Narasimharaju vs T S Ramesh

Karnataka High Court

Narasimharaju vs T S Ramesh on 28 November, 2023

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

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                                      CRL.A. No.2003 of 2016




       IN THE HIGH COURT OF KARNATAKA AT
                     BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
                      PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                         AND
       THE HON'BLE MR. JUSTICE ANIL B KATTI
            CRL.A No.2003 OF 2016 (A)

BETWEEN:


     NARASIMHARAJU
     S/O.LAKSHMAIAH
     AGED ABOUT 39 YEARS
     R/AT SOMASHETTIHALLI VILLAGE
     HOSURU HOBLI
     GOWRIBIDANUR TALUK
     CHICKBALLAPUR DISTRICT-561 210
                                             ...APPELLANT

(BY MR.S.JAVEED, ADVOCATE,
    APPOINTED AS AMICUS CURIAE FOR APPELLANT
    [V/O DATED 31.07.2023])

AND:


1.   T.S.RAMESH
     S/O.SIDDAPPA
     AGED 34 YEARS

2.   JAYAMMA
     W/O.SIDDAPPA
     AGED 59 YEARS

     BOTH ARE RESIDENTS OF
     TUMBADI VILLAGE
     KORATAGERE TALUK
     TUMKUR DISTRICT-572 129
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                                      CRL.A. No.2003 of 2016




3.   STATE OF KARNATAKA
     BY KORATAGERE POLICE
     TUMKUR DISTRICT
     REPRESENTED BY
     STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA
     BANGALORE-560 001


                                           ...RESPONDENTS

(BY MRS.ARCHANA K.M., ADVOCATE
     APPOINTED AS AMICUS CURIAE FOR R1 AND R2
     [VIDE ORDER DATED 31.07.2023]
     MR.VINAY MAHADEVAIAH, HCGP FOR R3)


                            ------


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF

CR.P.C., PRAYING TO SET ASIDE THE ORDERS PASSED BY THE

IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI

IN S.C.NO.5014/2013 DATED 22.08.2016 AND CONVICT THE

RESPONDENT NO.1 AND 2 FOR THE OFFENCE P/U/S 498(A),

302, 304 (B) R/W 34 OF IPC AND SEC.3 AND 4 OF D.P. ACT.


      THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH

PHYSICAL HEARING/VIDEO CONFERENCING FOR HEARING AND

RESERVED ON 17.08.2023, COMING ON FOR PRONOUNCEMENT

OF JUDGMENT, THIS DAY ANIL B. KATTI, J., DELIVERED THE

FOLLOWING:
                                 -3-
                                          CRL.A. No.2003 of 2016




                        JUDGMENT

Appellant/complainant feeling aggrieved by judgment of Trial Court on the file of IV Additional District and Sessions Judge, Madhugiri in S.C. No.5014/2013, dated 22.08.2016 preferred this appeal.

2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that, marriage of complainant's sister, Sumalatha, was performed with accused No.1 on 18.06.2010 and accused No.2 is mother of accused No.1. At the time of marriage, one gold finger ring, neck chain were given and after marriage accused No.1 and Sumalatha lived happily for one-and-half years. Out of the said wed lock, they have got a son of one-and-half year old named as Jeevan. It is thereafter accused started ill -4- CRL.A. No.2003 of 2016 treating and harassing Sumalatha to bring `50,000/- from her parents to purchase autorikshaw and subjected her to mental and physical cruelty. The deceased Sumalatha has informed of such ill-treatment to her parents and neighbors. However, in spite of their advice accused continue to ill-treat and harass deceased Sumalatha to get cash of Rs.50,000/- to purchase autorikshaw.

On 23.09.2012 at 6.00 P.M. in the house of accused, they poured kerosene and lit fire to her, due to which she suffered burn injuries and was shifted to Koratagere and Tumakuru Government Hospitals and did not respond to the treatment, as such she succumbed to the burn injuries on 24.09.2012 at 01.00 A.M. in the midnight. On these allegations made in the complaint filed by Narasimharaju, brother of deceased Sumalatha, criminal law was set into motion by registering the case in Koratagere P.S. in crime No.265/2012. The Investigating Officer after completion of investigation filed charge sheet for the -5- CRL.A. No.2003 of 2016 offence punishable under Section 498A, 302, 304B R/w Section 34 of Indian Penal Code, 1860 (hereinafter referred to as "the IPC" for brevity) and Section 3 and 4 of Dowry Prohibition Act (hereinafter referred as "D.P.Act" for brevity).

4. In response to summons, accused Nos.1 and 2 appeared through their counsel. The Trial Court on being Prima facie satisfied of charge sheet materials framed charges against accused for the offences alleged against them. Accused Nos.1 and 2 pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against the accused relied on the evidence of PWs.1 to 17 and documents Exs.P.1 to P.19, so also got identified MOs.1 to 5. The documents at Exs.D.1 to D.3 came to be marked through the evidence of prosecution witnesses.

5. On closure of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused Nos.1 and 2 have -6- CRL.A. No.2003 of 2016 denied all the incriminating material evidence appearing against them and claimed that false case is filed. The Trial Court after appreciating the evidence on record acquitted both the accused for the offences alleged against them.

6. Appellant/State (complainant) challenging the judgment of acquittal of accused Nos.1 and 2 contended that Trial Court has not properly appreciated the evidence of PWs.4 to 8 and committed serious error in recording finding that prosecution has failed to prove any of the charges leveled against the accused. The sister of complainant, Sumalatha, was given in marriage to accused No.1 and their marriage was performed on 18.06.2010 Ex.P.6, the date of incident is 23.09.2012 at 6.00 P.M. and she died on 24.09.2012 due to burn injuries in the incident that occurred in the house of accused, further the death of Sumalatha within seven years of her marriage, under such circumstances the Trial Court should have drawn presumption in terms of Section 113B of Indian -7- CRL.A. No.2003 of 2016 Evidence Act. Accused Nos.1 and 2 have offered no any explanation as to how Sumalatha was caught with fire in their house leading to her death due to burn injuries. In the absence of there being no any evidence of accused, there was no reason for the Trial Court to discard oral testimony of PWs.4 to 8. The deceased Sumalatha while she was in the hospital made oral dying declaration before her brother, Narasimharaju and parents, the Trial Court should have appreciated the said fact with other evidence placed on record by the prosecution and the Trial Court has ignored the material evidence favoring the case of prosecution, as a result recorded erroneous finding in acquitting the accused from the charges leveled against them. Therefore, prayed for allowing the appeal and to set aside judgment of Trial Court, consequently to convict both the accused for the offences alleged against them.

CRL.A. No.2003 of 2016

7. In response to the notice of appeal, respondents appeared through counsel. The Trial Court records have been secured.

8. Heard the arguments of both sides.

9. After hearing both sides and on perusal of the Trial Court records, including the judgment, the following points arise for consideration:

1) Whether the prosecution proved beyond reasonable doubt that accused No.1 being the husband and accused No.2, mother-in-law of deceased Sumalatha, have subjected her to mental and physical cruelty to meet their demand for dowry of `50,000/- for purchasing autorikshaw thereby committed an offence under Section 498A R/w Section 34 of Indian Penal Code?

2) Whether the prosecution further proved beyond all reasonable doubt that the accused on 23.9.2012 at 6.00 p.m. in the house of accused, poured kerosene and lit fire to Sumalatha with an intention and knowledge to commit her murder and she succumbed to burn injuries while she was under treatment in the Tumkur Government hospital, thereby committed an -9- CRL.A. No.2003 of 2016 offence under Section 302 R/w 34 of Indian Penal Code?

3) Whether the prosecution proved beyond all reasonable doubt that accused have ill-treated and harassed Sumalatha and insisted to bring dowry of `50,000/- to purchase Autorickshaw and her death was unnatural within 7 years of marriage due to burn injuries in the incident that occurred in the house of accused, thereby committed an offence under Section 304B R/w.34 of Indian Penal Code ?

4) Whether the prosecution proved beyond all reasonable doubt that accused have demanded and accepted dowry in the form of gold articles i.e., ring, neck chain and after marriage demanded to get `50,000/- from the parents of the deceased Sumalatha, thereby committed an offence under Section 3 & 4 of the D.P. Act?

5) Whether the judgment of the Trial Court requires any interference by this Court ?

10. On careful perusal of the oral and documentary evidence placed on record, it would go to show that deceased Sumalatha sister of complainant PW.4- Narasimharaju, was given in marriage to accused No.1

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and their marriage was performed on 18.6.2010, Ex.P.6-marriage invitation card. Accused No.2 is the mother of accused No.1. Out of the wedlock they have got a son aged about one-and-half years, is now in custody of accused, further the incident of Sumalatha caught with fire and suffered burn injuries on 23.9.2012 at 06.00 p.m. she was immediately shifted to Koratagere and District hospital Tumakuru where she succumbed to burn injuries on 24.9.2012 at 1.00 a.m. and the deceased Sumalatha died within 7 years of her marriage are the facts not in dispute and the same also can be borne out from the material placed on record by the prosecution.

11. The prosecution to establish the charges leveled against the accused mainly relied on the evidence of PWs.4 to 8 on the issue of alleged ill-treatment and harassment meted out to deceased Sumalatha on demand of dowry of `50,000/- to purchase Autorickshaw, further to prove the incident that occurred in the house of accused and the death of

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Sumalatha is a dowry death, so also accused have committed the murder of Sumalatha by pouring kerosene and lit fire to her, due to burn injuries she succumbed to such injuries while she was under

treatment in District Government Hospital, Tumkur.

The prosecution to prove the place of incident relies on the evidence of PW.9-Lakshmamma and PW.10-T M Venkatesh and the spot panchanama Ex.P.8. The evidence of PW.11-Manjunatha and PW.12-Raju are relied to prove the inquest panchanama Ex.P.13. The said evidence is sought to be corroborated by the evidence of PW.13 Dr. S Rudramurthy who conducted the autopsy of deceased Sumalatha and issued PM report Ex.P.16. The prosecution also seeks to rely on the evidence of Investigating Officers PW.16-K R Chandrashekar and PW.17- L.Jagadeesh.

12. Learned Amicus Curiae for the appellant has argued that there is enough material evidence in the form of oral testimony of PWs 4 to 8 to prove that deceased Sumalatha was subjected to mental and

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physical cruelty on demand of dowry of `50,000/- to purchase the Autorickshaw for accused No.1. The place of incident where deceased Sumalatha suffered burn injuries in the house of accused and her death is within 7 years of marriage, the Trial Court should have drawn necessary presumption in terms of Section 113B of the Indian Evidence Act. The deceased Sumalatha has made oral dying declaration before her brother PW.4 Narasimharaju and her parents with other villagers who had come to the hospital to see her and there was no any valid reason for the Trial Court to discard the oral testimony of PWs. 4 to 8 in this regard. Accused have offered no any explanation as to how Sumalatha was caught with fire in the house of accused leading to her death due to burn injuries.

13. Per contra, learned Amicus Curiae for respondents No.1 and 2 has argued that the evidence of PW.4-Narasimharaju and complaint allegations on alleged oral dying declaration are contrary to each other version. PW.5 Seetharamaiah has deposed to the

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effect that deceased Sumalatha did not talk to CW.1 (PW.4 Narasimharaju) while she was in the hospital, further more PW.16 K R Chandrashekar, who on receipt of the complaint Ex.P.4, registered the case Ex.P.17, has deposed to the effect that complainant informed to him that deceased Sumalatha was not in a position to talk. The first treating doctor at Koratagere Government hospital has not been examined and no any MLC intimation is received in this case. Therefore, there is reasonable doubt in the case as set up by the prosecution and the Trial Court has rightly appreciated the evidence on record.

14. Learned High Court Government Pleader representing respondent No.3 supports the above referred arguments advanced by the learned Amicus Curiae for appellant.

15. Before proceeding further in analysing the evidence laid in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal

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of accused from the alleged offences punishable under Sections 498A, 302, 304B r/w. Section 34 of IPC and Section 3 and 4 of the D.P.Act. Therefore, accused have primarily the double benefit. Firstly, the presumption under law that, unless their guilt is proved, the accused have to be treated as innocent in the alleged crime. Secondly, the accused are already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed. The Hon'ble Apex Court in catena of judgments has laid down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal. It would be appropriate to refer to the latest two judgments of Hon'ble Apex Court in Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:

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"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The Hon'ble Apex Court in another latest judgment in Roopwanti vs. State of Haryana and Others reported in 2023 SCC Online 179 wherein it has been observed and held in paragraph No.7 that :

"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the

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accused, on grounds of it surviving to rigorous of a full trial is strengthened and stands fortified. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in catena of judgments by this Court."

It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed on record by the prosecution.

16. The prosecution to prove the place of incident relied on the spot panchanama Ex.P.8 drawn on 25.9.2012 as shown by PW.9-Lakshmamma and her oral testimony, co-pancha PW.10 T M Venkatesh and seizure of MO Nos.1 to 5 under the said panchanama. PWs. 9 and 10 though have not supported the case of the prosecution, but admitted that they have put their signature on the panchanama Ex.P.8 and identified their signatures. Much less the place of incident

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where deceased Sumalatha suffered burn injuries in the house of accused is not disputed by the defence. Therefore, the prosecution has proved place of incident where deceased Sumalatha suffered burn injuries is the place of residence of accused.

17. The prosecution has relied on the evidence of PW.11-Manjunatha and PW.12- Raju and they have deposed to the effect that in the mortuary of Tumkur Government Hospital inquest panchanama Ex.P.13 was drawn by the Tahsildar, Tumkuru and they have signed on the inquest panchanama Ex.P.13 as per Exs.P.13(a) and (b). The defence has not challenged their evidence and therefore, their evidence has to be accepted regarding drawing of inquest panchanama in their presence in the mortuary of Tumkuru Govt. hospital Ex.P.13.

18. The evidence of PW.13 Dr. S Rudramurthy would go to show that on 25.9.2012 he received requisition from Tahsildar, Tumkuru for conducting PM

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examination of deceased Sumalatha. On receipt of such information, he conducted PM examination from 10.15 a.m. to 11.15 a.m. On examination, found following external injuries :

II and III degree burns present all over the body except soles. The skin over the burnt area blackened and peeled off at most places exposing areas of redness and smells of kerosene Scalp hairs over top, facial hairs, axillary hairs and pubic hairs partially burnt. The deceased has suffered 90% to 95% ante mortem and fresh burns.

PW.13 Dr. S Rudramurty has recorded finding that death of deceased Sumalatha was due to shock as a result of burn injuries sustained. The prosecution by virtue of above referred evidence has proved that deceased Sumalatha died due to burn injuries.

19. The prosecution alleges that death of Sumalatha, wife of accused No.1, is homicidal and accused have

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contended that death of Sumalatha is accidental. The prosecution to prove the charge under Section 498A and Section 304B of IPC must necessarily prove that deceased Sumalatha was subjected to mental and physical cruelty which is of such nature to drive her to commit suicide and it is an unnatural death within a period of 7 years of her marriage, so as to draw presumption in terms of Section 113B of the Indian Evidence Act that death of Sumalatha was a dowry death. The prosecution also alleges that accused Nos.1 and 2 have poured kerosene on Sumalatha in their house and lit fire with an intention or knowledge to commit her murder.

20. The complaint allegations Ex.P.4 filed by complainant PW.4 Narasimharaju would go to show that the marriage of his sister Sumalatha was performed with accused No.1 on 18.6.2010 and as per demand of his parents, cash of `50,000/-, 15 gms of gold neck chain and 8 gms ring was given to accused

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No.1, so also a pair of 10 gms gold ear stud and 10 gms gold hangings and 8 gms ring was given to Sumalatha, further performed the marriage by spending `3,00,000/-.

Upto one year of marriage, they lived happily and they got a son by name Jeevan. Thereafter, all the family members of accused started picking up quarrel with his sister Sumalatha, abusing her in filthy language and used to assault her and were demanding to get `1,00,000/- to them for purchasing Auto rickshaw, otherwise threatened to kill her by pouring kerosene. In this regard, police complaint was filed and the police have advised accused No.1 and his family members to lead happy marital life with Sumalatha.

On 18.9.2012 himself and PW.5 Seetharamaiah went to the house of the accused to give bagina to Sumalatha. However, the family members of accused No.1 confined Sumalatha in a room. When the same was questioned by the complainant, all the family

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members alleged to have stated that if they wish will kill Sumalatha and who was he to question the same and did not allow him to talk with Sumalatha. Complainant wished to file complaint before Police, however, at the instance of PW.5 Seetharamaiah on his advise that things will be set right in future, came back to house.

On 23.9.2012 at 6.00 P.M. the villager of Thumbadi over phone informed to Suresh about accused assaulting and by pouring kerosene litting fire to Sumalatha, as a result she suffered burn injuries and she was shifted to Koratagere hospital. On receipt of such information from Suresh, complainant with his parents and 10 to 15 members of the village went to Koratagere hospital, where they were informed that Sumalatha was taken to Tumkuru Government hospital for higher treatment. Therefore, all of them went to Government hospital, Tumkuru at 11.30 P.M. and found that sister of complainant was suffering due to burn injuries. On seeing them, Sumalatha stated

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before them that accused No.1 and all his family members are not good and without there being any mistake of her, poured kerosene and lit fire to her. The doctors in the hospital did not attend to Sumalatha and on the same day, she succumbed to the burn injuries at 01.00 A.M. Complainant alleging all the family members of accused No.1 being responsible for the death of his sister Sumalatha filed the complaint. The said allegations made in the complaint has to be tested in the light of oral testimony of PWs.4 to 8 relied by the prosecution.

21. PW.4-Narasimharaju, the elder brother of deceased Sumalatha, has deposed to the effect that at the time of marriage, dowry of `50,000/- cash, one gold chain and 8 gms. gold ring was given and by spending `3,00,000/-, marriage was performed with accused No.1. Out of the wedlock they have got a son by name Jeevan.

Thereafter, accused started ill-treating and harassing his sister Sumalatha by insisting to get

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dowry of `50,000/- to purchase Autorickshaw. In order to press their such demand, Sumalatha was being tortured and in this regard, complaint was also filed before Koratagere police. However, police advised accused No.1 and family members to lead happy marital life with his sister.

After one-and-half months, himself and PW.5 went to the house of accused to give bagina to her sister, but they were not allowed and sent out of house by assaulting.

On 23.9.2012 at about 7.00 A.M. one Suresh informed over phone to the complainant that his sister was set to fire and asked him to go to Koratagere. Complainant with 10 to 15 persons went to Koratagere where they were informed that Sumalatha was taken to Government hospital, Tumkur. On seeing them and after enquiry she stated that accused Nos.1 and 2 poured kerosene and lit fire to her. On the same day at about 1.00 A.M. she succumbed to the burn injuries and he has filed the complaint Ex.P4 on 24.9.2012.

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22. PW.5-Seetharamaiah has deposed about the death of Sumalatha due to burn injuries and CW.1 Narasimharaju informing him about husband and wife quarrelling. About two years back on the same day of giving bagina, Sumalatha died. This witness was declared partly as hostile witness.

23. PW.6- T B Ramachandraiah has deposed to the effect that there was no giving and taking at the time of marriage. The deceased Sumalatha and accused No.1 have got a child and he is residing with the accused. He came to know from the neighbours that Sumalatha while crossing the boiled oil vessel kept for preparing bonda, accidentally caught with fire and he has signed on the panchanama Ex.P.8, he was declared as partly hostile witness.

24. PW.8, Narasaraju has deposed to the effect that about four years back, CW.1 Narasimharaju informed him that he had gone to the house of Sumalatha to invite her to Gowri festival and they did not send her

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with him. He has further deposed to the effect that husband and wife quarreled, accused No.2 abused Sumalatha and accused have lit fire to her. On 23.9.2012 he visited Tumkuru hospital and Sumalatha was talking. When she was questioned, she told that accused have lit fire to her. He has also been declared as hostile witness.

25. The specific allegation in the complaint Ex.P.4 with respect to demand of dowry is to the effect that at the time of marriage on demand of parents of accused No.1, cash of `50,000/-, 15 gms. gold neck chain, 8 gms finger ring was given to accused No.1. The deceased Sumalatha was given with 10 gms, pair of ear stud, 10 gms. ear hanging and 8 gms ring. The marriage was performed by spending `3,00,000/-. The defence of accused is that neck chain and finger ring were given to accused No.1 out of love and affection and he has given back the same to PW.4 Narasimharaju and asked him to get changed into

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Mangallya chain. However, he did not get Mangallya chain for Sumalatha and due to which there was quarrel between them. The deceased Sumalatha though died accidentally, by misusing the situation PW.4 Narasimharaju filed false complaint.

26. PW.1- R Srinivas, PW.2 - Lalithamma and PW.3 - Venkateshappa, who were said to have advised accused No.1 for leading happy marital life with Sumalatha have not supported the case of the prosecution.

PW.4 - Narasimharaju only deposed about giving of `50,000/- cash, gold neck chain and 8 gms. gold ring, but his evidence is totally silent about accused or any of their family members having demanded dowry before or at the time of marriage.

PW.5 - Seetharamaiah in his entire examination- in-chief never speaks about any demand of dowry or giving articles as stated in the complaint Ex.P.4. PW.4- Narasimharaju in his evidence refers to

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another incident of himself and PW.5 Seetharamaiah having gone to the house of Sumalatha for giving bagina, at that time they were physically assaulted and sent out of the house. However, PW.5- Seetharamaiah does not speak any of such thing happened in the matrimonial house of Sumalatha.

PW.6 - T.B. Ramachandraiah has deposed to the effect that there was no giving and taking at the time of marriage.

PW.7 - Dattatreya only speaks about having given pair of ear stud, neck chain and one pair of gundu. His evidence is totally silent about accused having demanded dowry as referred in the complaint Ex.P.4.

PW.8 - Narasaraju in his evidence never speaks anything about demand and giving of gold articles as referred in the complaint.

The above referred evidence of PWs.4 to 8, does not speak anything about accused or their family members having demanded cash and gold articles

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before or at the time of marriage. There is also no any evidence on record to show that marriage talks took place prior to fixing the marriage of Sumalatha with accused No.1 and wherein accused have demanded cash and gold as referred in the complaint Ex.P.4. The giving of neck chain and finger ring has not been denied by the accused. However, it is the contention of the accused that he has given the same back to PW.4 Narasimharaju for changing the same into Mangallya chain and he has not returned the same. Therefore, there used to be quarrel between Sumalatha and PW.4.

27. In the light of above, the defence has got marked the portion of further statement of complainant PW.4 as Ex.D.1 and also the statement of PWs.7 and 8 as Exs.D.2 and D.3. The said statement of PWs.4, 7 and 8 at Exs.D.1 to D.3 relates to accused No.1 having given his gold chain and ring to PW.4 Narasimha for preparing Mangalya chain. However,

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they have denied having given such statement before the Investigating Officer. The Investigating Officer PW.17 L.Jagadeesh has maintained that PW.4 complainant has given further statement Ex.D.1 and other witnesses having not stated as per the statement recorded by him. It means that PWs.4, 7 and 8 have given statement before the Investigating Officer PW.17 L.Jagadeesh Exs.D.1 to D.3 respectively. Therefore, it can be inferred that accused No.1 has given gold neck chain and ring to complainant PW.4 Narasimharaju for preparing Mangalya chain. The above referred inference has to be drawn in the absence of other evidence or any explanation from the prosecution side. It is true that there is no evidence to the effect that due to non return of Mangalya chain and ring there used to be quarrel between deceased Sumalatha and PW.4 Narasimharaju, but the fact remains that accused No.1 has given gold neck chain and ring to PW.4 Narasimharaju for preparing Mangalya chain.

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28. In so far as the incident of ill-treatment and harassment that took place when PW.4 Narasimharaju and PW.5 Seetharamaiah had gone to the house of Sumalatha for giving bagina, it is alleged in the complaint Ex.P.4 that when PW.4 Narasimharaju and PW.5 Seetharamaiah had gone to the house of Sumalatha for giving bagina, accused and their family members confined Sumalatha in a room and when PW.4 questioned about the same, all the family members objected for such questioning. Further both of them were sent out of the house. The evidence of PW.4 Narasimharaju is totally contrary to the one alleged in the complaint Ex.P.4 and the evidence of PW.5 Seetharamaih is silent on this incident. Therefore, the evidence of PW.4- Narasimhaiah and PW.5 - Seetharamiah cannot be relied to prove the incident that alleged to have occurred at the time of giving bagina in the house of Sumalatha, as claimed in the complaint Ex.P.4.

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29. It is also alleged in the complaint Ex.P.4 that accused were quarrelling with deceased Sumalatha and threatened to lit fire to her by pouring kerosene and in this regard, he has filed complaint in Koratagere police station. On the basis of said complaint, Koratagere police have advised accused to lead happy marital life with Sumalatha. The evidence of PW.5 Seetharamaiah is totally silent on this aspect. The prosecution has also not proved the said allegation by producing documents to show that any complaint was filed by PW.4 Narasimharaju on the assault incident over PW.4 - Narasimharaju and PW.5 Seetharamaiah said to have taken place in the house of Sumalatha. Therefore, it will have to be held that prosecution has failed to prove the incident of ill- treatment as alleged in the complaint- Ex.P.4 in this regard.

30. The deceased Sumalatha with burn injuries was admitted to Koratagere and Tumkuru hospitals on 23.09.2012 and she succumbed to burn injuries on

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24.09.2012 at about 01.00 A.M. The complaint Ex.P.4 was filed on 24.09.2012 at 05.30 P.M. There is considerable delay in filing the complaint. PW.4 Narasimharaju with regard to filing of complaint has deposed to the effect that complaint was got computerized by his brother Hanumanthegowda at Bengaluru. The evidence of PWs.4 to 8 is silent as to the brother of complainant, Hanumanthegowda, having come to the hospital at Koratagere or in Tumkuru. It means that the allegations made in the complaint are based on the information said to have been given by PW.4 Narasimharaju. The brother of complainant Hanumanthegowda has not been examined to speak about the contents of the complaint Ex.P.4. Therefore, the contention that allegation of ill-treatment and harassment of deceased Sumalatha on alleged demand of dowry is an after thought cannot be ruled out. It is also pertinent to note that since from the date of marriage till the death of Sumalatha, there were no quarrel between

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husband and wife regarding the demand of dowry and corresponding ill-treatment, further the said allegations in the complaint Ex.P.4 appears to have been made only after the death of Sumalatha.

31. It is alleged in the complaint Ex.P.4 that after marriage, accused No.1 started ill-treating and harassing Sumalatha to get `1,00,000/- from her parents, since he wanted to purchase Autorickshaw. In order to press such demand, accused No.1 was abusing in filthy language and threatened to kill her by pouring kerosene. In this regard, PW.4- Narasimharaju claims to have filed complaint before Koratagere Police Station and have advised accused No.1 to lead happy marital life with Sumalatha. However, no documents for having filed such complaint on alleged ill-treatment have been produced by the prosecution. PW.4-Narasimharaju in his evidence deposed to the effect that accused were demanding to get `50,000/- for purchase of

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Autorickshaw. However, other than the oral testimony of PW.4 Narasimharaju and the allegation made in the complaint Ex.P.4, there is virtually no any evidence placed on record by the prosecution in this regard. The evidence of PWs.5 to 8 is totally silent about accused No.1 having demanded either cash of `1,00,000/- as stated in the complaint Ex.P.4 or cash of `50,000/- as deposed by PW.4-Narasimharaju. Therefore, the prosecution out of the material evidence placed on record as referred above, has failed to prove that accused were ill-treating and harassing deceased Sumalatha on demand of dowry.

32. The prosecution to prove the death of Sumalatha as homicidal and accused Nos.1 and 2 poured kerosene on Sumalatha and lit fire to her, so also the death Sumalatha is a dowry death, relies on the oral evidence of PWs 4 to 8. The prosecution further claims that deceased Sumalatha made oral dying declaration and relies on the evidence of PWs. 4, 7

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and 8. The fact that, deceased Sumalatha was given in marriage to accused No.1 and their marriage was performed on 18.06.2010, further the incident took place in the house of accused on 23.09.2012 wherein Sumalatha succumbed to burn injuries on 24.09.2012 at about 01.00 A.M. while she was under treatment in the District Government hospital, Tumakuru and the deceased Sumalatha left with one-and-half year old son by name Jeevan is now in the custody of accused are the facts not in dispute.

33. PWs. 4 to 8 came to Koratagere hospital and District Government hospital, Tumakuru only after they came to know about the incident through one Suresh who informed that Sumalatha sustained burn injuries and shifted to hospital. The prosecution relies on the alleged oral dying declaration of deceased Sumalatha before PW.4 Narasimharaju, PW.7 Dattatreya and PW.8 Narasaraju.

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PW.4 Narasimharaju with reference to the oral dying declaration of his sister Sumalatha deposed to the effect that on enquiring her in the District hospital Tumakuru, she told that accused Nos.1 and 2 poured kerosene and lit fire to her. This fact has not been alleged in the complaint filed by him Ex.P.4.

PW.4-Narasimharaju during the cross- examination claims that oral dying declaration was made in presence of 15 persons/villagers of the village, including his parents. The parents of deceased Sumalatha i.e. CW.15-Lakshmaiah and CW.16- Vijayalakshmamma have not been examined by the prosecution, though their statements have been recorded by the Tahsildar, Tumakuru while drawing inquest panchanama Ex.P.13.

PW.4 Narasimharaju alleges that after admitting his sister Sumalatha with burn injuries, doctors in the Government hospital in Tumakuru did not attend to her. Whereas it is the evidence of PW.13-Dr. S Rudramurthy that injured was treated in the hospital

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and it is recorded in Ex.P.16. However, in spite of the said fact, no MLC was sent to the outpost police station situated in the premises of District Government hospital, Tumkuru. The evidence of PW.7 and PW.13 would go to show that they have admitted about the existence of outpost police station in the premises of District Government hospital, Tumkuru. The Investigating Officer PW.17 - L Jagadish claims that he received the information from the hospital on 24.9.2012 at 5.30 p.m. It means that even according to Investigating Officer, PW.17- L Jagadish, intimation was received from hospital much after the time of death of Sumalatha in District Government Hospital, Tumakuru.

34. PW.7 - Dattatreya claims that deceased Sumalatha told that accused lit fire to her. However, PW.4 Narasimharaju does not speak about the presence of PW.7 - Dattatreya when his sister deceased Sumalatha made oral dying declaration. PW.7- Dattatreya admits

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that PW.4 - Narasimharaju brought him to the Court to give evidence.

PW.8 - Narasaraju is another witness before whom deceased Sumalatha alleged to have been made oral dying declaration. He has deposed to the effect that on enquiry deceased Sumalatha told that accused by pouring kerosene lit fire to her. The presence of PWs. 7 and 8 at the time of alleged oral dying declaration of deceased Sumalatha has not been certified by the evidence of PW.4-Narasimharaju. In view of the inconsistencies in their evidence and absence of evidence about fitness condition of deceased Sumalatha for making oral dying declaration, further non-presence of any doctor at the time of alleged dying declaration creates serious doubt in believing that deceased Sumalatha had made oral dying declaration in the presence of PWs.4, 7 and 8.

35. The basis on which the prosecution claims that accused Nos.1 and 2 have committed the murder of

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deceased Sumalatha by pouring Kerosene and litting fire to her is based upon the alleged oral dying declaration said to have been made by deceased Sumalatha before Pws.4, 7 and 8. In view of the analysis made above about the evidence of PWs.4, 7 and 8, there is reasonable doubt about deceased Sumalatha having made oral dying declaration before them. Other than the alleged oral dying declaration of deceased Sumalatha, there is virtually no other evidence placed on record by the prosecution to prove that accused have poured Kerosene and lit fire to her.

PW.8 Narasaraju has admitted in the cross- examination that accused No.1 and deceased Sumalatha were married in 2008 and leading happy marital life and they were residing separately, the parents of accused No.1 were residing separately, further the sisters of accused No.1 are residing in their matrimonial home. Accused No.1 is doing the work of sheep herding and used to leave the house in the morning and return only in the evening. This witness

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is not in anyway concerned to the accused, his evidence would go to show that he is from the side of complainant. If the above referred admission of PW.8 Narasaraju are taken into consideration in the absence of other material evidence on record, it will have to be held that prosecution has failed to prove that accused have poured Kerosene on deceased Sumalatha and lit fire to her with an intention to commit her murder.

36. In view of the reasons recorded as above, it is to be observed and held that prosecution has failed to prove that deceased Sumalatha was subjected to physical and mental cruelty on demand of dowry either before or at the time of marriage or thereafter. The allegation of accused No.1 having ill-treated deceased Sumalatha and on demanding of `50,000/- has also not been proved by the prosecution. Therefore, no presumption can be drawn in terms of Section 113B of Indian Evidence Act that the death of

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Sumalatha is dowry death which attract penal action in terms of Section 304B of IPC.

37. Lastly, the conduct of the accused right from the incident occurred in the house till the death of Sumalatha also will have to be taken into consideration. PW.4 Narasimharaju admits that accused No.1 has shifted Sumalatha to the hospital and he was very much present with the injured Sumalatha in Tumakuru hospital. The son born to accused No.1 and Sumalatha by name Jeevan is now under the care and custody of accused No.1. If at all the accused have poured kerosene and lit fire to her, then the accused would not have shifted injured Sumalatha to the hospital and the guilty mind of accused No.1 would not have permitted him to stay with injured Sumalatha till her death. Further, accused never made any attempt to escape from the scene of offence. The one-and-half year old son Jeevan is under care and custody of accused No.1 are the factors

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leaning in favour of accused in the absence of any connecting evidence to hold that it is accused who have poured kerosene on Sumalatha and lit fire to her. In view of the reasons recorded as above, it is observed and held that the prosecution has failed to prove the allegation of deceased Sumalatha being subjected to mental and physical cruelty, therefore, no any presumption can be drawn in terms of 113B of the Indian Evidence Act that death of Sumalatha is dowry death.

Learned Amicus Curiae for respondent Nos.1 and 2 has relied on the judgment of the Hon'ble Apex Court in Jayamma and Others vs. State of Karnataka reported in (2021) 6 SCC 213 wherein it has been observed and held that :

"The judgment of the Trial Court cannot be set aside merely because the High court find its own view more probable, save where the judgment of the Trial Court suffers from perversity or the conclusions drawn by it were impossible if there was a

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correct reading and analysis of the evidence on record. Unless High Court finds out there is complete mis-reading of the material evidence which was led to miscarriage of justice, the view taken by the Trial Court which can also possibly be a correct view need not be interfered with" .

In the present case also, appellant/complainant has failed to demonstrate that judgment of Trial Court suffers from perversity or the conclusions drawn by it were improbable, if there was a correct reading and analysis on record. The Trial Court has rightly appreciated the evidence on record and is justified in holding that the prosecution has failed to bring home the guilt of accused beyond all reasonable doubt. As such, no interference is called for in this case.

Consequently, we proceed to pass the following :

ORDER The appeal filed by appellant/complainant is hereby dismissed.

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The assistance rendered by the learned Amicus Curiae for Appellant and learned Amicus Curiae for respondents No.1 and 2 is appreciated in assisting the Court for disposal of the appeal.

The honorarium of the learned Amicus Curiae for Appellant and respondents No.1 and 2 is fixed as Rs.5,000/- each respectively payable by the registry.

Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.

SD/-

JUDGE SD/-

JUDGE rs