Smt. Shakuntala Premanath Jadhav vs The State Of Karnataka
2021 Latest Caselaw 5795 Kant

                                      CRL. A. No.100057/2018




           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 9TH DAY OF DECEMBER, 2021

                        PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                          AND
         THE HON'BLE MS. JUSTICE J.M.KHAZI
           CRIMINAL APPEAL No.100057/2018

BETWEEN:

1.   SMT. SHAKUNTALA PREMANATH JADHAV
     AGE:68 YEARS
     OCC. HOUSEHOLD and BUSINESS
     R/O MAHANTESH NAGAR, ASHRAY PLOT
     RAMADURGA, DT: BELAGAVI.
2 . SHRI. PREMANATH MADHAVARAO JADHAV
     AGE:71 YEARS, OCC. NIL
     R/O: MAHANTESH NAGAR, ASHRAY PLOT
     RAMADURGA, DT: BELAGAVI
3 . SMT. RAMABAI W/O AMBAJI SHINDE
     AGE:31 YEARS, OCC. HOSUE WIFE,
     R/O BIJAPUR UPALI BURJ COLONY,
     DT: VIJAYPUR.
                                      ... APPELLANTS
(BY SRI.S.B.DEYANNAVAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY RAMADURGA POLICE STATION
R/B SPECIAL PUBLIC PROSECUTOR
HIGH COURT BENCH
DHARWAD.                               ... RESPONDENT

(BY SRI.V.M.BANAKAR, ADDL. SPP)
                                                 CRL. A. No.100057/2018


                                   2


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO CALL FOR THE PAPERS ON THE FILE OF
VI ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI IN
S.C.NO.171/2012 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 143, 147, 302, 304(B), 498(A), 201 READ WITH 149 OF
IPC AND SEC. 3 AND 4 OF D.P. ACT 1961 AND TO SET ASIDE THE
JUDGEMENT OF CONVICTION AND ORDER OF SENTENCE DATED
29.01.2018 PASSED BY THE VI ADDL. DISTRICT AND SESSIONS
JUDGE BELAGAVI.

      THIS APPEAL COMING ON FOR FINAL HEARING ON
30.11.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:

                            JUDGMENT

1. The accused Nos.2, 3 and 5 are before this Court

challenging the order of conviction and sentence

passed by the VI Addl. District and Sessions Judge,

Belagavi, (for brevity 'the trial Court) both dated

29.01.2018 passed in S.C.No.171/2012.

2. The order of conviction reads as under:

"Acting U/s. 235(2) of Cr.P.C., Accused Nos.2,3 and 5 are convicted for the offences punishable U/s.143, 147, 304-B, 498-A of IPC and U/s. 3 and 4 of D.P. Act, 1961 r/w. Sec. 149 of IPC.

Acting U/s.235(2) of Cr.P.C. Accused No.2 is convicted for the offences punishable U/s.302, 201 r/w. Sec.34 of IPC.

CRL. A. No.100057/2018

Accused Nos. 2,3 and 5 to be heard on the question of sentence."

3. The order of sentence reads as under:

Accused Nos.2,3 and 5 are sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.1000/-each for the offense punishable U/s.143 r/w. Sec.149 of IPC and in default to pay the above said fine amount, Accused Nos.2,3 and 5 shall undergo SI for a period of one month.

Accused Nos.2,3 and 5 are sentenced to undergo SI for a period of one year and to pay fine of Rs.1000/-each for the offense punishable U/s.147 r/w. Sec. 149 of IPC and in default to pay the above said fine amount, Accused Nos.2,3 and 5 shall undergo SI for a period of one month.

Accused No.2 is sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/ and in default to pay the above said fine amount shall undergo SI for a period of six months for the offence punishable U/s.302 r/w. Sec.34 of IPC.

Accused No.2 is sentenced to undergo SI for three years and shall pay fine of Rs.5000/- for the offense punishable U/s.201 r/w. Sec.34 of IPC and in default to pay the above said fine amount Accused No.2 shall undergo SI for a period of six months.

Accused Nos.2,3 and 5 are sentenced to undergo SI for seven years for the offence punishable U/s.304 B of IPC r/w. Sec.149 of IPC.

Accused Nos.2,3 and 5 are sentenced to undergo SI for three years and to pay a fine of Rs.10,000/-each for the offences punishable U/s.498-A r/w. Sec.149 of IPC and in default to pay the above said fine amount Accused Nos.2,3 and 5 shall undergo SI for six months.

CRL. A. No.100057/2018

Accused Nos.2,3 and 5 are sentenced to undergo SI for a period of five years and shall pay a fine of Rs. 15,000/- each for the offense punishable U/s.3 of D.P. Act, 1961 and in default to pay the above said fine amount Accused Nos.2,3 and 5 shall undergo SI for a period of six months.

Accused Nos.2,3 and 5 are sentenced to undergo SI for a period of two years and shall pay fine of Rs.5000/-each for the offense punishable U/s.4 of D.P.Act, 1961 and in default to pay the above said fine amount, Accused Nos.2,3 and 5 shall undergo SI for a period of six months.

All the above said sentences imposed on Accused Nos. 2,3 and 5 shall run concurrently.

Accused No.2 is entitled for the benefit of set off as provided U/s.428 of Cr.P.C. for the period for which she has been in judicial custody in respect of this case.

MO1 to 3 are ordered to be retained till the conclusion of the split-up case as against Accused No.4.

Office is directed to furnish the true copy of this Judgment to the Accused Nos.2,3 and 5 free of costs forthwith."

4. The case of the prosecution is that the marriage of

the deceased Yallamma @ Nirmala who is the

daughter of the elder brother of the complainant

was performed with accused No.1 on 03.06.2010 CRL. A. No.100057/2018

by giving necessary dowry and in accordance with

the customs and traditions.

5. After marriage, the deceased Yallamma started

living in the house of the accused and was leading

her marital life. It is alleged that accused No.1

being the husband, accused No.2 being the

mother-in-law, accused No.3 being father-in-law,

accused No.4 being the brother-in-law and accused

No.5 being sister-in-law of the deceased had

started harassing the deceased Yallamma calling

upon her to bring money from her maternal house

from time to time.

6. On one such occasion, the complainant in the

month of December had made a payment of

Rs.20,000/- and at that time had requested all the

accused to stop the harassment and look after the

deceased properly, categorically stating that she is CRL. A. No.100057/2018

a motherless child and her father was not taking

care of her, despite which the accused continued to

cause physical and mental harassment to the

deceased Yallamma, calling upon her to bring

additional amount as dowry. It is alleged that when

the said amounts was not brought, the accused on

06.05.2011 between 10 a.m. to 11 a.m. assaulted

the deceased Yallamma, murdered her by

throttling her and thereafter with an intention to

destroy the evidence have put the body in the

bathroom of the house, poured kerosene on her

and burnt the body.

7. Hence, it was alleged that all the accused had

committed offence punishable under Sections 143,

147, 302, 304-B, 498-A, 201 read with Section

149 IPC and Sections 3 and 4 of the Dowry

Prohibition Act, 1961.

CRL. A. No.100057/2018

8. The investigation was completed and a charge

sheet was laid for the aforesaid offences.

9. The Senior Civil Judge and JMFC, Ramdurg, took

cognizance for the aforesaid offences, accused

Nos.1 and 2 have been arrested on 07.05.2011,

accused No.5 had been arrested on 03.07.2011

and they had been remanded to judicial custody.

Subsequently, accused Nos.3 and 5 have obtained

regular bail. As accused No.4 was absconding, the

case against him was split up and separate

proceedings in C.C.No.146/2011 were initiated.

10. The Senior Civil Judge and JMFC, Ramdurg, taking

into account that the offences alleged are

exclusively tried by the Court of Sessions,

committed the case against accused Nos.1 to 3 to

the District and Sessions Court, Belagavi and the CRL. A. No.100057/2018

case was made over to the VI Addl. District and

Sessions Judge, Belagavi.

11. The charge-sheet having been submitted, initially

the charges were framed against the accused on

26.07.2013 against accused Nos.1 to 3 and 5 for

offences punishable under Sections 498-A, 302,

304-B, 201 read with Section 34 of IPC and

Sections 3 and 4 of the Dowry Prohibition Act,

1961. The same was read over to the accused and

explained to them in kannada language known to

them. They pleaded not guilty to the altered

charges and claimed to be tried. On an application

being filed by the prosecution under Section 216

read with Section 228 (2) of the Cr.P.C., the

charges were rectified/altered for the offences

punishable under Sections 498-A, 302, 304-B, 201

read with Section 34 of IPC and Sections 3 and 4

of the Dowry Prohibition Act which on 27.06.2016 CRL. A. No.100057/2018

were also again read over and explained to

accused Nos.3 to 5 in Kannada language known to

them. They pleaded not guilty to the altered

charges and claimed to be tried.

12. On another application being filed by the

prosecution under Sections 216 and 228 (2) of the

Cr.P.C. altered charges were framed as per order

dated 03.08.2017 including the offences

punishable under Sections 143, 147 read with

Section 149 IPC. The same was read over and

explained to accused Nos.2, 3 and 5 in Kannada

language known to them. On 26.09.2017, they

pleaded not guilty to the altered charges and

claimed to be tried. By that time accused No.1 had

expired on 08.04.2017 and the case stood abated

against accused No.1.

CRL. A. No.100057/2018

13. The prosecution in order to establish the case

against the remaining accused, in all examined 26

witnesses as PWs-1 to 26, got marked 46

documents at Exhibit 1 to 46(a) and 3 material

objects as M.Os.1 to 3 and closed its side.

14. The evidence against the accused was put across

to the accused and their statements under Section

313 of Cr.P.C. was recorded. They denied all the

evidence against them no evidence on behalf of

the defence was led.

15. Thereafter, the matter was posted for arguments

and the aforesaid order of conviction and sentence

was passed. It is aggrieved by the same that the

appellants who are accused Nos.2, 3 and 5 are

before this Court.

16. Shri S.B.Deyannavar, learned counsel for the

appellants submits that CRL. A. No.100057/2018

16.1. The complaint has been filed by the uncle of

the deceased and not by the father and as

such, there is a doubt which arises as to why

the father has not filed the complaint.

16.2. There has been no demand for the

money/dowry as sought to be contented by

the prosecution. The prosecution has not

produced any evidence or established the

said demand, the accused were not in the

house at the time when the incident

occurred.

16.3. There is a contradiction in the complaint

inasmuch as even according to

the complainant, the amount demanded of

Rs.20,000/- had already been paid and the

question of further demand would not arise.

CRL. A. No.100057/2018

16.4. It is accused No.1 who had called the

complainant on 06.05.2011 and informed

about the occurrence of the event at 11:30

a.m. If at all accused No.1 or other accused

wanted to suppress the matter and/or were

involved in the matter, they would not have

called the complainant and informed about

the incident.

16.5. Though the father has been named as a

witness he has not been examined.

16.6. Accused No.3 was not residing in the house

but was residing in Bagalkot, Accused No.5

being married has her matrimonial house in

Bijapur, hence the proceedings against them

ought to be dismissed.

16.7. He submits that PW - 2 who is the witness to

the inquest panchnama has half-heartedly CRL. A. No.100057/2018

supported the case of the prosecution. PWs -

3 to 9 have not supported the case of the

prosecution and were treated hostile and

nothing much was elicited from them.

16.8. All other witnesses being the official

witnesses being the doctor, police etc., there

was nothing on record to establish the

complicity of the accused. It is on this basis

he submits that the order of conviction is

required to be set aside.

17. Shri V.M.Banakar, learned Addl. SPP appearing for

the State/respondent supports the judgment of

conviction and sentence imposed. He submits that:

17.1. PW - 1 is the brother of the father of the

deceased, the mother having expired and the

father living a wayward life. It is PW - 1 who

was taking care of the well being of the CRL. A. No.100057/2018

deceased and her brother and they were

residing in the house of PW - 1. It is PW - 1

who had got the deceased married and as

such, the complaint lodged by PW -1 is

proper and correct. No-fault can be found

therewith. It is not required that the

complaint ought to have been filed by the

father of the deceased.

17.2. By relying upon the evidence of the other

witnesses, he submits that the evidence on

record is sufficient enough to support the

order of conviction, the date of marriage

being 03.06.2010 and the date of the incident

being 06.05.2011, he submits that the

provisions of Section 113-B of the Indian

Evidence Act would be applicable giving

rise to a presumption.

CRL. A. No.100057/2018

17.3. The incident having occurred in the house of

the accused they would have special

knowledge of the circumstances, it was

required of them to have explained the

circumstances in terms of Section 106 of the

Indian Evidence Act.

17.4. Though the incident is stated to have

occurred at 10.30 a.m., the complaint was

only lodged by 7.15 p.m. by PW - 1, no

complaint was lodged by the accused who

was stated to be residing in the same house,

thus in terms of Section 8 illustration (i) of

the Indian Evidence Act, the conduct of the

accused indicates their complicity.

17.5. He relies upon the decision of the Apex Court

in the case of TRIMUKH MAROTI KIRKAN

VS. STATE OF MAHARASHTRA reported in CRL. A. No.100057/2018

2006 (10) SSC 681, more particularly,

paragraphs 12, 13, 14 and 15 thereof which

are reproduced hereunder for easy reference:

"12. In the case in hand there is no eye- witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride CRL. A. No.100057/2018

being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

CRL. A. No.100057/2018

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

were visiting the house where the deceased

expired and they have been convicted for the

offences punishable under Section 304-B IPC,

the said conviction is sustainable and it is not

that they never visited the house.

17.7. It is not essential that on some material

witness having turned hostile the proceedings

have to be dismissed, PW1, 9, 10, 11, 12, 23 CRL. A. No.100057/2018

and 24 have supported the case of the

prosecution.

17.8. The order of conviction as also sentence

having been passed on the basis of evidence

on record, the prosecution has proved its

case, the appeal is liable to be dismissed.

18. It is in the above background, that we have to

consider whether the judgment of conviction and

order of sentence passed by the trial Court is

proper or not. For this purpose, we would be

required to reappreciate the evidence on record in

relation to the above aspect.

19. PW - 1, the uncle of the deceased has deposed as

the death of the mother of the deceased, of the

father of the deceased living a wayward life, about

the marriage of the deceased with accused No.1

and at that time of marriage having given the CRL. A. No.100057/2018

accused No.1 one thola of gold, Rs.15,000/- in

cash, apart from other items for the benefit of

accused No.1. The deceased having gone to the

house of the 1st accused to lead her matrimonial

life, of the accused having taken care of the

deceased properly for period of 1 month, of

accused Nos.1, 2, 3 and 4 residing in the same

house, after a period of one month accused No.1

started pressurizing the deceased to go to her

maternal home and to get Rs.20,000/- cash from

her maternal home which was informed by the

deceased to PW -1 over phone as also whenever

she visited her maternal home. He has also stated

of how the deceased was apprehensive of going

back to her matrimonial home and of her crying at

the time of going back stating that the accused

would harass her on her return. He has also

spoken of himself and PW - 9 having visited the CRL. A. No.100057/2018

matrimonial house of the deceased, of having

spoken with the accused and requesting them to

take care of the deceased by referring to her as his

daughter, despite which the demands for monies

kept persisting. On CW - 7, brother of the

deceased being involved in an accident and

suffering injuries, the deceased had come to visit

her brother. Within 4 days thereafter, accused Nos.

1 and 2 over phone requested PW - 1 to send her

back to the matrimonial home. Even at this time,

the deceased was apprehensive of going back to

her matrimonial home again stating that the

accused would harass her. Hence, PW - 1 along

with his wife had accompanied the deceased and

left her at the matrimonial home and at that time,

had requested the accused to take care of her

properly and not to request for money every time

and he would give them money as and when CRL. A. No.100057/2018

available. He has deposed that on 06.05.2011

[wrongly mentioned as 05.06.2011 in the

deposition] at 11:30 a.m., the 1st accused had

called him and informed him that the deceased had

died in a fire accident. Hence, PW - 1 along with

his family members including his wife went to the

house of the deceased when they did not find any

of the accused in the house, they saw the body of

the deceased in the bathroom, they realised that

kerosene had been poured on her body and she

was set on fire. Thereafter, he had lodged a

complaint. He has deposed about how the police

came to the spot, conducted the spot panchnama,

how the inquest was held etc.,

20. During the course of cross-examination, he has

denied the suggestion that the father of the

deceased CW - 6 was intentionally avoided so that

the truth does not come out. He has stated that CRL. A. No.100057/2018

when he had visited the spot neither the police nor

any other person were there. Though he stated

that he enquired from the neighbours he was

unable to state as to from whom he made the

enquiry. He has denied that the deceased has set

herself on fire due to depression. He has further

denied that the complaint was filed to grab money

from the accused.

21. PW - 2 who is a witness to the panchnama of the

body has supported the case of the prosecution.

22. PW - 3 has denied any knowledge of the incident

and he was treated as hostile witness. When cross

examined by the Public Prosecutor nothing much to

support the case of the prosecution was elicited.

23. PW - 4 has deposed that he knows all the accused

and the deceased and that all of them were

residing together but however has denied any CRL. A. No.100057/2018

knowledge of the case. He was treated as a hostile

witness. When cross-examined by the Public

Prosecutor nothing much to support the case of the

prosecution was elicited during the course of cross-

examination.

24. PW - 5 has also deposed that he knew accused

except accused No. 4, deceased was the wife of

the 1st accused and that all the accused were

residing together. Thereafter, he has denied any

knowledge of the case and he was treated as a

hostile witness. When cross-examined by the

Public Prosecutor nothing much to support the case

of the prosecution was elicited during the course of

cross examination.

25. PW - 6 has stated that he knows all the accused.

He has confirmed that the deceased was the wife

of 1st accused and the deceased and accused were CRL. A. No.100057/2018

residing together. He has also denied having

knowledge of the case and he was treated as a

hostile witness. When cross-examined by the

Public Prosecutor nothing much to support the case

of the prosecution was elicited during the course of

cross-examination.

26. PWs - 7 and 8 have stated that they know the

accused and that the deceased was married to

accused No.1 and all the accused were residing in

the same house. However, they have stated that

they know nothing about the case. Hence, they

were treated as hostile witnesses. When cross-

examined by the Public Prosecutor nothing much to

support the case of the prosecution was elicited

during the course of cross-examination.

27. PW - 9 has deposed that he knows the accused,

that the deceased was the wife of the 1st accused CRL. A. No.100057/2018

and they were all residing together, he has stated

that the mother of the deceased had expired 15

years ago, the father of the deceased was a

vagabond, that 11 months prior to the death of the

deceased, her marriage was performed with

accused No.1 in the house of accused and at the

time of marriage, utensils, cash, cot etc., were

demanded by the accused and given by the family

of the deceased. After the marriage, the deceased

was living in her matrimonial home, initially, for a

period of four months, she was looked after well,

thereafter the accused started demanding that the

deceased get money from her maternal home. He

has deposed that one month prior to her death,

she had come to the house of PW -1 and informed

that accused No.1 had demanded Rs.20,000/- to

start a business and that PW -1 made payment of

Rs.20,000/- to the accused through the deceased, CRL. A. No.100057/2018

at that time, PW -1 went to the house of the

deceased and requested the accused to take care

of the deceased properly, not to harass her and/or

demand for money. Within two days of the same,

the incident occurred and the 1st accused had

informed PW -1 of the deceased had committed

suicide. He has stated that when they went to the

house at 1 p.m., no one was there, they saw the

dead body of Yallamma and there was a kerosene

can and they saw the injury on the deceased. He

has denied the suggestion that because of the

attitude of the father of the deceased, the

deceased has committed suicide. He has also

denied the suggestion that since the mother of the

deceased had committed suicide from that time the

deceased was mentally disturbed and therefore,

she committed suicide. He has denied the

suggestion that no item was given as dowry to the CRL. A. No.100057/2018

accused. He has stated that when he reached the

house of the accused, the said house was closed

from the outside, he denied that when he reached

there, accused Nos. 1 and 2 were there, he denied

the suggestion that there was a demand made by

C.W.6 for payment of Rs.50,000/- as settlement,

failing which a complaint would be lodged. He

denied that the deceased had committed suicide.

28. PW - 10 has identified and confirmed that she

knows the accused. She has stated that PW -1 is

her husband, she has more or less reiterated what

PW -1 has stated. She denied that upon the death

of the mother of the deceased, the deceased was

mentally upset. She denied that no gold or jewelry

was given as dowry to the accused. She has stated

that accused No.2 - Shakuntala was running a Pan

Shop in front of the house of the accused and

there was a coin telephone facility in the said shop.

CRL. A. No.100057/2018

She denied that the deceased was not ill-treated

by the accused. She denied that the deceased has

committed suicide.

29. PW - 11 has identified the accused and has stated

that he knows them. He has reiterated more or

less what has been stated by PWs - 1 and 10. He

has stated that there were talks between two

families as regards the items to be given as dowry.

He has denied the suggestion that no item was

given. More or less similar suggestion that had

been put across to PWs - 1 and 10 were put to

him, which was denied by him.

30. PW - 12 has identified the accused and has stated

that he knows all the accused. He has stated that

he had participated in the talks of the

marriage between deceased and accused No.1 and

that he has attended the marriage. He has further CRL. A. No.100057/2018

stated that at the time of marriage, dowry of 15

grams of gold, cash of Rs.15,000/-, cot, utensils

were given to the accused. He has further stated

that when the deceased came to the village, she

had told him of the accused having ill treated her.

He has stated that on the date of the incident

when they visited the house, no accused were

present at the house, the front door of the house

was closed, he opened the door, found the burnt

dead body of the deceased lying in the bathroom.

31. PW - 13 is the Assistant Executive Engineer of PWD

who has prepared the sketch of the spot.

32. PW - 14 is the ASI who had arrested accused Nos.1

and 2 from Malagatti cross on 07.05.2011 which is

4 kms from the place of the incident.

33. PW - 15 is the SLAO, BUDA, who conducted the

inquest mahazar of the deceased as per Ex.P.4.

CRL. A. No.100057/2018

34. PW - 16, a Medical Officer who conducted the Post

Mortem on the deceased. He has stated that the

body was almost completely burnt, rigor mortis

was present all over the body, tongue was bitten

by jaws and partially outside and part of the

tongue was burnt. He has spoken of hyoid

fracture, he has deposed as regards the dead body

having more than 95% burn injuries, the burn

injuries were post-mortem in nature and

accordingly, he has given a final opinion as to the

cause of the death, mechanical asphyxia, secondly

throttling and that the larynx and trachea had no

carbon particles on them. During the course of

cross-examination, he has admitted that the

Government Hospital at Ramdurg is well equipped,

all the records of the day-to-day transactions are

maintained. He has stated during the course of

cross-examination, that Rigor Mortis appears after CRL. A. No.100057/2018

a lapse of 24 to 30 hours. Though there were

several other questions and suggestions put

across, the witness has stood the test of cross-

examination.

35. PW - 16 who was recalled after the alteration of

the charges and cross-examined, denied that the

postmortem report is without any basis. He has

also denied that the deceased died due to suicidal

burn injuries. Nothing much was elicited during the

course of his cross-examination by the accused.

36. PW - 17, is the Head Constable of Ramdurg police

station. He is the Head Constable who had

searched for the absconding accused Nos.3, 4 and

5, but they were not found.

37. PW - 18 is the women Head Constable of Kalkod

police station who had received the body of the

deceased after the inquest was carried out and she CRL. A. No.100057/2018

shifted the body to the Government Hospital,

Ramdurg, for post-mortem. After the post-mortem

was conducted, she received the body which was

delivered to PW -1. Nothing much was elicited

during the course of cross-examination to

controvert the case of the prosecution.

38. PW -19 is the Scientific Officer at FSL who had

conducted the examination on partly burnt and

melted saree and the 5 litres capacity plastic can,

has opined that the burnt saree had kerosene

residue. Nothing much was elicited during the

course of cross-examination and has supported the

case of the prosecution.

39. PW - 20 is the Constable who carried the FIR to the

Magistrate.

40. PW - 21 is a Constable who carried the material

objects to FSL, Bengaluru.

CRL. A. No.100057/2018

41. PW - 22 is the Constable who was tasked with

finding absconding accused Nos.3, 4 and 5 but was

unable to find them.

42. PW - 23 has deposed that he knows PW-1 and the

family members. He has deposed as regards the

marriage of the deceased and accused No.1 having

performed in the house of the accused where he

acted as an elder. At the time of marriage, a sum

of Rs.15,000/- and 1 ½ tholas of gold and

household articles were given as dowry by PW -1

to accused No.1. 3 - 4 months after the marriage,

the deceased had informed him that accused were

demanding more dowry. He has stated about PW -

1 and 7 having gone to the house of the accused

and had made payment of Rs.20,000/- as per the

dowry demanded; him having accompanied PW -1

and others to advise the accused to take care of

the deceased properly, he had seen the dead body CRL. A. No.100057/2018

of the deceased Nirmala in the bathroom with burn

injuries and her tongue protruding outside the

mouth, that when he visited the house of

the accused after the death of the deceased, the

doors were open and people were going inside to

see the dead body. He has stated that the accused

were not present.

43. PW - 24 accompanied PW - 1 to the house of the

accused upon coming to know of the death of the

accused. He has stated that he has seen the burnt

body of the deceased lying in the bathroom and

her tongue was protruding from her mouth.

44. PW - 25 Head Constable of Ramadurga Police

Station received the complaint lodged by PW -1

and registered the same in Cr.No.93/2011 and

submitted the FIR. He has stated about having

gone to the house of the accused after the CRL. A. No.100057/2018

complaint, when he reached the spot, there was an

electric bulb burning apart from that nothing was

elicited.

45. PW - 26 is the Deputy Superintendent of Police,

Bailahongal, during the relevant time, had taken

up further investigation. He had sent the

requisition to the Tahsildar etc., Nothing much was

elicited from him and all the suggestions were

denied.

46. Having gone through the evidence of all the

witnesses and the exhibits which have been

marked and extracted hereinabove, it is clear that

the deceased was married to accused No.1,

accused No.2 was the mother of accused No. 1,

accused No.3 was the father, accused No.4 was

the brother and accused No.5 was the sister of the

accused No.1. Accused No.1 is stated to have CRL. A. No.100057/2018

expired during the pendency of the proceedings

and as such the proceedings have abated against

him.

47. The marriage having occurred on 03.06.2010 and

the death of the deceased having occurred on

06.05.2011 is not in dispute. Section 113-B of the

Indian Evidence Act would get attracted to the

present fact situation. Section 113-B reads as

under:

"113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation - For the purposes of this Section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).]"

CRL. A. No.100057/2018

48. It is clear from the evidence of PW -1 that there

was a demand for dowry and the said demand had

been paid as also that the deceased had been

harassed by the accused by further demanding for

monies and gold.

49. The contention of the accused during the course of

cross-examination as also in the present appeal is

that there is no evidence as such produced to

establish a demand for dowry. We are of the

considered opinion that such a demand is never

made in a written format. The demand for dowry

being oral, various witnesses like PW1, PW9,

PW10, PW11, PW12, PW23 and PW24 having

deposed thereto, the said demand as also payment

thereof has been established, it is further

established that further demands had been made

for money which was paid and just before the CRL. A. No.100057/2018

death of the deceased a further demand had been

made which was not paid in full.

50. The other contention is as regards the deceased

having committed suicide by setting herself on fire,

the medical evidence in this regard would establish

that the tongue of the deceased was protruding

and was burnt. The postmortem report and the

doctor conducting the post-mortem has

categorically stated that the burn injuries are

postmortem i.e., after the death of the person. He

has stated that the trachea and larynx are clear.

51. In the event of a person getting burnt when alive,

the tongue of the person cannot be outside for

such a period of time for it to get burnt. If a

person gets burnt when alive, he or she would be

breathing, taking in carbon particles and the

trachea and larynx would never be clear. The CRL. A. No.100057/2018

doctor having deposed that burn injuries are

postmortem, that would mean that the deceased

was dead at the time when she was burnt, the

death having been caused due to asphyxia and

there being marks on her throat, the doctor has

stated that the death has occurred due to

asphyxia, it is clear that the deceased had been

throttled causing her death at which time her

tongue protruded from her jaw. It is only

thereafter has been burnt, thus burning the

tongue.

52. In such circumstances it cannot be that the

deceased has committed suicide, the death has

occurred before the burning hence, it is clear that

the body was burnt so as to destroy the evidence.

53. These events having occurred within the confines

of the house of the accused at the time when PW -

CRL. A. No.100057/2018

1 visited the house none of the accused were

present and the door was closed from outside.

54. From the above, it is clear that the deceased could

not have set herself on fire since by that time she

was already dead and her body was set on fire only

after her death.

55. In the circumstances, it is but required for the

accused to have explained the circumstances in

view of Section 106 of the Indian Evidence Act. No

such explanation had been given except in the

cross-examination to suggest that the deceased

had committed suicide on account of her father not

caring for her and being disturbed by the death of

her mother nearly 15 years ago.

56. There being a presumption as regards the guilt of

the accused and/or the involvement of the accused

and the same having not been rebutted, the facts CRL. A. No.100057/2018

and the evidence on record indicating that the

deceased had died due to throttling and her body

burnt later, the accused being absent from the

spot, absconding, the circumstances and evidence

on record indicate that the accused are connected

with and/or have committed the murder of the

deceased.

57. PW - 26 has also deposed that during the course of

the investigation, he came to know of a financial

crisis in the house of the accused and it is for that

reason that demand of Rs.20,000/- was made. Ill-

treatment of the deceased at the hands of the

accused has been established by the evidence of

PWs -1, 9 to 12, 16, 19, 23 and 24.

58. The decision of the Apex Court in TRIMUKH

MAROTI KIRKAN's (Supra) case as referred to

by the learned Additional SPP is squarely applicable CRL. A. No.100057/2018

to the facts of this case, the relevant portion

having been extracted herein above.

59. Though Shri Deyannavar, learned counsel for the

appellants has contended that accused No.3 was

working in Bagalkot and accused No.5 was married

and residing in Bijapur. The same would have been

relevant only if they had been convicted for

offences punishable under Section 302 of IPC. It is

only accused No.2 who has been convicted for the

offences punishable under Section 302, 201 read

with section 34 IPC.

60. Accused Nos.2, 3 and 5 have been convicted for

offences punishable under Sections 143, 147, 304-

B, 498-A of IPC and Section 304 of the Dowry

Prohibition Act further read with Section 149 of

IPC. For these provisions to be attracted, it is not

required that accused No.3 and 5 to be present in CRL. A. No.100057/2018

person at the house. The evidence on record

categorically and unimpeachably establishes that

accused Nos.3 and 5 were from time to time

visiting the house at Ramdurg, accused Nos. 3 and

5 had also demanded dowry/money and they had

been harassing the deceased.

61. The chain of events having been established as

regards the marriage, death, death being homicidal

in nature, there is a demand for dowry, the

accused had gone missing from the house, not

having rebutted the presumption under Section

113B of the Indian Evidence Act, not having

deposed as regards the special knowledge in terms

of Section 106 of Indian Evidence Act, we are of

the considered opinion that the trial Court has

properly appreciated the facts and there would be

no requirement for this Court to intercede in the

matter.

CRL. A. No.100057/2018

62. Upon re-appreciation of all evidence on record, we

are of the considered opinion that no grounds are

made out for us to interfere with the judgement of

the Trial Court. Hence we pass the following

Order

The Appeal is dismissed.

(Sd/-) JUDGE

(Sd/-) JUDGE

Jm/-