Karnataka High Court
Sri Deepak E vs The State Of Karnataka By on 27 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 926 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.926 OF 2016
BETWEEN:
SRI.DEEPAK.E
AGED ABOUT 36 YEARS,
S/o.S.B.ESHWAR,
R/at, NO.923, 5TH CROSS,
VIJAYA BANK LAYOUT,
BANNERGHATTA ROAD,
BANGALORE-560 076.
...APPELLANT
Digitally
signed by
SUMITHRA
R (BY SRI. PRABHUGOUDA B TUMBIGI.,ADVOCATE)
Location:
HIGH AND:
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA BY
R.T.NAGAR POLICE,
BENGALURU
REP BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
2. ANAND S/o.SHIVANNA,
AGED ABOUT 47 YEARS,
R/at 15/1, 4TH MAIN, 4TH CROSS,
PAPANNA BLOCK, GANGANAGAR,
R.T.NAGAR, BENGALURU-560 032.
3. GOWRAMMA W/o. SHIVANNA,
AGED ABOUT 76 YEARS,
R/at 15/1, 4TH MAIN, 4TH CROSS,
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CRL.A No. 926 of 2016
PAPANNA BLOCK,
GANGANAGAR R.T.NAGAR
BENGALURU-560 032.
4. SHYLAJA W/o.HARISH
AGED ABOUT 51 YEARS,
R/at NO.411, 9TH MAIN,
VIJAYANAGARA,
BENGALURU-560 040
5. HARISH S/o.RUDRAPPA
AGED ABOUT 57 YEARS,
R/at NO.411, 9TH MAIN,
VIJAYANAGARA,
BENGALURU-560 040
...RESPONDENTS
(BY SRI K S ABHIJIITH, HCGP FOR R1;
SRI SRINIVAS FOR ADVOCATE R2 TO R5)
-----------
CRL.A. IS FILED UNDER SECTION 372 OF THE CRIMINAL
PROCEDURE CODE PRAYING TO SET ASIDE THE ORDER DATED
3.5.2016 PASSED BY THE XLV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-46) IN S.C.NO.427/2011
PRODUCED VIDE ANNEXURE-A AND CONVICT AND SENTENCE THE
RESPONDENTS NO.2 TO 5 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 498(A), 304(B), 302, READ WITH 34 OF INDIAN PENAL
CODE AND SECTION 3 AND 4 OF DOWRY PROHIBITION ACT, IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
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CRL.A No. 926 of 2016
JUDGMENT
The appellant/First Informant (PW2-Deepak), the brother of deceased Smt. Puneetha has filed the present appeal against the impugned judgment and order of acquittal dated 03.05.2016 passed in S.C.No.427/2011 by the XLV Additional City Civil and Sessions Judge, Bengaluru City (CCH-46), acquitting the respondents for the offences punishable under Section 498A, 304B and 302 r/w.34 of IPC and Section 3 & 4 of the Dowry Prohibition Act.
2. Brief facts of the prosecution case are as under :
Accused No.1-Anand is the husband of deceased Puneetha and their marriage was solemnized on 28.1.2007 at Bengaluru, according to their rites and customs. At the time of marriage, as per the demand of accused persons, PWs 1 and 2, mother and brother of the deceased Puneetha, have given Rs.50,000/- cash, one gold bracelet, one gold neck chain, one ring and watch to accused No.1, and one gold necklace, hangings, one gold long chain and hangings, three pair gold bangles, 2 finger ring, one small gold chain, 1½ gms of silver articles to deceased Puneetha, in the form of dowry. After the marriage, deceased Puneetha, was residing with accused persons at Ganganagar Bengaluru. After couple of days of the marriage, accused -4- CRL.A No. 926 of 2016 No.1 along with other accused persons used to abuse deceased for silly family matters and were not providing proper food and clothing to the deceased. Accused Nos. 2 to 5, colluding with each other, mentally harassed the deceased saying that her parents have not given sufficient dowry and thus, they directed her to go to work and give money from earning and they harassed the deceased to bring money from her parents, to open a shop for providing income to the family. Accused No.1 used to torture the deceased mentally and physically demanding her to bring a site or flat from her parents in the place of his choice. On 27.10.2010 between 1.30 p.m. and 3.30 p.m. the deceased Puneetha unable to withstand the physical and mental torture given by the accused persons, committed suicide in the bedroom of her dwelling house, by hanging to the ceiling fan with the help of veil. Hence, PW2 lodged a complaint as per Ex.P1.
3. Based on the aforesaid complaint lodged by PW2, the jurisdictional police registered Crime No.365/10 against accused persons for the offences punishable under Section 498A and 304B read with 34 of IPC. PW15-the Investigation Officer conducted investigation and filed charge sheet against accused persons.
4. After committal of the case to the court of Sessions, accused No.3- Shivanna died on 7.3.2011 and case against him has been abated. -5- CRL.A No. 926 of 2016 Thereafter, the charge has been framed against accused No.1, 2, 4 and 5 for the offence punishable under Sections 498A, 304B, 302 r/w.34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act and explained the same to accused persons; they pleaded not guilty to the charge and they claimed to be tried.
5. In order to prove the charges against the accused, the prosecution, in all, examined 16 witnesses as per PWs.1 to 16, got marked 27 documents as per Exs.P.1 to P.27 and the material objects as per MOs.1 to 3.
6. After completion of the evidence on behalf of the prosecution, the statements of the accused persons as contemplated under Section 313 of IPC were recorded by the trial court. The accused persons denied all the incriminating evidence against them, but did not lead any defence evidence.
7. The learned Sessions Judge, after considering the entire evidence on record, has recorded a finding that, the prosecution has failed to prove that at the time of marriage, the accused persons have demanded Rs.50,000/- cash, one gold bracelet, one gold neck chain, one ring and watch to accused No.1, and one gold necklace, hangings, one gold long chain and hangings, three pair gold bangles, -6- CRL.A No. 926 of 2016 2 finger ring, one small gold chain, 1½ gms. of silver articles to deceased Puneetha, in the form of dowry from CWs 1 and 2.
8. The Trial Court further recorded a finding that the prosecution failed to prove that after the marriage while the deceased Puneetha was residing with the accused persons, accused No.2 to 5 by colluding with each other, mentally tortured the deceased saying that her parents have not given sufficient dowry and thus, directed her to go to work and give money from her earning and they harassed the deceased to bring money from her parents to open a shop for providing income to the family and accused No.1 used to torture the deceased mentally and physically demanding her to bring a site or flat from her parents in the place of his choice.
9. The Trial Court further recorded a finding that the prosecution failed to prove the prosecution case that, after some days of the marriage, accused No.1 along with other accused persons used to abuse the deceased for silly family matters and were not providing proper food and clothing to the deceased and thus accused Nos.2 to 5 by colluding with each other mentally tortured the deceased saying that her parents have not given sufficient dowry and thus demanded to go to work and give money from earning and accused No.1 also -7- CRL.A No. 926 of 2016 harassed the deceased mentally and physically to bring a site or flat from her parents in the place of his choice.
10. The Trial Court further recorded a finding that the prosecution failed to prove beyond all reasonable doubt that accused No.1,2, 4 and 5 demanded further dowry amount, site or flat and subjected the deceased to cruelty by wilful conduct which was of such a nature as is likely to drive the deceased to commit suicide and because of physical and mental torture of accused persons, on 27.10.2010 between 1.30 to 3.30 p.m., deceased Puneetha unable to withstand the physical and mental torture given by accused persons, committed suicide in the bed room of her dwelling house by hanging to the ceiling fan with the help of a veil.
11. The Trial Court recorded a further finding that the prosecution failed to prove that accused No.1,2, 4 and 5 along with abetted accused No.3, commit the murder of the deceased by intentionally causing death of Puneetha.
12. Hence, the Trial court acquitted the accused persons for the alleged offences, holding that, prosecution failed to prove its case beyond all reasonable doubt.
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13. Aggrieved by the judgment of acquittal, the first informant (Dilip- PW2), being the brother of deceased, has filed this appeal against the judgment of the trial Court.
14. Respondent No.1 - State has not preferred any appeal questioning the order of acquittal of the accused persons for the offences with which they have been charged.
15. We have heard learned counsels for the parties to the lis, who have taken us through the material evidence placed on record.
16. In support of the appeal, the learned counsel for the appellant vehemently argued and submitted that :
16.1. There is a total non-application of judicial mind on the part of the learned XLV Additional City Civil and Sessions Judge, Bengaluru, while considering the evidence of PW-1 and PW-4 who clearly deposed before the Court on the date of the death i.e., 27-10-2010 at about 1:30 P.M. deceased Puneetha called PW-1 and told that respondent No.2 and his family members are harassing with regard to bring flat or site and also PW-4 clearly stated in her evidence that deceased Puneetha sent SMS to her stating that her husband and his family members are harassing in respect of the property and immediately thereafter, respondent No.2 called PW-1 and told her that her daughter Puneetha committed suicide and this itself clearly -9- CRL.A No. 926 of 2016 shows that the deceased was subjected to cruelty soon before her death and this aspect of the matter has not been considered by the trial court.
16.2. The counsel further submits that the documents and evidence on record clearly shows that respondents No.2 to 5 demanded the dowry at the time of marriage and further sending her to parents home to bring flat or site to respondents No.2 to 5, which made PW-2 to purchase a house in order to give it to his sister deceased-
Puneetha, which clearly shows that respondents No.2 to 5 were always demanding the dowry.
16.3. Learned counsel for the appellant further submits that though respondents No.2 to 5 had thrown out the deceased Puneetha from the matrimonial home, to avoid complaint being lodged against them and also to show as if respondent No.2 is innocent and deceased Puneetha is under fault, has issued legal notice on 8-7-2010 asking deceased Puneetha to come and the join the matrimonial home and later, on 13-8-2010 respondent No.2 and his family members called through their advocate for compromise, wherein also they demanded flat or site and on the request of the family members of the deceased Puneetha, they took her to the matrimonial home and again in about a month, they have physically and mentally tortured and forced
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CRL.A No. 926 of 2016deceased Puneetha to take extreme steps which forced her to committed suicide.
16.4. He further submits that the deceased Puneetha died within 7 years of her marriage due to harassment meted out by respondents No.2 to 5, which has been clearly deposed by the prosecution witnesses regarding the demand of dowry, harassment etc., and the testimony of the witnesses is not shaken in the evidence before the Court below, even then assuming contrary is bad in law. 16.5. The counsel further submits that the trial court observing certain past facts that respondent No.2 attended one or two ceremonies and the deceased alleged to have sent SMS to respondent No.2 wishing for his birthday and based on these facts, the trial court came to the conclusion that as they were good in relationship, on the contrary, the deceased was Puneetha with him and respondent No.2 misusing her mobile might have himself sent the SMS from her mobile to his mobile, but it is pertinent to state that both respondent No.2 and deceased were in their house and the deceased sending birthday wishes from her mobile shows something fishy which is not explained by respondent No.2, but believing contrary by the trial below, is bad in law.
16.6. The learned counsel further submits that the receipts Ex.P16 to P21 clearly shows that on the demand, family members of the
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CRL.A No. 926 of 2016deceased Puneetha had given golden articles to respondent No.2 to 5 and apart from that, Exs.P22 to P26 clearly shows that respondent No.2 was harassing the deceased Puneetha and demanding the money and property. These admitted facts were not taken into consideration by the trial court.
16.7. Further, the learned counsel further submits that the documents Ex.P1 to 27 and evidence of PW-1 to 16 are consistent and corroborating with each other and the evidence clearly shows that, respondents No.2 to 5 have received the dowry at the time of marriage and also further demanded additional dowry after marriage and they have subjected deceased Puneetha to physical and mental torture and thus, they have committed murder. 16.8. The counsel further submits that the trial court failed to consider the decision cited by the complainant which are aptly applicable to the instant case and taken into consideration of the citations of respondents No. 2 to 5 which are not at all applicable to the instant case as facts and circumstance are different. 16.9. The learned counsel further submits that the complaint, evidence and documents on record clearly fulfil the ingredients of the offences punishable under sections 498(A), 304(B), 302, read with 34 of Indian Penal Code and section 3 and 4 of Dowry Prohibition Act,
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CRL.A No. 926 of 2016as such acquitting respondent No. 2 to 5 based on presumption and assumption is bad in law.
16.10. The learned counsel for the appellant submits that even otherwise, the order of the trial court is opposed to law, facts, probabilities and weight of the evidence in the case, and otherwise illegal and improper and same is liable to be set aside. 16.11 The learned counsel for the appellant submits that the reason assigned by the trial court while acquitting the respondents are not at all valid reasons and are not sustainable in law and hence, prays to allow the appeal.
17. The learned Senior counsel appearing for accused persons/respondents No.2 to 5, submitted that, the prosecution has failed to prove that, accused No.1 at any point of time, had made demand of dowry or the deceased was subjected to cruelty or harassment or that, the harassment was for or in connection with the demand of dowry immediately before the death of Puneetha, and therefore, in the absence of any believable and reliable evidence led by the prosecution, the acquittal of accused persons is wholly justifiable and in accordance with law.
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CRL.A No. 926 of 2016
18. The learned SPP for the State submitted that the judgment passed by the trial Court is in accordance with law.
19. In view of the rival contentions urged by the parties, learned counsel for the parties, the points that arise for consideration in the present appeal is :
"Whether the appellant (PW2) has made out any case to interfere with the impugned judgment insofar as acquitting respondents 2 to 5 (accused No.1,2,4 and 5) for the offences punishable under Section 498A, 304B, 302 read with 34 of IPC and Section 3 and 4 of Dowry Prohibition Act ?"
20. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
21. The substance of the prosecution case is that, marriage of accused No.1-Anand was performed with deceased Puneetha on 28.1.2007 and at the time of marriage, as per the demand of accused persons, PWs 1 and 2, mother and brother of the deceased Puneetha, have given Rs.50,000/- cash, one gold bracelet, one gold neck chain, one ring and watch to accused No.1, and one gold necklace, hangings, one gold long chain and hangings, three pair gold
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CRL.A No. 926 of 2016bangles, 2 finger ring, one small gold chain, 1½ gms of silver articles to deceased Puneetha, in the form of dowry. After the marriage, deceased Puneetha, was residing with accused persons at Ganganagar, Bengaluru and after couple of days of the marriage, accused No.1 along with other accused persons used to abuse deceased for silly family matters and were not providing proper food and clothing to the deceased and accused Nos. 2 to 5, colluding with each other, mentally harassed the deceased saying that her parents have not given sufficient dowry and thus, they directed her to go to work and give money from earning and they harassed the deceased to bring money from her parents, to open a shop for providing income to the family. Further, accused No.1 used to torture the deceased mentally and physically demanding her to bring a site or flat from her parents in the place of his choice. Hence, on 27.10.2010 between 1.30 p.m. and 3.30 p.m. the deceased Puneetha unable to withstand the physical and mental torture given by the accused persons, committed suicide in the bedroom of her dwelling house, by hanging to the ceiling fan with the help of veil.
22. In order to re-appreciate the material on record, including the oral and documentary evidence, it is relevant to consider the sum and substance of evidence of the prosecution witnesses.
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CRL.A No. 926 of 2016
23. PW1-Smt Mukthamba who is the mother of the deceased, deposed that her daughter marriage was solemnized on 28.01.2007 with accused no.1 and during marriage, she and PW2 gave gold, cash and silver articles to accused no.1 on demand and after couple of days of the marriage, accused number 2 to 5 demanded deceased Puneetha to purchase a house or site in the name of respondent No.2, even though house was purchased in the name of Puneetha, but not satisfied and he continued to harass the deceased. But in cross examination, PW1 has categorically admitted that, her daughter sent birthday wishes to accused No.1 and on the same day, she committed suicide. It is a relevant to note that, if accused no 1 was really torturing deceased, how can she sent birthday message to her husband. Further, prior to death of deceased, there was no quarrel between accused persons and deceased. Thus, on perusal of evidence of PW1, there is no evidence to show that, accused persons have abated the deceased to committee suicide. The testimony of PW1 does not support the allegations of demand for dowry by Accused persons. This witness has not deposed that her daughter committed suicide because she was subjected to cruelty and harassment by Accused persons in connection with the demand for dowry.
24. PW2-Sri Deepak is brother of deceased, in his evidence he stated that, his sister was given in marriage to accused no.1 and out of the
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CRL.A No. 926 of 2016wedlock, her sister delivered a female child at their house and he along with his sister and her child went to the house of Accused no 1. It is his testimony that Accused-No.1 and his sister used to quarrel with each other on some small and petty matters and her husband and parents-in-law were demanding for a house or site in their name and also for dowry i.e gold and silver articles, etc. from him and PW1. He further deposed that, respondent No.2 to 5 were harassed deceased Puneetha to bring documents of residential house purchased in her name. The testimony of this witness is totally contrary to the version of PW 1, and secondly, he has not corroborated the allegations made in the complaint (Ext. P-1). The evidence of this witness does not reveal that the deceased was ever ill-treated or harassed by Accused No.1 for not satisfying dowry demand or there was any demand of dowry "soon before her death"
so as to drive the deceased Puneetha to take the extreme step of committing suicide.
25. PW3-Devaprasanna, relative of deceased Puneetha, deposed that, after the marriage of Puneetha with Accused No.1, she came to her house and informed that she was being tortured by her parents- in-law as she could not give house to accused no.1. This portion of the statement of the witness is totally inconsistent with and contrary to the versions of PWs 1 and 2, who have not deposed that after the
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CRL.A No. 926 of 2016marriage Puneetha had ever complained to them that she was given beatings by her parents-in-law or was ever maltreated or harassed by them. This witness admitted in cross-examination that he has attended the office of advocate and he has not advised deceased Puneetha and Accused no 1 and Puneetha never informed him, making allegation against accused persons. Thus, PW 3 himself has contradicted his statement recorded by the investigating officer under Section 161 Cr.PC. Therefore, the evidence of this witness is of no help to the prosecution to hold Accused persons responsible for committing the alleged crime.
26. PW4-Ameena, the friend of deceased deposed that, herself and deceased-Puneetha were attending computer classes, she knows the deceased and her husband and aware of the birth of female child in the year 2008, as the deceased used to call her and informed the ill- treatment and also her husband family have not happy with the girl child and they did not come to see the child. She further stated that, as per the demand of accused, the family members of deceased were purchased house in BTM layout, Bangalore. She further deposed that, on 27.10.2010, at about 1.30 pm to 2.30 pm, deceased sent a message to her phone stating that, her husband is quarreled with her in respect of property, and on the same day, Puneethacommitted suicide. PW4 has undergone intensive cross examination, where in,
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CRL.A No. 926 of 2016she admitted that, she did not visit the hospital, when the child was delivered; regarding Ex.P 12 letter nothing was stated by deceased Puneethato her, she had not attended the naming ceremony of the child. These suggestions clearly show that, PW4 Ameena was not so close to the deceased Puneethaand she has not produced the message details to the police or before the trial court.
27. PW5-Charan is the Inquest Mahazar witness, in his evidence, he has stated that, the police have conducted inquest Mahazar on the dead body of the deceased Puneetha in his presence, at Ambedkar Medical College as per Ex.P3.
28. PW6-Mohammed Yunus is the spot Mahazar witness, in his evidence; he has stated that, the police have conducted spot Mahazar in his presence as per Ex.P4.
29. PW7-Ambika, the owner of the premises where the couple was residing, has been examined by the prosecution and this witness has not supported the case of prosecution.
30. PW8-Dr P M Nagaraj is the doctor, who has conducted Post Mortem on the dead body of Puneetha, in his evidence; he stated that, while conducting post mortem examination, he noticed ligature
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CRL.A No. 926 of 2016mark on the neck of deceased and issued post mortem report as per Ex.P6.
31. PW9-Shashidhara is the Engineer, in his evidence stated that, he visited the spot along with the police and prepared sketch of the spot as per Ex.P8.
32. PW10-Ranganath is the Special Tahasildar, who conducted Inquest panchanama as per Ex.P3.
33. PW11-Hanumantharaju is the Police Constable who watched the dead body and handed over to the parents of the deceased.
34. PW12-Chandrashekaraiah is the Head Constable, who apprehended the accused and produced them before I.O.
35. PW13-Nagaraja is the Head Constable, who carried FIR to court and his higher authority.
36. PW14-Rehan B, then ASI, deposed that, he collected PM report from hospital and prepared PF as per Ex.P11.
37. PW15-Munirathnam Naidu, then IO, deposed that he took further investigation of this case, arrested the accused, recorded statements of witnesses and accused, seized the articles etc and filed charge sheet to the court. PW15 has undergone intensive cross examination
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CRL.A No. 926 of 2016by the counsel for the accused. In the cross examination, he categorically admitted that he has not seized original bill or tax invoices to show that PWs 1 and 2 were purchased gold articles from the jewellery shop and he has not enquired to that effect. IO categorically admitted that respondent No.2/accused No.1 and deceased Puneetha were celebrated naming ceremony and performed baby shower ceremony and all expenses were incurred by accused No.1 only. Further, IO has not seized call details and phone messages of deceased Puneetha. IO further deposed that 'PW1 (CW2) has categorically stated before him that on 27.10.2010, deceased interacted with her over phone and she was normal then'.
38. PW-16 Mahadevaswamy, Police Sub Inspector, who registered the case and conducted spot panchanama.
39. Based on the aforesaid oral and documentary evidence, accused No.1,2, 4 and 5 are acquitted for the offences punishable under Sections 498A, 304B, 302 r/w. 34 of IPC and Sections 3 and 4 of DP Act.
40. The basic ingredients to attract the provisions of Section 304-B IPC are as follows:
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(1) that the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death.
41. In view of the fact, circumstances and evidence led by the prosecution, it is just and necessary to analyse Section 304-B IPC, which deals with "dowry death", which reads as follows :
"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, (4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death.
42. Further, Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act has to be looked into for drawing presumption.
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CRL.A No. 926 of 2016
"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 had 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 purpose of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Penal Code, 1860."
43. In the instant case, the counsel for the appellant mainly relied upon the oral testimony of PWs 1 to 4. PW1, who is the none other than the mother of deceased, PW2, brother of the deceased, PW3 is the relative of the deceased and PW4 is friend of the deceased and they are interested witnesses in order to punish the accused persons. It is well settled law that, the evidence of interested witnesses requires careful scrutiny to discover falsehood, embellishment or exaggeration, which must be eschewed. The Hon'ble Apex Court in the case of Dalbir Kaur vs. State of Punjab reported in AIR 1977 SC 472, interested witnesses means, it postulates that the person concerned must have some direct interest in seeing that the accused persons is somehow or other convicted because he has some animus against the accused or for some other reason. A witness is independent, unless he springs from a source likely to be tainted.
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CRL.A No. 926 of 2016
44. Whereas in the instant case, according to appellant, accused persons have demanded money to purchase house or site in the name of accused No.1. On perusal of the evidence of PW2, it appears that, he purchased house in BTM Layout in his name and he has been receiving rent from the said house. If PW2 has purchased house in the name of deceased Puneetha, as per the demand, then, it would have been presumed that since accused persons have demanded to purchase house, hence, he purchased in the name of deceased Puneetha, whereas, this has not happened in this case. In the instant case, appellant/PW2 has taken contentions that, he purchased house in the name of deceased Puneetha and he has been remitting rent in her account, without showing any documents to show that rents have been remitting in the account of deceased Puneetha. However, this contention of PW2 is contrary to his evidence. Therefore, the testimony of PW2 is not trustworthy and due to enemity with accused persons, PW2 has deposed against accused persons in an exaggerated manner, in order to implicate them in the case. Admittedly, PW4 is a friend of deceased and except this witness, none of the independent witnesses have deposed as to the alleged cruelty meted out by accused persons against deceased Puneetha, prior to her death. Further, PW7-Smt Ambika, the owner of the premises, where deceased Puneetha and accused
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CRL.A No. 926 of 2016No.1 lastly resided, has clearly stated that, the couple were in cordial terms. Therefore, the evidence of neighbour, who is an independent witness, should be given more importance than interested and relative witnesses.
45. Further, on perusal of Exs.P22 to P26-messages, it appears that these messages were edited and produced before the Court and these messages has not been downloaded in running paragraphs and these documents do not bear portion of reply given by PW2 to the said messages sent by accused No.1. Therefore, the contents of Exs.P22 to P26 appear to be a drafted one.
46. In the backdrop of the above said contentions of the learned counsels for the parties and the evidence placed on record, we may refer to a few decisions of Hon'ble Apex Court in regard to the jurisdiction and limitations of the Appellate Court while considering the appeal against an order of acquittal.
47. In Tota Singh v. State of Punjab reported in (1987) 2 SCC 529, the Hon'ble Apex Court in para 6 has held as under : ) "6. ... The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower
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CRL.A No. 926 of 2016court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
48. In State of Rajasthan v. Raja Ram reported in [(2003) 8 SCC 180, the Hon'ble Apex Court has held that :
"7. ... The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. [Further, it is held that] in a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only where there are
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compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."
49. In Surajpal Singh v. State reported in 1951 SCC 1207, the Honble Apex court has held as under :
"7. It is well established that in an appeal under Section 417 CrPC [old], the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
50. In Aher Raja Khima v. State of Saurashtra reported in AIR 1956 SC 217, the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority, the Hon'ble Apex court has held as under :
"1. ... It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong."
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51. In the case of unnatural death of a married woman, as in a case of this nature, the husband could be prosecuted under Sections 302, 304-B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before Hon'ble Apex Court in Satvir Singh v. State of Punjab reported in (2001) 8 SCC 633 as follows :
"21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'at any time' after the marriage. The third occasion may appear to be an unending period. But the crucial words are 'in connection with the marriage of the said parties'. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should
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have happened 'soon before her death'. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasize the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept 'soon before her death'."
52. In Hira Lal v. State (Govt. of NCT of Delhi) reported in (2003) 8 SCC 80 the Hon'ble Apex Court observed thus :
"9. ... The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays
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down that a court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession'. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. 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."
53. In view of the above proposition of law and decisions cited supra, in the present case, we have independently analyzed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that there was any cruelty or harassment meted out against the deceased for or in connection with the demand of dowry.
54. The learned trial Judge has appreciated the evidence of PWs 1 to PW16 in its right perspective and concluded that the evidence of these witnesses has not been established that the deceased Puneetha was ever being harassed or ill-treated by the accused for bringing
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CRL.A No. 926 of 2016inadequate and insufficient dowry at the time of her marriage with accused No.1 or that the accused ever demanded dowry articles from the parents of the deceased before she committed suicide.
55. It is also to be noticed that the Trial Court on the basis of evidence has chosen to acquit all accused persons on the ground that, the prosecution has failed to prove the allegations of ill- treatment, harassment and demand for dowry, the evidence against all accused is insufficient and inconsistent with each other. This deficiency in the evidence proves fatal to the prosecution case. In the aforementioned situation, the provisions of Section 304-B IPC and Section 113-B of the Evidence Act could not be attracted to hold accused persons guilty of the offence of dowry death and/or cruelty in terms of Section 498-A IPC. The prosecution, therefore, must be held to have failed to establish any case against accused persons. Further, the appellant also has failed to establish any case against the accused persons, as alleged by him in the appeal.
56. The Hon'ble Apex Court in the case of HARENDRA NARAIN SINGH vs. STATE OF BIHAR reported in AIR 1991 SC 1842, has held that if there are two views possible from the evidence on record, one pointing to the guilt of accused and another to the innocence of accused, then, the view, which is favourable to the accused, is to be
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CRL.A No. 926 of 2016accepted and benefit of doubt shall be given to the accused. The Learned Sessions Judge placing reliance on the aforesaid judgment of the Hon'ble Apex Court, has given benefit of doubt to respondents/accused Nos. 2 to 5.
57. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of the Justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. This ratio is laid down in the case of RAMANAND YADAV vs. PRABHUNAT JHA and in the case of C.K. DASE GOWDA AND OTHERS vs. STATE OF KARNATAKA, reported in (2003) 12 SCC
606.
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58. Having given our careful consideration to the above stated submissions made by the learned counsel for the parties and in the backdrop of the evidence discussed hereinabove and tested in the light of the principles of law highlighted above, it must be held that the evaluation of the findings recorded by the Trial Court do not suffers from any manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the Trial Court, acquitting the accused persons is sustainable in law.
59. For the reasons stated above, we are of the considered opinion that the evidence led by the prosecution in regard to the involvement of accused persons in the death of Puneetha is not proved beyond reasonable doubt by the prosecution. Further, the appellant also consequently failed to establish the guilt of accused persons. Considering all these above aspects, we are of the considered opinion that the learned Sessions Judge has rightly held that the prosecution has failed to prove the guilt of respondents No.2 to 5 beyond all reasonable doubt and rightly extended the benefit of acquittal to respondents No.2 to 5. We do not find any grounds to interfere with the well reasoned judgment passed by the trial Court.
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60. In the result, we pass the following order :
ORDER
i) The appeal is dismissed;
ii) The judgment of acquittal passed by the XLV Additional City Civil and Sessions Judge, Bengaluru (CCH-46) in S.C.No.427/2011 dated 3.5.2016, acquitting respondents 2 to 5 for the offence punishable under Sections 498A, 304B, 302 read with 34 of IPC and Section 3 and 4 of Dowry Prohibition Act is, confirmed.
Sd/-
JUDGE Sd/-
JUDGE rs