether the accused ill-treated deceased Smt. Aruna. Though they stated that accused Nos.1 to 5 and deceased Smt. Aruna were residing together under a single roof, but stated that, they heard that Smt. Aruna died, but they did not know the cause of her death. They categorically stated that the Police have not recorded their statements. Treating them as hostile, the prosecution was permitted to Crl.A.No.200083/2015 29 cross-examine them, however, the prosecution, except reading to them their alleged statements said to have been given before the Investigating Officer and getting them marked as Ex.P-4, Ex.P-5, Ex.P-6 and Ex.P-7 respectively, could not elicit any further statements from them in its support. Thus, about the alleged cruelty and the role of the accused in the death of deceased Smt.Aruna, these witnesses could throw no light.
24. PW-8 (CW-25) - Purshotam, though has stated that, he knows the accused persons and the deceased Aruna, but stated that he does not know the quantum of dowry and the gold offered to accused No.1. He stated that he had not officiated as a priest to the marriage of the deceased with the accused No.1. Even after treating him hostile, the prosecution could not get any support from him in his cross-examination. His alleged statement before the Investigating Officer was marked as Ex.P-8.
25. PW-9 (CW-23)- Smt. Raja Bai, whom the prosecution projected as a witness knowing about the Crl.A.No.200083/2015 30 marital life of the deceased Smt. Aruna also did not support the case of the prosecution. She too has stated that, she does not know whether the accused subjected deceased Aruna to cruelty and caused her dowry death. Except reading out her alleged statement before the Investigating Officer and getting it marked as Ex.P-9, the prosecution even after cross-examining her, could not get any support from her.
26. The second set of witnesses who are material witnesses to the case of the prosecution are once again, PW-15, PW-16, PW-19, PW-20 and PW-21. All these witnesses uniformly have stated that the deceased Smt. Aruna was subjected to cruelty by the accused persons, demanding her to get additional dowry. All these witnesses claim that they heard about the cruelty meted to deceased Aruna by none else than Aruna herself.
PW-15 (CW-9) - Sri. Jalinder stated that whenever Aruna (wrongly typed in the deposition as "Arjuna") returned to her parents house, she was telling him that the Crl.A.No.200083/2015 31 accused persons were insisting upon further dowry of `2,00,000/- and five tolas of gold besides one motor cycle. He stated that thereafter himself joined by CW-1, CW-6, CW-15, CW-19 and CW-16 had been to the house of accused No.1 and advised the accused not to ill-treat the deceased Aruna and convinced them that these people were not having money. The witness says that he heard that even after such an advise, the accused Nos.1 to 6 were ill-treating the deceased Aruna.
This witness further stated that when deceased Aruna had been to the house of her mother for Deepavali festival, she told him that the accused were ill-treating her. He has further stated that when he saw the dead body of Aruna, he noticed injuries on the head, neck and hands of the dead body. He categorically stated that on account of the ill-treatment to the said Aruna, she died.
This witness, who admittedly is the paternal uncle of the deceased Smt. Aruna, was subjected to a detailed cross-examination, wherein he adhered to his original version. However, at one place, in his cross-examination, Crl.A.No.200083/2015 32 he has stated that he had not visited the house of the accused at Deshmukh Thanda for advising the accused regarding their ill-treatment to the deceased Aruna. The witness also admitted that accused No.5 is married and her husband is residing at village Marpalli Thanda.
PW-16 (CW-1) - Smt. Shanta Bai, the mother of the deceased Aruna, PW-19 (CW-6) - Udhav, the father of the deceased, PW-20 (CW-7) - Prakash, the brother of the deceased and PW-21 (CW-8) - Shanker, the senior paternal uncle of the deceased have all uniformly stated that they (accused) were looking after deceased Aruna well for about two months after her marriage with accused No.1. Thereafter, the accused started subjecting her to cruelty, demanding a further dowry of `2,00,000/- and five tolas of gold beside one motor cycle.
All these witnesses uniformly stated that they were told by none else than the deceased Aruna herself that, the accused were demanding further dowry from her. Thus they claim that their source of information was none else than the deceased Aruna herself.
Crl.A.No.200083/201533
All these witnesses have also stated that whenever deceased Aruna used to come to her parental house, she used to tell about the cruelty for which she was subjected to by the accused persons. They have specifically stated that two months after her marriage, deceased Aruna had once come to her maternal home when she had stated these details to them.
PW-16 (CW-1) - Shanta Bai, the mother of the deceased has categorically stated that, her daughter (deceased Aruna) told her that the accused were subjecting her to cruelty under the pretext of bringing further dowry.
These witnesses further stated that they sent back Aruna to her matrimonial home, however, when she had come to her parental home for Deepavali festival, she told that the accused were insisting her to bring further dowry, which was a sum of `2,00,000/- and five tolas of gold, besides one motor cycle.
PW-16, the mother of the deceased has further stated that the deceased also told her that the accused Crl.A.No.200083/2015 34 had told her that in case if she fails to bring the above dowry, they would not allow her to reside in the family of the accused.
These witnesses have stated that they told deceased Aruna that these people were pursuing coolie work, therefore they did not have such amount with them and that they told her to return to her matrimonial home. Accordingly, she returned to her husband's house.
Though these witnesses were subjected to a detailed cross-examination from the side of the accused, however, regarding the alleged cruelty meted to the deceased Smt. Aruna from the accused, no statement favourable to the accused or no statement, weakening the strength in the examination-in-chief of these witnesses could be brought out in their cross-examination. As such, the evidence of these five material witnesses strongly supports the case of the prosecution, regarding the alleged cruelty said to have been meted to the deceased Aruna by the accused.
Crl.A.No.200083/201535
27. PW-22 (CW-12) - Waman, PW-23 (CW-13) - Neelkant, PW-24 (CW-15) - Ashok, and PW-25 (CW-16) - Babu Rao, who are the independent witnesses though have stated that the deceased was subjected to cruelty by the accused, but admittedly, they are hear-say witnesses and claim to have heard about the cruelty from PW-19 (CW-6)
- Udhav, the father of the deceased Aruna. Therefore, their evidence would be of no much help to the prosecution regarding proving of the alleged guilt of cruelty and dowry death against the accused persons. However, it cannot be ignored of the fact, as analysed above, that PW-15, PW-16, PW-19, PW-20 and PW-21 have uniformly, categorically and cogently stated that the deceased Aruna was subjected to cruelty by the accused persons, in connection with the demand for additional dowry. Though they have not stated about the nature of cruelty as to whether it was physical or mental and in what manner, but their evidence would go to show that, the accused were demanding the deceased Aruna to get further dowry, more Crl.A.No.200083/2015 36 specifically, a sum of `2,00,000/-, five tolas of gold and a motor cycle.
28. The evidence of PW-16 (CW-1) - Shanta Bai, the mother of the deceased Aruna that, the deceased Aruna told her that in case if she fails to bring the further dowry as demanded, the accused persons have told her that they would not allow herself to reside in their family, would clearly go to show that, the accused were denying of her right to stay in her husband's house and in the company of her husband.
Thus, as observed by the Hon'ble Apex Court in Surinder Singh's case (supra), the instance of cruelty and related harassment has a different impact on the mind of a woman.
No doubt, in the instant case, the independent witnesses i.e. PW-4 to PW-7 have not supported the case of the prosecution regarding the alleged cruelty said to have been meted to the deceased Aruna by the accused persons, but it cannot be ignored of the fact that those Crl.A.No.200083/2015 37 witnesses were not only the relatives of PW-16 the complainant, but were also the relatives of all the accused persons. Thus, being the relatives from both side, it is not unnatural for them of being neutral without supporting the case of either side.
However, PW-22 to PW-25 even though are hear-say witnesses from PW-19 (father of deceased Aruna), their evidence shows that they being known to the family of PW- 19, were being told by PW-19 about the condition of his daughter Aruna in her matrimonial home, as such, they were aware about the alleged cruelty meted to the deceased Aruna by the accused persons.
29. PW-15, PW-16, PW-19, PW-20 and PW-21, being the family members of the deceased Aruna from her parental side, their evidence cannot be totally discarded merely because they are the family members of the deceased.
30. Our Hon'ble Apex Court in Surinder Singh's case (supra), wherein also the offences under Sections Crl.A.No.200083/2015 38 498-A and 304-B of the IPC were involved, was pleased to observe in paragraph 33 of its judgment, as below:
"33. Before closing, the most common place argument must be dealt with. In all cases of bride burning it is submitted that independent witnesses have not been examined. When harassment and cruelty is meted out to a woman within the four walls of the matrimonial home, it is difficult to get independent witnesses to depose about it. Only the inmates of the house and the relatives of the husband, who cause the cruelty, witness it. Their servants being under their obligation, would never depose against them. Proverbially, neighbours are slippery witnesses. Moreover, witnesses have a tendency to stay away from courts. This is more so with neighbours. In bride burning cases who else will, therefore, depose about the misery of the deceased bride except her parents or her relatives? It is time we accept this reality. We, therefore, reject this submission."
Thus, the evidence of the material prosecution witnesses, more particularly, PW-15, PW-16, PW-19, PW-20 and PW-21 would go to establish that the deceased Aruna was subjected to cruelty by the accused persons. Crl.A.No.200083/2015 39
31. The accused persons, who denied the alleged cruelty to the deceased in the cross-examination of the prosecution witnesses have got examined four witnesses on their side, among whom, DW-4 - Ramesh himself is accused No.4 in the case. The remaining three witnesses, i.e. DW-1 - Chandrakanth, DW-2 - Dhanubai, DW-3 - Ganpathi have stated that they know all the accused persons. They specifically stated that, it was only accused Nos.1 to 3, who were residing along with deceased Aruna. Accused Nos.4 to 6 were residing at Bombay since 10 to 12 years. They stated that the death of deceased Aruna was due to drowning in an open Well and her dead body was buried inside the house of the accused.
In their cross-examination, all these three witnesses, admitted a suggestion as true that, one would not wear chappals to collect the water in the said Well. However, according to the prosecution, a pair of chappals said to have been worn by the deceased was found near the Well where the dead body of the deceased was found. The said pair of chappals are said to have been seized under Crl.A.No.200083/2015 40 the scene of offence panchanama at Ex.P-1. Though PW-1 (CW-2) - Santosh and PW-2 (CW-3) - Sopan, the alleged panchas to the alleged scene of offence panchanama as well the seizure of the cloths panchanama of the deceased Aruna at Ex.P-1 and Ex.P-2 respectively, have not supported the case of the prosecution, but as already observed above, the accused persons have not denied or disputed the place of offence as the open Well in Survey No.174/A, belonging to Smt. Sangamma. The seizure of those slippers (chappals) of the deceased under the scene of offence panchanama at Ex.P-1 has been stated by the Investigating Officer i.e. PW-28 (CW-35) - Sri. Beerappa.
32. The evidence of PW-26 (CW-29) - Mahesha, as Village Accountant of Aurad, goes to show that, he has issued a Certificate at Ex.P-16 to the Investigating Officer. The said Certificate shows that the land in Sy.No.174/A stands in the name of Smt. Sangamma and it contains a Well. Thus, the place of incident apart from being established, also goes to show that under the scene of Crl.A.No.200083/2015 41 offence panchanama drawn by the Investigating Officer (PW-28), the chappals at MO-4 were also seized. Therefore, if, according to DW-1, DW-2 and DW-3, the person going to fetch water from the Well would not wear slippers (chappals), then, the presence of the chappals (slippers) at MO-4 of the deceased Aruna near the Well creates a doubt as to whether she had gone to fetch the water and slipped into the Well accidentally, which is one among the defences taken by the accused.
The said contention that the deceased Aruna had accidentally slipped into the Well, which was for the first time contended by the accused No.4 as DW-4 in his examination-in-chief also remains doubtful and unacceptable for the reason that, no such suggestion was made to any of the prosecution witnesses in their cross- examination.
Furthermore, according to defence witnesses, if there was any Pot near the Well which the deceased might have carried with her to fetch the water from the Well, then, the Investigating Officer ought to have noticed the presence Crl.A.No.200083/2015 42 of the Pot and seized the same under the seizure panchanama. Admittedly, no such Pot has been seized and no mention about the presence of the Pot near the scene of offence was made by any of the witnesses including the Investigating Officer. As such also, the evidence of DW-1 to DW-3 creates a doubt that, only to ensure the acquittal of the accused persons, they themselves have created a story of the deceased carrying a Pot with her and the said story was continued by DW-4 in his evidence by stating that, in the process of fetching the water from the Well, the deceased Aruna accidentally fell into the water of the Well and died.
33. The above defence of the accused about the accidental death of the deceased Aruna due to drowning in the water of the Well also creates a doubt for the reason that, the depth of the water was shown to be not so deep to make a person to drown and die.
Crl.A.No.200083/201543
34. The scene of offence panchanama at Ex.P-1 mentions that the Well was ten feet in depth, where the water was upto a height of four feet.
35. PW-13 (CW-30) - Veershetty Rathod, the Assistant Engineer of the Public Works Department, who has stated that, at the request of the Investigating Officer, he visited the spot and prepared a sketch as per Ex.P-13, has stated that, the depth of the water in the Well was only of four feet. The very same depth of the water as four feet is stated even by PW-15 (CW-9) also. However, PW-22 and PW-23 (independent witnesses) have stated in their cross-examination that, the depth of the water was only about two feet to three feet.
PW-24 (CW-15) - Ashok (independent witness) has specifically stated that, the depth of the water was only two feet.
The evidence of all these witnesses regarding the depth of the water in the open Well has not been categorically and specifically denied in their cross- Crl.A.No.200083/2015 44 examination. Thus, the depth of the water in the open Well must be minimum two feet and maximum four feet. In such a low depth water, whether a grown-up major woman, if accidentally falls into the Well, would drown and die, also creates a doubt. It is also for the reason that, even according to the Doctor (CW-32)(PW-11), who conducted the post-mortem examination, the stomach was containing only 100 cc of water fluid. Had the deceased drowned herself in such a low height level water of only about two to four feet in the Well, there was all the possibility of she intaking water which ought to have been collected in her stomach in a considerable quantity. As such also, it creates more doubt as to, whether the death of the deceased Aruna was a suicide or under any other suspicious circumstances. However, it has remained undisputed that the death of deceased Aruna was unnatural and otherwise than under normal circumstances.
36. The learned counsel for the respondents/ accused, in his brief arguments, also took a contention Crl.A.No.200083/2015 45 that, if at all there was any cruelty upon the deceased Aruna by the accused persons, the same has to be proved as "soon before her death" as contemplated under Section 304-B of the IPC, otherwise, it would not become a "dowry death". He submitted that the evidence of the family members of the deceased, i.e. PW-15, PW-16, PW-19, PW-20 and PW-21 would only go to show that, on two instances, the deceased Aruna is alleged to have revealed about the alleged cruelty before these witnesses. Once, two months after her marriage with accused No.1 and secondly, during Deepavali festival time. Assuming that the Deepavali festival normally comes in the month of October of a calendar year, undisputedly, the date of death of the deceased was 11-04-2013, thus, there was nearly six months' gap from the date of the alleged last cruelty to the date of unnatural death of the deceased Smt. Aruna, as such, the same cannot be called as "soon prior to her death".
Crl.A.No.200083/201546
37. In order to constitute an offence of "dowry death" under Section 304-B of the IPC, the death of the victim, apart from being otherwise than under normal circumstances and within seven years of her marriage, it also has to be proved by the prosecution that, "soon before her death", she was subjected to cruelty or harassment by her husband or any relative of her husband and such a cruelty or harassment must be for or in connection with any demand for dowry.
38. In the instant case, as analysed above, it is an admitted fact that, the date of marriage of deceased Smt. Aruna with accused No.1 - Vijayakumar was on the date 28-05-2012 and she died an unnatural death on the date 11-04-2013, as such, her death was within seven years of her marriage and was otherwise than in normal circumstances.
39. The contention of the learned counsel for the respondents/accused that the prosecution could not prove that the deceased Smt. Aruna was subjected to cruelty Crl.A.No.200083/2015 47 "soon before her death", was mainly based upon the observation made by the Sessions Judge's Court in the impugned judgment.
In order to arrive at such a conclusion that, the prosecution could not able to prove the cruelty upon the deceased "soon before her death", the Sessions Judge's Court mainly relied upon the evidence of PW-15, PW-16, PW-19, PW-20 and PW-21 and extracted some portions of their evidence in its judgment. We feel it appropriate to extract the said portions of the impugned judgment of the Sessions Judge's Court, before analysing the said aspect.
The Sessions Judge's Court in paragraphs 30 and 31 of its judgment was pleased to observe as below:
"30. Now under the light of above well settled principles of law, this court bestow its attention to the first disclosure as per Ex.P15 finds the clue that the complainant PW16 wants to attribute A1 to A6 of their subjecting Aruna to the cruelty in the months of January perhaps they insisted her to bring further dowry of `2,00,000/-, 50 Grams gold and one motor cycle. This court while bestowing the its attention of PW15, PW16, PW19 to PW25 finds the clue that they Crl.A.No.200083/2015 48 wants to attribute the A1 to A6 regarding their subjecting Aruna to the cruelty prior to the Deepawali.
The relevant portion of the testimony of PW15 in para no.5 reads as follows:
"Once deceased Aruna had been to the house of CW1 for Devali festival and told myself that accused were ill-treated her"
The portion of para no.4 of the testimony of PW16 reads as follows:
"While Aruna came to my house for Deepavali festival she told that accused insisting her to bring further dowry of `2.00 lakhs, 5 tolas of gold, besides one motor cycle. She also told myself that accused were told her that if she would not bring above dowry they would not allow her self to residing in the family of the accused." The portion of para no.4 of the testimony of PW19 reads as follows:
"While Aruna came to my house for Deepavali festival she told that accused insisting her to bring further dowry of `2.00 Lakhs, 5 tolas of gold, besides one motor cycle. She also told myself that accused were told her that if she would not bring above dowry they would not allow her self to residing in the family of the accused."
Crl.A.No.200083/201549
The portion of para no.4 of the testimony of PW20 reads as follows:
"While Aruna came to my house for Deepavali festival she told that accused insisting her to bring further dowry of `2.00 Lakhs, 5 tolas of gold, besides one motor cycle. She also told myself that accused were told her that if she would not bring above dowry they would not allow her self to residing in the family of the accused."
The portion of para no.4 of the testimony of PW21 reads as follows:
"While Aruna came to my house for Deepavali festival she told that accused insisting her to bring further dowry of `2.00 Lakhs, 5 tolas of gold, besides one motor cycle. She also told myself that accused were told her that if she would not bring above dowry they would not allow her self to residing in the family of the accused."
31. PW22 to PW25 did not depose the particular period at which the accused were subjected deceased Aruna to the cruelty. This court could agree with the learned defence counsel that the evidence placed on the record is not only in the form of hearsay but also not consistent with the first disclosure regarding the period at which the accused were subjected Aruna to the cruelty....." Crl.A.No.200083/2015 50 It is concentrating only upon the above selected portion of the depositions of the prosecution witnesses, more particularly of PW-15, PW-16, PW-19, PW-20 and PW-21, the Sessions Judge's Court arrived at a conclusion that the prosecution could not able to prove that the deceased was subjected to cruelty "soon before her death", however, it failed to notice that all these witnesses i.e. PW-15, PW-16, PW-19, PW-20 and PW-21 have spoken about the deceased being subjected to cruelty even subsequent to the period of Deepavali festival also.
PW-15(CW-9) - Jalinder, the paternal uncle of the deceased Aruna, in his examination-in-chief at paragraph 4 has stated as below:
"..........I heard that even after such advise A1 to A6 were illtreated deceased Aruna."
PW-16(CW-1) - Smt. Shanta Bai, the mother of the deceased Aruna, after narrating about the instances of cruelty and revelation of those instances to her by none else than her daughter Smt. Aruna, including the instances Crl.A.No.200083/2015 51 occurred two months after the marriage and another instance on the occasion of Deepavali festival, has further stated in paragraph 5 of her examination-in-chief as below:
"My deceased daughter Aruna was using to call myself over the phone she using to told that the accused were subjecting her to the dowry related harassment. Then myself CW6, CW15, CW16, CW19 had been to the house of the accused at Deshmukh thanda. We told the accused that we were not having the financial position to pay the further dowry, provide the further gold, provide the motor cycle. We were advise the accused as not to ill-treat deceased Aruna. Lateron my daughter Aruna was using to call myself over the phone and she was using to inform that the accused were subjecting her to the cruelty under the pretext of the above dowry."
(emphasis supplied) PW-19 (CW-6) - Udhav, the father of the deceased Aruna also in his evidence reiterating that, two months immediately after her marriage and also at the time of Deepavali festival, his daughter Aruna was subjected to cruelty by the accused and the same was revealed to him by none else than his deceased daughter Aruna herself, Crl.A.No.200083/2015 52 has also stated that, after those two incidents, himself, CW-15, CW-16, CW-19 had been to the house of accused at Deshmukh Thanda and told the accused that they were not having financial capacity to pay further dowry and provide further gold and motor cycle. With this, they advised the accused not to ill-treat the deceased Aruna.
Further, the witness has specifically stated at paragraph 5 of his examination-in-chief as below:
".........Lateron my daughter Aruna was using to call myself over the phone and she was using to inform that the accused were subjecting her to the cruelty under the pretext of the above dowry. "
(emphasis supplied) PW-20 (CW-7) - Prakash, the brother of the deceased Aruna and PW-21 (CW-8) - Shanker, the senior paternal uncle of the deceased also, in their examination- in-chief, have narrated in detail the cruelty meted to deceased Smt. Aruna by the accused. Apart from giving the instances of cruelty including the one said to have taken place two months after her marriage with accused Crl.A.No.200083/2015 53 No.1 and another at the time of Deepavali festival, both the witnesses have stated that, thereafter, they went to the house of the accused and stating that these people were not in a position to meet the demand of the accused, had requested the accused not to subject deceased Aruna to cruelty. Thereafter, both these witnesses have stated that, later on, deceased Aruna used to call them over the phone and inform them that the accused were subjecting her to cruelty under the pretext of further dowry. Thus, even after the Deepavali festival also, which, even according to the learned counsel for the respondents/ accused, which festival would be taken as generally falling in the month of October of a calendar year, within the date of her death on 11-04-2013, the deceased Aruna used to call not just her parents but also her brothers and uncles and used to tell them about the continuation of cruelty, for which she was being subjected to by the accused.
Though the learned counsel for the respondents/ accused took a contention that, in order to show that the deceased was calling her family members more Crl.A.No.200083/2015 54 particularly, her parents and brothers repeatedly and was narrating about the alleged cruelty meted to her by the accused, the prosecution has not produced any documents like the call details register, etc., but the mere non- production of the call details register by the Investigating Officer would not take away the evidentiary value of the evidence of PW-15, PW-16, PW-19, PW-20 and PW-21, whose evidence is shown to be trustworthy and believable.
Thus, it shows that the said acts of cruelty meted upon the deceased Smt. Aruna by the accused was not a single or two incidents, but it was repetitive and continuous one, which ultimately ended in the death of the victim Smt. Aruna, which death was otherwise than under the normal circumstances.
Therefore, the argument of the learned counsel for the respondents/accused that the prosecution could not able to prove that the deceased Smt. Aruna was subjected to cruelty "soon before her death", is not acceptable. So also the observation of the Sessions Judge's Court on this Crl.A.No.200083/2015 55 aspect also has to be held as erroneous and not properly reasoned one.
40. Since the prosecution could able to show that, "soon before her death", the deceased Aruna had been subjected by the accused to cruelty for and in connection with the demand for further dowry, the Court under Section 113B of the Evidence Act to presume that, such person had caused the dowry death.
Section 113B of the Evidence Act reads as below:
"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.
Explanation.- For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code."
41. The Hon'ble Apex Court, in G.V. Siddaramesh's case (supra) at para-26 of its judgment was pleased to Crl.A.No.200083/2015 56 explain the applicability and ingredients of Section 113B of the Evidence Act in the following terms.
"......
A reading of Section 113B of the Evidence Act shows that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman. It is then up to the appellant to discharge this presumption."
42. In Bansi Lal's case (supra), with respect to Section 113B of the Evidence Act, in paragraph 19 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"19....legislature in its wisdom has used the word "shall" thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of Crl.A.No.200083/2015 57 suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry"
43. In Pathan Hussain Basha Vs. State of Andhra Pradesh reported in (2012) 8 Supreme Court Cases 594, with respect to Sections 304-B and 498-A of the IPC and Section 113 B of the Evidence Act, the Hon'ble Apex Court was pleased to observe that, once the foundational facts required for raising a presumption have been established by the prosecution, then the burden lies on the accused to prove as to how the deceased died. Mere denial cannot be treated as discharge of onus. Onus has to be discharged by leading proper and cogent evidence. The accused must Crl.A.No.200083/2015 58 show that the death of deceased did not result from any cruelty or demand of dowry by accused.
In the instant case, since the prosecution has fulfilled the ingredients of Section 113B of the Evidence Act, the Court should presume that such person i.e. the accused had caused the dowry death of the deceased Smt. Aruna. In order to discharge their burden to prove as to how the deceased died, the accused persons, as observed above, got examined four witnesses from DW-1 to DW-4. However, as observed above, none of the witnesses from DW-1 to DW-3 have stated as to the manner of death of deceased Aruna, except stating that, they collected information regarding the drowning of deceased Aruna in the open Well. Therefore, they went to the said Well and noticed that, the dead body of Aruna was removed from the Well. Thus they have not stated as to how the death of deceased Aruna was caused. However, they believed the information received by them that, the death of deceased Aruna was due to drowning. Even DW-4, who is none else than accused 4 himself, also has not thrown Crl.A.No.200083/2015 59 much light in that regard. He has stated that on the day while he was in Bombay, he received a phone message regarding the death of Aruna on account of her accidental slip into the open Well. On such information, he had been to Aurad Deshmukh Thanda. Thus, for the first time, this witness came up with the statement that, as per the phone message received by him, the death of deceased Aruna was due to accidental slip into the open Well. Till then, such a contention or a defence was not at all taken from the accused' side in any form, either in the form of a suggestion to any of the prosecution witnesses or in the statements of the accused persons recorded under Section 313 of the Code of Criminal Procedure, 1973. However, the said contention of DW-4 that the information of the cause of death of deceased Aruna given to him that it was due to an accidental slip into the open Well, was denied from the prosecution side in his cross-examination. Therefore, except making the mere statement, nothing was placed from the accused' side to believe that the death Crl.A.No.200083/2015 60 of deceased Aruna was an accidental slip into the open Well.
44. The defences taken by the accused in their support are mainly four-fold.
The defendant No.4 who is also accused No.4 in the case, though has taken a contention that deceased Aruna had an accidental slip into the open Well, but, even according to him, the same was only an information over the phone given to him. He has neither stated as to who gave him such an information and how that information was reliable. It is nobody's case that a look at the scene of offence, on sight, would give an impression that the deceased Aruna had an accidental fall in the water of the Well. In such a circumstance, when such a suggestion regarding the alleged accidental slip of the deceased into the open Well since has not been made to any of the prosecution witnesses nor even the same is whispered by any of the witnesses, i.e. DW-1, DW-2, and DW-3 examined by the accused themselves, the mere say of Crl.A.No.200083/2015 61 DW-4, that too, as a hear-say witness about the same would not make the same believable. As such, the said defence taken by the accused is not convincing and could not able to shake the value in the evidences placed by the prosecution.
45. The other defence taken by the accused was firstly that, accused No.5 was a married lady and was living separately. The second defence taken was that, accused No.4 and accused No.6 were residing at Mumbai, eking their livelihood. With respect to these two defences from the accused' side, suggestions were made to PW-15, PW-16, PW-19, PW-20 and PW-21, however, all these witnesses have denied the suggestion that accused Nos.4 to 6 were living separately.
Interestingly, in the cross-examination of PW-15, it was only suggested that accused No.5 is married and her husband is residing at Village Marpalli Thanda. Though the witness has admitted the said suggestion as true, but the said suggestion speaks about the husband of accused No.5 Crl.A.No.200083/2015 62 residing at a separate place, but not the accused No.5. It also does not say that accused No.5 was residing along with her husband. As such also, it cannot be believed that accused No.5 was residing separately. As such, mere making a suggestion to the prosecution witnesses, would not establish the contention of the accused that accused No.4, accused No.5 and accused No.6 were not residing in Aurad Deshmukh Thanda along with accused Nos.1 to 3.
Furthermore, as already observed above, the independent witnesses, i.e. PW-4, PW-5, PW-6 and PW-7 have uniformly stated that, accused Nos.1 to 5 and the deceased Smt. Aruna were all residing together. Though these witnesses have later on not supported the case of the prosecution, but their statement to the effect that, accused Nos.1 to 5 and deceased Aruna were residing together cannot be disbelieved. The same is also for a further reason that, none of these four independent witnesses were cross-examined from the accused' side. As such also, the evidence of none else than PW-4, PW-5, PW-6 and PW-7, who undisputedly are the relatives of both Crl.A.No.200083/2015 63 accused Nos.1 to 6 and CW-1 (PW-16 - mother of deceased Aruna) would go to show that, accused Nos.1 to 5 and the deceased were residing together under a single roof.
The evidence of PW-15, PW-16, PW-19, PW-20 and PW-21, as noticed above, would further go to show that, apart from accused Nos.1 to 5, even accused No.6 was also residing in the same house along with the deceased Aruna and other accused at Deshmukh Thanda, Aurad.
46. Another defence taken up by the accused persons was that the deceased Aruna was affected with 'Bhanamathi' (a peculiar type of behavioural attitude of a person which the localites call as due to some witchcraft). Suggestions to that effect were made to PW-16, PW-19, PW-20 and PW-21 in their cross-examination. Among them, it was only PW-16, who admitted the said suggestion as true. However, the remaining witnesses specifically denied the said suggestion as true. As such, it cannot be held that, the accused has shown that the Crl.A.No.200083/2015 64 deceased was suffering with 'Bhanamathi'. Still, assuming for a moment that the deceased Aruna was affected with 'Bhanamathi', then also, there is nothing on record to show as to, what were the symptoms of the said 'Bhanamathi', the deceased was exhibiting and how the alleged effect of alleged 'Bhanamathi' had led to the death of deceased Aruna which was otherwise than under normal circumstances.
47. In this way, all the four defences taken up by the accused, could not, in any manner, either dilute the case of the prosecution or succeed in imbibing any serious doubt in the case of the prosecution. Thus, the accused persons against whom a presumption was operating under Section 113B of the Evidence Act could not able to discharge their burden.
48. The evidence of PW-27 (CW-34) - Rangappa that he received the complaint as per Ex.P-15 and registering a crime in their Station Crime No.74/2013, prepared an FIR as per Ex.P-14 and sent to the Court and Crl.A.No.200083/2015 65 also the evidence of the Investigating Officer - Sri. Beerappa (PW-28/CW-35) that, he conducted the investigation in this matter, have all been corroborated by the evidence of the prosecution witnesses, as analysed.
49. Thus, the prosecution could able to establish beyond reasonable doubt that, the accused No.1 has demanded and accepted the dowry from the parents of the deceased Smt. Aruna, but did not transfer the said dowry to the deceased or any of her family members either during the life time of the deceased Aruna or thereafter. Further, the prosecution could also establish beyond reasonable doubt that, all the accused persons, having common object of subjecting the deceased Aruna to cruelty and harassment, have constantly subjected her to cruelty till her death including subjecting her to cruelty "soon before her death", which death was otherwise than under normal circumstances and thus it is proved beyond all reasonable doubts that the accused Nos.1 to 6 have Crl.A.No.200083/2015 66 committed the offences punishable under Sections 498-A and 304-B of the IPC.
50. However, as analysed above, the Sessions Judge's Court has picked up few stray sentences in the evidence of the prosecution witnesses, more importantly, in the evidence of PW-15, PW-16, PW-19, PW-20 and PW-21 and assumed certain contradictions in the case of the prosecution on its own and landed in an erroneous finding, holding that the prosecution has failed to prove the alleged guilt against the accused.
51. However, after the analysis made above, since it is now proved beyond reasonable doubt that, the prosecution could able to prove the guilt against the accused beyond reasonable doubt, the impugned judgment of the learned Sessions Judge's Court deserves to be set aside and the accused persons deserve to be convicted for the offences proved against them, as observed above.
Accordingly, we proceed to pass the following: Crl.A.No.200083/2015 67
ORDER [i] The Appeal is allowed in-part;
[ii] The judgment of acquittal of accused No.1 - Vijay Kumar, S/o. Hari Rathod, dated 19-01-2015, passed by the Additional District and Sessions Judge at Bidar, in Sessions Case No.104/2013, acquitting him for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, stands set aside;
Accused No.1 - Vijay Kumar, S/o. Hari Rathod, Age: 28 years, Caste: Lamani, R/o.
Deshmukh Thanda, Tq. Aurad, is convicted for the offences punishable under Sections 3, 4, and 6 of the Dowry Prohibition Act, 1961.
[iii] The judgment of acquittal of accused No.2 - Bhikkubai W/o. Hari Rathod, accused No.3
- Hari, S/o. Munna Rathod, accused No.4- Ramesh S/o. Hari Rathod, accused No.5 - Smt. Sunita W/o. Kishanrao Chauhan and accused No.6 - Suresh S/o. Hari Rathod, dated 19-01- Crl.A.No.200083/2015 68 2015, passed by the Additional District and Sessions Judge at Bidar, in Sessions Case No.104/2013, acquitting them for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, stands confirmed.
[iv] The judgment of acquittal of accused No.1, accused No.2, accused No.3, accused No.4, accused No.5, and accused No.6, acquitting them for the offences punishable under Sections 498-A and 304-B of the Indian Penal Code, 1860, stands set aside;
The accused No.1 - Vijay Kumar S/o. Hari Rathod, Age: 28 years, Caste: Lamani, R/o. Deshmukh Thanda, Tq.Aurad; accused No.2 - Bhikkubai W/o. Hari Rathod, Age: 48 years, Caste: Lamani, Occ: Household, R/o. Deshmukh Thanda, Tq.Aurad; accused No.3 - Hari S/o. Munna Rathod, Age: 60 years, Caste: Lamani, Occ: Agriculture, R/o. Deshmukh Thanda, Tq.Aurad; accused No.4 - Ramesh S/o. Hari Crl.A.No.200083/2015 69 Rathod, Age: 35 years, Caste: Lamani, R/o. Deshmukh Thanda, Tq.Aurad; accused No.5 - Smt. Sunita W/o. Kishanrao Chauhan, Age: 22 years, Caste: Lamani, occ: House Hold, R/o. Gudpalli Thanda and accused No.6 - Suresh S/o. Hari Rahtod, Age: 24 years, Caste Lamani, Occ:
agriculture, R/o. Deshmukh Thanda, Tq. Aurad, are convicted for the offences punishable under Sections 498-A and 304-B of the Indian Penal Code, 1860.
52. Heard the learned Additional State Public Prosecutor for the appellant -State and learned counsel for the respondents/accused on sentence.
53. Learned Additional State Public Prosecutor for the appellant/State submitted that, since the accused persons have committed a heinous offence and taken away the life of an innocent lady, the maximum punishment that can be ordered for the proven offences may be ordered against them.
Crl.A.No.200083/201570
54. Per contra, learned counsel for the respondents/ accused submitted that, the incident is of the year 2013 and the accused persons have already settled in their lives. He also submits that, the surrendering of the accused for suffering the sentence be deferred till the period of appeal. With this, he prays for taking a lenient view in the matter.
55. It is the sentencing policy that, the order of sentence must be proportionate to the gravity of the proven guilt against the accused. It must be neither exorbitant nor for name-sake.
56. In the instant case, the accused were initially acquitted of the alleged offences by the Sessions Judge's Court. It is only in the appeal filed by the State, they have now been convicted. Thus, hitherto, the accused were living their lives as independent persons and according to the learned counsel for the respondents/accused, they have already settled in their lives. In the above said circumstance, we are of the view that, the minimum Crl.A.No.200083/2015 71 punishment for the proven guilt that can be ordered against the accused only be ordered.
Accordingly we proceed to pass the following:
ORDER ON SENTENCE [a] The accused No.1 - Vijay Kumar S/o.
Hari Rathod, Age: 28 years, Caste: Lamani, R/o.
Deshmukh Thanda, Tq.Aurad, is sentenced to undergo a simple imprisonment for a period of five years and to pay a fine of a sum of `1,00,000/- and in case of default of payment of file, to undergo further simple imprisonment for a period of six months, for the offence punishable under Sections 3 of the Dowry Prohibition Act, 1961;
Accused No.1 is also sentenced to undergo simple imprisonment for a period of six months and to pay a fine of a sum of `5,000/- and in default of payment of fine, he shall undergo further simple imprisonment for a period of two Crl.A.No.200083/2015 72 months for the offence punishable under Section 4 of the Dowry Prohibition Act, 1961;
The accused No.1 is further sentenced to undergo simple imprisonment for a period of six months and to pay a fine of a sum of `5,000/- and in default of payment of fine, he shall undergo further simple imprisonment for a period of two months for the offence punishable under Section 6 of the Dowry Prohibition Act, 1961;
[b] All the accused Nos.1 to 6 shall each undergo a simple imprisonment for a period of one year and pay a fine of a sum of `10,000/- each and in default of payment of fine, they shall undergo a further simple imprisonment for a period of three months each for the offence punishable under Section 498-A of the Indian Penal Code, 1860;
[c] All the accused Nos.1 to 6 shall undergo a simple imprisonment for a period of Crl.A.No.200083/2015 73 seven years each for the offence punishable under Section 304-B of the Indian Penal Code, 1860;
[d] Out of the fine amount, if any, collected from the accused, a sum of `1,00,000/- be given to PW16 (CW-1) - Smt. Shanta Bai and PW-19 (CW-6) Sri. Udhav - the parents of the deceased Smt. Aruna, as compensation under Section 357 of the Code of Criminal Procedure, 1973;
[e] All the sentences ordered above shall run concurrently;
[f] All the accused Nos.1 to 6 shall voluntarily surrender before the Additional
District and Sessions Judge at Bidar, immediately after the expiry of the appeal period from today and suffer the sentence.
[g] The accused are entitled for a free copy of this judgment, which has to be provided by the registry, immediately.
Crl.A.No.200083/201574
Registry to transmit a copy of this judgment along with the Sessions Judge's Court's records to the concerned Sessions Judge's Court immediately, which Court shall take appropriate further steps.
Sd/-
JUDGE Sd/-
JUDGE SWK/BMV*