Karnataka High Court
State Of Karnataka vs Sri.B.V.Prasanna Kumar on 27 January, 2022
Bench: K.Somashekar, P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1234/2016
BETWEEN:
STATE OF KARNATAKA
BY KOLAR RURAL POLICE STATION,
KOLAR.
REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
... APPELLANT
(BY SMT. K.P.YASHODHA, HCGP)
AND:
1. SRI.B.V.PRASANNA KUMAR,
S/O VENKATESH REDDY,
AGED ABOUT 29 YEARS,
R/O BALAGERE VILLAGE,
SUGATUR HOBLI,
KOLAR TALUK-563 101.
2. SRI VENKATESH REDDY
S/O LATE NARAYANAPPA,
AGED ABOUT 59 YEARS,
R/O BALAGERE VILLAGE,
SUGATUR HOBLI,
KOLAR TALUK-563 101.
3. SRI VENKATARATHNAMMA
W/O VENKATESH REDDY,
2
AGED ABOUT 56 YEARS,
R/O BALAGERE VILLAGE,
SUGATUR HOBLI,
KOLAR TALUK-563 101.
... RESPONDENTS
(BY SRI. SRINATHA B.V., ADV., FOR
SRI. M.R. NANJUNDA GOWDA., ADV., AND
SRI. R.V. SHIVANANDA REDDY., ADV., FOR R1-R3)
-------
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED
28.09.2015 PASSED BY THE II ADDL. S.J., KOLAR IN S.C.NO.177/2011
- ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 498A, 304B, 306 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, P.N.DESAI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal lays challenge to the judgment of acquittal
passed by learned II Addl. District and Sessions Judge, Kolar in
S.C.No.177/2011 dated 28th September 2015, whereunder
accused Nos.1 to 3 are acquitted for the offences punishable
under sections 498A, 304B and 306 r/w 34 of Indian Penal Code,
1860 (hereinafter referred as 'IPC' for short).
2. The brief facts of the case are as under:-
The marriage of one Kavitha who is deceased in this case
took place with one Raju, S/o. Muniyappa on 02.08.2009. After
eight days of the marriage, said Kavitha disappeared. Then the
family members of Kavitha came to know that said Kavitha was
in love with one Prasannakumar, S/o. Venkatesh Reddy of
Belagere village, Kolar, who is accused No.1 in this case and she
remarried Prasannakumar. It is further contended that the elders
of Kolar Town held panchayath before Kolar Town Police and in
the presence of elders and by consent, her marriage with
Prasannakumar was permitted and her earlier marriage with one
Raju was cancelled in the court of law. Accordingly, both accused
No.1 Prasannakumar and Kavitha started residing together at
Beligere village, Kolar Taluk. It is allegation of the prosecution
that accused Nos.2 and 3 who are the father and mother of
accused No.1 were causing harassment to deceased Kavitha and
were insisting her to bring money from her parents' house as
they have made lot of loan. Accordingly, the accused caused
both physical and mental cruelty on her. In the mean-while,
deceased Kavitha became pregnant and she gave birth to a male
child. Even after birth of the child, ill-treatment and harassment
continued. Deceased Kavitha informed the same to her parents
and also to her relatives. She also informed her mother that
accused tried to take away her life.
3. As deceased Kavitha could not bear the mental
cruelty and harassment meted out to her by the accused to bring
dowry and other property documents, on 05.07.2011, in the
afternoon, she committed suicide by hanging. In this regard,
Narayan Swamy-PW-11 lodged a complaint with the police as per
Ex-P8. Said complaint was received by PW-19 P.N. Ganesh and
he registered the case in Cr.No.253/2011 for the offences
punishable under sections 498A, 304B of I.P.C, sections 3 and 4
of Dowry Prohibition Act, 1961(for short hereinafter referred as
'D.P. Act') and accordingly sent the FIR Ex-P15 to the court, copy
of FIR to his higher officers and handed over further investigation
to Dy.S.P. H.P. Rajanna-PW-20. Dy.S.P PW-20 verified the
investigation done so far. Then he visited the place of offence
and sent requisition to the Tahasildhar, Kolar for conducting
inquest mahazar. Then he sent the deadbody of Kavitha to SNR
Hospital, Kolar for conducting post-mortem. He also drew place
of offence panchanama as per Ex-P5. He also conducted place of
panchanama where the deceased committed suicide and also
seized the material objects such as M.O.1 rope and M.O.2 plastic
rope at the time of the mahazar. He also recorded the statement
of the witnesses. On the same day, accused No.1 was arrested
and was produced before him. Then he recorded further
statement of the witnesses, collected inquest report and also the
post-mortem report. PW-20 secured the sketch of scene of
offence place from PWD Department and also collected the house
property extract from Panchayat Development Office, as per
Exs-P11 and P12 in respect of house of the accused. Then, he
secured the opinion of the Doctor from SNR Hospital as per
Ex-P10 and after completing the investigation, filed the charge
sheet against the accused for the offences stated above.
4. Learned Magistrate after complying the provisions of
sections 207 and 208 of Code of Criminal Procedure, (for short
hereinafter referred to as 'Cr.P.C.') committed the case to the
sessions Court under section 209 Cr.P.C. Learned Sessions Judge
framed the charges after hearing the prosecution and the
accused and posted the case for evidence.
5. On behalf of the prosecution, 21 witnesses were
examined as PWs-1 to 21 and got marked 17 documents as
Ex-P1 to P17. Ex-D1 statement of PW-6 was also got marked
during cross-examination by the accused, the prosecution got
identified two material objects as M.O.1 and M.O.2. Thereafter,
statement of the accused as required under section 313 (1) (b)
Cr.P.C. was recorded. The accused totally denied the
circumstances appearing against them in the evidence of the
prosecution witnesses. After hearing the arguments, the learned
sessions judge acquitted the accused which is under challenge in
this appeal by the state.
6. We have heard Smt. K.P. Yashoda, learned HCGP for
appellant-State and Sri. Srinatha. B.V., representing Sri. M.R.
Nanjunda Gowda, learned counsel and Sri. R.V. Shivananda
Reddy, learned counsel for respondent Nos.1 to 3.
7. It is argued by learned HCGP that the impugned
judgment and order of acquittal passed by the trial court is
contrary to law and evidence on record. Therefore, the same is
liable to be set-aside. Learned HCGP further argued that the trial
court ought to have appreciated the evidence and relating
circumstances appearing against the accused which have been
the chain of circumstances leading to an inference that accused
No.1 alongwith other accused subjected the deceased to cruelty
for bringing dowry and loan documents. Learned HCGP further
argued that the trial court has not properly appreciated the
evidence of PWs-10, PW-11 and PW-12 who are the father and
other close relatives. Learned HCGP submitted that wrong
appreciation of evidence by the trial court has resulted in
substantial miscarriage of justice and prays to set-aside the
judgment of acquittal and convict the accused as per law.
8. Against this, learned counsel Sri. Srinatha B.V., for the
respondents/accused argued that the prosecution witnesses have
not supported the charge levelled against the accused. The
evidence of the prosecution witnesses shows that the accused
are not responsible for the death or the suicide of deceased
Kavitha. It is self-act of deceased Kavitha herself which has
resulted in her death. Learned counsel further argued that the
trial court has rightly considered the evidence and properly
appreciated the evidence in proper perspective and has come to
the conclusion that the prosecution has failed to prove the guilt
of the accused beyond all reasonable doubt and by giving benefit
of doubt has rightly acquitted the accused. Learned counsel
further argued that this appeal is against judgment of acquittal
and the appellate court will be slow in interfering with the
judgment of acquittal, unless trial court judgment is perverse,
capricious or illegal and not based on sound principles relating to
appreciation of evidence. Therefore, learned counsel argued that
the appeal deserves to be dismissed.
9. We have perused the appeal memo, judgment of the
trial court and also evidence on record.
10. The learned sessions judge has raised three points for
determination and has referred to the evidence of the witnesses
one by one and has held that the evidence does not disclose that
the death of deceased Kavitha is due to cruelty or harassment
caused either by accused No.1 or by his family members.
Learned sessions judge has considered both oral and
documentary evidence and has came to the conclusion that
absolutely there is no evidence or grounds to hold that accused
have committed the offences as alleged. There is no
corroboration in the evidence with reference to the charge
levelled against the accused. The sessions court has come to the
conclusion that the prosecution has failed to prove the guilt.
11. In order to attract the offences under Sections 498A,
306 and 304B I.P.C and Sections 113A, 113B of Indian Evidence
Act, 1872, it is essential that the prosecution has to prove the
ingredients of "cruelty" as defined under Section 498A IPC i.e.,
cruelty immediately prior to committing suicide or death and for
meeting unlawful demand of dowry or unlawful demand for any
property and valuable security. The death must have been
occurred with seven years of marriage, then only the
presumption under Section 113A and Section 113B of the
Evidence Act can be raised. In order to appreciate the essential
ingredients for proof of the said offences, it is necessary to refer
to these sections in Indian Penal Code, 1860 and Indian Evidence
Act, 1872 which reads as under:
Section 498A of IPC. Husband or relative
of husband of a woman subjecting her to
cruelty -Whoever, being the husband or the relative
of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also
be liable to fine.
Explanation. - For the purpose of this
section, "cruelty" means -
(a) any wilful conduct which is of such a nature as
is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b)harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful demand
for any property or valuable security or is on account
of failure by her or any person related to her to meet
such demand.]
Section 304B of IPC. Dowry death -
(1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her
marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in
connection with, any demand for dowry, such death
shall be called "dowry death", and such husband or
relative shall be deemed to have caused her death.
Explanation. - For the purpose of this sub-section,
"dowry" shall have the same meaning as in section 2
of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life.]
Section 306 of IPC. Abetment of suicide- If any
person commits suicide, whoever abets the
commission of such suicide, shall be punished with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine.
Section 113A of Indian Evidence Act.
Presumption as to abetment of suicide by a
married woman- When the question is whether the
commission of suicide by a woman had been abetted
by her husband or any relative of her husband and it
is shown that she had committed suicide within a
period of seven years from the date of her marriage
and that her husband or such relative of her husband
had subjected her to cruelty, the Court may
presume, having regard to all the other
circumstances of the case, that such suicide had
been abetted by her husband or by such relative of
her husband.
Explanation. - For the purposes of this section,
"cruelty" shall have the same meaning as in section
498A of the Indian Penal code (45 of 1860).]
Section 113B of Indian Evidence Act.
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 purpose of this section, "dowry
death" shall have the same meaning as in section
304B of the Indian Penal Code (45 of 1860).]
12. In the light of these sections, we have considered the
essential requirements for proof of offences under Sections
498A, 304B and 306 of IPC. The prosecution allegation is that
accused persons treated the deceased Kavitha with cruelty for
fulfillment of unlawful demand. Therefore, it is necessary for
prosecution to prove cruelty as defined under section 498A IPC
that deceased Kavitha was subjected to cruelty by the husband
or relative of husband and such cruelty consisted of either
harassment of the woman with a view to coerce her meeting a
demand for dowry, or (2) a wilful conduct by the husband or the
relative of her husband of such a nature as is likely to lead the
lady to commit suicide or to cause grave injury to her life may be
physical or mental. In order to attract the provisions of Sec.304-
B of IPC, prosecution has to prove that (a) the death of a woman
must have been caused by burns or bodily injury or otherwise
than under normal circumstances (b) such death must have
occurred within seven years of her marriage; (c) soon before her
death, the woman must have been subjected to cruelty or
harassment by her husband or by relatives of her husband;
(d) such cruelty or harassment must be for or in connection with
demand for dowry; and (v) such cruelty or harassment is shown
to have been meted out to the woman soon before her death. If
those ingredients are proved, the court has to presume that such
a person has caused dowry death.
13. Under section 306 of IPC, the prosecution has to prove
commission of suicide by deceased and that the accused have
abetted commission of such suicide. Section 107 of IPC defines
abetment. According to section 107 of IPC, there must be
instigation to commit an offence or engaging in a conspiracy to
commit it or intentionally aiding a person to commit it. Whether
there is any evidence to show that the married woman was
treated with cruelty which could fall within the ambit of Sec. 107
IPC, there must be mens rea or community of intention. Without
the knowledge or intention, there can be no abetment and the
knowledge and intention must relate to the crime and the
assistance must be something proximate and something more
than a mere passive acquiescence.
14. So, keeping in mind these principles and the
arguments advanced by both sides, we have re-appreciated the
evidence on record.
15. PW-1 Gopamma in her evidence has stated that she
came to know that deceased Kavitha committed suicide by
hanging herself in the house of her husband and except that, she
has not supported the case of the prosecution. Similarly, PW-2
Sonnamma has also stated that about one and half years before
she giving evidence, she came to know that deceased Kavitha
committed suicide by hanging herself. PW-3 Manjulamma has
given similar evidence. The prosecution has treated all these
three witnesses who are neighbourers as hostile witnesses and
cross-examined them at length, but nothing helpful to the
prosecution is elicited in their cross-examination. They have
clearly stated they have not given statement before the police as
per Ex-P1, Ex-P2 and Ex-P3 respectively.
16. PW-4 Nagarathnamma is the Aunt of deceased Kavitha.
She has stated that earlier the marriage of deceased Kavitha
took place with one Raju. After 10 days of the marriage, Kavitha
came out of her husband's house and married accused No.1
Prasannakumar at a temple. Thereafter, she was residing with
accused No.1. They were residing happily. After some days, she
came to know that deceased committed suicide by hanging
herself, but she does not know the reason as to why deceased
Kavitha committed suicide. The prosecution has treated this
witness also as hostile witness and cross-examined her at length,
but, nothing useful is elicited. She has stated that she has not
given statement before the police as per Ex-P4.
17. PW-5- Narahari is relative of deceased Kavitha. He
has also given similar evidence as that of PW-4 Nagarathnamma.
He has stated that he came to know through phone of CW-3
Rajesh that deceased Kavitha has committed suicide. PW-5 has
stated that CW-2 has informed him that accused were asking her
to bring dowry and documents relating to the land. He has stated
that though no mahazar was conducted in his presence, he has
identified his signature at Ex-P5(a) and Ex-P6(a) mahazar. The
prosecution has treated this witness as hostile witness and cross-
examined him on recovery of M.O.1 and M.O.2 and panchanama,
but he has not supported the case of the prosecution. In the
cross-examination by the counsel for the accused also, he has
stated that after marriage of deceased Kavitha with accused
No.1, for about six months, they were not in contact with
deceased Kavitha. He has also stated that accused are having
properties and sufficient income. This witness is a hearsay
witness and his evidence will not help the prosecution in any way
to prove the case.
18. PW-6 Susheelamma is Aunt of deceased Kavitha. She
has stated that after marriage of deceased Kavitha with one
Raju, Kavitha ran away with accused No.1. She came to know
that she married accused No.1-Prasannakumar at Chowdeshwari
temple. She has stated that Kavitha informed her over phone
that accused were harassing her to bring documents of her land.
In the cross-examination, she has stated that she has not given
statement before the police as per Ex-D1. Her evidence is vague
and general without any particulars about nature of cruelty or
particulars of cruelty and harassment. Her evidence will not help
the prosecution to prove the guilt.
19. PW-7 Ravindra Prakash and PW-8 Suresh are witnesses
for seizure panchanama Ex-P6. They have not supported the
prosecution and nothing is elicited in their cross-examination by
the prosecution after treating them as hostile witnesses.
20. PW-9- Yelachamma is the witness for inquest
panchanama. She has stated about signing inquest as per Ex-P7,
but she has clearly stated that she does not know what is written
by the police in inquest mahazar Ex-P7.
21. PW-10 Sarojamma is the mother of deceased Kavitha.
In her evidence, she has stated about deceased Kavitha's
marriage with one Raju of Cheluvinahalli village. Then after
sometime, she came to know that deceased Kavitha ran away
from her matrimonial home and married Prasannakumar-accused
No.1 and Kavitha is residing in the house of accused No.1. She
has further stated that the accused were insisting deceased
Kavitha to bring property documents in respect of their land.
Accused intended to take loan on the said land as they had
borrowed loan of Rs.20.00 lakhs from others. This evidence has
no basis at all. Absolutely there is no material to show whether
the accused have borrowed Rs.20.00 lakhs as loan and from
whom they have borrowed the loan and whether these accused
are having any loan itself is not proved. Absolutely no iota of
evidence is placed before the Court to show the same. Therefore,
such vague and general evidence will not help the prosecution.
She has further stated that when she was in Bengaluru, she
came to know about deceased Kavitha committing suicide. In the
cross-examination, she has admitted that both accused and
herself belong to the same village. She has also stated that after
deceased has left the house, they met her after three months.
Due to insult to them in the village, they left the village and
started to reside at Bengaluru. It appears that this witness was
not in contact with deceased Kavitha as she ran away from their
house. Her evidence does not give any particulars or instances of
cruelty. Simply stating that accused were asking deceased
Kavitha to bring property documents belonging to her will not
help the prosecution to show that there was any dowry
harassment or cruelty by the accused. There is no physical
cruelty as alleged or stated by this witness. So her evidence will
not help the prosecution in any way.
22. PW-12 Anitha is the elder sister of deceased Kavitha.
She has also stated that after marrying Raju, deceased Kavitha
ran away with accused No.1. Thereafter, her father gave a
complaint. Later she came to know that both accused No.1 and
deceased Kavitha have married. Her evidence shows that she is
not having contact with deceased Kavitha nor deceased has
informed PW-12 about her marriage with accused No.1. PW-12
has also given vague evidence that accused were asking her to
bring Rs.20.00 lakhs which is not the case of the prosecution. No
particulars as to when such demand was made or as to how she
came to know about the demand is not stated. She has stated
that this was informed to her by her mother. It is evident this
witness was not in contact with deceased Kavitha as she left
their house after marrying Raju. Her evidence has no merit at all.
23. PW-11 Narayanaswamy is the father of deceased
Kavitha. He has deposed in his evidence that deceased Kavitha
after one week of marrying Raju, ran away from her house. She
did not return even after one week. He searched for her and then
he lodged the complaint in this regard. Subsequently, he came to
know that deceased Kavitha married accused No.1 and they were
living happily for a period of one year. A male child was also born
from the marriage of Kavitha and accused No.1. PW-11 has
simply stated that accused were insisting deceased Kavitha to
bring dowry, so she committed suicide. Hence, he lodged the
complaint. His evidence is totally contradictory and inconsistent
with the evidence of other witnesses and also charge levelled by
the prosecution. When he was not in talking terms with the
deceased, then how he came to know that accused were insisting
her to bring dowry is not known. This witness was treated
partially hostile by the prosecution regarding seizure of M.O.1.
His cross-examination reveals that he came to know through
somebody that accused No.1 married Kavitha. He has also
admitted that he has lodged the complaint stating that accused
have kidnapped his daughter but the police did not take any
action. That deceased Kavitha and accused No.1 came to their
village after three months, then they left for Bengaluru. Even he
has stated that after marriage with accused No.1, deceased
Kavitha visited his house and they were living happily. He does
not know what is written in the complaint. Therefore, his
evidence will not help the prosecution to prove any of the
ingredients of either "cruelty" or dowry harassment demand by
accused.
24. PW.13 - Dr. Mehaboob Shariff has conducted the
post-mortem over the deadbody of deceased Kavitha. In his
evidence, he has stated that there was a ligature mark on the
neck of deceased Kavitha. The death of the deceased occurred
due to asphyxia as a result of hanging. PW.13 has given the
post-mortem report as per Ex.P9. As requested by police, he
has given opinion about the death of deceased as per Ex.P10.
Of-course, it is not disputed that deceased Kavitha died by
committing suicide by hanging herself with the help of a rope.
25. PW.14 - Vinod is the Panchayath Development
Officer who has stated about producing the Khatha Extract and
Demand Register Extract of house of accused No.2 as per
Exs.P11 and P12.
26. PW.15-Chowdareddy and PW.16-Venkateshreddy are
the witnesses for inquest mahazar. Both of them have not
supported the case of the prosecution.
27. PW.17 - Sonappa and PW.18 - J.N.Harish have only
signed the inquest mahazar/Ex.P7 and their signatures were
marked as Exs.P7(b) and Ex.P7(c) respectively.
28. PW.19 - P.N.Ganesha/PSI stated about registering
the FIR - Ex.P15 and sending the same to the Court.
29. PW.20 - H.P.Rajanna, Dy.SP has conducted part of
the investigation and recorded the statement of witnesses.
PW.20 has stated that PWs.1, 2, 3 and 4 have given their
statements before him as per Exs.P1 to P4. In the cross-
examination, PW.20 admitted that one Mr. Naveen wrote the
complaint-Ex.P8, but he was not cited as a witness.
30. PW.21 - Dr. B.R.Dayananda is the Tahsildar, Kolar
who conducted the inquest over the dead body of deceased
Kavitha and drew the inquest mahazar as per Ex.P7.
31. Therefore, on perusing the entire evidence of
prosecution, it is evident that earlier the marriage of deceased -
Kavitha was performed with one Raju. It is stated by the
witnesses that the deceased was in love with accused No.1 -
Prasannakumar. Immediately after eight days of the marriage of
deceased Kavitha with Raju, she voluntarily left the house of said
Raju without informing either her husband, in-laws or her
parents. In fact, the father of deceased Kavitha lodged a
missing complaint to the police in this regard. Subsequently,
deceased - Kavitha married accused No.1/Prasannakumar. It is
also evident that unable to bear the humiliation and insult meted
out by the villagers in this regard to the parents of deceased -
Kavitha, they left the said village and started residing in
Bengaluru. Therefore, after the deceased had married accused
No.1, she had no association with her parents. Deceased Kavitha
and her parents were not in talking terms. When she herself left
the house of her husband - Raju and voluntarily married accused
No.1, the question of accused either demanding dowry or
harassing deceased Kavitha to bring amount or document
regarding property does not arise. They have no reason to insist
deceased Kavitha to bring property documents to obtain loan. No
evidence is placed to show any property either in the name of
deceased Kavitha or in the name of her parents. On the other
hand, it is in the evidence that accused are having properties and
they are well settled in life. In the absence of any proof
regarding deceased Kavitha having any property, simply stating
that accused were insisting deceased - Kavitha to bring the
amount and to bring the document relating to her properties or
bring a sum of Rs.20,00,000/- from her parents' house will not
help the prosecution to show that the accused have committed
the offence of cruelty as defined under Section 498A of IPC or
offence under the provisions of 306 and 304B I.P.C.
32. Admittedly, deceased - Kavitha committed suicide by
hanging herself. It is the defence of the accused that as the
parents of deceased Kavitha left the village, due to the
humiliation by villagers, deceased Kavitha in that depression
herself committed suicide.
33. There is no evidence either oral or documentary
produced to show the particulars of harassment and nature of
cruelty caused to deceased - Kavitha. The entire evidence of
prosecution witnesses is vague and general one. There is no
corroboration in the evidence of witnesses examined on behalf of
prosecution with the charge leveled against the accused. On the
other hand, their evidence is inconsistent and contradictory with
the material particulars. The neighbours of the accused have not
supported the prosecution. They have not stated anything about
ill-treatment or harassment by the accused. As the relationship
of deceased Kavitha and her parents was not cordial and when
they were not in talking terms, the question of deceased Kavitha
informing her parents about any demand of dowry, harassment
or cruelty by accused does not arise. Absolutely, there is no
legally admissible evidence to show that the accused were
coercing deceased Kavitha to meet their unlawful demand to get
the property from her parents' house or to bring money.
Admittedly, both accused and deceased Kavitha lived happily
after the marriage as evident from the evidence of father of
deceased Kavitha. From their marriage, they also got a child. It
is stated by learned counsel for the respondent that the child is
with accused No.1/Prasannakumar only and he is taking care of
the child and looking after the child. It is also stated that he has
not married any women for the second time after the death of
deceased - Kavitha.
34. Therefore, on perusal of ingredients of Section
498A IPC, which deals with cruelty by husband or relative, it is
evident that absolutely the prosecution has failed to prove that
the accused subjected deceased Kavitha to cruelty or caused any
harassment with a view to coerce her to meet their any unlawful
demand. Further the ingredients of Section 306 IPC is also not
attracted as absolutely there is no evidence to show that accused
have either caused cruelty or harassment so as to drive her to
commit suicide. Though, the legal presumption is available that
the death of deceased Kavitha occurred within seven years from
the date of her marriage in the matrimonial house, but the
allegations of cruelty or harassment are not at all proved. There
is no evidence to show that accused have harassed deceased
Kavitha or subjected her to cruelty in connection with demand of
dowry by husband or his relatives.
35. It is settled principle of law that initial burden of
proof is always on the prosecution. The prosecution has to prove
that there was cruelty and harassment in connection with
demand of dowry soon before the death of the deceased. The
demand of dowry should be as defined under Section 2 of Dowry
Prohibition Act. Ofcourse, the question of demand of dowry
before marriage or after marriage does not arise, as both
accused and deceased Kavitha were in love and the deceased -
Kavitha voluntarily agreed to marry accused No.1. Therefore, the
question of any harassment or causing of cruelty to deceased
Kavitha by accused No.1 in demand of dowry after their marriage
does not arise. So simply giving vague and general evidence
that the accused insisted deceased Kavitha to bring documents
relating to property and a sum of Rs.20.00 lakh to meet their
unlawful demand will not help the prosecution.
36. If the oral and documentary evidence placed before the
court is perused, it is evident that there is no proximity or
connection between the death of deceased Kavitha and the
allegations made by the prosecution against the accused. There
is neither oral evidence nor circumstantial evidence to show that
the accused have committed the offence as alleged. Simply
because the death of deceased Kavitha occurred within seven
years from the date of her marriage, is not a ground to presume
that it is the accused who are responsible for death of deceased
Kavitha.
37. On the other hand, it is evident that the evidence of
the prosecution witnesses suffers from improbabilities,
inconsistencies and contradictions about material particulars. It
is settled principle of law that the prosecution has to prove its
case beyond all reasonable doubt. There is lot of difference
between 'may be true' and 'must be true'. If from the evidence
of the prosecution, two views are possible, then the view
favorable to the accused will have to be accepted. If the
evidence of prosecution witnesses creates a doubt in the mind of
court, the benefit of doubt should be given to the accused.
38. As discussed above, learned sessions judge has given
elaborate reasons and arrived at a finding of acquittal of the
accused.
39. The Hon'ble Supreme Court while dealing with the
power of the appellate court in interfering with the judgment of
acquittal held that unless the judgment of trial court is perverse,
illegal and not based on sound principles regarding appreciation
of evidence, the appellate court shall not interfere in the
judgment of acquittal. Because the judgment of acquittal gives
double presumption of innocence to the accused.
40. In this regard, the Hon'ble Supreme Court has laid
down the general principles regarding interference, the power of
the appellate Court in an appeal against judgment of acquittal by
the trial court.
41. The Hon'ble Supreme Court in a decision in the case
of Sampat Babso Kale and Another v. State of
Maharashtra [(2019) 4 SCC 739], at para-8 has held thus:
"8. With regard to the powers of an appellate
court in an appeal against acquittal, the law is well
established that the presumption of innocence which
is attached to every accused person gets
strengthened when such an accused is acquitted
by the trial court and the High Court should not
lightly interfere with the decision of the trial court
which has recorded the evidence and observed the
demeanour of witnesses. This Court in the case
of Chandrappa & Ors. v. State of Karnataka
[(2007) 4 SCC 415], laid down the following
principles:-
"42. From the above decisions, in our
considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition
on exercise of such power and an
appellate court on the evidence before it may
reach its own conclusion, both on questions
of fact and of law.
(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very
strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are
not intended to curtail extensive powers of
an appellate court in an appeal against
acquittal. Such phraseologies are more in
the nature of "flourishes of language" to
emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail
the power of the court to review the evidence
and to come to its own conclusion.
(4) An appellate court, however, must
bear in mind that in case of acquittal, there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that every
person shall be presumed to be innocent
unless he is proved guilty by a
competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record,
the appellate court should not disturb the
finding of acquittal recorded by the trial
court."
42. In view of the principles stated by the Hon'ble
Supreme Court in the decisions referred above and on
re-assessing the entire evidence of prosecution witnesses, we
are of the considered opinion that the prosecution has failed to
prove the guilt of the accused beyond all reasonable doubt. The
learned sessions judge has considered the entire evidence
meticulously and has come to the conclusion that the prosecution
has failed to prove the guilt of the accused beyond all reasonable
doubt and acquitted the accused by giving benefit of doubt. We
find that the judgment of acquittal passed by the trial court is
neither illegal, perverse, erroneous nor the judgment has
resulted in miscarriage of justice. Absolutely, there are no
grounds to interfere in the judgment of acquittal. The appeal
being devoid of merits is liable to be dismissed. Accordingly, we
pass the following:
ORDER
1. The appeal filed by the State-appellant under section
378(1) and (3) Cr.P.C. stands dismissed.
2. Consequently, the judgment of acquittal dated
28.09.2015 passed by learned II Addl. District and
Sessions Judge, Kolar in S.C.No.177/2011 against
the respondents/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same
shall stand cancelled.
4. Office is directed to send back the records to the trial
court.
Sd/-
JUDGE
Sd/-
JUDGE
*mn/-HJ
