Karnataka High Court
Dr Sanjeev Neelakhantappa Bentur vs State Of Karnataka on 11 November, 2009
Author: Subhash B.Adi
Bench: Subhash B.Adi
EN THE HEGH COURT OF KARNATAKA CiRCUET BENCH AT GULBARGA DATED Ti-HS THE 11"' DAY OF NOVEMBER--;?Q~i5_$E..' BEFORE E " E THE HON'BLE MR.JusT:ce SL}::_B4'H'.,D'TSH: CRIMINAL APPE'A§. Noe;'T1iE1'3eggoo? 2 j BETWEEN: 3. Dr. Sanjeev Nee|akhe'nta'poa..2" Bentur, '- S/o. NeelaKha:ntaPD€iAVEen_tor,.:_:',E"_:.._'V V' " Aged about 45_fly'ears;T ' 2. Dr. NeeEakharTpapp.'1 .. " E Bae'aopao.E5entuT§;: " _ * S/0., B_asapp'a-Benton' -- I Aged about 79=years._. Both are a<esid'en1'"o'f ,\ ' Basavakalyan, 13§japu'T~.«E)istrict. (By[_Sr§.;»_.(3.Ci. Dod'da-mani, ST. Counsel, . , S»!'.i_, Nahdeakéiéhare Boob, _ Sri, "8oa'r:geng'o_ud.V. Biradar, " Sr€§.__Rajen'd.ra 'Desai, Advocates) AN33; E < The State of Karnataka, '_ By Anti Dowry Cell Police, »_ "Corps of Detectives (COD), " _ Eiangatore. : Appeltants 2 Respondent
(By Smt. Anuradha M. Desai, Addl., SF'P.,) ('J This Criminal Appeal filed u/s. 374 (2) of Cr.P.C., _by the Advocate for appellants-accused against the Judgment of conviction and order of sentence dated 12.07.2007 pas~s_'ed""by the Fast Track Court~I, Bijapur, in S.C.No.09!200_4;"'convi'citing~. the accused No. 1 & 2 for the offence punishab|e:[_U/S.r.3 "&"'6f.of "
the Dowry Prohibition Act and 0/8. 498--A and ~3--0-Sifef 'i'P:C"- The » accused--appeIiants A-»f & A~2 have be'é'n"sentenced'to_ ugndergcy S.l. for a period of five years and to._pay--fi.rie of Rs';3,'60-i,r.Q00,{-- each for an offence U/S. 3 of the D.P. 'Achy To u;_~.r,fer~go Silt.'-~for~, a period of five years and to pay'~f_ine of-..Fis.f0,0V0'0;f%a...eVac3h for,"
an offence punishabie US. 306 Further, issentenced to undergo S.I. for six months ar_1__d"to_ pay fine"ofV_RsV.5OO0/- for Sections of the DP. Act"a~nd to"undergog'Si_|. for a period of two years and to pay fine of""f'.'s,5,000Jéj.forcanoffence punishable urs. 498--A IPC with defauit Clause and~.bothvt_h~e sentences are ordered to run conc'u_rrent|'yf" 'itfis .fu«r:th.er ordered that out of the fine amount, a ?$Ulf}igwf.U'f F?s..50g,0O0/4' is 'o'rde«red to be paid to the complainanti-F'\.i\ii.1V;=e.Sii;rnashei<~arago'«:Jda as compensation U/S. 357 of Cr.P.C--.. '::'. ' This appeal'coming.:'on""for""finai hearing, this day, the Court deliveredthefoilowirsgze.
"jJuesMENT "iThisr«--a'ppea|"i*isA by themaccused against the Judgment of conv'i"c3tio!ii_r- sentence in S.C.No.9/2004 dated V.:*i"2v.O7.2O0TK__Vpas.sed' the Fast Track Court-I, Biiapur. 'The accused Nest and 2 were sentenced for an .0"'4"_offenceA"piinishabIe under Section 3 of the Dowry Prohibition _\ 1-'-
6. Heard the teamed Counsel Sri.G.G.Doddamani_.t_or the appeiiants and Smt.Anuradha M.Desai, learned Public Prosecutor tor the respondent ---- State.
7. Sri.G.G.Doddamani, ieayrnedlpfCu,uns,ei«.'"ior___ the? appeilants submitted that, .tro,_m amongst examined by the prosecution, are the parents of the deceased, ~«t_ite'A:'deceasAed, PW~26 is the brother of PW.~_1 andv,l?\!\,/rf!i.8 l'-'W3-1 and 2. Except the demand of dowry and harass:m.ent,Vfltheii examined by the prosecution it), 11 and 12, who are the neighioour,»,watch'ma'n,:' friend, who iived and had seen_;,t'h'ei.deceas-ed: at a: reievant period, have been treated as v,hos_tiie, _:t'iii:)u.g,;VArr«--..they have been cross--exarnined, nothing worthy u'was'--_eiici'tedv.V.i__n'x~t'heir cross--examination. He submitted that, the it .y prosecut~iVo.n'ihVas utterly faiied to prove the aiieged charge and that, except the orai testimony of the interested ,'.--w--itn'esses without any corroborative evidence, the trial court has convicted the accused and submitted that, prosecution is r',./ {F Tr'!
10. From the evidence of PW.1 (father), PW2 (mother), PW.14 (brother), PW.26 (brother of PW.t'):","'.,and PW.18 the relative, it is clear that all these related to each other belonging to the family of ' _ according to PW.t, he alleges negotiation talks were held arid p_ayrrie'n_tToi dovviry at Rs.2,00,000/~ cash and 25 or silver and that while the l\/i.l.'J. at Davanagere, A-1 used tQ,,_m:§1i§e her daughter particularly at %_the:;j,ni'ght7hoiigrs su'bj--e~cting her to mental tortureVt)y"'i'd-eimsandilrg regard to admitting the deceased to, 'in the cross--examination has admitted thatwhis fatheri~vva's"lla member of the governing council "'«.oi it/ledi-cal' college, Davanagere and later he _re'.:ig'ned'~._iro'm.__the post, relying on this evidence, learned Cioupsel appellants submitted that, the relative being a
3..«._"i..governing'1-council member of the medical college, they might i"l--have""')_«secured the MD. seat for deceased under the management quota, further, the ailegation that they paid atieges that the deceased informed him that the husband, mother-in--law and father--in--Eaw harassed her and thisV.is,:.:as_Von the date of incident, however, it is not the prosecu_t%;on _ the mother--in--law was present on the date sheu is charge sheeted, this clearly shows order to falsely impiicate the ac»cased has"t'iEed ; mentioning the name of husbandlvllandi in;_law's;'
16. On the contriangghegsr;hvmi*tt'e.rj:"thyat the orosecutlon evidence supportshyis he relied on the eVld9"C€' §vre.'in(;iependent witnesses, whose namely, PtW.6, whereas PW.6 has stated'that:'t.h'e:.dec'ea.sed was working with her for 11/2 months"ptrior to"the"incident, and their duty was from morning 9 the evening. The deceased was in a relaxed Auand-l'_comio'r:t.abiVeposition and that she came to know about the V V' _ death otoecelased in the afternoon of 15.04.2002 and nothing fiontra has been elicited in her cross--examination by the prosecution. PW.8' is a watchman in the residential quarters of T "the A1, and he has stated that A-1 and the deceased together an EGLJ .. ,..p-w"""""
.,.» t.
'~ _pr03!é'Cutl.ori .10 proV'e*----th 14 used to travel in a car and for sometime, A-1 alone used to travel. PW.9 is a maid servant working in the house She also has not supported the case of the ' she has been treated hostile and despite c'ross?e$rarninatEo'n.V, it nothing has been elicited in her cro's.s~e}_<aminati_Von.'_ who is another servant used «t_o"'~~work'V'én 'thVeV~-.ho'es'e'~'ot the"? accused between 1 p.m. and 2 h.as..alsoi not.sepported the case of the prosecution. l?\:"J."te.Tfii«.av rrietee the deceased, in her evidence etatedii deceased occasionallyi. complained about any deernafind. She has aiso been treatediihostiyile; worth is elicited in her cross- examination;'~«.. = Pill/V\'.V'._.l2y_"is~:~"'another witness examined by the at, there was harassment. PW.i2 has e_'s'ta:tie'dcctrr-atltheirelationship between the deceased and A-1 was cordiial. alt these witnesses viz., PWs. 6, 7, 8, 9, 10, 11 ''._and 1£3_bl:ave been examined to prove that the accused "'ii"sL1bjet:ted the deceased to mental and physical cruelty, all these witnesses have been treated hostile and none of these tr i%s.g£;
c._. __ witnesses have supported the case of the prosecution HO!' anything worth is elicited in their cross--e><amination. _Hr.eV:ii_ii_rt-hyer submitted that, these witnesses are ciose the knowledge of the relationship deceased, they being the evidence being material to the"p_r:osecu'ticn oniypi' not supported the prosecution:casAe:__but,' have that the relationship between was cordial, whereas the Vev'i'dence"'"o'ttithe relied by the prosecution, incident nor their evidence list i A
117. ite that as the independent witnesses wtinycany[speak*'about the iii»treatment meted to the have not's'u'pported the case of the prosecution, what ,,i,'teaf;_atnr§y'et.§,g'theiegtdence of F'Ws. t, 2, 14 & 25, who are the blooidi reivativesiilot the deceased and they being away from the "-r.deceaSed'1~cannot claim any personai knowiedge about the V""al!eg:e'd tll~treatment or crueity or harassment given to the __c_l_eceased by the accused. it the evidence of these witnesses considered as against the other evidence, it shows that the materiat witnesses having not supported the case 1ot',.the prosecution, there is hardiy any evidence, to suppoiti'.the._:ca_se. oi the prosecution. On the contrary, the imm_edia'te.,ne-ighbcurs--«, of the accused and other witnessesfirnatewiiaji to_th.e 'proseccutipr. case have stated that the relationship"between"tiie.':édiecérasedd'i. and accused was cordial. In tihepaitnpsence fanv; direct or acceptable circumstantiai._.evide_ncs»,,:rn--ereiy.on the basis of the evidence of the blood re.iati.ve.s i'ntere'sited witnesses, the accused cannoit of,.4th.e"'oVft'ences alieged against 1V8, " 'He V:fur'r'h,er»i._su.i§nii_tted that even assuming that PWs.7' to -hos_ti"Ee,r~~'PW.13, who is doctor by profession and*:L's:tay_ing,V%_just"'abcivethe house of the accused, has been 'exa"rhined"i:wy-.t:h'e. prosecution to prove that the deceased was subjected'tcirihairassment. However, this witness has not stated '¢_any harassrnent meted to the deceased, in turn, in the cross A "ii,"e>:arri~i_nation, P.W.t3 admits that, the accused No.1 informed him, that his wife has boited the bed room and is not opening ii' 17 and further admits that the accused No.1 has stated that his family and family of A4 used to go for picnic and states that, the deceased was a short tempered woman. This vv'i2t--n_essxi4s not treated as hostile! his evidence does not of the prosecution.
19. As regards to the incident,_ l:e'arned'"co'u'nsel appetiant, relying on the eviden.oe~~._of Pt/'v'~s.'1.._3:
that, these witnesses have_stated"th'at tih-e_.acctuse'd No.1 called P.W.13 and P.W.13 calied _1P.\N..,{s,:' PW.i6 broke open the door and;foi_1ndi;Athat§_t.he.clec'easvedhad hanged herself and imihed_iateliy.'iA-._1r'rial'ong...vv5th.'PWJ3, P.W.16 and accused No.2 rentovedl he': still alive and accused and P.Wp.fj3" t.ookVthet_V_Vdeceased to the hospital and this tact is evidence of PW.6, who was a duty doctor bett£,z0eénr"a';~00 and 2.00 pm. on 15.04.2002 at BLDEA V it . hospitai Sigapur. He has stated that when the deceased was .,.:aiive_4_and'"vvas admitted to the hospitat, she was not in a position 2 t"0.g":'v'e any statement, he checked her pulse, B.P., and started T "treatment and thereafter he gave report to the poiice as per Ex.P.4. Further, F'W.i7 is the doctor who treated the deceased has stated that, he inserted a tube in the trachea and with 100% oxygen, the deceased was aiive tiit Relying on the evidence of PWs.6,VHj3, :"/':t'~:::Ie«aVruted*«i.
counsei submitted that, Al when tocked her bedroom from insicfieahd did._'hctVope:h' shouting, he cailed P.V'\/.13, ahd 16, he broke open the door the deceased to the hospital ahdati. posstbte to save her iife. ii the accuseaihadv su_b;-acted' the 'deceased to mentai and physicai" 'woui'd~~-not have ventured to take immedivateiiifiet Further, the accused did not run away tr'o.m"the¢[-.pIac'e'~»oVr avoided giving information to the i,._,Dat'e5nts»_A-of the deceased. Ati these evidence cteaiiy show that the 'dec'e_ase'd.__ha.s committed suicide not on account of mehtai or ,bhysicaE"viicV:'u3eity, but may be some other reason and there is no wh'ispiier in the evidence of any of the witnesses examined by "fltheorosecution about mehtai or physicai harassment meted to deceased except the reiatives of the deceased and éésfi therefore. there is no clinching or reliabie evidence to charge the accused for the offence punishable under the prciv'i'sionys'..of Sections 498-/X, 304-8 or 306 of JPC or the DP. Act.
20. The prosecution is required_ to prov'e;its_v'c;a§;e.'by_"*. acceptable and reiiable evidenceikand not 'evidence, who have no personai knowle_dge._entire evidence is appreciated, there is prove the prosecution oniy prove the presence pot: atifithe piace of incident, the prosecution that the accused have subjected or physical cruelty to take extreefne steps 'oi_comm'itting suicide and there is no evidence vieithelr igpnjnection with cruelty or in connection with demand lief dovvryi zo'g=_..V.vai;ua'ble property or security. Ail that prosecution V . evidencevishovvs is that the deceased has committed suicide but prove" that the suicide was on account of crueity, the .' prosecution has failed to prove the same by cogent evidence.
"in the absence of any ciinching or acceptable evidence, the court beiow grossiy erred in arriving at the conciusioh that the prosecution has proved the offence beyond reasonable,'_'doubt. Even on meticuious scrutiny of the evidence'::"leVd:«,:'V'b:y"t prosecution, there is nothing on recvord,-whicih c.oxe'id',prov,e,. the V crueity meted to the deceased by the a7ccuised'~to commit suicide. Mere vagueVa!.tegation"'ct_ maki'ng'"~~d'emand of" ' money without any evidence wo'uiVd",_:'no't'-»provethe prosecution 2'3. He nftosft.'_QitheV'material witnesses examined not supported the case ot*.the__prosewtiion,'su'ch__a--s,j the maid servant of the house of the accused, the the deceased, who worked with herggagt ieiievant"'point of" time and the neighbours of the place taken place. In the absence of such on the evidence of hear--say witnesses _ namely,..__'rhertriends of the deceased and her blood reiatives, s not oniy interested witnesses but none of the wivtriesses are from the place where the incident took place or T "they had an actual knowledge, such evidence by itself does not t §ea<¥r prove the case of the prosecution nor there is any corroborating evidence to support their evidence.
22. He further submitted that, Section deals with the punishment for j,iak:iiig,_':
inasmuch as, if any person, after said Act, gives or takes or abets"'iit.he» giving"
he shall be punishabie wiihimpgriiéhhihghiggnior a term which shall not be less than five years, not be less than Fis.i5,OO(?i'-4':ieF:,1'the:r'._amoi;rrit of such dowry, whichever 'Sovvryfhas--been"defined under Section 2(ii), wliviichgmearlgifany 'p,rop._erty.'ervaluable security given or agreed toibe given or indirectly by one party to _the marriage to the_other' party to the marriage or the parents of either tothe marriage or any other person to either party t'o._t'h'e_n"i"arr'i_aVgeV.:;or" to the other person at or before or any time V dd _ after"'the..__rnarr'i'age in connection with the marriage of the said partileés, 'but it is not include dowar or mohair in the case of persoris to whom Muslim personal iaw appiies." 959%:
FM'
4.-
ix) id
23. Referring to the definition of Dowry, he further submitted that, there must be a direct nexus between the marriage and the payment of dowry. it must be a con_sidier:atti_on from the side of the bride parents or reiatives of husband or his parents or guardian for "
bride to be. it the demand of property no connection with the marriage,""--it..ywiiVi" a.m0tmt~.it:o\...ayy and submitted that to attract the__.pfOy_isions 3 of the D.P.Act, there must be giiiiing 'ergyita;Ftiin'gfjdry'abetihg dowry, the atiegation in the_c*o.mpiati'nt"'as'; payment of R52 iakhs, of silver atieged to have been giiven' accused No.1 is not supported by any acceptabie except interested orai statement of ""~..t_AP\/V31; and PW.-~14. It reaily there was any giving or _'tai<in'g_ as aiieged, it could have been at teast evidenced. independent witnesses, who had participated ''._in the negotiation of the marriage proposat. The witnesses ":i:"exaim*i«ned mainiy are PW~t, F'W--2 and PW--14. PW-t in the erfioss examination at para 13 admits that Laiitamma, Dr Sari _'.V« W Siddayya, B.i<.Siddappa were present at the time of marriage negotiation, however, they are no more, but Mud~eQOl.IdVar Pararneshwarappa and PW~1's brother were also admits that he has given the statremeht _b'ef'ore'.';the"g;5_o.lice_, ii"
lnteraiia stating that the above persons wejre'iVprese'i1tf:at:tiretime or' marriage settlement. Howev_er-,__noteven one i'njd'eroe'ndent'r~' witness, who alleged to have,...ea'rtici'pated' "in-.the.E marriage settlement, is examined. eé§rpl.ained by PW.t, it only shows that the vital evidence.
in the absehceiiat corroborated in the evidence" or h'is_reiatives~,-- does not by itself prove the _.l-the further submitted that, the evidence PW--t4 is also very unnatural as «,"flOi"ié5":Of;_i}fi3eS,e witnes*--3cs' give the details or' the gold ornaments, 25 tholas of gold was given, and in the mar_ri'age_wiiatrr:;is normally given is gold ornaments, not solid '*.,gold_ '~l_t"is unnatural to state that 25 tolas of gold is given 'ld_vvith'o't~rt even referring to the nature of ornaments given by PW- K"--..'_V'Ltianci Pw-2. PW-t, PW--2 and P.W.14 do not speak of gold «-
«-
believed. it the evidence of prosecution on the issue of 'dowry is considered, PW«1, PW-2, PW44, PW-18 and relatives, they have spoken. Even PW~18 also the personal knowledge. F'W~1 and _P.\N_-2 be-i'ng'i)'Vét're'ntVs " it the deceased have given the staterh.ent'_'_'at'iVerthe the absence of any other evlt}-°«.h'G~9. of Alndet?'tQnCiei"ii"ivitnesses'~.L' and there being no other correho'rat'i"v_e nihate-ri.al,Vgt.a;elying on highly interested prove the charge.
Admittedly, both.:accuse'd' were qualified Doctors, it oiiqidowry. There is no substantialr' prove the demand and giving otdowry evidence do not prove the charge of 'oif.ence:p,uni.s'ha'i'5le under Sections 3, 4 & 6 of the V' A AA """ " 'V of his argument, learned counsei reie"i*red~..'to'the decision reported in 1984 Cr¥.L.J. 1738 in the matter "of SHARAD BIRDHJCHAND SAREJA v. swrre OF 'MAHAARASHTRA and submitted that, the evidence of the "relatives has to be considered with a great care and caution. if the deceased had a tendency to commit suicide, iust because she has committed suicide, it will not attract the pro\:i~s_ion_s~..of Section 306, 398-A of PC and also Sections D.P.Act. He aiso relied on anotheraitsdgmenti""r:epo:*tedV 2001(8) scc 311 and submitted that toitattracttitgtiéiiiyptbtiiisttsttsg of Section 106 of the EvidencelAc'tt§.V_the t3ro_secVutvion§._is'-required=.L' to prove the offence beyond reiasohriablegy doubiivvihefi only the burden of proof shifts on t4he_i_a'cctisf'ed. . _ _ 'V 3'
25. iotheirianand submitted that from the PW-18 and PW--26, it is cieiar wiitinessesvtlhough they are relatives, but their evidence credible, particeiariy there is no incorisi'stencyV aswlregaid to the payment of dowry. All the stated that though accused demanded cash of "Fi_s';'E_3_Viakvhs_t.,lV_2:'§.'::to§as of gold and 4 Kgs, of Silver, however, on neg"otiat.i'on;~ the consideration was fixed at Fis.2 iakhs cash; 25 V toi.a_s otgoid and 4 Kgs., of silver. Though these witnesses have "been:cross--examined, nothing worth has been elicited in their "cross examination mereiy because these witnesses are C i~€'a ti x'j'_"{ relatives of the deceased, their evidence cannot be discarded on the ground that they are interested witnesses. Tlrtepsaid evidence has to be examined with great care and cat.i_tir:JVVn.--R§E3.i:itr.it is ciear from the evidence of these witnesses and a.dVd.itViionai.l'y PW«26«brother of PW-2 naturaily;v';Mwhotiwottld t1Vha.ve}_"-t4;eé'n participated in the marriage _negotia_tio'n_,. has,;;tai<enn participation in marriage talks""and. has 'st_ated'.=th"at'VVhe was' present in the marriage':'talg_ks and 'd-tigzjingg-._the said negotiation, the alieged dowry was settied. :turtiher.'§o_.bmitted that apart from PW-1, P\{'iI4£3';,_F'W-':i__4, the neighbours of P.WV.*i"8;VPtlftfia.na;rnei'yL'PW;3';'"PW§-4 and PW~5, who had the knowledge: have also supported the case of pro_secuti"e.n.'i This corroborated by Ex Pi~compiaint «._Agivé5'by..tA[§°t.'\15t. t't--e--~complaint, PW-i has categorically stated demand and payment of dowry at the timelwoi mahttage. She reiied on Ex.P1 and pointed out that §'i..,complainiant has referred to payment of Fts.2 iakhs cash; 25 "'liV'_to.laHs""got goid and 4 Kgs, of siiver, apart from the other amounts paid subsequent to the marriage, these materials and the 30 committing suicide. in the complaint, complainant has referred to the alleged incident and thereafter on the very sanie«i:daiy';.0at about 8.45 pm. the deceased had caiied the had revealed the harassment by heri»~h.ii4sba'_ndH.VV'4rhiotéhiei'~i_n:ia'2v"it and iather~in~law. _
27. On hearing the and others reached Bijapurmand p.m. on 15.04.2002, the comptaintV_iVs:'tii.ed'.ifi|n tr~ii*erieeei§ground, the other evidence and it proves the prosecutioncase"E}evo't'id.:rea_s.onableitidoubt, namety, P.W.1 and P.W.2 7.00 p.m. on 15.04.2002, on their"a..rri'val,_iitostir'in:_or«te'ri'i". was conducted and thereafter complaint was ~iil,'.'rQi,"'the*e.is no chance that complainant had flV'fals"e'iy' iri§piicat.ed theiiaiccused. As the first information gives the Ai'cred_ib«lieiiiniorrniation as regard to the commission of the offence andlt. is ..js*upootted by the oral evidence of PW'--i and PW--2 and VVLV.'ih.ci.d_ent"having taken ptace in the house of the accused, when rithereiriés no possibiiity of any other evidence to be avaiiabie, in
-such circumstances, the accused is required to expiain the 33 available is that the deceased was forced to commit suicide. The other evidence reveals that the accused were pe'4rsVist4eiat_iy insisting the cornplainant to pay money and the _ forced to work even while she was having a Sr|:E'E3t§.<!.:.:C'h:i!:Cffi,. '*~ circumstance certainty proves the caseot far as Section 498»»A of !PC is.»con_cern'ed','"she the evidence lead by the prosecution --c_y!_early beyond reasonabie doubt and onceit is death is due to the harassment, t'tC}«.3(¢U|'tI"ei-""'tT'J'i':.'.')i:0'yf evidence in case of dowry by the result of harassme'nt';"s.u.cii:i.'incnjent'ca-nn«ct"_"be"compared with any other offence but in Case of this nature, if the. circu'mst--antial evidence and the evidence "l'~a.vai!a':b§i'ie reycordlfii---itihey prove that the incident had taken V'pl_'ace;_ committed suicide on account of the haras,snient.or7idue to the crueity, which driven her to commit °w,..4_suicide, 'sarhe is sufficient to prove the case of prosecution uln_der'.S_ection 498--A of H30. She also submitted that the trial
--flcoufrt on appreciation of the entire evidence and considering 34 the materiai has convicted the accused for the offences punishabie under Sections 3 and 6 of the D.P.Act read with Sections 498-A further read with Section 306 of H30. Nothing has been pointed out by the other side as to the judgment of the triai Court. in such circumstances; evidence is clear and clinching, thereis' no with the said judgment and subrnitted':'tha't_Vt.he to be dismissed. V 4' V' . _ V 'V
29. in the light of z-the aboveVjsvctthtfiétsgsionés; 'ihe~oEnty point that arises for consideration his as "t/bfhet'herV -» S of conviction of the accused icaiis for.'(i:te"rference by this Court?"
30. B"oth"the','--aCC_used are charge sheeted by the COD '*potice$for,.A--an offencetfmnivshabie under Sections 498(A), 304(8) S'Sreaa]wsthgseciatectn34 of PC, further read with Sections 3 and 4 S"=--.__"evidence.,V__A'he|d that the accused Nest and 2 are guiity of punishabie under Section 3 of the _D.P.Act and Section of 'D»PtACVI..':S'iEj!OtfV8V@f, the triat Court on appreciation of the "K 36 .9
33. in so far as demand of dowry by the accused, PW~»1 states that the marriage of accused Not with deceased took place in 1997. At the time of marriage negotiation, accused demanded R55 takhs. However, it was settled at Rs;2--it'a.kh3_7 Accused No.1 demanded the dowry to be paid ' of the marriage and he personatly» came if}, it addition to this, 25 tolas of gold and at the time of marriage. PW.2»mot:h'e_rg of t.he__decgea_,sedéihasfiatso '' ' stated the same thingend thiis"'is',_jai's»o sta'ted--..by'3 PW~»14. However, there is a slightadVis_c'r'e'pa§hC§y version of PW--1-4 is concerned,'in,st_ead:'fVof ofsitvver, he has stated 3 Kgs, of sitver.z'PW«»2S,~ that he was present at the time of _,marri"age h.e'gottatioh and according to him atso, the "dem"arrd :t;v'agi»i.§3s.5"ta'kh's, 25 tolas of gold and 4 Kgs., of sitver. 8u'uriweQ§s'irsetitedat es.2,oo,ooo/-; 25 totas or gold and 4 Kgs., of from performing the marriage. PW--18 is though she is a retative, however, she has no A j'p.e:"so,ri'at knowledge as regard to the demand and payment of .d_owry. She atteges that she came to krrow through PW--1 as 37 regard to the marriage settlement. PW--31 was aiso not present at the time of alleged marriage negotiation and the reniaining PW--3 and PW--éi are neighbours. There is no that they participated in the marriage negotiationu:.:i'3arti4~nlg"
i, PW-2, PW-14 and PW--26, the prr;:jJs»Aé(§ti'1iQvrtthaisgl:r}:t%it._ie§tCiV"at:iVy other evidence to prove the de_mand*..andA. payrr1'eritv'to'f Section 3 of the D.P.Act taking' dowry. 'Dowry' is the'Vi5.PA:l°ict, which means "any property or or agreed tobe given either dii'i9c'tiE'f;tt'it:i"()¢i l 3.4. 1' D.P.Act defines 'dowry' as ioI|ows:-- it i it H i gyi_§g&"'o'e.mand"'for property of valuable security having "antfi.nextri'cable"nexus with the marriage i.e., it is a it from the side of the brides parents ."7or ireiatiixes to the groom or his parents and/or gtrardi'an for the agreement to wed the bride~to~be. But" where the demand for property or valuable it ffsecurity has no connection with the consideration for the marriage, it will not amount to at demand for do I' ." (7 A "
M r% 40 the brother of PW--t, they have spoken to the dowry demand and their evidence has come in the light of the compE'al:n't_:fi--led by PW--t. Fact that there were other settlement of the marriage and demand of "Pi"I\f§t."'l1as ntttlu explained as to why anyone of themxis e'{<a'n1inled_VA'as_v.ritr:e's.s"'t*o_ show that the marriage was Vo--nVg""consideration: vof"'pa'yrnent of"? dowry. PW--14 in the cro.ss--e§gamVl.n_atl'o»n.pleads-ignorance as regard to announcement 'fl_l§l'a"CJ'9 v'r'»Am'a«r\riage Ceremony lnteralia annoancln'g..that;; place without dowry. No would not prove the defence that-Vn.o:do'wr'y;:.;irs it is suggested to PW-14, he sta'l?S''{h€(tl:V:'lV'':V:"''rt:V ' A. "It may belxrrrge vtnaI'-__there*v§ras an announcement' . at time ofathe marriage ceremony and 'V"rn1rnediarelyV%'thereafter that the marriage took ' . plaéce' iArlifr'?outV%'doVw.'y. "
'Fiowever,'with_ess.«states that it was under the pressure of 44"_ae¢us.ed . , __ C _ J' an 50 vitai evidence could not have been withheid by the prosecution. This Eapse on the part of prosecution creates seriou_s._do.,ubt as to whether the seat was secured on payment_.as."a'ii~eg,edi--by_ P.W.1, P.W.2 and P.W_14.
43. Further, it is not u,n.natu1%a_Efito,r.'ia to' his daughter when they have of."ins.ti_tutio.n own' or whether they get th':e..,_seat'and-Itjparticuiariywwhyen PW--1's daughter had compietedh when there is possibility of 'c,-,.e'ceri:yitg the is interested to educate higher education i.e., Post Ctrad_uat'io'n oo3u.rse.,:"it,,__cannot be said that it is at the instance "st accused the iight of these evidence, it can be said that the a_cc'esed I\io.1 forced the P.W.1 to secure seat by paying huge amount, and the prosecution Ai"h.as'gutterviy~«ta:redto prove the same. A 5f"dern'a«nd of Fis.3,00,000/-- towards the purchase of car. in this regard, PW--1, PW-2, PW-14 and PW-26 have stated that ' 4éi'.'«;_Proseoution has aiso aiieged that there was further " p_erman'eht~. residents V "oi Basavakalyan.
-fa.«father-in-iiavi' of the deceased came to B 57 resident of the official quarters in the same area, he has stated that PW»13 caiied him and he went to the house No.1 and came to know that Dr Shashikala hanged herself and accused No.1_wa.s_h if ihuas' .., aim at legs W trying to bring her down. F'W~13 helped to A.do--wn.Tthe,V body.
However, in the cornpiaint,gcorhplainant iaiieges that he received the telephone call' as regard to his daughter committti'-.--'ig:_,_: suicide' aziso stated by PW»2 and PW--14.__ 5,1.itVhas,5»Vco_rrieinjjtlteevidence that accused No.1 and the deceiased "the official quarters at Bijapur. Accused No.2 aindidmoither-in--iaw of the deceased are the This aspect is clear i"ir.Qr*ri__ithe icfo--rnpia'i-nt.1~~itself, wherein, the complainant alleges that aboiutfi to.-5 prior to the incident, the mother~in--law and iiapur. This evidence that accused No.2 is not residing with accused No.1 and He does not refer ';heh'---..presei:ce 'o.fi"accusediiNo.2ii 61 dowry or for further money. in tact, the aiieged payments, according to the prosecution, had aiready been there was no reason for the deceased to commi.t"suiVcide.'t"'-itis not the case of the prosecution that the aiccusiedivvihadmade_anyéit demand for further money, nor thereiisy any "speic'i--tic this effect, if that is so, the prose"c~t;ttonA.tra_s taiiVe.d "to"pr'<oiie the" I suicide in connection with dem,an*d..'ct money brviqarassment in connection with demand ot r_r'ioney*o:r
59. in am s.ugg,esti>on«iha.s"'ioee,n'mjede to PW~1 that his deceased "w--entedj'.--to"-settié-at-Davanagere and for that he was reediy'ltd.ptoyid«ey_"a..__site; in this regard, PW-1 in his cross-examination'. as under:-
4;"'vlt_is riot» corrtect" to? suggest that I told accused No.1 to settle"'a't'Davangere, but I told him that it is ready to settle at Davanagere " --..,.'adndu.".'I:.. wilis provide a site. It is not correct to suggest that I only proposed accused No.1 to T "cv..o,__r*rte and settle at Davanagere and that I will give I H the site to him."
.»,~,l;{' 74 none of the witnesses have spoken about any eariier negotiations, settlement or any compiaint by the No doubt, after the incident, the orai evidence harassment. After the compietionvof,'P.C3..coo'i'se,iiideceased'j might have gone to Bijapur during:"Sep_te"mbe'r~20:11 this period aiso, for 11/2 she vvas'-.:w'o,rk'i'rig": in the hospitai. Even PW-1,.doesV,.not"'refe~r,,_to iaiiny-.eari§ier incident except the vague aiieVg'a'tio_ri-, 'b,ufr§eiers._to,:the arrivai of mother- in-iaw, father-"in_§iavv and 4~5 days prior to the incideijtt... o_fV_'t'h_is\f.'evidence is aiso doubtfui as the prVos.ec_Lition lhays.not:oharge*~srheeted the mother-in~iaw nor there anygshe was present, but, compiaint reveals that',sheV:Vwasri._p're.s'ent, which is contrary to the charge sheet. /§ssominQ"th.at_.in-Jaws of the deceased were coming to 1 ..hoo_seoi..Aaccused No.1, but that stay might be for few days. H prosecution case, they are permanent resioEenvtvs:_ot.Basavakaiyan. Except PW-13 and PW 1, PW 2, it 26 and PW 18, no other witnesses have stated the 'presence of accused No.2. P.W.1, P.W.2, P.W.14 or P.W.16 76 may be because of the prone tendency or weak mind of the deceased. As such, uniess there is ctear eVid~e'it€',6i.V:O,f'4 abetment, every suicide wit! not be by abetment-and'.ivviiiii" * attract the offence punishable under f3'ecti~o,n' it act of suicide may be due to suddenliancilerzwitiy.3"'vr<ea,i, in this case, as observed above;..,éome di'iieren,;;a.;_5A have " it crept in and as stated by-"'F{.'W.1»r3"Tiviéit;t'h'e._deceas'edr-wfas short tempered and was in evidence is considered, because of her nature, in angerrnitjhti"ihav"efj;aRe_n':'such Va' drastic step. 'ft. --. Frovrn.the<evid:ence referred to above, nothing is shown that there was'raiiyicoénsideration of act and part played h by accusedV"arr1ountirig to, coercing the deceased to commit *suici.de_.,:_'«.To:"prove the case of abetment, there must be .convriincVi'n'§i«.".'*arid"acceptabie evidence, which must throw tight that, the deceased committed suicide on account of the it instigation by the accused. The prosecution has failed to show tigatthe accused had an intention to induce, instigate the deceased to commit suicide. Oniy atiegation that is made aéai 77 against the accused is that they were harassing for more money and the said tact having not been proved, thereV..:"i_'s_'n--ou other evidence, which proves the case of * suicide. Abetment has to be judged eA.i?iEire.'jV in evidenceinthe case,itcannotbe vievveydi'soiati~on.--.yV _
72. The Apex Court 2002 scc (oeuvre) 1141 in y SANJAY SINGH SENGAFt.~.y. STA ~--"VPRADESH, has observed .f':iinst:::giateftVden'ctes':i«ncitement or urging to do to stimuiate or incite.
Presence Qf~ft1;v]Vt":i"i'}itg'~.,.[_VéiVi'3._. gt'hereiore; the necessary concomitant of instigation'. itVVi's"=coi;n:nto:n~::i§now!edge that the words uttered in _ A a quarretA.or oi the moment cannot be taken to be »ut'terVed_vvv~i.tn..rnens rea. it is in a fit of anger and emotion. definition of 'abetment' under Section 107 of iP(3, found that the charge and conviction of the accused for an Vflovfferi-ce under Section 306 of IPC is not sustainable mereiy on ____the ground of aiiegation of harassment of the deceased, uniess éa 78 the ingredients of abetmentiare established. Even in case of dying declaration, the Apex Court has observed declaration unless reveals that the deceased suicide at the instigation of the accus'e'd,"megre..ly oe:c'a:tse't.n.erVe~tg is a dying declaration that by itself provisions of Section 306 of lPC:';.i.g:"in this r'egar.dj"itVwieiusetiul to refer to the observation.oli...t_he _A'p'exVs.ICoVurt._'at oaria--t"1v' where it has relied on the earlier iudgi'-nAent'.~ ___"i--4't _;1ttered a.__fitifoflang"er or emotion ' wi'thout~..Vinlteniding' the:vVi.'cohsequences to actually iaibe instigation. lf it transpires_toV:'fthe'Courithat a victim committing suicide.wasV"hybersa:t.isitive to ordinary petuiance, idiscordi ' 'ditterences in domestic life quite liicoinnion to line' society to which the victim "-and such petuiance, discord and were not expected to induce a sinfii'la.*ly clrcumstanced individual in a given society to commit suicide, the conscience of the u Court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."
85 show that at any time there was disharmony in the relatioitship of husband and wife. tn turn, it is the prosecution V. deceased after the marriage did her R6. at Dayanageyregy from 1997 to 2001 was living with the par_er'atvs"'and' Bijapur from September 2001 to April Howe*.reV'r, the witnesses examined by prosecution, particuiarily who came in contact with the deceased V.and._V.accused No.1, have supported the prosecutionflgcase. it
79. B'ari'_i.ngi».th--iVs;' th_e___:o~the'~r' wiivjtnesses, who speak about the ill trleatmeinttiling'connecrtion wi.thr.5money, are ati interested witnesses such PW--14, r=>w~2s and PW--18.
Admittedlyrwiinonei ot t_hese'w~i'tnesses were from Bijapur or lived ,_at atyy_reley'ant..._period. According to them, the accused _l\ie.1"i_u'se:id;"to:"~~catl deceased white she was staying at E3a~ranagerefa_t..iiate night, to cause mental torture. li that is so, iggwhat prevented the prosecution from producing such material to ":if'ghow"'that such caiis were made at odd time and caused mental tofrture. Not onty such documents are not produced but there is aiso no evidence to show any instance ot harassment and the ti?» M3"
'G. 9 86 parents of the deceased or the accused No.2 had panchayath or any letter or correspondence or deceased makingj"oal't-s"'to her parents and complaining, have come in the or prosecution. The evidence of parents._,anc{:1re'§ative's, it required to be considered very ._ statement woutd be recorded atterthe that their statement cannot be.gtccepte'd;'V,_but"before'accepting such statement, Court must statements are made, due to d'r-tuohter, or in anger. As already P..'W.'l at 8.45 PM itseif is doubttuluand'tether':::i;i"rcu'rns'tances"already narrated above do not prove-.that meted with any crueity.
..{,so;t On'!y*r..oirci;rr:.stance is that, the incident has taken »p:laee 'A«tiie:"*~-house of accused No.1 and what were the '.circurnstVances'§;toVr the deceased to take such extreme steps to end.44'lier"'tlte..' "sThe evidence of PW~t 3 shows that, deceased was oi'short?tempered lady. it also shows that she used to be reserved means less talkative. This is also corroborated by Ex wherein the statement of one Jyothi is recorded, during the it .,.x' 4:7" "
87
course of investigation, who has stated that the deceased___used to be in depressed mood. ln the absence of any corroboi*a_ti've evidence, only on the ground that the deceased ~ depressed mood is not enough to holdithat, sheivvasiiéi'te'ted'_'_with_V ii"
cruelty. However, looking at the evlaiiahieievioelrioe circumstances, it' the deceased on"accou.nt.oi' sworne*di'iie.re:nces had gone to her room and iocieedi.trom'r-»inside'an.d..contmitted suicide, it cannot be suicide on account of Viaccused, in turn evidence :t«..i:o.,1' has taken ali possible steps a'i"so"c|eat from the evidence of P.W.6, ems if i getter int"-vievv the above tihoihgs, l rind that the » cVonvVict,i:on_judgment passed by the trial Court is based on the iev'ioehoie'i',ot iivvilt, PW-2, PW--14, PW~18 and PW~28 without L consideviiwngéiiithe other evidence and material and without coitsidering that there is no corroborative evidence. in my Aopiinion, the judgment of trial court is one without appreciation V' "of evidence in proper perspective, and liable to be set aside. 88
82. According to the evidence of PW--1, PW--2 14, they alleged that at the time of marriage, they tolas of goid, 4 Kgs,, of silver and cash of is not proved. However, during the courseot police has seized the gold, d.i»am_ond,"'slj'lver, articles by Mahazar dated theiacctisedhave not made any claim for of these articles appear to be of the deceased,.'lV.yy}iot'he_.rV"'acg'Vuired by her or otherwise, b_ut belonging to the deceased.___ ornaments have been handedgover accused have not made any claim. It has, corne in"t,he':e*~.4lidence that, out of the wedlock of accused No.1 deceased, they have got a son and who appears: to b,e-minor. in my opinion, since the charges against the *accVLise'd..have not been proved and there is no claim made by accused, these ornaments must be kept in the name of mi'nor son CHINMAYA till he attains the age of majority. It there is cash, same may be kept in fixed deposit till the said son