Karnataka High Court
H.N. Basavanneppa vs Santosh S/O Ramchandrappa ... on 24 August, 2023
Bench: Sreenivas Harish Kumar, Ramachandra D. Huddar
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CRL.A No. 100170 of 2017
C/W CRL.A No. 100078 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100170 OF 2017 (A-)
C/W
CRIMINAL APPEAL NO. 100078 OF 2018
IN CRL.A.No.100170/2017
BETWEEN:
H. N. BASAVANNEPPA S/O. NAGAPPA,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: CHITTUR, TQ: SORAB, DIST: SHIMOGGA.
...APPELLANT
[BY SRI. R. M. JAVED, ADVOCATE (AMICUS CURIAE)]
AND:
SAMREEN
AYUB
DESHNUR 1. SANTHOSH S/O. RAMCHANDRAPPA HALIYAL,
Digitally signed by
SAMREEN AYUB
AGE: 33 YEARS, OCC: SERVICE,
DESHNUR
Date: 2023.08.30
R/O: HEBBALLI BADAVANE, RAJIVNAGAR,
03:16:45 +0530
HUBBALLI.
2. RAMCHANDRAPPA S/O. HANMANTAPPA HALIYAL,
AGE: 61 YEARS,
OCC: RETIRED RAILWAY EMPLOYEE,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
3. MALLAMMA W/O. RAMCHANDRAPPA HALIYAL,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
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4. SHIVARAJ S/O. RAMCHANDRAPPA HALIYAL,
AGE: 30 YEARS, OCC: BUSINESS,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
5. THE STATE OF KARNATAKA,
R/BY WOMEN POLICE STATION,
HUBBALLI-DHARWAD, BY S.P.P,
HIGH COURT BENCH, AT: DHARWAD.
...RESPONDENTS
(BY SRI. K. M. SHIRALLI, ADV. FOR R1 TO R4,
SRI. M. B. GUNDWADE, ADDL. SPP FOR R5)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C., SEEKING THAT THE JUDGMENT OF ACQUITTAL
PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE
DHARWAD SITTING AT HUBLI IN S.C.NO. 117 OF 2012 DATED
21.01.2017 KINDLY BE SET ASIDE BY CONVICTING THE
ACCUSED / RESPONDENTS NO. 1 TO 4 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498(A), 323, 304(B), 302 READ
WITH SEC. 34 OF IPC AND UNDER SEC. 3 AND 4 OF D.P.ACT.
IN CRL. A.No.100078/2018
BETWEEN:
THE STATE OF KARNATAKA,
POLICE OF WOMAN POLICE STATION,
HUBBALLI-DHARWAD, REPRESENTED BY THE STATE
PUBLIC PROSECUTOR, HIGH COURT, DHARWAD.
...APPELLANT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
AND:
1. SANTHOSH S/O. RAMCHANDRAPPA HALIYAL,
AGE: 29 YEARS, OCC: R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
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2. RAMCHANDRAPPA S/O. HANMANTAPPA HALIYAL,
AGE: 57 YEARS, OCC: NOT KNOWN,
R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
3. MALLAMMA W/O. RAMCHANDRAPPA HALIYAL,
AGE: 49 YEARS, R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
4. SHIVARAJ S/O. RAMCHANDRAPPA HALIYAL,
AGE: 26 YEARS, R/O: HEBBALLI BADAVANE,
RAJIVNAGAR, HUBBALLI.
...RESPONDENTS
(BY SRI. K. M. SHIRALLI, ADV. FOR R1 TO R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO
APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 21.01.2017 PASSED BY THE V ADDL.
DISTRICT & SESSIONS JUDGE, DHARWAD, SITTING AT
HUBBALLI IN S.C.NO.117/2012 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498(A), 323, 304(B), 302 R/W SEC.34 OF
IPC AND SEC.3 & SEC.4 OF DOWRY PROHIBITION ACT.
THESE APPEALS, COMING ON FOR FINAL HEARING ON
07.08.2023 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The appellant/complainant has assailed the judgment of
acquittal dated 21.01.2017 in S.C.No.117/2012 passed by the
V Addl. District and Sessions Judge, Dharwad, sitting at
Hubballi, by filing Crl.A.No.100170/2017 seeking conviction for
the accused persons by setting aside the impugned judgment.
2. So also the State of Karnataka represented by Addl.
State Public Prosecutor has preferred Crl.A.No.100078/2018
with a prayer to convict the accused/respondents for the
offences punishable under Sections 498A, 323, 304B, 302 r/w
34 of IPC and Sections 3 and 4 of Dowry Prohibition Act (for
short 'the D.P.Act') by setting aside the impugned judgment so
passed by the same Court in S.C.No.117/2012 dated
21.01.2017.
3. Both these appeals arise out of a common
judgment. Therefore, they are clubbed together. Common
argument is heard and therefore, common judgment is passed.
FACTS OF THE CASE
4. That one H.N.Basavanneppa s/o Nagappa resident
of Chittur village, Soraba taluk, Shivamogga district, lodged a
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complaint on 25.01.2012 at 3.30 p.m. by appearing before the
SHO of Women police station, Dharwad, alleging that, he
performed the marriage of his daughter Suchitra with accused
No.1 on 22.08.2010 as per the rites and rituals prevailing in the
community by presenting dowry in cash to the extent of
Rs.5,00,000/-, gold ornaments weighing 270 grams and silver
articles weighing 2 kgs. He also has paid Rs.3,00,000/- as
advance towards dowry amount. He also gave Rs.67,000/-
towards purchase of clothes to the bridegroom. The said dowry
was decided by the elderly members. For two months after
marriage, the accused No.1 being the husband, accused Nos.2
and 3 in-laws and accused No.4 being the brother of accused
No.1 and son of accused Nos.2 and 3 looked after Suchitra well.
Thereafter, accused No.1, her husband started ill-treating
Suchitra. Accused Nos.2 to 4 also started ill-treating and
harassing the married women for one or the other reasons.
Even they together used to assault Suchitra and demand to
bring more dowry.
5. This fact was informed by Suchitra to him.
Therefore, complainant with elderly members of his village, by
name T.K.Dharmappa, Mallappa and K.B.Mallikarjunappa of
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Balligavi village and others came to Hubballi and requested not
to assault or harass his daughter. As there was a request by
accused No.1 that he wants to construct a house, therefore, to
that effect by way of additional dowry, Rs.2,00,000/- was given
by the complainant to accused No.1.
6. A specific allegation is made by the complainant
that on 25.01.2012 at about 7.30 a.m., in the morning his
daughter Suchitra called him over telephone and informed that
her husband, her in-laws and brother of her husband i.e.,
accused Nos.1 to 4 are harassing and ill-treating her.
Therefore, she requested the complainant to come and take her
back. But, the complainant informed that there is a jatra in
their village and thereafter he will come and take her and
requested her to adjust with the family. He also advised her.
7. When this was the state of affairs, the brother of
the complainant, H. Kariyappa at about 10 a.m. on that day,
called the complainant and informed that his daughter Suchitra
had hanged herself in the house of her husband and died. On
getting such information, complainant, his wife and his
relations like Nalamurthy, Revanappa and other relatives
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rushed to Hubballi to the house of accused No.1. They noticed
the dead body of Suchitra in the middle room of the house and
she was made to sleep on the floor. The strangulation was still
there. Thus, it is alleged that in between 7.30 a.m. and 10
a.m., these accused persons because of not bringing more
dowry harassed and assaulted her, and by using veil they had
killed her. With these allegations, a complaint came to be filed
which was registered in Cr.No.10/2012 of Women police station
and the criminal law was set in motion.
8. The Investigation Officer after performing the
formalities of the investigation and after completion of the
investigation, filed the charge-sheet against accused persons
for the offences punishable under Section 498A, 323, 304B and
302 r/w 34 IPC and Section 3 and 4 of the D. P. Act.
9. Before the Sessions Court to substantiate the case
of the prosecution, prosecution in all examined 11 witnesses
and got marked Ex.P.1 to P.24 with respective signatures
thereon and during the course of cross-examination, Ex.D.1 to
Ex.D.7 were got marked on behalf of the defence. At the time
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of recording evidence, the clothes being worn by the deceased
were marked as M.O.1 to M.O.5.
10. Having heard the arguments of both the side, the
learned trial Court found the accused not guilty of the aforesaid
offences and acquitted them.
11. It is argued by the learned counsel for the
complainant and the State that, there is no proper appreciation
of evidence by the trial Court. Though the complainant and
other witnesses have supported the case of the prosecution and
have given credit worthy evidence, but discarding such a good
and legal evidence, the learned trial Court has acquitted the
accused persons. It is submitted that these accused persons
being the husband and in-laws so also brother of accused No.1
respectively though looked after the deceased well for two
months, but thereafter they started harassing and ill-treating
her. They used to demand her to bring more dowry. Already,
the complainant had paid in all Rs.7,00,000/- by way of cash
towards dowry, 270 grams of gold ornaments and 2 kgs of
silver articles to perform the pooja. Being dissatisfied with the
said dowry, these accused persons by demanding more dowry
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have harassed, ill-treated a married woman and it compelled
her to inform her parents. There was advice by the
complainant and elderly members to treat the deceased well
but, accused Nos.1 to 4 on that ill-fated day strangulated and
killed her. Thus, it is submitted that the trial Court has not
appreciated the evidence judicially and as the death has taken
place within 7 years of marriage, the presumption was not
drawn against the accused persons.
12. It is submitted that though there are minor
contradictions and omissions in the evidence of the prosecution
witnesses, they would not shake the basic consistent evidence
of ill-treatment and harassment attributed against deceased by
the accused persons. Therefore, taking us through the
evidence recorded by the trial Court, it is prayed by both the
learned counsels to set aside the impugned judgment of
acquittal and it is prayed to pass the judgment of conviction
and sentence against them.
13. Learned counsel for the appellants relied upon the
following judgments of Hon'ble Apex Court in support of their
submissions.
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i) STATE OF MADHYA PRADESH VS. JOGENDRA
AND ANOTHER1
(ii) CRIMINAL APPEAL No.12/2013 [Arising out of
Special Leave Petition (Crl.) No.2038/2012]
DECIDED ON 03.01.2013.
14. As against this submission, the learned counsel for
the respondents/accused in both the appeals relied upon the
findings of the trial Court and he too, took us through the
various evidence of the prosecution witnesses and according to
him, as per the findings of the trial Court, the accused are not
guilty. As there is no acceptable legal evidence, the learned
trial Court passed an order of acquittal of the accused Nos.1 to
4 which requires no interference by this Court. He submits to
dismiss both the appeals.
15. We have given our anxious consideration to the
arguments of both the sides. Perused the records.
16. Before adverting to the other aspects of the case, it
is necessary to discuss the admitted facts - that there was
(2022) 5 SCC 401
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marriage of accused No.1 with deceased Suchitra on
22.08.2010 at Veerabhadreshwara Kalyan Mantapa,
Shiralakoppa, in Shikaripura taluk, Shivamogga district.
Accused No.1 is the son of accused Nos.2 and 3 and brother of
accused No.4. This relationship is not denied.
17. It is the case of the prosecution that at the time of
performing the marriage of Suchitra with accused No.1, the
complainant PW-1 gave cash of Rs.5,00,000/- towards dowry
and 270 grams of gold ornaments and 2 kgs. of silver articles.
Subsequently, he has also paid further cash of Rs.2,00,000/-
with a request to the accused persons to look after his daughter
well. Though there is denial of such a fact by the accused
persons, but in view of the evidence brought on record, there is
no proper and specific defence putforth by the accused persons
so as to rebut the aforesaid factum of receipt of the dowry
stated above.
18. It is the case of the prosecution that on 25.01.2012
at 7.30 a.m., Suchitra called her father and informed about the
harassment and ill-treatment. Her father told her that he will
come and take her back in few days as there was a jatra in
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their village. But, on the said day itself, at 10 a.m. he received
a message from his elder brother Kariyappa stating that
Suchitra died by hanging. On hearing this shocking news,
complainant with his wife and others rushed to Hubballi and
noticed dead body of his daughter in the house of accused.
After confirmation of the harassment and death, he lodged the
complaint.
19. So far as death of Suchitra is concerned,
prosecution relies upon complaint averments at Ex.P.1,
photographs of the deceased at Ex.P.4, inquest panchanama as
per Ex.P.10 and P.M. report as per Ex.P.14. Ex.P.14, the P.M.
report shows the injuries on the person of the deceased. It is
noticed that on dissection of neck, the structures underlying the
ligature mark were found pale and glistening. The Forensic
Expert has given an opinion that this piece of veil is found as a
ligature material and the said strangulation is possible by using
the said veil and the said veil could withstand the weight of the
body. On perusal of all these documents, it is proved that
deceased has not suffered a natural death but it is one of
suicidal in nature.
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20. The allegation of the prosecution is that because of
demand of dowry there was a persistent continuous
harassment done by these accused persons and because of
that, she had committed suicide within 7 years of marriage.
There is no proper explanation as per the submission of the
learned counsel for the appellants that what made the
deceased to commit suicide. It was cross-examined to the
witnesses that, the deceased was worrying about her brother
who was unemployed and about her parental house. Because
of this, she was depressed and could not withstand such a
depression though accused No.1 her husband treated her well,
took care of her every demand and accused Nos.2 to 4 never
ill-treated or harassed her. But, all the suggestions so directed
to the witnesses have been denied by the witnesses as per the
submission of learned counsels for the appellants in both the
appeals.
21. Now, we have to ascertain whether the prosecution
is able to establish the guilt of the accused to the hilt or not.
22. PW-1 - H.N.Basavanneppa is none other than the
father of the deceased. He corroborates the contents of his
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complaint in his evidence on oath by way of examination-in-
chief. It is his evidence that one Mallikarjunappa wrote
contents of Ex.P.1 but he died one year after the death of his
daughter, Suchitra. In addition to the contents of Ex.P.1 to
show about his financial capacity to pay the dowry by way of
cash, gold ornaments and silver articles etc., he has produced 4
RTC extracts standing in his name. With regard to his financial
capacity, there is no denial of this fact by the defence.
23. In the course of cross-examination, he admits that
accused No.1 being the husband of deceased, is a M.Tech
graduate. Initially, he was working at Hosapete Engineering
College. Thereafter, he is now working at Bhoomareddy
Engineering College. To the suggestions directed to him with
regard to the employment of accused No.1, PW-1 never denies
but he deposes that it may be that he is now working with
Bhoomareddy Engineering College and had worked at Hospete
Engineering College. Even about the employment of accused
No.2 and 4, he gave similar answers.
24. It is suggested to PW-1 that, there was certain
hesitancy to perform the marriage of the deceased to the
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bridegroom of northern Karnataka. Even there was an
intention to perform the marriage of deceased with one
Sandesh being relative of his wife. But, these suggestions are
denied by him.
25. PW-1 categorically admits that his elder brother
Kariyappa was working as a Manager in KVG Bank at Hubballi
and he also participated in the marriage talks of his daughter.
He admits that at the time of marriage, the said Kariyappa was
working at Hubballi. One Gopalakrishna being his relative was
working at HESCOM in Hubballi. But deposes ignorance about
working of one Shivanna as a teacher in Hubballi. He knows
one Chandrappa. He deposed ignorance that house of his
brother Kariyappa, Gopalakrishna and Shivanna teacher were
situated in the same layout where accused are residing. He
says that at the time of marriage talks, there was no written
document about giving and taking of any money or dowry. On
perusal of the entire cross-examination directed to PW-1, he
has deposed so many ignorance.
26. It is the defence of the accused that, after
marriage, accused No.1 got admission of his wife to M.Com.
course. PW-1 admits that, his daughter had completed first
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year M.Com. But, deposed ignorance about admitting his
daughter to the second year M.Com; so also getting ATM debit
card to his daughter. To prove the said aspect of participation
of the marriage talks of all the aforesaid persons, getting the
account with Corporation Bank and also possessing the Election
Identity Card and Aadhar Card, accused have produced Ex.D.1
to Ex.D.6. While marking these documents, no little finger was
raised by the prosecution. From these documents, it is very
much clear that the aforesaid persons participated at the time
of marriage talks and accused No.1 has opened the bank
account with Corporation Bank in the name of the deceased.
So also got her Aadhar Card, Election Identity Card at the
address where accused No.1 and his family members are
residing. Marriage photographs are marked on behalf of the
prosecution are at Ex.P.20 to Ex.P.23. It is submitted that,
deceased got married with full consent and there is no
depression on the face of deceased. The contents in the
photographs corroborates the said submission.
27. When accused No.1 got admission of his wife
deceased Suchitra to the M.Com. post graduation course and
got a savings bank account with Corporation Bank and she was
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provided with a ATM debit card, the assertions that there was
harassment and ill-treatment by the accused persons to bring
more dowry definitely pales into insignificance and cannot be
accepted as the truthful allegations against the accused
persons.
28. Even the complaint is silent as to which accused
used to harass the deceased in which manner. It has come in
the evidence that, because of acquisition of the property by the
Air Port authorities, the family of the accused got compensation
of Rs.35 lakhs. They constructed a new house named
"Siddaroodha Nilaya" of which, house warming ceremony was
scheduled before the death of deceased. Even accused No.4
had scheduled Sathyanarayana pooja on the occasion of
inauguration of his own clinic as he was a B.A.M.S. graduate.
These facts are not denied by PW-1.
29. PW-1 denied the suggestion that when the said
incident took place in the morning, accused No.1 had been to
his college, accused No.2 went to his employment, accused
No.3 to Ranebennur and accused No.4 had been to his clinic.
He denied these suggestions. Even he deposed ignorance of
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intimating about the incident to the Vidya Nagar police station
by accused Nos.1, 2 and 4.
30. It is suggested that before committing suicide
Suchitra wrote a note stating that she was responsible for her
suicide. PW-1 states that he is not agreeing with the hand
writing on the suicide note. He denied the suggestion that, his
elder brother Kariyappa informed about the said note written
by the deceased. He denied the suggestion that though
Kariyappa informed about the said note but PW-1 assaulted
accused Nos.1 to 4. He denied the further suggestion that at
the time when PW-1 and others came to the house, at the
same time, accused No.3 also came from Ranebennur. He
denied the suggestion that the said death note was torn by PW-
1.
31. It has further come in the evidence of PW-1 that
about 25 days prior to the incident, deceased Suchitra called
him on telephone. It is recited in the complaint that, at 7.30
p.m. on the day of incident, Suchitra called him and informed
about the harassment and ill-treatment on her and requested
PW-1 to come and take her back to her parental house. But, in
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page No.10 of cross-examination, he deposed that about 25
days prior to the incident, she called him. Further, it is his
evidence that accused had snatched her mobile phone. When
accused persons had snatched her mobile phone, from which
mobile phone she called PW-1 is not stated by this PW-1. The
Investigation Officer has not collected the said mobile phone or
collected call details to show that really deceased Suchitra
called her father at 7.30 a.m. on that ill-fated day. A lengthy
cross-examination is directed to this PW-1. He has deposed so
many ignorance.
32. Further, the vital witnesses as rightly suggested in
the cross-examination that his elder brother Kariyappa,
Gopalakrishna, Shivappa and Chandrappa were not arrayed as
charge-sheet witnesses. So also Mallikarjunappa. It is
suggested that as they knew about the affairs of the family of
the accused persons and there was no harassment or ill-
treatment to the deceased, therefore, the aforesaid persons
were not arrayed as charge-sheet witnesses. But, this
suggestion is denied by PW-1.
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33. From the evidence spoken by PW-1, it can be
gathered that the nearest relative of the deceased was
Kariyappa, the elder brother of PW-1. The aforesaid
Gopalakrishna, Shivappa and Chandrappa were known to the
deceased. If really there was any harassment and ill-treatment
in the manner alleged by the complainant, the human tendency
is to inform the nearest relative or family friend available in the
vicinity. Evidently, the aforesaid persons used to reside in the
same locality/lay-out. They would have been the best persons
to say about the alleged harassment or ill-treatment. In the
absence of arraying them as witnesses by the prosecution, no
attempt was made by the prosecution to summon the said
witnesses by filing an appropriate application which is definitely
fatal to the case of the prosecution. The truth would have
come out about the allegation so made by the complainant,
whether true or false. In the absence of examining the said
witnesses, it is hard to believe the evidence of PW-1.
34. PW-2 - Adiveshappa Hanchi is a pancha to Ex.P.8
under which the veil worn by the deceased was seized. PW-3
Ameer Ahmed is a pancha to Ex.P.9 under which clothes worn
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by deceased marked as M.O.1 to M.O.5 were seized. There is
no denial of this fact by the prosecution.
35. PW-4 - Dharmappa participated in the marriage
talks and stated with regard to the giving of dowry to accused
No.1. PW-5 Shri Nalamurthy Motobenne, also participated in
the marriage talks and as per his evidence, at the instance of
PW-1, he accompanied him. He was not present when accused
were advised to look after deceased well. PW-6 Harish was the
inquest pancha to Ex.P.10 and he is a hearsay witness with
regard to the suicide committed by deceased. PW-7 Nirmala
Amaravathi was the police constable who reached FIR with
Ex.P.11 to the Magistrate. PW-8 Manjunath Guddada Hosalli @
Raikar is the goldsmith who prepared the gold ornaments as
per the say of PW-1 and has issued 7 receipts. He prepared
the said gold ornaments. According to the evidence of these
witnesses, they participated in the marriage talks and were
present when inquest panchanama was prepared and gold
ornaments were prepared. To that extent, we believe their
evidence.
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36. PW-9 Dr.Adam Ali Nadaf is the doctor who
conducted the post mortem and noticed a complete ligature
mark measuring 33 cms X 3 cms over the upper part of the
neck, above the level of thyroid cartilage, situated 5 cm below
right ear lobule 5 cms below chin and 6 cms below left year
lobule. A knot mark measuring 2 cms X 1.5 cms present 3 cms
below and 1.5 cms right of centre of chin. He is of the opinion
that as per the FSL report, death was due to hanging and
because of asphyxia. The factum of death of deceased by
hanging is not disputed by the defence.
37. PW-10 Siddramappa Biradar, was the Tahsildar and
he conducted the inquest panchanama as per Ex.P.10 in the
presence of panchas. According to him, there was no difficulty
for recording statement of his staff Surendra Hukkeri who
wrote the panchanama. He denied all other suggestions.
38. PW-11 is the Police Inspector who conducted
investigation and filed the charge-sheet.
39. On perusal of the evidence of this PW-11, we find
that there is no recital with regard to giving of Rs.5 lakhs in
cash and 270 grams of gold in Ex.P.1 complaint. She
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categorically states that the said cash and gold ornaments were
given to accused No.1 as 'varopachara'. In the cross-
examination, it is elicited that there are so many lacunas in
conducting investigation by this Investigating Officer. It is the
custom in the community to present certain gold ornaments
and cash as 'varopachara'. This cannot be termed as dowry
demand, in the absence of cogent and acceptable evidence lead
by the prosecution.
40. In a case of this nature, it is the bounden duty of
the prosecution to prove that, it is accused and accused alone
committed the offence of ill-treatment and harassment to a
married woman within 7 years of marriage and cogent and
acceptable evidence shall have to be brought on record to
prove the guilt of the accused because Section 304B and 498A
of IPC are not mutually exclusive.
41. These provisions deal with two distinct offences. It
is true that 'cruelty' is a common essential to both the Sections
and that has to be proved. The explanation to Section 498A
gives the meaning of 'cruelty'. In Section 304B there is no
such explanation about the meaning of 'cruelty' but having
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regard to the common background to these offences, the
meaning of 'cruelty' or harassment, will be the same as given in
Explanation to Section 498A IPC under which 'cruelty' by itself
amounts to an offence and is punishable.
42. Under Section 304B IPC, it is the 'dowry death' that
is punishable and such death should have occurred within 7
years of the marriage but no such time period is mentioned in
Section 498A and the husband or his relative would be liable for
subjecting the woman for 'cruelty' any time after the marriage.
Further, a person charged for and acquitted of Section 304B of
IPC can be convicted for offence punishable under Section 498A
without charge being there, if such a case is made out.
43. On careful reading of the provisions of the IPC with
regard to such offences, it is a bounden duty of the prosecution
to prove certain ingredients to attract the provisions of Section
304B of IPC.
i) the death of a woman was caused by burns or
bodily injury or had occurred otherwise than under
normal circumstances,
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ii) such death should have occurred within 7 years of
her marriage,
iii) the deceased was subjected to cruelty or
harassment by her husband or by any relative of
her husband,
iv) such a cruelty or harassment should be for or in
connection with the demand of dowry and
v) to such cruelty or harassment, the deceased should
have been subjected soon before her death.
44. In this case, the marriage of deceased Suchitra was
performed with accused No.1 on 22.8.2010. She died on
25.01.2012 which was within 7 years of marriage. This fact is
not disputed by both the side. So far as unnatural death of
deceased i.e., suicide by hanging by the deceased is also not
disputed. But, the deceased was subjected to cruelty or
harassment by her husband or relative is clearly missing in this
case. The law says that to prove the said offence of cruelty or
harassment, the deceased should have been subjected soon
before her death is not proved in this case. Evidence of PW-1
though states that there was a call by deceased at 7.30 a.m. on
that ill-fated day about intimating the harassment and ill-
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treatment by the accused persons is not brought on record by
the investigating agency. The evidence is that there was a call
by deceased about 25 days back prior to the incident.
Kariyappa, the paternal uncle of the deceased being the elder
brother of PW-1 and other elderly persons stated supra were
not informed by deceased about the so-called cruelty or
harassment by the accused persons. They would have been the
best persons to speak about the said harassment or ill-
treatment. As stated supra, they have not been arrayed as
witnesses.
45. Further, Smt. Seethamma, the mother of the
deceased though arrayed as CW-16, is not examined by the
prosecution. In a case of this nature, when there is persistent
and consistent harassment and ill-treatment on the deceased,
the normal conduct of deceased was to inform such harassment
and ill-treatment to her mother first. But, there is no evidence
brought on record either through the evidence of PW-1 or
through the evidence of other witnesses, about intimating CW-
16 the mother of the deceased. It is fatal to the case of the
prosecution.
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46. As stated supra, in a case of present nature, it is
the bounden duty of the prosecution to prove the ingredients of
Section 113B of the Evidence Act and Section 304B of the
Indian Penal Code. Cruelty and harassment of the victim by
accused No.1 being the husband, accused Nos.2 and 3 being
her in-laws and accused No.4, the brother of accused No.1 is
not duly proved in accordance with law. In the absence of such
evidence, even on re-appreciation of the evidence by this
Court, we do not find any infirmity or illegality in appreciating
the evidence by the trial Court.
47. Though the learned counsel for the complainant and
learned Addl. SPP took us through various evidence so adduced
by the prosecution, on perusal of the same and re-appreciating
the same, we find no force in their submission. Reading the
citations relied upon by the appellants, with due respect, the
principles laid down in the judgments relied upon by the
learned counsel cannot be justifiably applicable to the present
facts of the case.
48. No doubt, it may not be out of place to mention
that 'dowry' which is a deep rooted social evil appears to the
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cause of so many unfortunate deaths of young ladies. It is an
offence brutal and barbaric. It is generally committed inside
the house and more often, with a circumstance to give an
impression that it was a suicidal death. There will be all found
attempt to cover up such offence by the family members rather
than to expose it. Therefore, the Government of India has
brought legislations from time to time to protect women and to
punish those who commit atrocities on them. Therefore, in the
year 1961, the Dowry Prohibition Act came into force. By
amendment to criminal law in the year 1983, Chapter XXA was
introduced in the penal code with section 498A creating a new
offence of cruelty.
49. We have already noted Section 304B of IPC and its
essential ingredients, so also 113B of the Evidence Act. As per
the definition of these Sections though there is a presumption
as discussed, there is no cogent and relevant evidence so as to
connect the accused persons in the commission of crime in the
manner alleged by the prosecution. Accused No.1 is from a
qualified family and there are no direct allegations made by the
prosecution that what was the role of each accused which made
the deceased to hang herself to commit suicide. In the
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backdrop of above legal proposition, if we look to the facts of
the case, it is clearly established that prosecution has not
proved its case beyond all reasonable doubt.
50. The law is that, in criminal cases, even if a slightest
doubt arises in the case of prosecution, that benefit has to be
extended to the accused persons. The deceased might have
spoken about her position to her mother and would have
informed her relative and family friends at Hubballi. Those
persons are not arrayed as witnesses and mother CW-16 was
not examined.
51. It is the bounden duty of the prosecution to
discharge initial burden of establishing the prima facie guilt of
the accused beyond all reasonable doubt and such guilt in this
case is not proved. Therefore, we do not find any error in the
judgment of the trial Court to interfere and set aside the
impugned judgment passed by trial Court in acquitting the
accused persons which are assailed by complainant and State.
Therefore, the appeals filed by the complainant as well as State
are liable to be dismissed. Resultantly, we pass the following:
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ORDER
a. Appeal filed by the appellant-complainant in
Crl.A.100170/2017 and the appeal filed by the
State in Crl.A.100078/2018 are dismissed,
b. The judgment passed by the 5th Addl. District and
Sessions Judge, Dharwad, sitting at Hubballi in
S.C.No.117/2012 dated 21.01.2017 is affirmed,
c. Order regarding disposal of properties is
maintained,
d. Intimate the final order to the trial Court forthwith,
e. Bail bonds executed by accused Nos.1 to 4, if any,
stand cancelled.
Send back the trial court records along with copy of the
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
JM
