Karnataka High Court
State Of Karnataka vs Manappa S/O Shivamurteppa Kammar on 21 August, 2023
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CRL.A No. 100349 of 2018
C/W CRL.A No. 100358 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100349/2018
C/W
CRIMINAL APPEAL NO.100358/2019
IN CRL.A.NO.100349/2018:
BETWEEN:
1. MANAPPA S/O. SHIVAMURTEPPA KAMMAR
AGE: 72 YRS, OCC: CARPENTER,
R/O. KAMBARGATTI ONI, NEAR NEW BUS STAND,
SAUNSHI, TQ: KUNDAGOL.
2. SMT. GANGAVVA W/O. MANAPPA KAMMAR
AGE: 67 YEARS, OCC. AGRICULTURE &
HOUSEHOLD WORK, R/O. KAMBARGATTI ONI,
NEAR NEW BUS STAND, SAUNSHI, TQ. KUNDAGOL.
3. SMT. NAGARATNA @ NAGAVVA
Digitally signed
by SAMREEN
AYUB
W/O. ASHOK BADIGER @ KAMMAR,
DESHNUR
SAMREEN
AYUB
Location: High
Court of
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
DESHNUR Karnataka,
Dharwad
Date:
R/O. VIDYANAGAR, ANNIGERI, TQ: NAVALGUND.
2023.08.21
18:37:55 +0530
4. ASHOK S/O. DEVENDRAPPA BADIGER
AGE: 37 YEARS, OCC: CARPENTER,
R/O. VIDYANAGAR, ANNIGERI, TQ: NAVALGUND.
...APPELLANTS
(BY SRI. K. S. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY THE POLICE INSPECTOR,
KUNDAGOL POLICE STATION,
DIST: DHARWAD,
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CRL.A No. 100349 of 2018
C/W CRL.A No. 100358 of 2019
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C
SEEKING TO CALL FOR RECORDS IN S.C.NO.41/2012 AND SET
ASIDE THE JUDGMENT DATED 31.10.2018 AND SENTENCE DATED
22.11.2018 IN S.C NO.41/2012, PASSED BY THE V-ADDL. DIST. &
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, FOR THE
OFFENCES P/U/S 143, 147, 323, 304(B), 498(A) OF IPC AND FOR
THE OFFENCES P/U/S. 3, 4 OF DP ACT AND ACQUIT THE
APPELLANTS BY ALLOWING THIS APPEAL.
IN CRL.A.NO.100358/2019:
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE INSPECTOR,
KUNDAGOL POLICE STATION,
DIST: DHARWAD,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
AND:
1. MANAPPA S/O. SHIVAMURTEPPA KAMMAR,
AGE: 65 YEARS, OCC: CARPENTER,
R/O. KAMBARGATTI ONI, NEAR NEW BUS STAND,
SAUNSHI, TQ: KUNDAGOL, DIST: DHARWAD.
PINCODE-581117.
2. SMT. GANGAVVA W/O. MANAPPA KAMMAR
AGE: 60 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O. KAMBARGATTI ONI, NEAR NEW BUS STAND,
SAUNSHI, TQ. KUNDAGOL. DIST: DHARWAD,
PINCODE: 581117.
3. SMT. NAGARATNA @ NAGAVVA
W/O. ASHOK BADIGER @ KAMMAR,
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CRL.A No. 100349 of 2018
C/W CRL.A No. 100358 of 2019
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O. VIDYANAGAR, ANNIGERI, TQ: NAVALAGUND.
DIST: DHARWAD. PINCODE-582201.
4. ASHOK S/O. DEVENDRAPPA BADIGERI
AGE: 30 YEARS, OCC: CARPENTER,
R/O. VIDYANAGAR, ANNIGERI, TQ: NAVALAGUND,
DIST: DHARWAD, PINCODE-582201.
...RESPONDENTS
(BY SRI. K. S. PATIL, ADV. FOR R1 TO R4)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF CR.P.C
SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER DATED 31/10/2018 PASSED BY THE V ADDL. DISTRICT
AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN
S.C.NO.41/2012 SO FAR IT RELATES TO ACQUITTAL OF
RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC (NOT CONVICTING UNDER SECTION 302 OF
IPC) AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 31/10/2018 PASSED BY THE V ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN S.C.
NO.41/2012 AND CONVICT THE RESPONDENTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 R/W SECTION 149 OF
IPC.
THESE APPEALS, COMING ON FOR FINAL HEARING ON
01.08.2023 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAMACHANDRA
D. HUDDAR J, DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are directed against the judgment of the V Additional District and Sessions Judge, Dharwad sitting at Hubballi dated 31.10.2018 in Sessions Case No.41/2012. Accused Nos.1 to 5 were charged under Sections 143, 147, 323, 302, 304B, 498A read with -4- NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 Section 149 of the Indian Penal Code (hereinafter referred to as the 'IPC') and Sections 3 and 4 of the Dowry Prohibition Act (hereinafter referred to as the 'D.P. Act').
2. Learned V Additional District and Sessions Judge, Dharwad sitting at Hubballi in Sessions Case No.41/2012 found accused Nos.2 to 5 guilty for the offences punishable under Sections 143, 147, 323, 302, 304B, 498A read with section 149 of IPC and Sections 3 and 4 of the D.P. Act. During the pendency of the trial before the Sessions Court, accused No.1 died. Therefore, case against him stood abated.
Learned Trial Court sentenced accused Nos.1 to 5 are as under:
Accused Nos.2 to 5 were convicted for the aforesaid offences and each of the accused Nos.2 to 4 were sentenced to pay fine of Rs.500-/, Rs.1000/-, Rs.1000/-, Rs.5000/-, Rs.2000/- for the offences punishable under Sections 143, 147, 323, 304B, 498A of IPC, in default of payment of fine they shall undergo simple imprisonment for 1 month, 2 months, 2 months, 10 months and 4 months respectively and also shall undergo imprisonment for a period of 4 months, 1 year, 8 -5- NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 months, 8 years and 2 years respectively. It is further ordered that out of 8 years, 2 years shall be rigorous in nature.
Further the accused Nos.2 to 5 were convicted for the offence punishable under Section
3 of the D.P. Act and each of the accused were directed to pay the fine of Rs.5000/- and shall undergo imprisonment for 5 years and for the offence under Section 4 of the D.P. Act shall undergo simple imprisonment for 1 year and shall pay the fine of Rs.5000/-. In default of payment of fine they shall undergo further imprisonment for 10 months. It is ordered that all the sentences shall run concurrently. It is further ordered that out of the fine amount so realized Rs.50,000/- shall be paid to the father of complainant by way of compensation with direction to place the judgment before the DLSA for ascertaining the victim compensation as provided under Section 357-A of Cr.P.C.
3. The accused Nos.2 to 5 have preferred Criminal Appeal No.100349/2018 challenging their conviction and sentence and Criminal Appeal No.100358/2019 is preferred by the State seeking enhancement of the sentence.
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4. Parties to these appeals are referred to as per their rank before the Trial Court for the purpose of convenience.
5. Facts of the case in a nutshell are as under:
Deceased Smt. Meenakshi @ Veena W/o. Shivanand Kammar being daughter of PW.6-Ishwarappa Kammar was married to deceased accused No.1 Shivanand Kammar about 2½ years prior to the date of incident at Fakireshwara Math in Saunshi village in a mass marriage in the presence of elderly members of the family. After marriage, she went to lead a happy marital life to her matrimonial home where, accused No.1 her husband and accused Nos.2 to 5 being in-laws and her husband's sister i.e., accused No.3 and her husband accused No.5 were residing. For a few days all the accused were in cordial terms with Meenakshi. Thereafter, all accused persons named in her complaint i.e., Ex.P.13(a) started harassing and ill-treating the said Meenakshi. They demanded her to bring cash, gold from parental house. Unnecessarily they used to quarrel with her and assault her. Her husband -7- NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 accused No.1 used to assault her by saying that she was not good and he intended to marry another girl. Thus, she alleged that these accused persons had physically, mentally harassed and ill-treated her. Whenever her father used to ask her to come to his house, the accused were not sending her. For the purpose of performing Deepavali festival her father came to her house and took her to parental house.
6. After completion of Deepavali festival during 2011, she came to her matrimonial home with her younger sister Lakshmi. When she wanted to send back her sister Lakshmi, there was objection from inmates of her husband's house that they would not permit Lakshmi to go to her parental house. Therefore, Lakshmi was retained in the house of Meenakshi. But, the said Lakshmi by giving an excuse that she would go out for a while and by saying so, she returned to her parents house at Yalagachchi by bus. Because of this, all the accused persons abused the said Meenakshi.
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7. It is further case of the prosecution that, on 19.11.2011 at about 4.30 p.m. when the complainant was in the house of accused persons, her husband and her in- laws i.e., accused Nos.1 to 3, and her husband's sister Nagaratna @ Nagavva and her husband Ashok together closed the door of the house. They started quarreling with Meenakshi and demanded to bring cash and gold. By saying so they assaulted her and threw kerosene on the person of Meenakshi and set her ablaze. As the fire spread onto her entire body, she started experiencing burns and therefore, she opened the back door and ran away towards a pond near the house and drowned herself. Because of this she could subside the fire. At that time, a person by name Mounesh Badiger, Ansawwa Amboji, Channawwa Bassapur and others saw the said incident. The people gathered there brought Meenakshi to her house and left her there. Her husband took her to a private doctor in the village who provided an injection to her and applied ointment on the burn injuries. Accused persons did not speak to her and they were telling that -9- NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 Meenakshi would die and they would take care of the same and they would perform another marriage to accused No.1. Thereafter, her husband called the father of Meenakshi and informed him through telephone about the burn injuries being suffered by Meenakshi. Till 11.00 p.m. Meenakshi was suffering a lot.
8. At 11.00 p.m. her father and other residents of her father's village by name Jagadish Halaretti, Malleshappa Mensinkai, Sadashivappa Kammar, Umesh Kammar, Mounesh Kammar, Bashettappa Bellad came to the house of Meenakshi in a Omni car and took her to their village Yalagachchi. They enquired about the incident and she narrated before her parents and other peoples accompanied with her father about how she was set on fire by the accused persons. On the following day, she was taken to hospital and in the hospital she gave her statement as per Ex.P.13(a) stating that, she had suffered burn injuries on her both hands, chest, back, neck, both the legs and thighs. Based upon the statement, a crime was registered in the Kundagol Police Station in Crime
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 No.116/2011 at 2.25 p.m. on 21.11.2011 and criminal law was set in motion.
9. On receipt of the complaint, the Investigating Officer reached the spot, seized the M.O. No.1-one glass bottle with a few quantity kerosene and M.O. No.2-one chimney. Based upon Ex.P.13, FIR was registered and submitted to the Court.
10. When Meenakshi was taking treatment at District Hospital, Haveri on 20.11.2011 at 6.00 p.m. with the permission of the doctor, the Taluka Executive Magistrate, Kundagol recorded her statement as per Ex.P.16 and thereafter, she was shifted to KIMS Hospital, Hubballi, where the Investigating Officer recorded her dying declaration as per Ex.P.14 with the permission of treating doctor after confirming about her mental and physical capacity to give her statement.
11. There she gave her statement before the Investigating Officer on 24.11.2011 at 4.15 pm., as per Ex.P.14.
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12. In spite of treatment at KIMS Hospital, Hubballi she died on 28.11.2011 in KIMS hospital because of burn injuries. On the death of Meenakshi, the Investigating Officer reached KIMS hospital conducted the inquest panchanama and seized M.O. No.3-One black color burnt Langa and M.O. No.4-One nylon burnt saree piece and recorded the statements of the witnesses. After completing the necessary formalities of the investigation, a charge sheet was filed against the accused persons for the offences punishable under Sections 143, 147, 323, 302, 304B, 498A read with Section 149 of IPC and Sections 3 and 4 of the D.P. Act.
13. The prosecution examined 21 witnesses to prove its case and got marked Ex.P.1 to P.30 with respective signatures thereon along with M.O. Nos.1 to 4.
14. PW.1-Ishappa Sanadi is signatory to the panchanama at Ex.P.1. He has been partly declared a hostile witness. His evidence is to be accepted to the extent of his presence at the time of panchanama at Ex.P.1 only. PW.2-Hucchusab Nadaf was a inquest pancha
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 and he was very much present at KIMS hospital when Ex.P.5 the inquest panchanama was conducted. PW.3- Mounesh Badiger was an eyewitness to the incident of harassment and ill-treatment of the victim by the accused persons. He has not supported the case of the prosecution. So also PW.4-Ansawwa Amboji and PW.5- Channamma Basapur have not supported the case of the prosecution.
15. From the evidence of the prosecution witnesses and the documents so marked like inquest panchanama at Ex.P.5, postmortem report at Ex.P.22 and other documents, it is proved that the deceased Meenakshi had suffered a homicidal death which is not denied by the defense.
16. According to the prosecution, the death of deceased Meenakshi was caused by all the accused persons in furtherance of their common object on account of demand of dowry by way of cash and gold. But the defense version as set up by the accused persons was a case of total denial. No concrete defense was taken by the
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 accused persons with regard to the catching fire and the death of deceased Meenakshi because of burn injuries.
17. The Trial Court has arrived at a definite finding that it was a clear case of dowry death and not a case of accidental fire. According to the Trial Court, Ishwarappa Kammar, the father of the deceased, on receiving information about burning of his daughter reached the house of her daughter along with other elderly members of his village at 11.00 p.m. which was the place of occurrence.
18. As per the evidence brought on record, the deceased Meenakshi categorically told him that all the accused persons poured kerosene which was put in M.O. No.2 and set her on fire. She also stated that before setting her on fire all the accused persons had beaten and assaulted her. She further stated that her in-laws and accused No.3 poured kerosene and all the accused persons set her on fire. They justified their action stating that they would perform second marriage to accused No.1. Accused No.1 was telling that Meenkashi was not good. All the
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 accused were telling that, even if she died, they were capable of digesting it. This was construed to be the first dying declaration according to the prosecution. It is in the form of complaint as per Ex.P.13(a).
19. The second dying declaration which was at Ex.P.16 being recorded by the Taluka Executive Magistrate, Kundagol recorded on 20.11.2011. Her father came to Yalagachchi and thereafter she was shifted to Haveri in a car. She stated that all the accused persons named in Ex.P.16 quarreled with her, assaulted her, had not provided food and about too much of harassment meted out to her. In the evening all the accused persons poured kerosene on her and set her ablaze. 15 to 30 percent of her body was burnt. She was specific that these burn injuries were caused by the inmates of her in- laws including her husband.
20. The third dying declaration was what was stated by deceased Meenakshi to the Investigating Officer on 24.11.2011 at 4.15 p.m., at KIMS hospital, Hubballi. The doctors at KIMS hospital, Hubballi certified the physical
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 and mental competency of giving statement by the victim before the Investigating Officer. Even the Tahasildar stated supra, and the Investigating Officer who recorded the dying declarations have clearly stated that the victim Meenakshi was in a fit condition to give her statement. While giving statement before the Investigating Officer as per Ex.P.14, the victim stated that on 19.11.2011 at 4.00 p.m. all the accused were in the house. Her husband accused No.1 started abusing her and he gave a threat that he was not going to lead marital life with her as she had not delivered any child and he wanted to marry another girl. By saying so he went away from the house. At about 4.30 p.m. accused No.1 came to the house and asked the victim as to why she was moving in his presence. By saying so he put a lock to the door and other accused Nos.2 to 5 had a talk with each other and when the victim was in the kitchen, suddenly all the accused surrounded her, her in-laws were holding the burning chimney, accused No.3 opened the cap of the chimney and poured it on her and she set her ablaze.
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 She was suffering lot because of burning. Therefore, she opened the back door of the house, went running towards the pond near Kumbargatti and drowned. The neighbors namely, Mounesh Badiger, Ansawwa Amboji, Channawwa Bassapur etc., rescued her and brought her to the house. When they enquired about the incident, she told that all the accused persons harassed her, assaulted her and demanded cash and gold and set her fire. Therefore, because of fire, she went to the pond and drowned.
21. While giving her statement on 24.11.2011 when she was in the hospital, she was in a fit condition to give her statement. She gave her statement between 3.00 p.m. and 4.00 p.m. on that day before PW.20. It was marked as Ex.P.14.
22. While giving such statements being dying declarations, one in a form of a complaint, another in a format and another before the Investigating Officer, she was consistent in saying that all the accused persons were harassing her physically and mentally. Accused No.1 wanted to marry second wife during her lifetime and she
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 was not provided with food. In Ex.P.14 it is stated that, her in-law Gangavva by opening the cap of a burning chimney poured the kerosene on the person of the victim and by using the said burning chimney itself, she lit the fire.
23. In her statement, Veena @ Meenakshi has stated that all the accused persons having conspired with each other were harassing her from the very beginning. She also stated that, these accused persons used to tell her to bring more dowry from her father.
24. PW.2-Hucchusab Nadaf stated that, initially Meenakshi was taken to Haveri Government Hospital and thereafter to KIMS hospital, Hubballi where she died. The Tahasildar conducted the inquest on the dead body as per Ex.P.5. He was a signatory to said inquest panchanama. Except the denial nothing was elicited from the mouth of this witness.
25. PW.6-Ishwarappa Kammar, PW.7-Smt. Shashikala Kammar are the parents of the victim. In their respective statements before the police as well as before
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 the Court on oath, they have stated with regard to the performance of the marriage of the victim Meenakshi with accused No.1 in a mass marriage and thereafter, ill- treatment and harassment meted out by the accused persons. The evidence of the PW.7 and PW.8 is corroborated by the evidence of PW.9-Jagadish Haleritti who accompanied with PW.1 along with the other members and he knew about the affairs of the family of the accused persons and also has stated about the receipt of information regarding setting of fire by the accused persons to the victim Meenakshi and her death. He also visited the house of accused persons on 15.11.2011 and he noticed the burn injuries being sustained by the deceased.
26. With regard to the harassment and nature of these accused persons PW.10-Malleshappa Menasinkai has deposed about the conduct of these accused persons. Though all these witnesses from PW.6 to PW.10 are directed with severe and searching cross examination but nothing worth was elicited from the mouth of these
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 witnesses so as to disbelieve their consistent version given in their examination chief. Thus, they have withstood the test of cross examination.
27. PW.11-Dr. Aliyappa Savadi was a doctor at Government Hospital, Haveri. His evidence shows that on 20.11.2011 at 10.00 a.m. Smt. Meenakshi @ Veena W/o. Shivanand Kammar was brought to the Government hospital with a history of burn injuries. He gave treatment to her in consultation with surgeon Dr. Baddi. On the same day itself at 4.30 p.m., the police officers of Kundagol Police Station gave a requisition to ascertain whether the injured was capable of giving her statement. Accordingly, he medically examined her and gave an endorsement that she was capable of giving her statement. It is at Ex.P.15. Accordingly, on that day the ASI of Kundagol Police Station came to the hospital at 8.00 p.m. and recorded her statement when she was in fit state of mind to give her statement. At the time of recording her statement himself, ASI and injured were present. He was cross examined by the defence but nothing worth was elicited. Though,
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 lengthy cross examination was directed to him, he was firm in his evidence that, the deceased was in fit state of mind to give her statement. The deceased had suffered 40 to 55 percent of burn injuries. There may be certain minor contradictions and omissions brought on record in the cross examination, but they do not shake the basic evidence spoken by him.
28. PW.12-Shivaling Kenchappa, the Tahasildar came before the Trial Court and stated about recording the statement of injured Meenkashi. According to him as per the certification of the doctor, she was in fit state of mind to give her statement. He too was cross examined at length but he was consistent about the status of the injured while giving statement stating that she was in fit state of mind.
29. PW.13-Dr. Shrishailappa Gareddi was a private doctor and initially he treated her by giving injection and also by applying ointment. He denied a suggestion that she was not in a position to speak.
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30. PW.14-Sidramappa Biradar was the then Tahasildar and he conducted the inquest panchanama as per the Ex.P.5 and also recorded the statement of victim's parents. The fact of preparing the inquest panchanama by this PW.14 is not denied.
31. PW-15 Dr. Kotrappa Itagi was the doctor who conducted the autopsy on the dead body of victim Meenakshi. He noticed the following burn injuries which were external injuries :
"01. Infected burns, injuries are present on front of chest with a irregular gap at lower middle, upper half of front of abdomen a patch on inner aspect of front of left arm, lower half of front of right arm, front of right more arm, front of thighs and legs, upper 1/3rd of back of chest, lower part of both shoulder blades, middle of back of trunk, back of both thighs and legs."
32. He was cross examined by the defence. It was suggested to him that, if a person suffers burn injuries to the extent of 55 to 60 percent he need not be under shock. He does not know what treatment was administered at Haveri Hosopital. That means when
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 deceased suffered burn injuries they were to the extent of 55 to 60 percent and she was not under shock. Thus, she was capable of giving her statement.
33. PW.20-Dr. Sampatkumar R. Nathi was the doctor who permitted the police to record the statement of victim and he certified that she was capable of giving statement. In his presence, it was stated by the victim girl that, inside the kitchen, her in-laws, her husband and accused Nos.4 and 5 together poured kerosene on her and burnt her. She gave her statement in kannada to the questions posed to her in kannada. He identified Ex.P.14 a statement of Meenakshi. He further stated that victim was fully conscious at that time. He also identified the signatures of her father as shown in Ex.P.25. He denied all the suggestions directed to him. Though lengthy cross examination was directed to him but he has withstood the test of cross examination.
34. The Trial Court carefully marshalled and analyzed the entire evidence on record. On the basis of the three dying declarations, the Trial Court found all the
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 accused persons guilty of killing Meenakshi by pouring kerosene oil and setting her on fire. The Tahasildar/Magistrate categorically stated that deceased Meenakshi was in her full senses through out the recording of her dying declaration. Even the doctors have certified about her mental and physical condition to give her statements as discussed above. The Trial Court after analyzing the entire evidence, convicted accused Nos.2 to 5 for the offences punishable under Sections 143, 147, 323, 304B, 498A read with Section 149 of IPC and Sections 3 and 4 of the D.P. Act.
35. The entire prosecution case hinges on the three dying declarations made by the deceased. On careful reading of these dying declarations, it lead to only one conclusion that the accused persons No.1 to 5 after assaulting the deceased Meenakshi, harassed her and by conspiring themselves to commit offence against her poured kerosene oil on her and set her on fire and that she died subsequently in the KIMS hospital, Hubballi because of burn injuries sustained by her. No doubt there
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 are certain contradictions, omissions being highlighted during the course of arguments, but they are insignificant.
36. The learned counsel for the accused submits that, these dying declarations were not in contemplation of death therefore, cannot be accepted. When there is a lengthy cross examination, minor contradictions and omissions are bound to occur.
37. When Meenakshi with the burn injuries which were intolerable, opened the back door and went towards the pond near her house and drowned, at that time, all the accused persons were very much present in the house. According to the evidence brought on record, the death of Meenakshi was caused by all the accused persons in furtherance of their common intention in connection with demand for dowry. The defence version as set up by the respondents was of total denial, even they have not taken a defence that it was accidental fire.
38. The only conclusion from the evidence placed on record that, it was a clear case of committing dowry
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 death punishable under the provision of Section 304B of IPC with regard to the death of deceased Meenakshi.
39. The basic consistency between the three dying declarations given to the Investigating Officer and Tahasildar, that it was accused No.3 was holding the chimney and all the accused persons initially closed the door thereafter, conspired themselves and poured the kerosene oil on the deceased and set her on fire and she died because of the burn injuries. It is the real genesis of all the three dying declarations. It must be properly appreciated that the deceased Meenakshi gave these dying declarations in a state when she was having acute pain and minor inconsistencies in one dying declaration with another should not render the dying declarations void. Dying declarations must be construed in proper perspective.
40. The veracity of the dying declarations is proved beyond any shadow of doubt, because the deceased specifically did not level any allegations against any other person other than accused Nos.1 to 5 but did allegations
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 against her husband accused No.1 who is no more now, her in-laws accused Nos.2 and 3 and her husband's sister and her husband accused Nos.4 and 5. She specifically attributed the act of pouring kerosene oil on her and setting her on fire by the accused persons.
41. The statement of the deceased made by the Tahasildar/Magistrate cannot be brushed aside. He was totally independent witness and there was no reason for him to cook up any false story. Similarly, the complaint i.e., the statement of the victim Meenakshi made before the Investigating Officer also seems to be correct, consistent and corroborated by the other two statements made before the Tahasildar/Magistrate.
42. In every criminal case, where statements are recorded after a considerable lapse of time, some inconsistencies are bond to occur. But it is the duty of the Court to ensure that the truth prevails. If on material particulars, the statements of prosecution witnesses are consistent, they cannot be discarded only because of minor inconsistencies.
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019
43. It is settled law that, while appreciating the evidence, the Courts must also consider the facts carefully as to why would the father of the deceased falsely implicate the accused persons. At that juncture, usually anxiety is to ensure that, the real assailant must be punished. The evidence of the witnesses discussed supra gets full corroboration to the dying declarations, and there is no justification in discarding the testimony of the Investigating Officer.
44. We have carefully examined all the three dying declarations. The guilt of the accused persons committing murder of the deceased Meenakshi is fully and clearly made out. In our considered opinion, no other view is possible in the light of the three dying declarations.
45. It is the consistent case of the prosecution that these accused persons used to harass and ill-treat the deceased Meenakshi to bring gold and cash. To buttress the said fact, prosecution relies upon the evidence of father of deceased Ishwarappa Kammar examined as PW.6. It is his evidence that when the deceased went to
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 her matrimonial home, for some months accused looked after his daughter well. Thereafter they started harassing and ill-treating the deceased. They used to force the deceased to bring dowry and used to harass her physically mentally. Used to abuse her in filthy language. In page No.2 of his examination chief the PW.6 has stated so about the informing of said fact by the deceased to him. It is his evidence that on 15.11.2011 he sent deceased to her matrimonial home with his daughter Lakshmi. It is his further evidence that even after 15.11.2011 accused used to assault the deceased as she has not brought dowry and gold. They used to say that her father has not given the same and by saying so they used to abuse her and beat her. The said Lakshmi was not sent back.
46. He has further deposed that on 19.11.2011 accused No.1 telephone the PW.6 and informed that his wife Meenakshi has burnt herself and switched off his telephone. Thereafter himself and members of his village went to the house of his daughter in a Maruti Omni car. At that time Meenakshi was able to speak and informed
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 PW.6 her father that all the accused together assaulted her and demanded to bring dowry and told that why she has not brought dowry and gold. By saying so by closing the doors of the house all the accused together poured kerosene on her and set her ablaze. Though she was injured because of burns she was not taken to government hospital but was taken to a private hospital of Dr. Giraddi. When PW.6 and others went to the house of Meenakshi all accused were in the house. He has further deposed that accused No.5 informed one Jagadish Halaretti a resident of village of PW.6 that for the last four days accused have assaulted the deceased Meenkashi. It is noticed that she has sustained burn injuries on her person. This evidence of PW.6 do demonstrate the dowry harassment did by these accused persons no sooner before her death.
47. Though PW.6 was directed with severe cross examination but nothing worth was elicited so as to disbelieve his evidence so spoken with regard to dowry harassment by the accused persons.
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019
48. Coupled with the evidence of PW.6, prosecution also relies upon the evidence of PW.7 - Smt. Shashikala Kammar the mother of the deceased. It is her evidence that, deceased informed her about the harassment did by the accused persons. It is quiet natural that whenever such harassment is attributed against the women she informs her mother first. PW.7 is the mother of the deceased. CW.2 has corroborated the evidence of PW.6 in material particulars and she is consistent about the dowry harassment.
49. PW.8 - Kumari Lakshmi is the sister of deceased who accompanied deceased after Deepavali festival to the house of accused persons. As per her evidence she is an eyewitness to the dowry harassment of all the accused persons in her presence when she was in the house of accused persons. Though she wanted to return to her parental house, but accused were not ready to send her. By giving a excuse, she came out of the house and went to her parental house and informed her parents about the harassment and ill-treatment for her sister by the accused
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 persons. Likewise, the evidence of Jagadish Halaretti, who was examined as PW.9 when he received the information about the burn injuries being suffered by the deceased and he knew about the harassment and ill-treatment by the accused persons. PW.10 - Malleshappa Menasinakai is also one of the witness who knew about the harassment and ill-treatment attributed by the accused person. Though these witnesses having cross examined at length but they have with stood the test of cross examination.
50. From the evidence of these witnesses it is very much proved that these accused persons are responsible for demanding dowry by way of cash and the gold and there was no giving of dowry and gold ornaments by the parents of the deceased, they conspired together to commit the murder of deceased and have caused the offences so charged against them.
51. A careful analysis of Section 304B of IPC shows that this section has been following essentials:
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 "i. The death of a woman should be caused by burns or bodily injury or otherwise damn under normal circumstances.
ii. Such death should have occurred within 7 years of her marriage.
iii. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
iv. Such cruelty or harassment should be for or in connection with demand for dowry."
52. Section 113B of the Indian Evidence Act, 1872 lays down that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, then the Court shall presume that such person has committed the dowry death. The meaning of "cruelty" for the purpose of these sections has to be gathered from the language as found in Section 498A and as per that section "cruelty" means "any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc., or harassment to coerce her or any other person related to her to meet any unlawful
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." As per the definition of "dowry" any property or valuable security given or agreed to be given either at or before or anytime after the marriage, comes within the meaning of "dowry". With this background if the evidence placed on record is scrutinized, the evidence of aforesaid witness PW.6, his wife PW.7 and the elderly members like PW.8 , PW.9 do demonstrate the dowry harassment did by the accused persons in the manner alleged in the complaint. Therefore, as rightly held by the Trial Court the ingredients of Section 113B of the Indian Evidence Act, 1872 and Section 304B of IPC are attracted to this case. It is a reason to the unnatural death and these accused persons set her ablaze and caused her death. Therefore, once the cruelty is envisaged in Section 498A of IPC, it culminates in dowry death of the victim, therefore Section 304B alone is attracted. Having regard to the background to the offences under Section 498A, 304B of IPC, we have to take that the meaning of "cruelty
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 or harassment" will be the same as we find in the explanation to Section 498A of IPC. As already noted, it is the "dowry death" i.e., punishable and such death should have occurred within 7 years of the marriage. In this case the death was occurred within 7 years of marriage. Therefore, these accused persons shall be convicted for the offences under Section 304B of IPC.
53. The demand of a dowry is an essential ingredient to attract section 304B IPC, whereas under
Section 498A of IPC the demand of dowry is not the basic ingredient of the offence. Therefore, even if there is acquittal under Section 304B of IPC, still conviction under Section 498A can be recorded under the law.
54. Sections 3 and 4 of the D.P. Act reads as under:
"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 that [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]:
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for 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
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 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 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."
55. Section 3 of the D.P. Act deals with penalty for taking and giving of dowry. The scope and ambit of section 3 is different from the scope and ambit of section 304B of IPC.
56. Section 4 of the D.P. Act deals with penalty for demanding dowry, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be. The object of Section 4 of the D.P. Act is to discourage the very demand for property or valuable security as consideration for a marriage between the parties thereto. Section 4 of the D.P. Act prohibits the demand for giving property or valuable security which
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 demand, if satisfied, would constitute an offence under Section 3 of the D.P. Act read with Section 2 of the D.P. Act.
57. Thus, the ambit and scope of Sections 3 and 4 of the D.P. Act are different from the ambit and scope of section 498A of IPC.
58. As far as conviction of the accused persons under Section 143, 147 read with 149 of IPC is concerned, there is no discussion in the impugned judgment. The Trial Court failed to consider the non availability of ingredients of the offences under Sections 143 and 147 read with Section 149 of IPC.
59. All the dying declarations made by the deceased are totally consistent and lead to only one conclusion that the accused Nos.1 to 5 in furtherance of common intention had poured kerosene oil on the deceased and let the fire. The fact is clearly corroborated from the testimonies of father of the complainant PW.6 and other evidence placed on record. The Investigating Officer, Tahasildar/Taluka Executive Magistrate who
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 recorded the dying declarations have spoken to that effect. Therefore, the accused Nos.2 to 5 are clearly guilty of offence under Section 302 of IPC.
60. The State has preferred appeal seeking enhancement of the sentence in Criminal Appeal No.100358/2019.
61. The Trial Court considering all the mitigating circumstances imposed the sentence under Section 304B of the IPC which in our opinion is correct in view of the evidence placed on record by the prosecution.
62. We find factual and legal error in convicting the accused persons by the Trial Court so far as the offences punishable under Sections 143, 147, 304B read with Section 149 of IPC.
63. The punishment that is required to be imposed is under Section 498A, 304B read with Section 34 of IPC and Sections 3 and 4 of the D.P. Act.
64. The minimum punishment for the offence under Section 304B of IPC is "whoever commits dowry death shall be punished with imprisonment for a term which shall
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 not be less than 7 years but which may extend to imprisonment for life." The learned Trial Court on hearing the accused on the question of sentence has convicted the accused persons to undergo sentence of 8 years and 2 years respectively for the offences under Sections 304B and 498A of IPC. Out of 8 years, it was ordered that 2 years shall be rigorous in nature. No other mitigating circumstances have been brought on record to show any leniency to the accused person in reducing the said sentence. So far other offences are concerned rightly the learned Trial Court has passed the order of sentence for the offence under Section 3 and 4 of D.P. Act. We do not find any factual or legal error in imposing such sentence. There is evidence with regard to assault on the deceased and the same has been considered by the Trial Court. Therefore, the learned Trial Court have imposed sentence of imprisonment for the said offence with fine. The same shall to be maintained.
65. As there is no evidence with regard to the offence under Sections 143 and 147 read with Section 149
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 of IPC, the accused shall have to be acquitted for the said offences.
66. Though the State has preferred appeal for enhancement of the compensation but in view of above discussion in the above paragraphs, this case is of the year 2012 and we are in the year 2023 therefore, whatever the sentence imposed by the Trial Court has to be maintained without enhancing the same.
67. In view of the above discussion, the appeal filed by the State in Criminal Appeal No.100358/20019 and appeal filed by the accused Nos.2 to 5 in Criminal Appeal No.100349/2018 fail.
68. So far as the appeal filed by the appellant Nos.1 1 to 4/accused Nos.2 to 5 in Criminal Appeal 100349/2018 deserves to be allowed to the extent of offences under Sections 143 and 147 read with 149 of IPC only.
69. Resultantly, we pass the following:
ORDER
i) Criminal Appeal No.100349/2018 is allowed in part. Conviction of accused Nos.2 to
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NC: 2023:KHC-D:9259-DB CRL.A No. 100349 of 2018 C/W CRL.A No. 100358 of 2019 5 for the offences punishable under Sections 143, 147 read with Section 149 of IPC is set aside.
ii) However, conviction of sentence of the accused Nos.2 to 5 for the offences punishable under Section 323, 498-A, 304B read with Section 34 of IPC is confirmed and the sentence passed by the Trial Court for the said offences is maintained.
iii) Appeal filed by the State in Criminal Appeal No.100358/2019 is dismissed.
iv) Accused Nos.2 to 5 are directed to surrender before the Trial Court forthwith to undergo remaining sentence.
v) The Trial Court is requested to issue conviction warrant against accused Nos. 2 to 5 and to take appropriate steps to secure their presence before the Court to undergo sentence.
vi) The orders regarding disposal of the property is maintained.
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vii) However, accused Nos.2 to 5 are entitled for set-off under Section 428 of Cr.P.C. for the period of their custody already undergone by them.
viii) Send a copy of this judgment to the DLSA Dharwad, for ascertaining the compensation to be paid to PW.6 as required under Section 357A of Cr.P.C.
ix) Send the order portion of this judgment to the Trial Court forthwith through mail.
x) Copy of the judgment along with the Trial Court records be transmitted to the Trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE SMM/List No.: 1 Sl No.: 46