Karnataka High Court
Lakshmi Javaraiah @ Lokesh vs State Of on 6 May, 2021
Author: B. Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MAY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
CRL.A.NO.1314 OF 2016
BETWEEN:
LAKSHMI JAVARAIAH @ LOKESH
S/O. LATE JAVARAIAH
AGED ABOUT 30 YEARS
R/O. NO.121, B.M. ROAD
GANDHINAGARA CIRCLE
NEAR ANJANEYA SWAMY TEMPLE
RAMANAGARA TOWN
RAMANAGARA DISTRICT - 571 511. ...APPELLANT
(BY SRI. Y.S. SHIVAPRASAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY RAMANAGHARA TOWN P.S.
RAMANAGARA DISTRICT
PIN CODE: 571 511. ...RESPONDENT
(BY SRI. S. RACHAIAH, HCGP)
(BY MS. BINDU N. DODDAHATTI, ADVOCATE FOR COMPLAINANT)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 12.07.2016 PASSED BY THE I ADDITIONAL
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DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN
S.C.NO.135/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 498(A), 504, 506
AND 302 OF IPC AND SECTIONS 3 AND 4 OF DOWRY PROHIBITION
ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.03.2021, THIS DAY, RAVI V. HOSMANI J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging the judgment of conviction and order of sentence dated 12.07.2016 passed by I Additional and District and Sessions Court, Ramanagara in S.C.No.135/2013, this appeal is filed by sole accused.
2. Brief facts leading to this appeal are that one Smt. Sarojamma W/o Rangaswamy lodged a complaint at 5.30 p.m. on 06.08.2013 with Ramanagarapura Police Station stating that she was a Social Worker and married to one Rangaswamy of Bannerghatta village, from whom she begot a daughter named Baby @ Latha. Her daughter was given in marriage to Lakshmijavaraiah @ Lokesh of Ramanagara during 2005. At the time of marriage, Rs.3,00,000/-, 4 gold bangles, 1 gold necklace, 4 finger rings and one gold chain was given. Her daughter and 3 Lakshmijavaraiah had two children namely a daughter Harshita and a son named Bhuvan @ Dharanesh. It is further stated that couple lived happily for a year after marriage.
During that time, she found that her son-in-law-Lokesh was working in a temporary job and used to insist her to sell house located in Bank Colony, Kathriguppe, Bengaluru and with that amount to construct a three floored building in Ramanagara, so that he could take good care of his wife and mother-in-law/PW-1. It was further stated that her daughter was harassed on this issue, due to which her daughter used to confide with her in tears. As complainant was alarmed with the greed of her son-in-law, she sold her house at Kathriguppe and kept sale proceeds of Rs.18,00,000/- in Fixed Deposit with Indian Bank, Chamarajpet Bengaluru. However, she periodically gave money to her daughter for her family needs and also got them household articles.
3. On finding about sale money being kept in Fixed Deposit, her son-in-law began insisting on aborting pregnancy of her daughter. Therefore, she warned accused that in case of any further harassment, she would file a complaint with police. But, 4 accused used to say that he would teach a lesson to complainant and her daughter and developed an ill-motive against complainant. Sometime thereafter, her daughter gave birth to a female child. On her daughter returning to marital home after delivery, accused used to tease her for giving birth to a female child and also subjected her to physical abuse. Her daughter used to narrate same to complainant. Complainant consoled her daughter that one or the other day, he would change his attitude. She also purchased a gold bracelet to her son-in-law (accused), but his harassment did not end. Accused continued to harass his wife and threatened about leaving her and taking another wife.
At that point, complainant intervened and warned him that she would file a complaint of dowry case with police against him. Due to which, accused simmered down. Thereafter complainant withdrew her fixed deposit, purchased a site in Gubbalala and constructed a house therein. Subsequently, her daughter gave birth to a son. In order to help her daughter to take care of child, complainant gave a sum of Rs.1,00,000/-. Sometime thereafter, she learnt that her son-in-law got a job in Toyota-Kirloskar. Subsequently, he began insisting his wife that complainant to write 5 off half of her property in favour of her daughter, to which complainant used to explain that after their marriage, she has been maintaining the family and after her death all her properties would devolve upon her grandchildren, as there was a likelihood of wasting away properties, in case, they fell into his hands. For this, accused used to tell his wife that he would finish off complainant, which would give him all properties and used to quarrel with his wife over the issue and also beat her. Even her grand-daughter Harshita used to inform over phone, about the assault by accused on her daughter.
About fifteen days prior to complaint, accused had called complainant and threatened to kill her daughter and teach her a lesson, to which she tried to pacify him. Complainant also forewarned her daughter about the same.
4. Thereafter, on 06.08.2013 at about 10.00 a.m. when she called her daughter, she was informed that accused had not gone to work since four days and was ill-treating her and beating her after coming home drunk. He also used to threaten about causing harm to complainant. At about 11.30 a.m. to 12.00 p.m. 6 her daughter told her that accused was carrying something wrapped in a cloth which caused fear in her and disconnected the call. Sometimes thereafter, when complainant tried calling her daughter there was no answer on the other side. When she called accused himself to enquire about her daughter's well-being, accused told her that he taught her a lesson and cut the call. Immediately, she went to her daughter's house in Ramanagara in a car accompanied by her tenant namely, Padmanabha. At 3.00 p.m. when they reached, they found door of her daughter's house was open. On entering complainant saw her daughter lying in a pool of blood, her throat slit open and blood splashed all over her body. On checking, she found that her daughter had already died. When she went out screaming and enquired with Anjinappa, owner of neighbouring Carpenter shop informed her that accused came home carrying something wrapped in white cloth and within a short span, thereafter left house in fear carrying some thing in his hand. She lodged a complaint with Ramanagara police stating that her son-in-law had murdered her daughter due to greed over her property, sought suitable action against accused. On receipt of complaint at 5.30 p.m., Police registered a case in Crime 7 No.130/2013 for offences under Sections 302, 498-A, 504, 506 of IPC and 3 and 4 of Dowry Prohibition Act (hereinafter referred to as 'D.P. Act' for short).
5. After investigation, police filed charge sheet against accused for murder. On committal of matter, Sessions Court registered the same as S.C.No.135/2013. Charges were framed and read over to accused. Accused pleaded not guilty and sought to be tried.
6. In order to establish its case, prosecution examined 16 witnesses as PWs-1 to PW-16; marked documents as Exs. P.1 to P.30 and M.Os.1 to 14. On the side of defence, one witness was examined as DW-1 and Ex.D.1 was marked. Thereafter, incriminating material was explained to accused and statement under Section 313 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for the sake of brevity) was recorded. Accused denied entire incriminating material and did not offer any explanation.
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7. The trial Court proceeded to frame following points for its consideration:
1. Whether the prosecution proves beyond reasonable doubt that the accused person on 11.05.2005 married deceased Latha @ Baby in Vasavi Kalyana Mantapa, Ramanagara and before marriage demanded dowry of Rs.3 lakhs and also gave gold jewels for the daughter namely four gold bangles, one gold necklace, four gold rings and a gold chain and later after marriage started harassing her demanding money by selling the house of CW.1 for the construction of house at Ramanagara and also money kept in F.D. in the name of deceased by her father and tortured her physically and mentally and thereby committed an offence punishable under section 498A of IPC?
2. Whether the prosecution proves beyond reasonable doubt that the accused person used to abuse her in bad and filthy language contending that she had intimacy with one Jayaram sufficient to cause breach of public peace and there by committed an offence punishable under Section 504 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that the accused person used to criminally intimidate her to take her life that she had illicit intimacy with Jayaram and also if she fails to bring her share in the property he will take out her life knowing fully well that it creates alarm and thereby committed an offence punishable under Section 506 of IPC?9
4. Whether the prosecution proves beyond reasonable doubt that the accused person before marriage secured dowry of Rs.3 lakhs and also jewels for the wife and thereby committed an offence punishable under Section 3 of Dowry Prohibition Act?
5. Whether the prosecution proves beyond reasonable doubt that the accused person after marriage demanded further dowry, share in the property of deceased and also amount by selling the house to construct in Ramanagara and thereby committed an offence punishable Under Section 4 of Dowry Prohibition Act?
6. Whether the prosecution proves beyond reasonable doubt that the accused person on 06.08.2013 at about 10.30 a.m. after changing his uniform picked up quarrel with deceased who was seeing TV with the background that she has illegal intimacy with Jayaram, assaulted her with the knife which is purchased from a shop on the foot path and assaulted her on the head with repiece patti and also stabbed her over neck with knife and caused her death knowing fully well that these blows could take out her life and thereby committed an offence punishable under Section 302 of IPC?
7. To What order?"
8. On consideration of evidence on record, trial Court answered point Nos. 1 to 6 in affirmative and proceeded to answer point No.7 by passing final order convicting accused for offences 10 under Sections 498A, 504, 506 and 302 of IPC and Sections 3 and 4 of D.P. Act. After hearing accused regarding sentence, ordered accused to undergo Rigorous Imprisonment for a period of two years with fine of Rs.5,000/- and in default to pay fine, to suffer a further Rigorous Imprisonment for six months for offence punishable under Section 498A;
• For offence under Section 504 of IPC, imposed a sentence of Simple Imprisonment for a period of one year and also ordered fine of Rs.2,000/- and in default to pay fine, to suffer further imprisonment for a period of three months;
• For offence under Section 506 of IPC, imposed a sentence of SI for a period of one year and also ordered fine of Rs.2,000/- and in default to pay fine, to suffer further imprisonment for a period of three months;
• For offence under Section 302 of IPC imposed a sentence of imprisonment for life and also ordered fine of Rs.25,000/- and in default to pay fine, to suffer further imprisonment for a period of two years;
• For offence under Section 3 of DP Act imposed a sentence of SI for a period of six months and also ordered fine of Rs.2,000/- and in default to pay fine, to suffer further imprisonment for a period of three months;
• For offence under Section 4 of DP Act imposed a sentence of SI for a period of one year and also ordered fine of Rs.2,000/- and in default to pay 11 fine, to suffer further imprisonment for a period of three months. The trial Court ordered all the sentences to run concurrently and further ordered that the total fine amount of Rs.38,000/- to be paid to the children of the accused who are under the care and custody of their grandmother-
complainant.
Aggrieved by the impugned judgment of conviction and order of sentence, accused is in appeal.
9. We have heard the learned counsel for the parties.
10. Sri. Y.S. Shiva Prasad, learned counsel for appellant submitted that impugned judgment of conviction and sentence passed by the trial Court is opposed to law, facts, circumstances and probabilities of the case and it is based on surmises and conjectures without there being any tangible and conclusive evidence on record. It was further submitted that the trial Court failed to consider the imponderables in the prosecution case and swayed by sentiments, delivered a moral conviction without his guilt being substantiated by evidence.
11. It was further contended that the entire prosecution case is based on circumstantial evidence and there are no eye 12 witnesses. Without the prosecution establishing all the circumstances beyond reasonable doubt, conviction cannot be sustained and it would be hazardous to convict a person on a charge for murder merely on the basis of recovery under Section 27 of the Evidence Act. It was further contended that several of the material witnesses did not support the prosecution case and ignoring such missing links, by merely taking the inculpatory material and ignoring the exculpatory material, the trial Court proceeded to convict the accused and the same calls for interference.
12. It was submitted that PW-1, PW-4 and PW-6 are all hearsay witnesses and their evidence cannot be relied upon. The entire case of the prosecution is that the accused was present at the house at the time of the murder of his wife. It is case of the prosecution that accused, deceased and two children aged 10 and 14 years lived in their house. However, there is neither any explanation regarding presence nor absence of children at the time of incident or any statement about investigation conducted in that regard or, are they examined as witnesses. This material lapse 13 extends benefit of doubt to the appellant. Without considering the same, the trial Court proceeded to convict the accused. It was also contended that the very basis of the prosecution case was demand of dowry i.e., the accused insisted the deceased to have her mother (the complainant herein) to sell her house in Bengaluru or transfer it in the name of accused, so that they can construct a house in Ramanagara, live together and also earn income by letting out a portion of the house. However, it is admitted that the complainant had sold the house and the sale deed was also signed by the deceased and the money received from such sale was retained by the complainant and used to purchase another house by her. Therefore, there was no basis for such allegation nor any other motive established against the accused.
13. It was further contended that both PW-4 and PW-6, witnesses to the seizure panchanama, stated that they signed the panchanama in the police station. Therefore, the prosecution failed to establish lawful seizure. In the absence of the same, the accused could not be lawfully convicted. It was further contended that PW-10 was a psychiatrist and therefore not authorized to conduct 14 postmortem. Therefore, the evidence of PW-10 and postmortem report-Ex.P.21 were unreliable. It was further contended that FSL report-Ex.P.28 does not specify the blood group of the blood stains found on the clothes of the accused. In the absence of same, it cannot be concluded that same belong to the deceased, hence, giving room for benefit of doubt. It was also contended that the recovery of weapons used to commit murder allegedly in pursuance of the statement of the accused was also not in accordance with law, as the panchanama witnesses admitted that the M.Os. recovered were not concealed, but were found in open space visible to public. It was further contended that the alleged recoveries made on 12.08.2013 were even prior to the accused being taken into custody. Even PW-6 admitted that she signed the panchanama three days after the incident, at the police station whereas the accused was arrested six days after the incident, which is material circumstance to be considered in favour of the accused.
14. It was alternatively submitted by the learned counsel for accused/appellant that the incident occurred in a spur of moment, when the accused found the deceased in a compromising 15 position with another person on the date of incident and also instigated him to murder her and therefore, conviction of the accused for the offence under Section 302 of IPC was unjustifiable. The trial court failed to consider the explanation offered by the accused in his statement recorded under Section 313 of Cr.P.C., which was also corroborated by the evidence of DW-1.
15. In support of his submissions, learned counsel for the appellant relied upon the following decisions:
1) 1969 (1) SCC 347 Nishi Kant Jha Vs. State of Bihar and (1978) 2 SCC 407 Keshoram Gora Vs. State of Assam for the proposition that the case of the prosecution has to be considered as a whole and it would not be open for the trial Court to take only the inculpatory part by discarding the exculpatory part to convict the accused.
2) AIR 1957 SC 216 Balbirsingh Vs. State of Punjab for the proposition that confessional statements require corroboration for supporting an order of conviction as rule of prudence.
3) AIR 1994 SC 610 Sri Murli @ Denny Vs. State of Rajasthan for the proposition that a murder 16 on sudden provocation attracts exception (1) to Section 300 and therefore conviction under Section 302 altered to conviction under Section 304 Part-I.
4) 2003 SCC (Cri) 1965 State of Rajasthan Vs. Raja Ram for the proposition that a conviction cannot be sustained where the blood group of the blood stains found on the clothes of the accused is not mentioned in the FSL report as it is possible that the blood found on the clothes of the accused could be that of the accused himself.
16. On the other hand, Sri. Rachaiah, learned High Court Government Pleader (HCGP) for the respondent-State submitted that the prosecution having duly established all the material circumstances and ingredients to support the charges alleged against the accused, the trial Court had duly considered the same and rightly convicted the accused for the offence alleged and the punishment awarded therefor was commensurate to the gravity of the offence and the circumstances of the case and submitted that no interference was called for.
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17. It was further submitted that PW-1- complainant and mother of the deceased deposed in detail about the motive for murder by giving all the material particulars in her examination-in- chief. It was further contended that the fact that accused was absconding for a period of six days from the date of incident and failed to offer any explanation for the same is one of the material circumstances against the accused.
18. He submitted that PW-12 has deposed that the accused was apprehended at Kamakshipalya Bus stand on 12.08.2013 and produced him before the Investigating Officer-PW-14 along with report Ex.P.23, who completed the procedure for arrest of the accused and submission of remand application to the Court. PW-14 further deposed that immediately after the arrest of the accused, his statement was recorded as per Ex.P.24 and recoveries effected by conducting panchanama-Ex.P.8. M.Os.1 to 14 were recovered and forwarded to FSL through PW-13. Ex.P.28-FSL report clearly indicates that the blood stains found on the knife and wooden repiece were 'O' group.
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19. Learned counsel further submitted that though counsel for the accused/appellant contended that PW2, PW4 and PW6 deposed that M.Os. recovered were found lying in a public place and were visible to the public, there is sufficient clarification by PW4, who deposed that the M.Os. were kept inside plastic gunny bag, which was thrown inside a bush, in an open site beside public road. The gunny bag was tied with a knot. Therefore, they were not visible to the public.
20. It was also submitted that even looking at Exs.P10 to P17-photographs, the bushes seen in the photographs are sufficiently thick and the gunny bag was hidden from public view.
21. Insofar as elicitation from PW6 that she signed the panchanama three days after the incident at the police station, it was submitted by learned HCGP that there is no cross-examination of the Investigating Officers with regard to this aspect and the discrepancy has to be attributed to loss of memory by the witness and as the said fact is also not a material fact, the accused cannot seek any benefit from the said admission.
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22. In view of the aforesaid rival contentions, only point that arises for our consideration is:
"Whether the impugned judgment of conviction and order of sentence passed by the trial Court for the offences under Sections 498-A, 504, 506 and 302 of IPC and Sections 3 and 4 of DP Act against the accused is sustainable in law?"
23. This Court being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and documents relied upon by the prosecution.
(i) PW-1-Sarojamma, the complainant and mother-in-law of accused. She deposed that deceased Baby@ Latha was her daughter. During 2005, her daughter stayed in Working Women's Hostel, Rajajinagara, Bengaluru during which she became acquainted with Smt. Mohanamma, Head Mistress. Later, Mohanamma suggested name of accused for marriage with daughter of PW-1. But accused demanded dowry of Rs.6,00,000/-
and performance of marriage. PW-1, agreed to pay dowry of Rs.3,00,000/- and make good remaining amount in the form of jewelry. During 2005, marriage of accused and her daughter was 20 performed. She gave Rs.3,00,000/- as dowry and one gold ring to accused, and one gold necklace, one Thali chain, four bangles, four gold rings, two pairs of ear rings to her daughter. After wedding, when they came to house of complainant during Ashada, accused was presented with a gold bracelet.
PW-1 further stated that she was having a house at Bank Colony, Bengaluru, which she wanted to sell. On insistence of prospective purchaser, she also obtained signature of her daughter to the sale deed. On coming to know about this, accused quarreled with her daughter telling her if they get the sale proceeds, they could have constructed a three-floored building in Ramanagara. They could also earn income by leasing out premises. After her daughter informing her about it, complainant told accused that after her death everything would go to her grandchildren. Later when her daughter became pregnant, accused threatened to terminate pregnancy, if he was not given money. When complainant sought to intervene, accused had threatened to finish her off. In order to pacify accused, complainant who had Rs.18,00,000/- in fixed deposit, gave Rs.1,00,000/- to her daughter for her day-to-day expenses. Thereafter, she purchased a site at Gubbalala and 21 constructed a house therein. Subsequently, her daughter delivered a baby. Even thereafter her daughter kept complaining that accused was regularly quarrelling, abusing and assaulting her being upset about complainant not giving them any money after selling her house.
Due to continuous physical and mental harassment, PW-1 even asked accused to divorce her daughter, for which, he refused. About eight days prior to her death, her daughter informed that accused had even threatened to kill her and complainant for the property. On the date of incident, PW-1 called her daughter while she was cooking. During her subsequent call at 11.00 a.m., her daughter told her that accused was coming home carrying a gunny bag containing coconuts and disconnected the call. Thereafter, her daughter was not taking calls, even when she tried from different phone. She was afraid and informed her tenant, who was a policeman. She also tried asking one Lakshmi, to confirm her daughter's well-being. But she could not get any information. Thereafter she contacted accused. He told her that he is in Mandya. When she enquired about her daughter's well-being, accused told her that his wife was not picking his calls also. On her telling him 22 that she would visit her daughter, accused told her that he had cut her daughter into pieces and asked her to collect them. When she rushed to the spot, crowd had gathered inside the house, she saw her daughter's neck was cut, blood was spilled over the bed, walls and blood was collected in a cup. Immediately, she informed police, who visited the spot. At that time, she enquired with neighbouring shop owner (Anjanappa -PW-3) who told her that around 11.00 and 11.30 a.m., accused came home carrying a gunny bag. Shortly thereafter he saw accused leaving home with gunny bag containing something. At 5:30 p.m., on her oral complaint, police registered FIR. Thereafter police seized blood-soaked bed spread, veil, mobile, blood-stained piece of cement wall plaster etc., by drawing panchanama-Ex.P.2. Her complaint reduced into writing (computer typing) and marked as Ex.P.1. She identified M.O.s 1 to 10 and also Exs.P.1 to P.6.
In her cross-examination, it is elicited that there was no evidence regarding demand for dowry or acceptance by the accused.
Insofar as demand for dowry is concerned, PW-1 deposed about demand of Rs.6,00,000/- before marriage, which she agreed 23 to pay Rs.3,00,000/- in cash and remaining in the form of jewelry. It is significant to note here that, accused elicited from PW-1 that they were given out of love and affection towards her daughter. The elicitation that no photograph was taken while giving the money and marking of portion of complaint Ex.P.1 as Ex.D.1 for highlighting contradiction would not be material. The suggestion amounts to admission of payment of money and jewelry by PW-1 and receipt of the same by the accused, which is a material circumstance to be considered in this case.
As regards evidence of PW-1 to establish physical and mental cruelty inflicted by accused for purposes of demanding dowry, the only cross-examination is that deceased did not consult any doctor, no document is secured and no panchayat was convened. There is consistency between complaint and deposition of PW-1 with regard to accused subjecting deceased to cruelty. Mere suggestion that deceased did not consult doctor etc., does not lead to a conclusion that accused not tortured deceased for dowry.
Even as regards charge of intimidation, the evidence of PW-1 is consistent with her complaint and during cross-examination, it is 24 only elicited that PW-1 did not lodge police complaint against accused.
(ii) PW-2-D.Dharmaveera, the pancha witness for inquest panchanama-Ex.P.7, seizure panchanama-Ex.P.8 and seizure mahazar-Ex.P.9. PW-2 denies seeing dead body and contents of panchanama, but admits his signature on Exs.P.7, P.8 and P.9. He also identifies M.O.11-Wooden repiece patti and M.O.12-knife. During cross-examination it is elicited that by the time PW-2 and accused reached the spot, a crowd had gathered there and even before his arrival, a police constable was deputed to guard M.O.11 and 12. It is further elicited that the M.Os. which were lying in open place, visible to general public. These elicitations corroborate conducting of panchanama in the presence of PW-2.
(iii) PW-3-Anjanappa, the neighbouring shop owner of house the accused and deceased. He has not supported the prosecution case.
(iv) PW-4-Smt. Geetha, a Vimochana worker, who is a pancha witness to Ex.P.8-Seizure panchanama. In her deposition, she stated that from the house of deceased in Ramanagara, she was 25 taken to the road leading to Dyavarasegowdanadoddi at about 4.00 p.m., where accused showed them a gunny bag containing donne(wooden repiece patti), lungi, shirt, scissors, knife and thread. Same were seized by the police by drawing mahazar at the spot and she affixed her signature on the same. She identified M.O.11 and 12 as well as blood-stained shirt and lungi as M.O.13 and M.O.14. In her presence, eight photographs taken at the time of conducting mahazar and the CD of these photographs were marked as Exs.P.10 to P.18 respectively. In her cross-examination, it is elicited that M.Os. lying on the place which was a public road. Confronting her with Exs.P.10 and 11 - photographs, it is elicited at the first instance that M.Os.11 to 14 were brought in a plastic gunny bag and after spreading them on the ground, photographs were taken. But, during her further cross-examination, witness deposed that M.Os. were kept inside a plastic gunny bag and contents were not visible. The gunny bag was tied with a knot and thrown inside a bush. Therefore, on securing gunny bag and opening it, contents were taken out, photographs taken and thereafter seized. The witness supported the prosecution case. 26
(v) PW-5 Smt. Palaniyamma, the younger sister of PW-1. She has not supported the prosecution case.
(vi) PW-6 Smt. Salma, a Social Worker, one of pancha witness of seizure panchanama-Ex.P.8. She deposed that after apprehension of accused, she was asked to come to police station. On her arrival, she along with Smt.Geetha - PW-4 and the accused went to the spot. The accused showed them the spot where he had hidden the weapons used to commit the murder. He produced a bag containing wooden repiece patti, knife, lungi, shirt and rope etc. She identified the photographs as Ex.P.10 to P.17 taken at the spot and also M.Os. 11 to 14. However, it is elicited from PW-6 that she signed Ex.P.8 in the police station.
(vii) PW-7 - Sri. Chetan, a pancha witness to Ex.P.2, except identifying his signature on Ex.P.2, he has not supported the prosecution case.
(viii) PW-8 - Sri. Chandrashekhar, photographer, who took photographs-Exs.P.10 to P.17 and prepared CD-Ex.P.18. He supported prosecution case. During his cross-examination, it is 27 elicited that he has not issued any cash bill for the photographs and there is no proof to show that Exs.P.10 to P.17 were taken by him.
(ix) PW-9-Sri. Narayana, the then Revenue Officer of Municipality of Ramanagara. He issued property extract pertaining to house of accused, where incident occurred. He identifies his signature on property extract marked as Ex.P.20.
(x) PW-10 - Dr. Rajani P. Psychiatrist, who conducted post mortem of body of deceased. The same is marked as Ex.P.21. She deposed that on 06.08.2013 post mortem was conducted between 8:25-10:45 p.m. She deposed that the following external injuries were found on the body:
External injuries:
1) Incision 5 cm x 1 cm x bone deep obliquely placed over left frontal region, 10 cms above left eyebrow, margins are clear cut, upper end is blunt, lower end sharp blood clots present.
2) Incision measuring 35 cm x 1 cm x bone deep vertically placed over parietal eminence, 8 cm above right ear, margins are clean and upper end is sharp, lower end is blunt, blood clots present.
3) Incision measuring 2 cm x 1 cm x bone deep, vertically placed, present ....Right Parietal eminence, 1cm lateral to and below the injury (2) and 6 cms 28 a. Right ear Upper end is blunt and lower end is sharp.
b. Blood clots present.
4) Abraded contusion 7 cm x 1 cm over posterior aspect of Left forearm at its middle 1/3rd blood clots present.
5) Abrasion 8 cm x 2 cm present over posterior aspect of left forearm at middle 1/3rd.
6) Grazed abrasion 5x4 cm over posterior aspect of Left forearm at its lower 1/3rd
7) Contusion 2cm x 1cm present over front of left leg at its lower 1/3rd.
8) Incision measuring 15cms x 6 cms x underlying neck structures present over the neck at the level just below thyroid cartilage obliquely placed situated around 9 cms below the chia. 4 cms below right ear, 10 cms below Left ear, margins are clear cut, upper end is blunt and lower end is sharp.
She opined that the injuries were ante-mortem and could be caused by M.O.12-knife. In the post mortem report cause of death is stated as due to shock and hemorrhage, as a result of cut throat injury. Therefore, from evidence of PW-10, it can be inferred that death of Smt. Latha, wife of accused was a homicidal death.
In her cross-examination, it is elicited that Investigating Officer, did not take her opinion with regard to injuries found on 29 body of deceased could be caused by M.O.12 and she cannot say that injuries were caused by it. It is also elicited that incise wounds could also be caused when assaulted with chopper and one sharp edge of scissors.
(xi) PW-11 - H. Shankar, PWD Engineer, who prepared sketch of the spot as per Ex.P.22, supported the prosecution case.
(xii) PW-12 - Devukumar, Police Constable, who apprehended accused on 12.08.2013 and produced him before the I.O. along with report-Ex.P.23. He has deposed that on 12.08.2013 when he along with another P.C. was waiting in Kamakshipalya bus stand, Bengaluru at 7:30 a.m., the accused got down from the bus. On identifying him, he was apprehended. In the cross-examination a suggestion is made that on previous day i.e., 11.08.2013, accused voluntarily surrendered before Court, which is denied. The evidence of PW-12 supports the prosecution.
(xiii) PW-13 - Prabhakarareddy, Police Constable, who carried the seized articles to FSL for chemical analysis, supported the prosecution case.
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(xiv) PW-14 -P.A. Purushotham, the then Circle Police Inspector (CPI), Ramanagara Town Circle. He deposed that on 06.08.2013, he took over further investigation from PW-16. On the same day, inquest mahazar was conducted as per Ex.P.7 and recorded statements of witnesses namely Smt. Salma, Smt. Geetha and Sri. Muthuraj. On 12.08.2013, PW-12 produced accused along with report-Ex.P.23. Thereafter he completed the arrest procedure following guidelines issued by the Hon'ble Apex Court. Thereafter, he recorded voluntary statement of accused as per Ex.P.24. The accused offered to show the place where he had hidden the weapons used for murder. After securing presence of panchas, PW-14 went to the spot along with accused.
The accused took him to the road leading to Dyavarasegowdanadoddi and he showed them the spot where he had thrown the knife, repiece patti, blood-stained shirt and one lungi, which were seized by conducting panchanama-Ex.P.8. PW-14 identified the seized items as M.Os.11 to 14. He also deposed that photographs-Exs.P.10 to P.17 were taken and CD containing them was prepared. On the same day, he recorded further statements of 31 Smt. Geetha, Smt.Salma and one Shekhar-photographer. Even statements of Police Constables, who apprehended accused were also recorded. Subsequently, on 14.08.2013, he secured post mortem report-Ex.P.21 and on same day, M.Os. were sent to FSL through PW-13. Thereafter, on 17.08.2013 he handed over further investigation to PW-15. During cross- examination, it is elicited that PW-2 is a stock witness and has given evidence in several cases. It is also elicited that at the time of conducting panchanama, general public had assembled there.
(xv) PW-15 - Y. Sathyanarayana, Investigating Officer, who took further investigation from PW-14 on 17.08.2013. He deposed that on 07.10.2013, PW-1 produced wedding card, wedding photos of accused and her daughter, which were seized by conducting panchanama-Ex.P.9. On 11.10.2013, he collected property extract from PW-9 and got sketch of house prepared by PW-11 as per Ex.P.22 and after concluding investigation, filed charge sheet. Thereafter, FSL report was secured on 24.01.2014 as per Ex.P.28.
(xvi) PW-16 - Praveen Babu, the then PSI in Ramanagara Town police station. He deposed that on 06.08.2013, he was in- 32 charge SHO. Around 5:30 p.m., complainant came and gave oral statement regarding murder of her daughter and same was computer typed and registered as Crime No. 130/2013. On the same day, he visited place of incident and conducted spot panchanama as per Ex.P.2 in the presence of panchas and seized M.Os. 1 to 4. During his cross-examination, an attempt is made to suggest that there was delay in forwarding FIR. It is elicited that distance between house of Presiding Officer and police station is half a kilometer and could be covered even by walk within 15 minutes. But FIR dispatched at 7:00 p.m. and reached Presiding Officer at 8:15 p.m. hence, delay is not explained. However, delay is not substantial and there is no allegation of the time of registration of FIR having been manipulated.
Apart from above, certain assertions made by PW-1 during her deposition are confronted to PW-16 and it is elicited that same were not stated by PW-1 in her complaint, therefore, it was a case of material contradiction. An examination of these contradictions reveals that they are not with regard to material facts of the case, which has to be considered.
33
CONSIDERATION
24. In this case, accused is convicted for offences punishable under Sections 498A, 504, 506 and 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act. In order to constitute offence under Section 498A, prosecution has to establish that accused treated deceased with cruelty. In the case on hand, except PW-1, no other witness deposed about accused subjecting deceased to cruelty. Though PW-1 deposed about her daughter telling her accused was demanding money from sale of house by PW-1, to construct multi floored building at Ramanagara. She further stated that with this intention accused treated deceased with physical and mental cruelty. But, except PW-1 no other witness deposed about these facts. Hence, there is no corroboration of such assertions. The fact that deceased did not make such complaints to anyone other than her mother-PW-1. Even PW-1 has not mentioned the same to anyone else and there is no evidence of any panchayat held by elders to advise the accused. These are material omissions in the prosecution case and cast serious doubt about prosecution case. However, trial Court proceeded to convict accused for offence under Section 498A also, while giving common finding with regard to all 34 offences alleged. Hence, conviction of accused under Section 498A of IPC cannot be sustained.
25. The accused is also convicted for the provisions of offence punishable under Section 504 of IPC, which reads as follows:
"504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provoca-tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
26. An offence under Section 504 of IPC can be stated to have been committed only where any person commits any offence or breach of public peace consequent upon provocation by accused. No such case is established by the prosecution during trial. As facts of this case do not fall within the scope of Section 504 of IPC, conviction under this provision cannot be sustained.
27. The accused is also convicted for the provisions of offence punishable under Section 506 of IPC, which reads as follows:
35
"506. Punishment for criminal intimidation.--
Whoever commits, the offence of criminal intimidation shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
In the case on hand, PW-1 deposed that her daughter informed about the accused threatening to murder her to teach a lesson to PW-1 for not complying with his demand for dowry. The only witness for this offence is PW-1, who deposed about her daughter telling her about the threats by accused for causing harm to PW-1. She also deposed about accused threatening her against interference in his family matters. But the deposition is devoid of material particulars and also lack corroboration. Admittedly, no police complaint is filed either by PW-1 or the deceased. In the absence of corroboration, conviction under Section 506 of IPC would not be sustainable.
36
28. As regards offences committed under Sections 3 and 4 of D.P. Act, PW-1 has deposed about demand made by accused for Rs.6,00,000/- prior to wedding and her paying of Rs.3,00,000/- by way of cash and making good remaining in the form of jewelry. The only cross- examination on this aspect elicited from PW-1 that they were given out of love and affection for her daughter. But, Section 8-A of D.P. Act provides as follows:
"Section 8-A: Burden of proof in certain cases:
Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him."
Since appellant is convicted for offences under Sections 3 and 4 of D.P. Act is committed, reference to Sections 3 and 4 of D.P. Act is also necessary.
"Section: 3. Penalty for giving or taking dowry:
(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:37
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
(2) Nothing in sub-section (1) shall apply to, or in relation to,
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.
Section 4: Penalty for demanding dowry: If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to 38 two years and with fine which may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
[emphasis supplied]
29. When the entire evidence of PW-1 is considered in the light of above provisions, as well as the suggestion made to PW-1, it is seen that there is admission about accused receiving Rs.3,00,000/- by way of cash and jewelry at the time of marriage.
In view of the presumption under Section 8-A of D.P. Act, in the absence of the accused establishing that cash received and jewelry given were of customary nature and value thereof is not excessive having regard to the financial status of parties, evidence of PW-1 about giving and the admission made by accused about receiving cash and jewelry establishes commission of offences under Sections 3 and 4 of D.P. Act. Therefore, conviction of accused for said offences does not call for any interference.
30. One of the alternate submissions of counsel for accused/appellant has been that incident occurred in spur of the moment. Therefore, it has to be seen, whether the material 39 available on record justifies conviction of accused for offences under Section 302 of IPC, or whether the accused-appellant is liable for conviction under Part-I of Section 304 of IPC. In order to facilitate such consideration, the charge framed is required to be noted, which is extracted as under:
"6. Lastly, that you accused person on 6.8.2013 at about 10.30 am. after changing uniform picked up quarrel with the deceased who was seeing TV and was sitting on Dewan, with the contention that she has got illicit intimacy with Jayaram and had also purchased one knife from the foot path shop in Ramanagara and in the course of the quarrel assaulted on the head with the repiece patti and later when she fell down stabbed her neck with the knife and there by committed an offence punishable 302 of IPC."
31. The material witnesses for the prosecution to establish this charge are PWs -1 to 4, PW-10, PWs-14 to 16. However, PW-2 and PW-3 have not supported the prosecution case. PWs-2 and 3 were examined as pancha witnesses for inquest panchanama- Ex.P.7. But, in view of evidence of Investigating Officer-PW-14, who conducted the inquest panchanama, nothing worthwhile is elicited from his cross-examination, except PW-2 as panchanama witness in several cases, Ex.P.7-inquest panchanama is rightly held 40 admissible. Apart from above, PW-4 and PW-6 have supported the prosecution. A contradiction between depositions of said witnesses sought to be highlighted. PW-4 in her deposition stated that in response to call by the police, she went to police station first and from there, she went to the spot along with the I.O and PW-6 etc. But PW-6 deposed that she went to the spot along with PW-4 etc., and after conclusion of panchanama, she went to police station and signed the same. Though there is some contradiction, it is not a material contradiction as there is consistency in the evidence of these witnesses with that of I.Os., hence their evidence to the extent of consistency is acceptable. In fact, it is settled law that, it is duty of the Court while considering the evidence to separate the grain from the chaff and accept only the evidence which is cogent, clear and trustworthy and should not discard the entire evidence merely due to minor omissions or contradictions as held by the Hon'ble Apex Court in the case of Sucha Singh Vs. State of Punjab reported in AIR 2003 SC 3617 and Ugar Ahir & others Vs. State of Bihar reported in AIR 1965 SC 277.
41
32. Yet another contention urged that PW-1, PW-4 and PW- 6 are hearsay witnesses. Though PWs-4 and 6 are not direct witnesses insofar as incident is concerned, they are examined as witnesses to panchanamas. Their evidence to said extent is acceptable. PW-1 deposed about mental and physical cruelty inflicted by accused upon her daughter. Such conduct of accused was with a view to coerce/force PW-1 to give away the money, she received from the sale of house to the accused. PW-1 being the mother of deceased, it would be natural for a daughter to inform her mother about these incidents. Therefore, deposition of PW-1 with regard to incidents that occurred in the house of deceased after her marriage with accused, cannot be discarded on this ground alone. However, it has to be carefully scrutinized before acceptance for any inconsistency and contradictions.
33. It is also contended that there is no explanation by prosecution for non-examination of children, who would have been natural witnesses for the incident, as it occurred at home and adverse inference has to be drawn for their non-examination. The said contention does not merit consideration for several reasons. 42 Firstly, children would be less than 7 years of age on the date of incident, which occurred on eighth year of marriage. Secondly, there is no cross-examination of I.Os. i.e., PWs-14 to 16 to support drawing of adverse inference. Thirdly, despite availing opportunity, accused failed to take any steps himself.
34. In order to establish commission of offence under Section 302 of IPC, prosecution examined PW-10-Doctor, who conducted postmortem on the dead body of deceased. PW-10 deposed that as per request of the I.O., she conducted the post mortem on 06.08.2013, between 8:25 p.m. to 10:45 p.m. and issued report-Ex.P.21. In her report, it is mentioned that she found four incision injuries, in addition to other injuries. Among them, injury Nos.1, 2 and 3 are on parietal region which is vital part of the body. PW-10 deposed that injuries could be caused by a sharp cutting weapon, such as M.O.12-knife. She also admitted that Investigating Officer had not submitted M.O.12 for her examination and that only on examination of the weapon, an exact opinion, whether it could cause the injuries found on the body can be given. But in the case on hand, it is neither the case of prosecution nor 43 that of defence that there were multiple assailants. Therefore, all the injuries were caused by accused alone.
35. On a comparison of deposition of PW-1 with contents of her complaint Ex.P.1, it is found that there is no mention in the complaint about demand for dowry by accused. It is alleged that accused asked her to sell her house and give him the money for construction of three floored house in Ramanagara. She also deposed that when accused threatened her about terminating pregnancy of her daughter, complainant gave her daughter a sum of Rs.1,00,000/- to pacify the accused. But there is no documentary evidence to prove this payment. With regard to events on the date of incident, complainant claims to have called her daughter prior to and after the incident. Complainant had called accused also. But prosecution has not produced call detail records to corroborate such assertion.
36. It is also stated in the complaint that after she went to the spot, when she enquired, PW-3 told her that around 11.00 to 11.30 a.m. he saw accused coming home carrying something in a gunny bag and leaving home scared sometime later with gunny bag 44 containing something. This is also reiterated in her deposition. Strangely, PW-3 has not deposed about the same. There is not even any suggestion made by prosecution to PW-3 about such statement. Therefore, this is one of material omission/contradiction, which requires to be considered.
37. The material facts in order to establish charge of murder against accused stated by PW-1 are that accused was trying to coerce PW-1 to sell her house and give him money for construction of house at Ramanagara, which he intended to lease out and earn income. With such intention, he was not leading cordial marital life with his wife and was asking her to insist PW-1 to comply. He ill-treated his wife to put pressure on PW-1. Accused even threatened to kill them. On the date of incident, when PW-1 called at 10.00 a.m. her daughter told her she was cooking food. On later call, her daughter told her about seeing accused heading towards home carrying coconuts in a gunny bag. But, as her subsequent calls were unanswered, she began to worry. Her attempts to contact her daughter from other numbers also failed. Fearing for her daughter's safety, when she called accused, he 45 initially told her that he was in Mandya and deceased was not taking his calls also. But, later he told her he had murdered her and cut her into pieces and asked PW-1 to collect them. She immediately rushed to Ramanagara by car and found her daughter murdered and lying in a pool of blood. Thereafter she informed the police, who visited the spot. On enquiry with PW-3, neighbour shop owner, told her to have seen accused returning home at 11:00 to 11:30 a.m. and leaving shortly thereafter carrying something in gunny bag.
38. From the above and the evidence of PW-10 it reveals that cause of death of deceased was on account of shock and hemorrhage, as a result of cut throat injury. Prosecution seeks to establish that on the date of incident, accused was present at home, therefore, the cause of death was murder. After the incident, accused was found absconding, until his arrest on 12.08.2013. There is no proper explanation for his conduct. On his arrest, voluntary statement was recorded as per Ex.P.24, wherein accused admitted killing his wife with wooden repiece patti and knife. As he offered to show them the place where he had hidden the articles, 46 I.O. summoned pancha witnesses and after taking them to the spot seized the weapons used for murder by conducting panchanama. It is already held above that evidence of PW-1, PW-4 and PW-6 is acceptable. Thus, the prosecution established an unimpeachable link between murder of deceased and the accused.
39. Yet another circumstance that adds credence to the chain of links is the explanation offered by accused recorded under Section 313 of Cr.P.C. His response to question numbers 2, 3, 4, 6, 19, 25 and 26 are material. The reply insofar as other questions is either plain denial or inconsequential admission. His response to the above mentioned questions is as follows:
• Q.No.2: Admits performance of engagement. Denies receipt of dowry.
• Q.No.3: Admits ring was given. Denies remaining as false. Specifically denies receiving bracelet.
• Q.No.6: States that he used to go to work at 6.00 a.m. till 6.00 p.m. Denies remaining as false.
• Q.N0.19: states that after one week he went to police Station voluntarily and denies remaining as false.
• Q.No.25: In response to a query whether accused had anything more to say about the case, accused stated that on the date of incident, he left home for 47 work at 6.00 a.m. That his mother-in-law called while he was on duty. His friend informed him that complaint is filed and police are searching for him. Out of fear he stayed away for one week. On 12.08.2013 he went to police station. He further states that his wife is dead.
• Q.No.26: In response to a query about leading defence evidence accused respondent in the affirmative.
40. Though accused examined his sister-in-law as DW-1, she deposed that on the date of incident, when she was leaving the house to go to Bengaluru, two strangers (men) asked her about the house of Latha (deceased). She left after giving them the directions. She later came to know about the murder of the deceased. By this evidence, defence has tried to create a doubt about prosecution case. However, the conduct of the witness gauged from her deposition, wherein she admits that she did not go to Ramanagara house on the date of incident even after coming to know of murder of her sister-in-law, did not attend her funeral and did not enquire from the strangers about the purpose of their visit nor informed this fact to the police, have all led the trail Court to discard her evidence. As the defence set up by the accused in his statement under Section 313 of Cr.P.C. does not tally with this 48 version, trial court is justified in rejecting evidence of DW-1.
41. Yet another factor which completes the chain of link to establish the offence is his alibi that he was in Mandya at the time of incident, which he miserably failed to substantiate. On the other hand, accused was absconding until his arrest on 12.08.2013. Both the reasons namely false alibi and his subsequent conduct of absconding, justify drawing of adverse inference against accused. This would be in accordance with the law laid down by the Hon'ble Supreme Court in the case of Sahabuddin Vs. State of Assam reported in 2012 (13) SCC 213, wherein it is held that on failure of accused to establish an alibi and on a conclusion of false alibi, drawing of adverse inference against accused towards guilt would be justified. The view is reiterated by three Judges Bench of the Hon'ble Supreme Court in the case of Sushil Sharma Vs. State (NCT of Delhi) reported in 2014 (4) SCC 317. Even in the recent decision in the case of Ishwari Lal Yadav Vs. State of Chhattisgarh reported in (2019) 10 SCC 437, the Hon'ble Supreme Court held that failure of accused to explain the 49 incriminating material against him, in his statement recorded under Section 313 of Cr.P.C., especially those facts which are within the exclusive knowledge of accused himself would attract drawing up of adverse inference against him in view of Section 106 of Evidence Act. The ratio would be applicable to the instant case also. Such adverse inference would complete the chain of links and accused would be held guilty of causing death of deceased.
42. As contended by the learned counsel for accused, the prosecution case herein does not rest merely on recovery. Even the contention that recovery was defective as the M.Os., were not recovered from where they were hidden, but were found lying in a public place and visible to the public does not hold water, as it has been clarified by PW-6 in her cross-examination that the M.Os. were found in opaque bags, tied in a knot and thrown in a bush, though in a public place, but not visible to the public. After recovery of the bag and opening it, the contents were taken out and Exs.P.10 to P.17-photographs were taken. Therefore, the said contention is liable for rejection.
50
43. Yet another ground urged is regarding failure to establish motive for murder. In this case, prosecution has alleged two motives for the murder viz., (1) demand for dowry and (2) illicit relation of deceased with other men. While deciding the conviction for offence under Section 498-A, it is held above that prosecution failed to establish demand for dowry after marriage. Therefore, first motive stands discharged.
44. Further, from a perusal of entire prosecution evidence, there is absolutely no effort on the part of prosecution to establish the other motive, besides, prosecution failed to establish any planning by accused to commit murder. Neither the particulars from whom the accused purchased/secured the weapons used for murder are placed on record nor the persons who supplied/sold them to accused examined during trial. Hence, motive has to be held as not proved. However, mere absence of motive does not result in acquittal of accused. It is held above that prosecution established that accused caused death of his wife. But accused in this case has also taken up an alternative contention that the offence even if held proved would fall under Part-I of Section 304 of IPC. In this regard, 51 the appellant has relied upon Sri Murli @ Denny. His explanation for the same is grave and sudden provocation offered by deceased herself. In his voluntary statement-Ex.P.24, the accused has stated that when he returned home on 06.08.2013 at 11.30 a.m., the deceased was on the Dewan Cot watching TV. At that time, accused advised her not to speak to strangers on the phone. At that time deceased provoked him saying "if he were born to his father, he should murder her". Enraged by the same, accused hit her with a wooden repiece patti, which was in the house. When the deceased fell on the cot and was screaming, therefore he cut her throat with knife. From the above, it is evident that the incident occurred in spur of moment, when deceased offered grave and sudden provocation to accused. The same is not a premeditated murder. Therefore, conviction of accused for offence under Section 302 of IPC would not be justified. Accused would be liable for conviction under Part-I of Section 304 of IPC as the case falls within Exception-1 of Section 300 of IPC. Our view is supported by decision of Hon'ble Apex Court in Sri Murli @ Denny relied upon by the counsel for appellant.
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45. The other contentions urged relying upon respective decisions also does not lend support to accused in this case. Relying upon Keshoram Gora, it is argued that the entire case of the prosecution has to be considered as whole and it was not open to taking only the inculpatory part by discarding exculpatory part. However, in the said decision, it is held that the Court in each case has to scrutinize the evidence available carefully and after separating the unreliable and unacceptable part, verify whether the charges stand on the acceptable part. In the case on hand, it is held that there is consistency in the deposition of the prosecution witnesses, insofar as material facts are concerned. Therefore, to that extent their evidence is held acceptable and as the material facts substantiate commission of offence, order of conviction is liable to be upheld. The decision in Nishi Kant Jha is referred to in Keshoram Gora.
46. For the aforesaid discussions, it has been held that the material facts of the prosecution case are duly corroborated, therefore, the ratio of the decision in Balbir Singh would not come to the aid of the accused.
53
47. Though relying upon the judgment in Rajaram's case, accused argued that failure to mention blood group whether as 'O+ve' or 'O-ve' was fatal to the prosecution case, but in the case on hand, no injuries were found on the body of accused. Further, it is not the case of the appellant/accused that there were no other assailants. Therefore, it is held that the injuries found on the body of deceased were inflicted by accused alone. Hence, mere non- mentioning of the blood group on the M.Os. would not be a material omission and not fatal to the case of the prosecution.
48. In the result, the point for consideration framed is answered by holding that appellant/accused is entitled for acquittal for offences under Sections 498-A, 504, 506 of IPC and the conviction under Section 302 of IPC has to be modified into Section 304 Part-I of IPC. The conviction of appellant/accused for offences under Sections 3 and 4 of D.P. Act is upheld.
49. In view of the above, we pass the following:
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ORDER
(a) The criminal appeal is allowed in part.
(b) Accused is acquitted of the offences under Sections 498A, 504, 506 of the Indian Penal Code.
(c) The appeal insofar as challenging conviction under Sections 3 and 4 of Dowry Prohibition Act, 1961 and imposition of sentence, is dismissed.
(d) The impugned judgment of conviction and order of sentence dated 12.07.2016 made in SC.No.135/2013 on the file of I Additional District and Sessions Court at Ramanagara insofar as convicting the appellant/accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine of Rs.10,000/- is hereby modified and the appellant/accused is convicted for the offence punishable under Section 304 Part-I of IPC and sentenced to undergo Rigorous Imprisonment for a period of TEN years with fine of Rs.1,10,000/- (Rupees One Lakh Ten Thousand Only), in default of payment of fine, the appellant/accused shall undergo Simple Imprisonment for a period of two years.55
(e) The appellant is entitled for the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
(f) In exercise of powers conferred under Section 357(3) of Cr.P.C., we direct that if the fine amount of Rs.1,10,000/- is deposited by the appellant/accused, Rs.50,000/- (Rupees Fifty Thousand only) each shall be invested in the name of children of the deceased represented by guardian - PW.1 - Smt. Sarojamma in any nationalized bank or Postal Deposit earning high interest till they attain the age of majority and the balance amount of Rs.10,000/- (Rupees ten thousand only) shall vest with the Government.
(g) Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE BVK