Karnataka High Court
Subramani A. C vs Rajappa on 9 December, 2022
Author: K. Somashekar
Bench: K. Somashekar
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL No.1007 OF 2016 C/W
CRIMINAL APPEAL No.1163 OF 2016 &
CRIMINAL APPEAL No.1753 OF 2016
IN CRL.A NO.1007 OF 2016
BETWEEN:
SRI.KADIRESH
S/O RAJAPPA,
AGED: 30 YEARS,
R/O PARASHWAGANALLI,
KASABA HOBLI,
TALUK &DIST:KOLAR-563 101. .. APPELLANT
(BY SRI VEERANNA.G. TIGADI, ADV.)
AND:
STATE OF KARNATAKA,
REP. BY INSPECTOR OF POLICE,
KOLAR RURAL POLICE STATION,
KOLAR REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560 001. ... RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL.SPP.)
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 18.05.2016 AND
SENTENCE DATED 21.05.2016 PASSED BY THE I ADDL. S.J.,
KOLAR IN S.C.NO.1/2014 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302, 201 AND 498(A) OF IPC AND SEC.3 AND 4
OF D.P. ACT.
IN CRL.A NO.1163 OF 2016
BETWEEN:
SUBRAMANI A. C.
S/O. CHIKKAGANGAPPA,
AGED ABOUT 38 YEARS,
ALAGONDANAHALLI VILLAGE,
HOSAKOTE TALUK,
BANGALORE DISTRICT-562 114.
.. APPELLANT
(BY SRI ANAND R.V., ADV.)
AND:
1. RAJAPPA
S/O. DODDA MUNISHAMAPPA,
AGED ABOUT 60 YEARS.
2. ANJINAMMA
W/O. RAJAPPA, AGED ABOUT 50 YEARS.
3. RAMESHA
S/O. RAJAPPA, AGED ABOUT 27 YEARS.
4. MANJUNATHA
S/O. RAJAPPA, AGED ABOUT 19 YEARS.
RESPONDENT NO.1 TO 4
ARE RESIDING AT
PARSHWAGANAHALLI (V),
KASABA HOBLI, KOLAR TALUK,
KOLAR DISTRICT-563 101.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016
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5. STATE OF KARNATAKA BY
SUB-INSPECTOR OF POLICE,
KOLAR RURAL POLICE STATION,
KOLAR-563 101.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
ATTACHED TO HIGH COURT
BUILDING,
BANGALORE-560 001. ... RESPONDENTS
(BY SRI VEERANNA.G. TIGADI., ADVOCATE FOR R1-R4,
SRI VIJAYAKUMAR MAJAGE, ADDL.SPP. FOR R5)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
CR.P.C BY THE ADV. FOR THE APPELLANT PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
18.05.2016 PASSED BY THE I ADDL. S.J., KOLAR IN
S.C.NO.1/2014 AND CONVICT THE RESPONDENTS 2 TO 5 FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 304(B), 302, 201
R/W 34 OF IPC AND SEC. 3 AND 4 OF D.P.ACT.
IN CRL.A NO.1753 OF 2016
BETWEEN:
STATE OF KARNATAKA
BY KOLAR RURAL POLICE
STATION, REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
.. APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP.)
AND:
1. RAJAPPA
SON OF DODDA MUNISHAMAPPA,
AGED ABOUT 62 YEARS.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016
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2. ANJINAPPA
WIFE OF RAJAPPA, AGED ABOUT 52 YEARS.
3. RAMESHA
SON OF RAJAPPA,
AGED ABOUT 29 YEARS.
4. MANJUNATHA
SON OF RAJAPPA,
AGED ABOUT 21 YEARS.
ALL ARE R/O. PARSHWAGANAHALLI
VILLAGE,KASABA HOBLI,
KOLAR TALUK- 563 101. ... RESPONDENTS
(BY SRI VEERANNA.G. TIGADI., ADVOCATE FOR R1-R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING TO
FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 18.05.2016 PASSED BY THE I ADDL. S.J.,
KOLAR IN S.C.NO.1/2014 IN SO FAR AS ACQUITTING THE
RESPONDENT/ACCUSED NOs.2 TO 5 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498(A), 302 AND 304(B) R/W 34
OF IPC AND SEC. 3 AND 4 OF D.P. ACT.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 13.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The Criminal Appeal No.1007/2016 is filed by accused No.1 challenging the judgment of conviction and order of sentence dated 18.05.2016/21.05.2016 passed in S.C.No.01/2014 by the Court of I Additional CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 5 Sessions Judge, Kolar, convicting the appellant of the offences punishable under Sections 498A, 302 and 201 of the I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act.
2. The Criminal Appeal No.1163/2016 is filed by the de facto complainant challenging the impugned judgment in acquitting accused Nos.2 to 5 of the offences punishable under Sections 498A, 304B, 302 and 201 read with Section 34 of the I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act.
3. The Criminal Appeal No.1753/2016 is filed by the State challenging the impugned judgment of acquittal against accused Nos.2 to 5.
4. All these three appeals are arising out of judgment in S.C.No.01/2014. The appellant in Criminal Appeal No.1007/2016 was accused No.1 and CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 6 respondent Nos.1 to 4 in other two appeals were accused Nos.2 to 5.
5. For the sake of convenience, parties shall be referred to as per their status maintained before the trial court in the aforesaid case.
6. Briefly stated the facts pleaded in the prosecution papers are: one Rekha @ Manjula ('deceased' in short) is the daughter of PW- 2/Saraswathamma and PW-3/Venkateshappa and sister of PW-13/Vishwanatha. They are residents of Alagondanahalli, Hoskote taluk of Bangalore Rural District. Accused Nos.2 to 5 are the parents and brothers of accused No.1, they are residents of Parshwaganahalli Village, Kasaba Hobli, Kolar Taluk.
PW-1/Subramani is uncle of the deceased, PW- 15/Rathna is his wife and PW-8/Kanthamma @ Shanthamma is sister of PW-1. The marriage proposal CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 7 of deceased with accused no.1 was started in the month of April 2011 and talks were held in the house of the accused participated by PWs-1, 2, 3, 8, 12, 13, 14 and the accused. During talks accused demanded 2 lakhs in cash, a site at Malur, gold ornaments weighing 250 grams as dowry and PW-3 to perform the marriage. PWs-2 and 3 agreed to pay cash of Rs.1,00,000/-, 100 grams gold ornaments, Titan watch, almerah, cot, four silk sarees, utensils to deceased and accused No.1. The accused have given consent and accepted for this. It was also resolved, one week prior to the marriage, gold bracelet and cash of Rs.1,00,000/- has to be given to accused No.1.
The marriage of the deceased was performed on 20.05.2011 at Vasavi Kalyana Mantapa at Malur, at the time of her marriage, Titan watch, gold neck chain, finger ring and cash of Rs.1 lakh was given to accused no.1. One long gold chain, necklace, hangings and 10 CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 8 finger rings were given to deceased. After marriage, the deceased was sent to her matrimonial home. Only for about 15 days, accused looked after her well and thereafter demanded the deceased to bring additional cash of Rs.1,00,000/-, gold bracelet and started harassing her. She brought it to notice of her parents', they informed her their financial constraints and sought time to arrange. When it was communicated the accused not allowed her to live peacefully and not provided her proper food. In the meantime, within a year of the marriage, she gave birth to a male child; naming ceremony of the child was performed by her parents.
On 4.5.2013, the deceased was sent back to her parental home to bring additional dowry of Rs.1 lakh and gold bracelet. She stayed in parental home for about 20 days, she was pacified and was brought back to the matrimonial home with assurance that it will be CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 9 fulfilled in a shortest period and advised the accused to take care of her properly.
On 27.07.2013 at 12.00 noon, the deceased was sent back to parental home to get the cash of Rs.1,00,000/- and gold bracelet and same day evening she was dropped back to marital home with an assurance. The accused did not allow her to step inside, quarreled and assaulted her in the presence of PW-1 and 2. Neighbours intervened, pacified them, persuaded them to allow the deceased inside the house. It went upto 9.45 p.m., thereafter PW1&2 returned to their village. In the midnight, PW-15 received a phone call from accused no.1 informing the death of the deceased. She conveyed it to her husband who was in the house of PW2, as it was midnight, on the next day morning, they went and saw the dead body of the deceased with burn injuries inside the house. Hence, PW-1 set the law into motion by filing CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 10 complaint in Crime No.396/2013 for the offences as stated supra.
PW-25/Sri Hari Babu, Dy.S.P. took up the investigation, subjected the dead body to inquest by the Executive Magistrate, autopsy was also conducted, spot was inspected, accused were arrested, dowry articles were seized and after completion of the investigation, charge sheet came to be filed.
7. On receipt of the charge sheet, the learned I Additional Senior Civil Judge and CJM., Kolar registered case in C.C.No.696/2013 and after compliance of Section 209 of Cr.P.C., committed the case to the court of Sessions for trial. Hence, case in S.C.No.01/2014 has been registered and assigned to learned I Additional Sessions Judge, Kolar, before whom trial was completed.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 11
8. The accused were duly represented by the counsel. After hearing both sides, learned Sessions Judge has framed the charge for the offences punishable under Sections 498A, 304B, 302, 201 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, the accused pleaded not guilty of the charges. The prosecution examined PWs-1 to 25, Exs.P1 to P18 and M.Os.1 to 10 marked. The accused were questioned under Section 313 of Cr.P.C., pointing the incriminating circumstances, they denied the prosecution evidence, did not choose to lead any defence evidence as required under Section 233 of Cr.P.C.
9. The learned Sessions Judge after hearing both sides, considering the evidence, passed the impugned judgment convicting accused No.1 namely, Kadiresh and sentencing him to undergo rigorous life imprisonment and to pay fine of Rs.10,000/- and in CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 12 default of payment of fine, he shall undergo further imprisonment for 6 months for the offence punishable under Section 302 of IPC; sentencing him to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.5,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of three months for the offence punishable under Section 201 of IPC; sentencing him to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.5,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of three months for the offence punishable under Section 498A of IPC; sentencing him to undergo simple imprisonment for a period of 5 years and to pay a fine of Rs.15,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of three months for the offence punishable under Section 3 of Dowry Prohibition Act; and sentencing him to undergo simple CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 13 imprisonment for a period of 1 year and to pay a fine of Rs.10,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of three months for the offence punishable under Section 4 of the Dowry Prohibition Act, with all the sentences to run concurrently.
10. Aggrieved by the judgment of conviction and order of sentence, accused No.1 is before this Court, defacto complainant/PW-1 as well as the State have come before this court assailing the acquittal of accused Nos.2 to 5.
11. We have heard the arguments of Sri.Veeranna G.Tigadi, learned counsel for accused, Sri.Anand R.V., learned counsel for the defacto complainant and Sri.Vijayakumar Majage, learned Additional SPP for the State. Perused the evidence and other relevant materials on record.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 14
12. It has been vehemently contended by learned counsel for accused that prosecution evidence did not whisper any such act against accused Nos.2 to 5 except they had participated the marriage talks. There was no occasion for them to interfere in the marital life of accused No.1 and deceased, the trial court has comprehensively evaluated the prosecution evidence and come to the conclusion that there are no ingredients of the offence against them and recorded the order of acquittal.
Learned counsel argued referring to Ex.P12/PM report that the deceased had conceived of eight weeks, shows the cordial marital life, there was no dowry harassment as contended by the prosecution. Learned counsel referring to the medical evidence suggesting complete burning of the body, submitted that there is no chance of any imprint in the form of finger marks on the dead body. The medical officer is CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 15 unable to explain the postmortem burns, excess of heat due to burns facilitated fracture of hyoid bone, there is no evidence explaining the throttling excluding the secondary hypothesis of suicide and submitted that the prosecution has not satisfied the ingredients of offence under Section 302 of IPC and the accused is entitle to acquittal.
Learned counsel also submitted that before filing complaint, presence of I.O. and other police officers at the spot is imminent, there was a due deliberation before filing of the FIR. In the complaint, there was no reference of marriage talks, demand of dowry by the accused and settling the same by the PWs-2 and 3. PWs-1 to 3 say that talks were held in the house of the accused wherein PW-12/C.Keshava says it was held in the house of PW-3. There are several contradictions, omissions, variation about marriage talks and demand CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 16 of dowry, which gives rise to doubt on the veracity of the very talks itself.
Learned counsel taken us to various omissions and contradictions elicited in the cross-examination of witnesses and submitted that these circumstances, create secondary hypothesis, that there was no demand of dowry soon before the death of the deceased. The conduct of PWs-1 to 3 that inspite of they receiving information about the death of the deceased, they did not turn up till next day. Only after discussion, preparation to implicate the accused, they came on the next day and filed the complaint. Prior consultation with the police is supported by the admissions, because of involvement of I.O., he has predetermined the path of investigation and accordingly complaint came to be drafter so as to frame the accused. Hence benefit of doubt is extended CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 17 to accused No.2to5 and it has to be extended in favour of accused No.1 also.
In support of his arguments, he relied upon the following judgments:
1) Javed Abdul Rajjaq Shaikh -vs- State of Maharashtra
- (2019) 10 SCC 778;
Head Note G. Criminal Trial - Medical Jurisprudence/Evidence - Medical/Expert opinion
- Primacy of post-mortem report over inquest report.
- As far as the injuries in the inquest report not being noticed in the post-mortem report is concerned, there can be no doubt that the medical doctor knows exactly what medical injuries are and ordinarily in case of inconsistency, the medical report of the doctor should prevail.
2) S.Govindaraju -vs- State of Karnataka - (2013) 15 SCC 315.
Head Note C. - Statement of accused under Section 313 of Cr.P.C.
- It is held that it is obligatory on part of accused to furnish some explanation with respect to the incriminating circumstances - Court must take note of such explanation even in a case of circumstantial evidence - When accused fails to offer an appropriate explanation, or gives a false answer, or no answer, said act may be counted as providing a missing link for completing the chain of circumstances - Impact of CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 18 giving inappropriate explanation, false answer or no answer.
13. Sri.R.V.Anand, learned counsel for defacto complainant contends that in Ex.P1, there is a clear reference of several panchayat convened, the deceased was convinced and sent back to matrimonial home, the accused were persuaded for time for fulfillment of their additional demand. Learned counsel explained the circumstances PW-1 and PW-2 returned home in late night, PW1 stayed in the house of PW2, PW-3 resides 20 kilometer away, PW-1 resides at Hoskote, which is 30 kilometer away from the house of the accused, there was no conveyance, and they could not visit in the midnight itself. Hence, prior consultation as urged by the defence has no basis.
Learned counsel further submitted that the prosecution evidence explains the marriage talks, marriage, payment of dowry and gold articles, post-
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 19 marriage harassment, panchayat and persuasion of the accused about additional dowry. Evidence also explains the deceased being pregnant had not committed suicide, she was strangulated, after her death body was burnt dousing kerosene to make believe that it is a suicide. Hence, acquittal of accused Nos.2 to 5 is erroneous; and they are liable to be convicted. Learned counsel argued in support of the impugned judgment in convicting accused no.1.
14. Learned Addl.SPP contends that there was a demand of dowry before marriage, at the time of marriage, there was payment of dowry, after marriage, there was a demand for additional dowry, which satisfy the ingredients of Sections 3 and 4 of the D.P.Act. The evidence of fellow villagers and relatives did point out deceased was subjected to harassment in demand of Rs.1,00,000/- and gold bracelet, inspite of persuasion, the accused did not oblige for it. When the deceased CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 20 was taken back to the matrimonial home, in the presence of her own parents, she has been manhandled by the accused by seeing their empty hands, on the very night itself, death occurs to deceased on account of dowry demand and physical harassment, thereby ingredients of Sections 498A, 304B of IPC has been explained. Referring to the medical evidence as to the fracture of hyoid bone and also presence of swelling on the neck of the deceased, it is further submitted that, she was strangulated and after death she was burnt by dousing kerosene. When the death occurred inside the house, it is for the accused to explain, but there is no explanation as in their hands only death was occurred, thereby the trial court has rightly accepted the evidence as against accused no.1 in recording conviction.
15. Learned Addl.SPP taken us to the impugned judgment and submitted that it is not proper for the CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 21 trial court to record acquittal against accused Nos.2 to 5 and it needs reversal.
16. Let us examine the weight of the evidence relied upon by the prosecution.
17. PW-1/A.C.Subramani is a practicing advocate at Hoskote. His testimony shows that in the month of April 2011, marriage talks were held in the house of accused participated by himself, PWs-2, 3, 8, 11 to 14 from their side and accused No.1 to 5, Narasimhaiah and Narasimhappa from accused side. The accused demanded cash of Rs.2 lakhs, site at Malur, gold jewellery of 250 grams and to perform the marriage. They agreed to pay Rs.1,00,000/-, gold ornaments of 100 grams, one Titan watch, almerah, cot, four silk sarees, utensils, the accused agreed for it. One week prior to marriage, gold bracelet and Rs.1,00,000/- cash was demanded by the accused, they did not agree that CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 22 it will be paid in the marriage. On 20.05.2011 at Vasavi Kalyana Mantapa at Malur, the marriage was performed by spending 4 lakh rupees, they gave Titan watch, gold neck chain, one gold finger ring and cash of Rs.1,00,000/- in presence of elders to accused No.1 and gold long chain (kaasina sara), necklace, hangings, finger rings were given to deceased. The stay of the deceased in the matrimonial home at Parshwaganahalli was short lived for about 15days as additional demand started pouring in from the accused and what all transpired later.
18. PW-2/Saraswathamma mother of the deceased. Her testimony goes to show marriage talks in the house of the accused participated by herself, PW-1, 3, all the accused, Narasimhappa. The accused demanded one site, one lakh rupees, 200 grams of gold jewellery. They agreed for cash, gold chain, Titan CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 23 watch and gold finger ring and it was given to accused No.1 on the date of marriage.
19. The testimony of PW-3/Venkateshappa shows marriage talks one month proper in the house of the accused, participated by PWs-1, 2, he, PW-15, Seenappa, Narayanaswamy, Rathnamma, all accused and Narasimhappa. The accused demanded gold jewellery of 250 grams, one site, rupees 1 lakh. They agreed for gold chain (kasina sara), necklace, 3 gold rings, hangings, maati, ear studs to the bride and cash of Rs.1,00,000/- and neck chain, gold ring and Titan watch to the bridegroom. On the date of marriage, long chain (kaasina sara), neckless, jhumka, three finger rings were given to bride and gold chain, finger ring, Titan watch and rupees 1 lakh were given to bridegroom, he explains the post marriage harassment meted out to the deceased resulting her death.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 24
20. The testimony of PW-8/Kanthamma @ Shanthamma shows the performance of marriage of the deceased with accused No.1 at Malur. After the marriage, the deceased and accused were leading marital life in the matrimonial home. 15 days after the marriage, she came to know that the deceased was sent back to her parents to bring Rs.1 lakh and gold bracelet, as her brother sought time and it was repeated for several times.
21. Her evidence also shows two months prior to death, the deceased was sent back to her parental house demanding cash of rupees 1 lakh and bracelet. At that time, accused No.1 was called to the house of PW-3, he was persuaded for time and sent her back to matrimonial home along with him. Again on the last occasion by beating her accused No.1 sent her to parents to bring Rs.1 lakh and bracelet. When PW-1 went to drop her to matrimonial home the accused CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 25 refused her, due to intervention of neighbours she was taken back. She heard on the very next day that the accused killed her for not fulfilling their demand. She saw the dead body of the deceased in the house of the accused with swelling in her neck, blood oozing from the mouth and at SNR Hospital she gave her statement before the Tahsildar.
22. PW-12/Keshava is a fellow villager of PW-3. His testimony shows that 20 days prior to the marriage, talks were held in the house of PW-3 where the accused and other friends, he, PW-1 to 7 were participated. During the talks, there was a demand for gold bangle, neck chain, Titan watch and Rs.1 lakh cash and there was an agreement to give neck chain, ring, Titan watch during the marriage, and it was agreed to pay Rs.1,00,000/- after the marriage. It was also agreed to give Kaasina sara, gold pendent, 3 finger rings, ear-stud, maati, jhumka to the deceased, CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 26 for which the accused had also agreed. The evidence of PW-12 is total silent about the demand of vacant site by the accused and there is a variation in the evidence of PW-12 to that of PWs-1 to 3. According to him, marriage talks were not held in the house of accused.
23. PW-13/Vishwanath is the brother of the deceased. His testimony shows that marriage of his sister with accused No.1 on 20.5.2011 at Vasavi Kalyana Mantapa, Malur, in the marriage, one gold chain, one finger ring, one Titan watch and Rs.1 lakh cash was given to accused no.1 and one Kaasina sara, necklace, one pair of Pearl ear studs were given to deceased. He was not a participant to the marriage talks.
24. PW-14/Narasimhappa is a fellow resident of Malur village. He knew PW-3; he had participated in the marriage talks in the house of the accused.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 27 According to him, during marriage talks, the persons, who came on behalf of the accused, demanded gold neck chain, ring and bracelet, but PW-3 agreed to give neck chain and ring, Kaasina sara, necklace, pearl jhumka, maati, hangings, 3 gold finger rings to deceased. The marriage was performed one year four months back (he was examined on 21.11.2014). In the marriage, Rs.1 lakh cash, neck chain, ring, one watch were given to accused No.1. About 8 months back, he came to know from PW-3 about harassment meted out to the deceased by the accused and in this background accused killed her and he gave his statement to the Police.
25. PW-15/Rathna is the wife of PW-1. Her evidence did not divulge details of the marriage talks, but she gave details about post-marriage incidents. Her testimony shows that on 27.07.2013, deceased came to her house at Hosakote at 2.00 p.m. and CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 28 informed about assault by accused in demanding Rs.1 lakh cash and gold bracelet. On the very day at 5.30 p.m. after arrival of her husband, they called PW-2 to their house, discussed, at about 6.00 p.m. PWs-1 and 2 taken the deceased back to the house of accused, she heard about galata, persuading and PW-1 staying back at Alagondanahalli village as they returned in the late night. On the mid-night at 12'O clock, she received call from accused No.1 informing the death of the deceased in his house. Hence, she informed it to PW-1 at about 2.00 a.m., PW-1 pacified her that accused may be telling lie and he will verify in the morning. According to her PW-1 and others went to the matrimonial house at 7.00 a.m., ascertained the death of deceased, she was also informed, she too went there by 9.00 a.m. and saw burnt dead body of the deceased inside the house of the accused.
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26. PW-19/Channakeshava is a person knowing to accused as well as deceased. 1½ years ago, he had accompanied PW-12 to the house of the deceased along with PW-1 at 9.45 p.m. During said time, accused were quarreled against the deceased to bring Rs.1 lakh cash and gold bracelet, the fellow villagers were also present, who pacified the quarrel. For this reason, they returned back to their village. On the next day at 8.30 a.m. PW-13 informed him over phone that somebody killed the deceased on the previous night. At 10.30 a.m. he visited the house of the accused, saw the dead body of deceased, and observed the injuries on the neck, froth and blood oozing from the mouth of the deceased.
27. PW-20/Muniraju @ Babu, though is a resident of Malur, his mother resides at Parshwaganahalli. On 27.7.2013 he was in the house of his mother. At 9.30 p.m., he heard galata in the house of accused. He saw CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 30 4-5 persons who are relatives of the deceased were present and all accused were quarreling with them. Hence, he pacified them and went back to his mother's house. On the next day at 10.00 a.m., he came to know about the death of deceased. In the cross- examination, he explained that he has not given any statement to the Police as per Ex.D1 that in the morning itself, he has returned back to Malur.
28. PW-4/Shivashankar, PW-5/K.Mohan, PW- 6/M.Mohan Kumar and PW-7/Channakrishnappa are the inquest panchas, their evidence shows that on 28.07.2013 at SNR Hospital, Kolar, they saw the dead body of the deceased with burn injuries, Police conducted inquest mahazar on the dead body of deceased as per Ex.P5 and they have attested to it.
29. PW-7 has not been cross-examined. In the cross-examination, PW-6 says that he does not know CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 31 who else attested Ex.P5. PW-5 says one PSI has scribed Ex.P5 and he attested Ex.P5 between 4 p.m. and 5 p.m. He is also not able to say who else were present during the inquest. PW-4 is not aware of conducting of mahazar, who all signed, identity of such persons and who else present. According to him, there were other people present during the inquest. Inspite of little variation in their testimony, we do not find any inconsistency between PWs-4 to 7 insofar as inquest conduced by the Taluka Executive Magistrate with the assistance of Police at SNR Hospital, Kolar, on the "afternoon" of 28.07.2013.
30. PW-9/Nagesha and PW-10/Chandrappa have deposed about the visit of Police to the house of accused, conducting of spot mahazar as per Ex.P2 and seizure of ashes and cloth pieces at M.Os.7 to 9 and they have attested Ex.P5. Except for spot mahazar, for the rest of things, PW-10 turned hostile and he did not CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 32 stand in support of the prosecution. Hence there remains the evidence of PW-9 alone for appreciation.
31. PW-11/M.Narayanappa is a panch witness. His testimony shows that on 4.8.2013 at 2.00 p.m. he was called to the office of Dy.S.P., Kolar, witnessed the production of M.Os.1 to 5/gold ornaments by accused No.3/Anjinamma and its seizure under Ex.P6/mahazar and its attestation. In his cross-examination these aspects were not denied.
32. PW-16/K.Venkateshappa is another panch witness to seizure of M.Os.1 to 5 gold articles. His testimony shows that one year ago, he was called to the Dy. S.P., office at Kolar to attest Ex.P6. He has not seen said M.Os. at the time of attesting it. In the cross- examination has divulged that his daughter-in-law is the daughter of accused No.2 and naturally he turned hostile in the interest of his daughter.
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33. PW-17/S.N.Chandrachari is a Goldsmith. His testimony shows that on 3.8.2013 at 6.00 p.m., as per instructions of the Police, he did appraisal of M.Os.1 to 6 ornaments at Kolar Town Police Station and attested Ex.P6.
34. PW-18/P.Savitha, is the PDO of Grama Panchayat, Muduvatthi, who deposed about issuing of Exs.P6 to 8 extracts in respect of house stands in the name of accused No.2, where the deceased resided with her husband. She has not been cross-examined, her complete evidence explains the prosecution version of case and it is not in dispute.
35. PW-21/Sowmya N.Gowda is the Executive Magistrate, Kolar, her evidence shows that on 28.07.2013 at 4.45 p.m., she has conducted inquest on the dead body of the deceased identified by PW-13 as per Ex.P5 in the presence of PWs-4 to 7, she has CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 34 observed, dead body was completely burnt. According to her, PW-1 was the person last seen the deceased alive in the previous night.
36. PW-24/Dr.B.Nandish is the Medical Officer of SNR Hospital, Kolar. His testimony shows that on 28.07.2013, he has conducted autopsy on the dead body of the deceased at SNR Hospital. He has observed the following injuries on the dead body of deceased:
"1.Linear abrasion mark 4 cm long below the body of mandible on light side of neck, extending from middle of mandibular area to the angle of mandibular area.
2. Clusters of finger marks are noted on the right side of front of neck extending horizontally from middle to posterior border of right sternodicleido mastoid muscle, vertically from groove of neck below mandible to base of neck measuring 5 x 4 cm. Areas of hemorrage in CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 35 subcutanious tissue above below the mark noted.
3. Dermoepidermal to deep burn wound present all over the body with singing of hair, eye brow, blockening of skin noted in hand.
He also observed fracture of greater horn of hyoid bone on right side and other organs were intact and congested, rigor mortis present all over the body and the burn injury were postmortem in nature. Ex.P12 is the autopsy report with his opinion that cause of death of deceased was due to asphyxia as a result of throttling (strangulation).
37. PW-22/Salim C.Nadaf, PSI, who apprehended accused Nos.3 and 6 on 3.8.2013 from Chikkachinnapalli village of Hosur taluk and he took the assistance of Woman Head Constable Shanthamma to secure them and produce under Ex.P9/report before PW-25. PW-22 is not cross-examined and his evidence CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 36 is thereby complete regarding apprehension of accused Nos.3 and 6.
38. PW-23/Devendrappa.K.S., PSI of Kolar Rural Police Station. His testimony shows registering of Ex.P10/FIR based on Ex.P1/complaint of PW-1 on 28.7.2013 at 1.30 p.m. in Crime No.396/2013 and requested PW-21 to conduct inquest on the dead body of the deceased. On 30.07.2013 he has apprehended accused Nos.1, 2, 4 and 5 from Chikkachinnapalli village of Tamil Nadu and produced them before PW-25 under Ex.P11/report.
39. PW-25/Haribabu is Deputy Superintendent of Police, who conducted the investigation. His testimony shows that on 28.07.2013 after having taken up the investigation from PW-23, he has visited the spot, conducted mahazar as per Ex.P2 and seized M.Os.7 to
9. He requested PW-21 to conduct inquest on the dead CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 37 body of deceased at SNR Hospital and admitted that he subjected the dead body to autopsy. On 30.7.2013, PW-23 produced accused Nos.1, 4 and 5 before him and they were arrested and produced before the court.
On 3.8.2013, accused Nos.3 and 6 were produced before him under Ex.P9/report, during so, accused No.3 produced M.Os.1 to 5 and same were seized and taken to custody under Ex.P6. He has sent the seized materials during the spot inspection to the F.S.L. and after collecting panchayat documents, records, marriage invitation and photographs as per Exs.P3 and P4 and on completion of investigation, he has filed the charge sheet.
40. As regarding post marriage aspects the testimony of PWs-1 to 3 shows that after the marriage for about 15 days only, the deceased was taken care of very well, thereafter started demanding her to bring cash of Rs.1,00,000/- and gold bracelet. In this regard, CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 38 she was repeatedly sent back to her parental house, she goes to parents, pleads the harassment for cash of Rs.1 lakh and gold bracelet. She was persuaded that for marriage land was sold, in three months will arrange cash and bracelet. Ultimately, the accused manhandled the deceased and sent her back. PWs-1 and 2 brought the deceased and dropped her to matrimonial home on the date of incident. While dropping her back the accused quarreled against her in presence PWs-1 and 2 that she will not be allowed to enter the house without. Due to intervention of neighbours and with promise of fulfillment they left her late night, but on the very midnight, PW15 received call about death of deceased in the house of the accused.
In the cross examination veracity of these witnesses are not shaken or any doubt is created to discard their version of evidence.
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41. Now, we have to examine the cause of death of the deceased and in this regard, the submission made by learned counsel for the accused referring to the evidence of PW-11 that the front door of the house was locked and it was broke open and thereafter they went and saw the death of deceased. It is contended that when the deceased died inside the house with front door was locked, there was no occasion for any galata, no one can go inside to douse kerosene, urged the cause of death was only a suicide. In this regard, learned counsel referred to the evidence of the Medical Officer/PW24 and Taluka Executive Magistrate/PW-21, who conducted inquest as per Ex.P5 and autopsy as per Ex.P12 to explain that the dead body was completely charred bone deep and there was no chance of traces of finger marks on the neck of the deceased. In the cross-examination of PW24 it has brought out no reason assigned to come to a conclusion that the CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 40 injuries are post-mortem. Learned counsel for the accused referred to Modi's Jurisprudence 22nd Edition at page 316, which reads as under:
Medico-Legal Aspects of Burns
(i) Distinction between ante-mortem and post-mortem burns:
People sometimes produce burns on a dead body to support a false charge of murder, and at other times the police remove a dead body while in the act of burning on a cremating pyre to send to the medical officer for postmortem examination, when they suspect that the body is being hurriedly cremated to conceal an act of murder. In both cases, the medical officer should be prepared to tell the difference between antemortem and postmortem burns."
and submitted that when PW-24 is unable to explain how he came to conclusion that the burns are postmortem, even no reasons recorded in autopsy report to support the opinion and further submitted that the excess heat causes the fracture of bone CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 41 suggests secondary hypothesis and it is a doubtful case of homicidal death and it is a case of suicide.
42. On contrary, Sri.R.V.Anand, learned counsel contended that except PW-11, there is no supporting evidence to show that the house was locked from inside and it was broke open. Medical evidence opinions post-
mortem burns, till late night, PWs-1 and 2 were with the deceased, during small interval of time, deceased was beaten to death by the accused and gap was so small, the accused has to explain the circumstances of death.
43. Learned Addl.SPP contended that if the door was locked from inside, how the accused came to know the death inside the house, the manner of conveying the information to PW-15 over phone attribute guilt of the accused. The deceased having one year old child along with her, where was the child and the accused CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 42 No.1in the night is not explained, indicate and point suspicion against the accused No.1.
44. Having regard to the submission so made, it is pertinent to note that the inmates of the house on that day were accused No.1, deceased and their one year old child. On the previous night, PW 1 and 2 were at the spot till 9-45 pm, within few hours accused No.1 informs PW-15 the death, the deceased suffers post mortem burns. Now burden lies on the accused No.1 to explain the death.
45. In this regard, it is relevant to refer to the judgment of the Hon'ble Apex Court in S.Govindaraju
-vs- State of Karnataka1 at para-29, it was held as under:
"29. It is obligatory on the part of the accused while being examined under Section 313 CrPC, to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such 1 (2013) 15 SCC 315 CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 43 explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide Munish Mubar v. State of Haryana [(2012) 10 SCC 464 : (2013) 1 SCC (Cri) 52 : AIR 2013 SC 912] .)"
46. If the evidence of PW-11 is to be appreciated that the front door was broke open and they entered the house to see the dead body of the deceased, it shows that the accused No.1 taking plea of alibi, but in his statement under Section 313 of Cr.P.C., he kept silent without offering any explanation. The cross- examination of material witnesses did not suggest such a defence that accused No.1 was not in the house when the death of deceased took place. Hence, the attempt made by accused No.1 to demonstrate his absence has no support from the evidence.
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47. PW-24 may not offered explanation in the cross-examination, in order to appreciate the defence the other circumstances at the spot there was no disturbance to other articles, kerosene was not spilling, articles were not burnt, the child and accused No.1 here not suffered any burns.
48. Hence, we have persuaded to accept the medical opinion that the burn injuries are postmortem in nature, the cause of death was not due to burns, then only option left is strangulation. Fracture of hyoid bone stands in support of strangulation and there is no secondary hypothesis as suggested by the defence.
49. As regarding time since death 2 to 3 hours prior to death, the deceased was found alive till late night in the previous day, within two to three hours thereof death occurred. As a prudent husband, accused No.1 has not made any efforts to douse the fire nor has he made any attempt to carry the CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 45 deceased to nearby hospital to provide first aid. The conduct of the accused in informing his in-laws and waiting for their arrival shows his unnatural conduct explains and gives all inference towards strangulation. Hence, the totality of evidence explains that the death of deceased was homicidal in nature.
50. Now let us examine the aspect of motive. The death of deceased was inside the house where she, accused No.1 and their child are the inmates. Nowhere in the cross-examination of prosecution witnesses we found, any denial that the marriage was not supported with dowry talks, dowry demand, dowry payment and demand of additional dowry after marriage. The deceased was leading a happy marital life, then what was the reason for her to go to her parents frequently in demand of money and gold has no secondary hypothesis. The defence did not impeach the conduct of the marital obligation by the deceased and as such, CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 46 it is for the accused No.1 to explain the reason for strangulation death of his wife inside the house. All the circumstances did point out towards the accused and accused alone and there is no secondary hypothesis to extend benefit of doubt in his favour.
51. On the applicability of Section 106 of the Evidence Act, the Hon'ble Apex Court in the case of Shambu Nath Mehra v. The State of Ajmer (AIR 1956 SC 404) laid down in detail and the relevant part of the said decision reads thus :-
"10. Section 106 is an exception to section
101. Section 101 lays down the general rule about the burden of proof.
101, Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".
Illustration (a) to Section 106 of the Evidence Act says-
'(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 47 A must prove that B has committed the crime'.
11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that, that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.
12. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 48 travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in 3 (1956) SCR page 199 a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.
13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 49 the burden is on the prosecution and never shifts." (emphasis supplied)
52. Similar circumstance was dealt with by the Hon'ble Apex Court in the case of Javed Abdul Rajjaq Shaikh (Supra) wherein it clearly establishes that there was a custodial death in which the accused as well as his wife had a separate room and there was no chance of anybody coming inside and the conviction so recorded has been confirmed. Para-45 of the judgment reads as under:
"45. Another circumstance which is found by the High Court is that, as is natural, the appellant and his wife had a separate room, therefore, there was a custodial death in which the appellant alone has been implicated. The death is found to have taken place somewhere around 3.30 in the morning. The finding by the High Court is that by that time the appellant would be with his wife. This cannot be described as manifestly erroneous."
53. In view of the law laid down supra, it is for the accused to explain the reason for death. His failure to offer explanation, the circumstances pleaded by the CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 50 prosecution supported by ocular evidence points out guilt against accused No.1 and him alone. As we observed, the explanation so offered by the accused has been falsified, the presumption stood un-rebutted.
54. As regarding accused Nos.2 to 5 are concerned, except their presence during the marriage talks, marriage, as evidenced by the prosecution witnesses referred to above, there is no specific allegation against them that they were part of accused No.1 in harassment or demanding additional dowry from the deceased. As we peruse the reasons recorded the trial court has rightly appreciated the evidence and recorded the reasons why the benefit of doubt is extended to accused Nos.2 to 5. We are persuaded by the reasons assigned by the trial court and the argument canvassed on behalf of the State as well as de facto complainant is not persuasive in nature and CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 51 therefore, we do not find any reason to interfere with the discretion of the trial court.
55. As discussed above, the deceased met with homicidal death due to strangulation, accused was the person, in whose presence the death had taken place inside his house. The last seen of the deceased by PW- 1 and 2 at 9.45 p.m. on the previous night, in the midnight, he informs PW-15 about the death of the deceased, he did not offer any explanation how he came to know the death, any attempt made by him to douse the fire or shift the deceased to the hospital clearly shows his unnatural conduct pointing towards him and him alone.
56. In Sharad Birdhichand Sarda v. State of Maharashtra2 the Hon'ble Apex Court laid down the five golden principles constituting the panchasheel of 2 (1984) 4 SCC 116 CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 52 the proof of a case based on circumstantial evidence, which reads as under:
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused."
Thus, one can make out a conclusion of guilt and these circumstances are very consistent with the guilt of the accused and are inconsistent with his innocence, which is conclusive in nature and tendency.
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57. As discussed above, the evidence did explain the dowry aspects, ill-treatment meted out to deceased, it was also in presence of PWs-1 and 2, sufficiently explains the death was in connection demand of dowry only. The ingredients of offence under Sections 3 and 4 of the Dowry Prohibition Act and Section 498-A of Cr.P.C. are satisfied with. As the death of deceased was homicidal, within 2 year of the marriage under the above circumstances the ingredients of offence under Section 304-B of IPC is also made out.
58. As seen from the evidence, the dead body of the deceased was burnt post-mortem after strangulation, it suggests to make the evidence disappear and to show it is a suicide. The ingredients of offence under Section 201 of IPC are also satisfied.
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59. In order to explain the offence under Section 302 of IPC, the prosecution is required to explain the ingredients of Section 300 of IPC.
Section 300 of IPC reads as under:
"300. Murder.--
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 55 or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence."
60. The marriage of accused with the deceased was supported with dowry demand, payment of dowry, post marriage demand of dowry, harassment that too in font of PWs-1 and 2, few hours later death, destruction of evidence and efforts made to show it as suicide explain the intention of the accused was sole purpose of eliminating the deceased as she failed to satisfy the demand of additional dowry. Hence, the offence under Section 300 of IPC is squarely explained and the act of the accused No.1 did not fall under any of the CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 56 exceptions. Hence, the ingredients of offence under Section 302 of IPC are established and as such, the accused is liable to be convicted for the offence under Section 302 of IPC.
61. We have perused the impugned judgment, the trial court has explained the evidence and evaluated it properly with due weight to the defence, the ocular evidence placed on record is positive, sufficient and acceptable and infer the guilt of the accused beyond all reasonable doubt. The panchsheel principles laid down in the case of Sharad Birdhichand Sarda (supra) is satisfied by the prosecution evidence. We are persuaded to hold a single view in the facts and circumstances of the case no secondary hypothesis is visible which benefit the accused No.1. Hence, we are of the opinion that the trial court has rightly convicted accused No.1, and sentence is imposed on the basis of gravity and circumstances of the case and they do not CRL.A.1007/2016 C/W CRL.A.1163 & CRL.A.1753/2016 57 call for interference, accordingly, it is maintained. However, keeping in view the aforesaid reasons and findings, these appeals deserve to be dismissed being devoid of merits.
For the aforesaid reasons and findings, we proceed to pass the following:
ORDER Appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE KNM/-