Karnataka High Court
Shri. Bhaukanna S/O Omanna Myageri vs The State Of Karnataka on 18 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100288/2018
BETWEEN:
1. SHRI. BHAUKANNA S/O OMANNA MYAGERI
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: AMBEDKAR GALLI,
BAMBARAGA-591143,
TQ: BELAGAVI, DIST: BELAGAVI.
2. SMT.JANABAI W/O OMANNA MYAGERI
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: AMBEDKAR GALLI,
BAMBARAGA-591143,
TQ: BELAGAVI, DIST: BELAGAVI.
...APPELLANTS
(BY SRI.HARSHAWARDHAN M PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH ACP BELAGAVI RURAL SUB-DVN.,
BELAGAVI,
R/BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT: DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
Crl.A. No.100288/2018
2
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND
CONVICTION & SENTENCE PASSED ON 30.08.2018 IN
S.C.NO.259/2016 BY THE VI-ADDL. DISTRICT AND SESSIONS
COURT, BELAGAVI, AND THE APPELLANTS BE ACQUITTED BY
ALLOWING THE APPEAL.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING UP FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED
THE FOLLOWING:
JUDGMENT
1. The accused are before this Court challenging the judgment of conviction passed by the VI Additional District and Sessions Judge, Belagavi (for brevity, 'trial Court') dated 30.08.2018 passed in S.C.No.259/2016.
2. By way of the said judgment, the accused were convicted for the offence punishable under Sections 498-A, 302, 201, 315, 304-B read with Section 34 of the Indian Penal code (for brevity, Crl.A. No.100288/2018 3 'IPC') and under Sections 3 and 4 of Dowry Prohibition Act, 1961 (for brevity, 'D.P. Act') and sentenced to undergo simple imprisonment for three years each and to pay a fine of Rs.10,000/- each for the offence punishable under Section 498- A read with Section 34 of IPC, in default thereof, to undergo simple imprisonment for 6 months each; to undergo imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 34 of IPC and in default of payment of the above fine amount to undergo simple imprisonment for a period of six months each; to undergo simple imprisonment for three years each and pay a fine of Rs.5,000/- each for offence punishable under Section 201 read with 34 of IPC and in default in paying the above fine, to undergo simple imprisonment for a period of 6 months each; to undergo simple imprisonment for Crl.A. No.100288/2018 4 7 years each for offence punishable under Section 304-B read with 34 of IPC; to undergo simple imprisonment for 10 years each and to pay a fine of Rs.10,000/- each for offence punishable under Section 315 read with 34 and in default of payment of the said amount to undergo simple imprisonment for 6 months each; to undergo simple imprisonment for 5 years each and pay a fine of Rs.15,000/- each for offence punishable under Section 3 of the D.P. Act and in default thereof to pay the fine, undergo simple imprisonment for a period of six months each; to undergo simple imprisonment for a period of 2 years each and to pay a fine of Rs.5,000/- each for the offence punishable under Section 4 of the D.P. Act and in default of payment of the said amount to undergo simple imprisonment for a period of 6 Crl.A. No.100288/2018 5 months each. All the sentences to run concurrently.
3. The case of the prosecution is that:
3.1. Accused No.1 is the husband and accused No.2 is the mother-in-law of the deceased-
Kavitha Bhaukanna Myageri, who were residents of house No.160, Ambedkar Galli, Bambaraga village within the limits of Kakati Police Station.
3.2. It is alleged that on 29.06.2015 the marriage of accused No.1 and the deceased took place. That the accused demanded and obtained TV, cot, gold and silver ornaments and clothes as dowry from the complainant, who is the mother of the deceased. Thereafter, the accused have further demanded a sum of Rs.5 lakhs from the deceased and asked her Crl.A. No.100288/2018 6 to bring it from her maternal home so that accused No.1 may start a new Dhaba, and in this regard the deceased was harassed by the accused. When the amount was not given, they threatened that they would kill the deceased and continued to cause physical and mental harassment to the deceased. 3.3. When the amount was not paid, on 09.04.2016 at 12.30 p.m. in the afternoon, accused Nos.1 and 2 in furtherance of their common intention, despite knowing that the deceased was 4-5 months pregnant, have throttled the neck of the deceased and murdered her and thereafter to destroy the evidence have made it appear as if she has committed suicide and hence, it is alleged that offence under Sections 498-A, 302, 201, Crl.A. No.100288/2018 7 315, 304-B read with 34 of IPC and 3 and 4 of the D.P. Act had been committed.
4. The Committal Court after securing the presence of the accused and upon supplying the prosecution papers to the accused, committed the case to the Court of Sessions since the aforesaid offences were exclusively triable by the Court of Sessions.
5. On the appearance of the accused before the Sessions Court, they were remanded to judicial custody. Subsequent thereto they have been released on bail as per the orders dated 30.05.2017 passed in Criminal Petition No.10097/2017 by this Court.
6. After hearing the accused, charges were framed against the accused for the offences punishable under Sections 498-A, 302, 201, 315, 304-B read with 34 IPC and 3 and 4 of the D.P. Act which were Crl.A. No.100288/2018 8 read over and explained to the accused in a language known to them namely Kannada. They pleaded not guilty and claimed to be tried.
7. In order to establish the case of the prosecution, the prosecution led evidence of 22 witnesses, PWs.1 to 22, marked 56 documents at Exs.P.1 to 56(a) and 7 material objects at Mos.1 to 7 and closed its side.
8. After closure of the evidence, the incriminating evidence against accused were put across to them and their statements under Section 313 of Cr.P.C were recorded. Accused Nos.1 and 2 denied the case of the prosecution, but did not lead any evidence. Accused No.1 has submitted his statement in writing along with 12 documents. Crl.A. No.100288/2018 9
9. The trial Court after hearing both sides, passed the judgment of conviction and order of sentence as detailed above.
10. Sri.Harshawardhan M Patil, learned counsel appearing for the appellants/accused submitted that:
10.1. When the incident occurred on 09.04.2016 at 12.30 p.m., accused No.1 was working in Dhaba and accused No.2 was doing coolie work, they were not at home and as such there could not be any allegation against them for having committed any offences as alleged or otherwise.
10.2. PWs.1 and 2 in their evidence have categorically stated that they found the deceased hanging in the room then they cut the saree that was used for hanging, at that Crl.A. No.100288/2018 10 time the deceased was alive, they took the body to the kitchen and made the deceased to have water, which indicates that it is a clear case of suicide.
10.3. There is discrepancy in the evidence of the pancha witnesses inasmuch as PW.12 has deposed that there are three rooms when in fact there are four rooms in the house.
Therefore, the same is not credible. 10.4. The ingredients of various provisions under which the accused have been charged with, have not been proved inasmuch as there is no evidence on record to satisfy the requirement of Section 302 of IPC and to establish that the accused have throttled the neck of the deceased and caused her death. Crl.A. No.100288/2018 11 10.5. The accused are sought to be framed in the matter on account of strategy/conspiracy of PWs.14, 15, 16 being the complainant, uncle of the deceased and brother of the deceased respectively.
10.6. The death of the fetus has occurred as a consequence of the suicide committed by the deceased. The same cannot be attributed or blamed on the accused and therefore, there is no offence committed under Section 315 of IPC.
10.7. As regards the offence under Sections 3 and 4 of the D.P. Act, he submits that the prosecution has not established the demand made by the accused for any dowry and there is no list which has been prepared as regards Crl.A. No.100288/2018 12 the items given as dowry by the deceased and/or her family to the accused.
10.8. The accused not even being at the place of occurrence of incident, the question of accused making any evidence to disappear to attract the provisions of Section 201 of IPC would not at all arise.
10.9. The provision of Section 498-A of IPC is not attracted since there is no evidence on record to show that the deceased was subjected to cruelty either physical or mental inasmuch as in the postmortem examination report the body of the deceased does not bear any mark or injury and no evidence has been produced to show the mental cruelty meted out to the deceased.
Crl.A. No.100288/201813 10.10. Accused No.1 was a gentle and loving husband who took the deceased to the maternal home of the deceased as and when she wanted, and he would go and pick her up and bring her back to matrimonial home, which shows the genuine love and affection that accused No.1 had towards the deceased. Therefore, allegation against the accused for committing an offence under Section 498-A of IPC as regards the deceased is completely baseless.
10.11. He submits that the presumption under the Indian Evidence Act cannot be drawn in the present case and that it is not necessary to draw the presumption in all cases. In this regard, he relies upon the decision of the Hon'ble Apex Court in the case of Gurjit Singh vs. State of Punjab reported in Crl.A. No.100288/2018 14 (2020) ACR 181 (SC), more particularly, paragraph Nos.9, 10, 13, 16, 20, 21, 24, 26 and 33 thereof, which are reproduced hereunder for easy reference:
9. The perusal of the evidence of PW10 Bishan Singh, the father of the deceased, would establish that the deceased, Jaswinder Kaur was married to appellant on 04.02.1989. His daughter had two issues. The elder one was four years old and the son was about 1 ½ years old at the time of the occurrence. He stated, that after the marriage, accused were harassing his daughter for giving less dowry. In the year 1992, he had given one steel almirah to his daughter but the accused were not satisfied with the dowry article. In March 1993, he had purchased one fridge through his soninlaw, Jagtar Singh, from the Military Canteen for Rs.
6,600/-, which was given to the accused persons. Even then the accused were not satisfied. The accused were pressing his daughter, Jaswinder Kaur, to bring Rs. 50,000/- from her parents. He further stated, that the accused were compelling his daughter out of anger to bring Rs. 50,000/-, in cash, as they were to purchase a plot at Hoshiarpur. He further stated that on twothree occasions, his daughter came to his Village Kharal Kalan and he requested her that Rs. 50,000/- were not with him at that stage and after selling the paddy crop he can pay that amount. He stated that, thereafter, after consoling his daughter, he sent her to her inlaws house. He further stated, that on 28.09.1994 when he was in his house, he came to know that his daughter had died. Suspecting that his daughter was given poison Crl.A. No.100288/2018 15 or she consumed poison, he lodged a report with the police.
10. To some extent, the evidence of PW10 is corroborated by the evidence of PW13 Iqbal Singh. He has stated, that prior to the occurrence, i.e., the death of the deceased there was a dispute between the accused persons and the deceased, Jaswinder Kaur, as Rs. 50,000/- was being demanded by the accused persons from the parents of the deceased for purchasing a plot. He further stated, that the parents of the deceased could not pay Rs. 50,000/- and promised to pay the same after selling paddy crop. He further stated, that before demand of Rs. 50,000/-, one refrigerator and one almirah was given to the accused persons by the parents of the deceased on their demand and this was over and above dowry given at the time of the marriage.
13. The said question fell for consideration before the bench of three learned Judges of this Court in the case of Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 scc 6181. This Court, after reproducing the provisions of Section 306 of the IPC and Section 113A of the Indian Evidence Act, 1872 observed thus:
"12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26121983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or inlaws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law.Crl.A. No.100288/2018 16
Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage,
(iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution.
Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence 1 (2001) 9 SCC 618 and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression -- "the other circumstances of the case" used in Section 113A suggests the need to reach a causeand effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113A is defined in Section 4 of the Evidence Act, which says -- "Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact Crl.A. No.100288/2018 17 as proved, unless and until it is disproved, or may call for proof of it.
13. The present case is not one which may fall under clauses secondly and thirdly of Section 107 of the Penal Code, 1860. The case has to be decided by reference to the first clause i.e. whether the accusedappellant abetted the suicide by instigating her to do so." (emphasis supplied)
16. It has been further held that when the case does not fall under clauses secondly and thirdly of Section 107 of the IPC, the case is to be decided with reference to the first clause, i.e., whether the accusedappellant abetted the suicide by instigating her to do so. It will be further relevant to refer to following observations in Ramesh Kumar (supra):
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
21. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of Crl.A. No.100288/2018 18 finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
22. Sections 498A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498- A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned....." (emphasis supplied)
20. The bench of two Judges of this Court had an occasion to consider a similar issue in the case of Hans Raj vs. State of Haryana (2004) 12 SCC 257. It will be relevant to refer to following paragraphs:
"12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 IPC with the aid of the presumption under Section 113A of the Indian Crl.A. No.100288/2018 19 Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 IPC. Section 107 IPC lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113A of the Indian Evidence Act under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113A further clarifies that cruelty shall have the same meaning as in Section 498A of the Indian Penal Code......
13. Unlike Section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113A of the Indian Evidence Act. Under Section 113A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that Crl.A. No.100288/2018 20 where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498- A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman......"
21. The court found that in the case there was no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. It has been held that when the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected having regard to the meaning of the word "cruelty" in Section 498A of IPC. It has been held that one of the circumstances which has to be taken into consideration by the court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman.
24. It has thus been observed that though presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused is on the prosecution. The prosecution has to establish beyond reasonable doubt that the accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide. Crl.A. No.100288/2018 21
26. After observing the aforesaid, this Court, relying on the judgment of this Court in the case of Hans Raj (supra), observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case.
33. Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498A of the IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on 9 (2016) 12 SCC 759 10 (2011) 2 SCC 47 record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption."
10.12. On the basis of the above, he submits that the prosecution has not established the guilt of the accused beyond reasonable doubt and Crl.A. No.100288/2018 22 therefore, the accused are required to be acquitted of the crimes alleged against them and the judgment of conviction and order of sentence passed by the trial Court impugned herein is required to be set aside.
11. Sri.V.M. Banakar, learned Additional SPP submitted that:
11.1. The decision of the Hon'ble Apex Court in the case of Gurjit Singh (supra) is not applicable to the present matter since that was a decision rendered in the background of an offence under Section 306 of IPC, whereas in the present case we are concerned with the offences under Section 304-B of IPC.
11.2. He submits that the decision which would apply to the present matter is one rendered by the Hon'ble Apex Court in the case of Crl.A. No.100288/2018 23 Maya Devi and Another vs. State of Haryana reported in (2015) 17 SCC 405, more particularly, paragraph Nos.21, 22 and 23 thereof which are reproduced hereunder for easy reference:
21. In order to convict an accused for the offence punishable under Section 304B IPC, the following essentials must be satisfied:
(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.
When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such conclusive presumption as the burden is Crl.A. No.100288/2018 24 unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of the prosecution witnesses or by adducing evidence on the defence side.
22. Section 113B of the Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:
"113-B. 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 (45 of 1860)." As stated earlier, the prosecution under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and such was caused "soon before her death". In view of the Explanation to the said section, the word "dowry" has to be understood as defined in Section 2 of the Dowry Prohibition Act, 1961 which reads as under:
"2. Definition of 'dowry'.--In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or Crl.A. No.100288/2018 25 any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
23. To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. In fact, learned senior counsel appearing for the appellants submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to while considering the evidence led in by the prosecution. Though the language used is "soon before her death", no definite period has been enacted and the expression "soon before her death" has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
Crl.A. No.100288/201826 11.3. In terms of the above decision, the Court shall draw a presumption as regards the death of a married woman which occurs within a period of seven years from the marriage in terms of Section 113-B of the Indian Evidence Act, making Section 304-B of IPC applicable in such cases.
11.4. PWs.14 and 18 have categorically deposed and thereby established the complicity of the accused in the crime. There is clear and categorical allegation made in the complaint as regards the demand for Rs.5 lakhs made, as also the threat held out by accused to kill the deceased if the amounts are not paid. 11.5. When the body was found at the home of the deceased and accused, the accused were missing from the place of occurrence. The Crl.A. No.100288/2018 27 accused have not explained the event in terms of Section 106 of the Indian Evidence Act.
11.6. PWs.15 and 16 have clearly deposed as regards the demand of Rs.5 lakhs made by accused No.1 and the threat held out by accused No.1, as also of the elders having advised accused No.1 to treat the deceased properly and take care of her since she was 4-5 months pregnant.
11.7. He relies upon the decision of the Hon'ble Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681, more particularly, paragraph Nos.11 and 12 thereof, which are reproduced hereunder for easy reference: Crl.A. No.100288/2018 28
11. From the evidence adduced by the prosecution the following circumstances are clearly established:
(i) The marriage of Revata with the appellant Trimukh had taken place about 5-6 years back.
(ii) The appellant Trimukh used to ply a tempo.
(iii) There was a demand of Rs 25,000 by the appellant and his parents from the parents of the deceased. The deceased was being ill-treated and was occasionally not given food on account of the fact that the demand of money had not been met.
(iv) The deceased had told her parents about the fact that she was being ill-treated and occasionally she was not given food, whenever she visited her parental home and last time on the occasion of Panchami festival. She had also told about the said fact to her neighbour PW 5 Girjabai of Village Kikki.
(v) After the death of Revata, the appellant and his parents informed some persons in the village as also the family members of the deceased that she had died on account of snakebite.
(vi) When PW 1, PW 2, PW 3 and PW 4 reached the house of the accused in Village Kikki, they found the body of the deceased in a sitting posture with her back taking support from the wall. PW 14 Devichand, Assistant Sub-Inspector of Police also found the body in the same position.
(vii) The post-mortem examination revealed that Revata had died due to asphyxia as a result of strangulation and not on account of snakebite.Crl.A. No.100288/2018 29
(viii) Certain recoveries like chappal of the deceased, broken pieces of bangles were made at the pointing out of the appellant. A shoe was also recovered at his pointing out.
12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. 11.8. In view of the above the offences are clearly made out. All the witnesses have categorically deposed about the accused having committed the offence, the prosecution has established its case and as such, the judgment of conviction and order of sentence is proper.
Crl.A. No.100288/201830
12. It is in the above background that we have been called upon to determine whether the accused are guilty of the offences alleged against them by re- appreciating the evidence on record and determine whether the judgment of conviction is proper or not?
13. PW.1 is neighbour of the deceased and accused, who states that he knows accused present before the Court, he knows CWs.1 and 7 and the other witnesses in the case. He has spoken of the marriage between accused No.1 and the deceased, but has stated that he does not know if any dowry was demanded or given. He has denied that the deceased has given any statement against the accused for ill-treating her and that they had advised the accused to look after the deceased. He has stated that the deceased committed suicide by hanging and when he heard hue and cry from the Crl.A. No.100288/2018 31 house of the accused, he went to the house and found her hanging. Since she was alive, he along with his wife (PW.2) cut the saree used for hanging and laid her on the floor.
13.1 At this stage, the Public Prosecutor sought permission to treat PW.1 as hostile witness and cross-examined him. During the course of cross-examination, he has denied all the suggestions and he has not supported the case of the prosecution. The relevant portions of his statement are marked as Exs.P.1 and P.2 during the course of cross-examination. 13.2 On the cross-examination of the counsel for the accused, he has stated that accused No.1 has paid a sum of Rs.1 lakh to the parents of the deceased at the time of marriage towards expenses of performing the marriage. He has Crl.A. No.100288/2018 32 further stated that on the date of the incident at about 10.30 a.m. accused No.2 had come to his house to request his wife to accompany the deceased to Anganawadi to administer injection. When at 12.00 noon his wife went to the house of the accused to request accused No.2 to clean the rice in his house, they found the deceased hanging but she was alive. He has further stated that the relationship between the deceased and the accused was cordial and accused No.1 was meeting all the demands of the deceased.
14. PW.2 who is the wife of PW.1 has also deposed more or less in a similar manner. She was also treated as hostile and cross-examined. She has denied all the suggestions put across to her. During the course of cross-examination by the counsel for the accused, she has stated that on the Crl.A. No.100288/2018 33 date of the incident, she had gone to the house of the deceased at 10.00 a.m., she was there for half an hour, the deceased requested her to accompany her to Anganawadi for administering injection and thereafter she went to her home. She has stated at that time the accused were not there. She has further stated that the accused never ill-treated her in any manner and accused No.1 was fulfiling all the demands of the deceased. She has denied having given any statement to the Police. The relevant portion of her statement is marked as Ex.P.4 during the course of cross-examination.
15. PW.3 has stated that he knows the accused, he does not know of any dowry being given to the accused at the time of marriage. He has stated that the deceased did not say anything against the accused whenever she met him after marriage. When he came to know about the deceased having Crl.A. No.100288/2018 34 committed suicide he went to her house and found the body on the floor.
15.1 The Public Prosecutor sought permission to treat the said witness PW.3 as hostile witness and cross-examined. During the course of cross-examination, he has denied all the suggestions put across to him. He denied having given any statement to the police. The relevant portion of his statement is marked as Ex.P.5 during the course of cross- examination.
15.2 During the course of cross-examination by the counsel for the accused, he states that the relationship between the deceased and the accused was cordial and accused No.1 was working in a Dhaba and his working hours were from 10.00 a.m. to 4.00 p.m. Crl.A. No.100288/2018 35
16. PW.4 has stated about the marriage of accused No.1 and the deceased having been performed two years ago. He has stated that he does not know about any dowry having been given. He does not know anything about the case or the cause of death of the deceased.
16.1 The Public Prosecutor sought permission to treat the said witness PW.4 as hostile witness and cross-examined. During the course of cross-examination, he has denied all the suggestions put across to him. He has denied that he has given a statement to the police. Hence, relevant portion of his statement is marked as Ex.P.6. During the course of cross- examination by the counsel for the accused, he has stated that he does not know whether the relationship between the deceased and Crl.A. No.100288/2018 36 the accused was cordial as he was out of station.
17. PW.5 is a photographer who had clicked the photos at Exs.P.3, 7 to 11. He has withstood the test of the cross-examination and supported the case of the prosecution.
18. PW.6 is the Police Constable at Kakati Police Station, who has conducted the spot mahazar on 09.04.2016 from 17.45 hours to 19.00 hours as per Ex.P.13, prepared sketch of the place of incidence as per Ex.P.14, has written inquest mahazar as per Ex.P.15 on the inspection of the TEM, he has collected the photos at Exs.P.16 and P.17, after inquest he has delivered the body for postmortem examination to the Medical Officer, District Hospital, Belagavi and after postmortem examination the body was collected and handed Crl.A. No.100288/2018 37 over to the family, he has also seized MOs.1, 2 and 3 being the cloths of the deceased. In the cross- examination he has stated that the dead body was in the kitchen. He has denied all the suggestions put across to him. He has withstood the test of the cross-examination and supported the case of the prosecution.
19. PW.7 is the Police Constable who carried the FIR to the Judicial Magistrate. He has supported the case of the prosecution.
20. PW.8 is a Police Constable of Kakati police Station.
He took the viscera of the deceased and delivered the same to the RFSL, Belagavi, received the certificate from RFSL and obtained final opinion of BIMS, Belagavi. He was not cross-examined.
21. PW.9 is the Associate Professor of Forensic Medicine Department in BIMS, Belagavi who Crl.A. No.100288/2018 38 received the original requisition for postmortem. He conducted the postmortem examination on 09.04.2016 between 9.30 p.m. to 10.45 p.m. He has deposed that there were ligature marks extending from angle mandible on right side to just below the angle of mandible on left side measuring 15.5X2 CM, running across thyroid cartilage in the front of neck, direction being obliquely upwards and backwards. There was evidence of multiple petechial (Small dots) hemorrhages over the left side of face and around the ligature mark on the left side, hyoid bone and thyroid cartilage were intact. He has opined that the uterus was enlarged and contained dead male fetus of 4-5 months gestational age. After obtaining medical examination reports and histopathological report, he has opined that the death was due to asphyxia due to constriction of neck. He has further stated Crl.A. No.100288/2018 39 that he ligature mark on the neck of the deceased was not ante-mortem. In the cross-examination, he has clearly stated that ligature mark was postmortem mark and further after hanging, if a person is alive and the material used for hanging is untied and water is made to drink, the type of asphyxia noted in the postmortem report would not be possible.
22. PW.10 is the Taluka Executive Magistrate of Belagavi. He has conducted the inquest. On his examination, he has stated that there was a ligature mark measuring 7 ½ cm X 1 cm starting from left ear and (2) there was black mark on the left cheek and left ear. Nothing much was elicited from him during the course of cross-examination.
23. PW.11 is the Secretary, village panchayat who had furnished the revenue records to show that the Crl.A. No.100288/2018 40 house was standing in the name of one Homani Kallappa Kamble. There was no cross-examination conducted for this witness.
24. PW.12 is the Assistant Engineer who prepared the sketch of the spot. In the cross-examination, he has stated that he reached the spot at 2.30 p.m. on 13.05.2016. He was shown the room where the body was found. He has stated that the said room was first room from the entrance. Where the deceased had committed suicide there was a cot. He has deposed as regards the houses situated around the house where the crime occurred.
25. PW.13 is the woman Sub-Inspector of Police who has stated that despite searching of accused No.2 she could not find her. She has denied in the cross-examination that she has not searched for accused No.2.
Crl.A. No.100288/201841
26. PW.14 is the mother of the deceased. She has stated that she has performed the marriage of the deceased with accused No.1, at the time of marriage there was a demand made for golden ring weighing 1 tola, golden necklace weighing 1¼ tola, ½ tola golden gundu, silver leg chains and silver toe rings weighing 6 tolas, which were given at the time of marriage. Apart from that a TV, cot, bed, treasury (steel almirah) and cloths were given to the accused. It is stated that after marriage the accused lived happily with the deceased for three months. Thereafter the accused started to ill-treat the deceased, stating that she did not know how to cook and did not know household work and also demanded an amount of Rs.5 lakhs as dowry for starting a new Dhaba which was informed by the deceased to PW.14. In that regard it is stated that PW.14 and CWs.7 to 10 (PW.15-18.) advised Crl.A. No.100288/2018 42 accused No.1 and sent the deceased back to the house of accused No.1. She has stated that the deceased had come for a local festival at that time and had informed about the demand once again made by the accused. She stayed at her maternal home for a period of 9 days. When accused No.1 came to collect the deceased, she was 5 months pregnant. On the next day at 2.30 p.m. her son received a phone call that the deceased had committed suicide by hanging. When they went to the house of the accused, they found the dead body of the deceased in kitchen, a saree piece was hanging to the pipe in the bed room, there were black marks on the left cheek of the deceased and blood was coming out of the ear. It is thereafter that she lodged the complaint.
27. During the course of cross-examination, she has stated that no list was prepared for the items given Crl.A. No.100288/2018 43 at the time of marriage. She has denied that Rs.1 lakh was given to her by the accused for meeting the expenses of marriage. She has admitted that as a part of customs, bed, cot and a steel almirah are given to the bridegroom and silver leg chain and silver toe rings are given to the bride when the bride is going along with the bridegroom for the first time. At the time of marriage, cloths are given from the side of bridegroom to the bride and vice versa.
28. She has admitted that the deceased would come to her maternal house once in 2-3 months, whenever there was a function and in all she had come 7-8 times and that her bridal showers were also performed. On enquiry as to whether any complaint had been lodged by her or her family members as regards the ill-treatment to the deceased, she has stated that no such complaint Crl.A. No.100288/2018 44 was given. Even when accused No.1 had come to take back the deceased after the local festival, the deceased was not ready to go, but she was forced to go with accused No.1. She has deposed as regards the location of the house and the number of rooms, etc. in the house of the accused. That no person was inside the house except the body of the deceased. The complaint was written in Kakati Police Station. She is an illiterate and she does not know the contents of the complaint. She has denied that the accused were looking after the deceased with love and affection. She has denied that there was any demand made for dowry. She has denied that nothing was given at the time of marriage. She has reiterated that after 6 months of marriage accused No.1 demanded Rs.5 lakhs. She has also denied that because the deceased was sent forcibly to the house of accused, the Crl.A. No.100288/2018 45 deceased became upset over this and committed suicide.
29. PW.15 has stated that the marriage of the deceased and accused No.1 was performed in June-2015. That the accused as dowry has demanded golden ring weighing 1 tola, gold necklace weighting 1¼ tola, ½ tola golden gundu, silver leg chains weighing 6 tolas, cot, bed, steel almirah and tv, which were given by CW7, his father and PW.15 to the accused. He has also deposed about the accused having started demanding more dowry, stating that if he had married another girl he would have got more dowry and demanded a sum of Rs.5 lakhs for starting a Dhaba, which was informed to him by the deceased. He has stated about how he, CWs.1, 7 and 9 advised accused No.1 and assured that they would pay him. Whenever the deceased met Crl.A. No.100288/2018 46 him, she used to inform him about the continued demand of the accused. When the deceased came to her maternal home for Laxmi festival (local festival) and stayed there for 9 days. At that time the deceased had informed him that if she did not bring Rs.5 lakhs accused No.1 had threatened to kill her. He has stated about how accused No.1 came to the house of CW.1 to take back the deceased, she informed that she would come after one day, however accused No.1 insisted and took her back at 7.00 p.m. and next day through phone at 2.30 p.m. he was informed about the deceased having committed suicide by hanging. Immediately he along with his relatives reached the house of accused No.1 and found the dead body of the deceased in the kitchen of the house of the accused. They found there was a piece of saree used for hanging on a pipe and black mark to the Crl.A. No.100288/2018 47 left cheek as well as blood coming from ear and nose of the deceased. He has stated about how he has witnessed the mahazar conducted, he has identified his signatures and he had witnessed the inquest, he has identified his signatures to the inquest mahazar and has identified the panchanam for seizure of MOs.1 to 13 and his signature to the seizure panchanama.
29.1 During the cross-examination by the accused he has stated that CW.1 was his sister-in-law. He has denied that for meeting the expenses of marriage, accused No.1 had paid Rs.1 lakh to CW.1. He has stated about how he had advised accused No.1 when he came to the house of CW.1. He has denied that accused were looking after the deceased cordially. Crl.A. No.100288/2018 48 29.2 During the course of cross-examination, he has denied that he had not informed the police about himself, CWs.1, 7 and 9 advising accused No.1 and assuring him to pay Rs.5 lakhs.
30. PW.16 who is the brother of the deceased who has more or less reiterated the statements made by PWs.14 and 15. In the cross-examination, he has stated that upon seeing the dead body of the deceased, they came to know that she had been killed by some instrument by tying the same to her neck as there were marks on her neck. He has stated that she has not committed suicide by hanging. At the time when they went to the house of the accused, the accused were not present in the house. He has denied all the suggestions as regards false complaint being filed and the statements being made by him was false. He has Crl.A. No.100288/2018 49 denied that the deceased had tried to get the fetus aborted. He has denied the suggestion that accused No.1 had informed him of the same and they had advised her against it. He has denied that complaint was lodged after discussing among themselves and finalizing the manner in which the complaint was to be lodged. He has reiterated that at the time of marriage the aforesaid items as indicated by PWs.14 and 15 had been given and that there was a demand made by accused No.1 for Rs.5 lakhs for starting a Dhaba and the threat held out by him for causing death of the deceased if the amounts were not paid.
31. PW.17 is the neighbour of the deceased. He has stated about how the accused at the time of engagement demanded dowry in the terms as stated by PWs.14 and 15, and those items were given to accused No.1. About 3-4 months after Crl.A. No.100288/2018 50 their marriage, the accused started harassing the deceased calling upon the deceased to get 4-5 lakhs from her maternal home for starting a Dhaba. When he went to the house of the deceased for a function the deceased had informed him about the harassment meted out by the accused and the demand for amounts. The deceased had come to her maternal home for local festival where she had once again informed about the demand made and the threat held out by accused No.1. he has also stated about having been informed about the death of the deceased and having gone to the house of the deceased, found her dead body, her cheek and ear had blackened with blood flowing out of her ears. But, the accused were not present at that time. In the cross-examination, he has denied that accused No.1 had borne the cost of marriage. He has Crl.A. No.100288/2018 51 denied all other suggestions put across by the counsel for the accused. He has reiterated that on the day before the death of the deceased, they had advised accused No.1 to take care of her properly and not to harass or ill-treat her, that they would make the dowry payment in the near future.
32. PW.18 is also a neighbour of the deceased. He has more or less deposed in similar terms as deposed by PW.17. He has denied all the suggestions put across to him during the course of cross- examination.
33. PWs.19, 21 and 22 are the investigating officers:
34. PW.19 is the PI, Kakati Police Station, who received the complaint from CW.1, registered the crime, carried out the investigation, he has described the investigation which had been carried out in this case, namely conducting the spot Crl.A. No.100288/2018 52 mahazar and inquest panchanama, sending the body for postmortem, receiving the postmortem report, recording of statement of the witnesses, etc.
35. PW.20 is the Senior Scientific Officer of RFSL. He has supported the case of the prosecution. He was not cross-examined. Nothing much was elicited from these witnesses during the course of cross- examination.
36. From the evidence on record, it is clear that the marriage of the deceased with accused No.1 had been performed on 29.06.2015 and her death occurred on 09.04.2016 i.e. much within the period of 7 years from the date of marriage, thus attracting both Section 113-B of the Indian Evidence Act and Section 498-A of IPC. Crl.A. No.100288/2018 53
37. Though Sri.Harshawardhan M Patil, learned counsel for the appellants relied upon the decision of the Hon'ble Apex Court in Gurjit Singh's case to contend that the presumption under the Indian Evidence Act cannot be drawn in the present case. The said decision was in the context of an offence under Section 306 of IPC where the Court dealt with the presumption under Section 113-A of the Indian Evidence Act which relates to presumption being drawn regarding abetment by the husband or any relative of the husband in the event of a woman committing suicide within seven years of marriage. Section 113-A of the Indian Evidence Act reads as under:
113A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court Crl.A. No.100288/2018 54 may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).
38. A perusal of the above provision would indicate that insofar as commission of suicide by a woman is concerned, the Court may presume having regard to all other circumstances of the cases that such suicide has been abetted by her husband or any relative of her husband. Hence, Section 113-A of the Indian Evidence Act does not make the presumption mandatory but leaves a discretion to the Court on the basis of and having regard to other circumstances of the case.
39. In the present case, we are not dealing with suicide but of a dowry death which is covered Crl.A. No.100288/2018 55 under Section 113-B of the Indian Evidence Act. The said provision reads as under:
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 (45 of 1860).
40. A reading of the above provision would indicate that when the question is whether a person has committed the dowry death of a woman, subject to fulfillment of certain conditions, the Court shall presume that such person has caused the dowry death. Therefore, under Section 113-B of the Indian Evidence Act it is mandatory for the Court to presume and there is no discretion left to the Court in such cases.
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41. The decision of the Hon'ble Apex Court in Gurjit Singh's case is one relating to suicide being an offence under Section 306 of IPC as regards which presumption under Section 113-A of the Indian Evidence Act would apply and having regard to the same the Hon'ble Apex Court has held that the surrounding circumstances would have to be considered.
42. In the present case, we are dealing with a dowry death and not a suicide as observed above and dealt with above. The hanging was caused postmortem though the death was sought to be portrayed as a suicide, in fact and in effect the death in the present case is a homicide and as such the decision of the Hon'ble Apex Court in Maya Devi's case relied upon by the learned Additional SPP would be applicable requiring this Court to draw the presumption in terms of Section Crl.A. No.100288/2018 57 113-B of the Indian Evidence Act which is mandatory.
43. The complainant and other material witnesses namely the family members PWs.14, 15 and 16 have categorically deposed about the demand made for dowry, items demanded as also the items having been handed over. They also deposed about the deceased having informed them about the demand of accused No.1 for a sum of Rs.5 lakhs, they having requested accused No.1 to take care of the deceased properly since she was pregnant and their promise to meet the demand of money in the near future.
44. They have also deposed that when they came to the house of the accused after coming to know about the death of the deceased, they found that the accused were nowhere to be seen and the Crl.A. No.100288/2018 58 body of the deceased was laying in the kitchen, and the saree piece was tied to the pipe in the bedroom. They have also deposed about the cheek of the deceased having turned black and blood oozing from the ear of the deceased. All the witnesses have withstood the test of the cross- examination and supported the case of the prosecution.
45. PWs.17 and 18 who are the neighbours of the deceased have more or less deposed in the same manner as was by PWs.14, 15 and 16 and have supported the case of the prosecution.
46. PW.9, doctor who had conducted the postmortem has clearly and categorically stated that the ligature marks on the neck of the deceased was postmortem. That is to say that the said ligature marks had occured after the death of the Crl.A. No.100288/2018 59 deceased, thereby meaning that the ligature marks did not occur at the time when the deceased was alive.
47. The ligature marks are attributed to the hanging of the deceased by using a saree. If the ligature marks are postmortem, then it is clear that the deceased was dead at the time of hanging and therefore, the deceased could not have hung herself after her death, which would lead to an irrefutable conclusion that the hanging was stage managed to make it appear as if the deceased had hung herself.
48. PWs.14, 15, 16, 17 and 18 have deposed about the left cheek of the deceased having turned black and the blood coming from the ear of the deceased. Though there is no much cross- examination on this, conclusion could be drawn Crl.A. No.100288/2018 60 that she had been assaulted on the cheek which had caused deep injury resulting in blood flowing from her ear which the doctor PW.9 has described as multiple petechial hemorrhages over the left side of the face. This hemorrhages on the left side of the face could have only been caused by force on the left cheek of the deceased. The blood flowing from the ear also supports the said assault.
49. PW.1 in the cross-examination by the accused has stated that on the date of the incident at about 10.30 a.m. accused No.2 had come to his house requesting his wife to accompany the deceased to Anganawadi for administering injection. PW.2 has however deposed that the deceased herself had requested her to accompany to Anganawadi for administering injection.
Crl.A. No.100288/201861
50. If the evidence of PW.2 is to be believed since PW.2 had met the deceased from 10.00 a.m. to 10.30 a.m., the deceased who was 5 months pregnant was getting ready to go to the hospital for the purpose of being administered with an injection to take care of her well being as also the well being of the baby she was carrying. When at 10.30 a.m. the deceased was in such a state of mind to take care of her well being and the well being of the baby, it is implausible for her to have committed suicide at 12.00 p.m.
51. A perusal of the photographs of the spot where she had supposedly hanged herself, as also the spot mahazar indicates that in the bed room where she supposedly hanged herself; a saree was tied at a height of 18 feet above the ground. Even if the height of the cot is accounted for, 3 feet would be reduced, then from the cot to the steel bar to Crl.A. No.100288/2018 62 which the saree had been tied would be at a distance of 15 feet. It is not possible for a woman who is 5 months pregnant to have climbed up and tied the saree to the steel bar and thereafter hanged herself.
52. The spot mahazar does not indicate the presence of any stool or ladder or any other means of climbing to such a height.
53. PWs.1 and 2 have deposed that they heard hue and cry from the house of the deceased and hence they went there, when they saw the deceased hanging, but she was alive. It is not clear as to who caused the hue and cry as stated by PWs.1 and 2 when apparently there was no one in the said house when they went there.
54. In the aforesaid circumstances we are of the considered opinion that the deposition of PWs.1 Crl.A. No.100288/2018 63 and 2 are completely untrustworthy and the said statements have been made by them only to confuse the issue as also the investigation. From the actual facts which are available, it can be gathered that the evidence on record do not support the statements of PWs.1 and 2. They being the neighbours of the accused and they also having turned hostile and having given admissions through their cross-examination also indicates that their testimony is completely untrustworthy and that they are deposing in order to save and safeguard the accused.
55. If the evidence of PWs.1 and 2 is discarded as aforesaid, the evidence of the other witnesses establishes the chain of events namely from the date of marriage, demand of dowry having been made, items having been given to the accused, demand for Rs.5 lakhs having been made by Crl.A. No.100288/2018 64 accused No.1 for starting a Dhaba since he was already working as a cook in another Dhaba, his threat to the deceased to kill her if the amounts are not given, the advice given by the elders including PWs.14, 15, 16, 17 and 18 to accused not to harass the deceased and take care of her since she was pregnant, despite which the death of the deceased having occurred.
56. Even if the evidence of PW.2 is taken into consideration, according to her the deceased had requested PW.2 to accompany her to Anganawadi for the purpose of administering injection which would establish that the state of mind of the deceased was not that of a person wanting to commit suicide.
57. The spot mahazar and the evidence of witnesses indicates that the saree which the deceased used Crl.A. No.100288/2018 65 to supposedly commit suicide, was at a height of 18 feet above the ground and there were no means for the deceased to have climbed up and tied the saree at such a height, more so when she was 5 months pregnant.
58. PWs.1 and 2 have stated that they found the deceased hanging therefore they cut the saree and they made her to drink water, they brought her to the kitchen. Such an act on the part of PWs.1 and 2 is also not normal behavior. It would have been easy for them to take the water from kitchen to the bed room rather than carrying a 5 months pregnant lady from the bed room to the kitchen that too of a person who has sought to commit suicide according to them.
59. The evidence on record establishes that neither of the accused was present in the house at the time Crl.A. No.100288/2018 66 when CW.1 and other family members reached the house of the accused. The presumption under Section 113-B of the Indian Evidence Act would be applicable. There is enough evidence which would irrefutably establish that the deceased was subject to cruelty and harassment in connection with the demand of dowry for a sum of Rs.5 lakhs coupled with a threat to cause her death if the amount was not paid.
60. In these circumstances, the offences under Section 304-B of IPC would get attracted since the death has occurred within 7 years of marriage and the bodily injuries which have been caused to the deceased are not of a nature that would occur under normal circumstances. She having been subjected to mental cruelty by way of threat and demand for the monies.
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61. Therefore, the death having occurred in view of the fact that the deceased was carrying and the male fetus also having died on account of demise of the deceased, offence under Section 315 of IPC is also established.
62. The accused having sought to destroy the evidence and or to make it appear as if the deceased has committed suicide when she had in fact been murdered, the offence under Section 201 of IPC has also been established. This being more so on account of the fact that ligature mark was postmortem. The accused as per the evidence of various witnesses have subjected the deceased to cruelty and harassment coercing her to meet the unlawful demand of a sum of Rs.5 lakhs through her maternal home. Thus, the offence under Section 498-A of IPC is also established. The demands having been made of various gold items Crl.A. No.100288/2018 68 and those items having been received and further demand for money having been made under the threat of accused No.1 marrying someone else as also causing the death of the deceased, offence under Sections 3 and 4 of the D.P. Act are also made out.
63. The prosecution having established the offences for which the charges were framed against the accused, by leading cogent oral and documentary evidence, we are of the considered opinion that the judgment of conviction is proper and correct.
64. The order of sentence which has been passed is also proper and correct and commensurate that the offences committed by the accused and would not require any interference.
65. In the aforesaid circumstances, we pass the following:
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ORDER The appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE sh