Karnataka High Court
Sri. Laxman S/O Kariyappa Dhanagar vs The State Of Karnataka on 24 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100367 OF 2017 (C)
C/W
CRIMINAL APPEAL NO. 100028 OF 2018
IN CRL.A NO. 100367/2017
BETWEEN:
1. SMT. DODDAKKA @ DODDAWWA
W/O. KARIYAPPA DHANAGAR
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: BOMMANA BUDNI,
TAL: MUDHOL, DIST: BAGALKOTE.
2. SRI.KARIYAPPA S/O LAXMAN DHANAGAR
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O: BOMMANA BUDNI,
YASHAVANT
NARAYANKAR TAL: MUDHOL, DIST: BAGALKOTE.
...APPELLANTS
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)
Digitally signed
by YASHAVANT AND:
NARAYANKAR
Date: 2023.12.12
10:37:45 +0530 THE STATE OF KARNATAKA
THROUGH PSI LOKAPUR POLICE STATION,
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR, SPP OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
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CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
07.11.2017 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, BAGALKOT TO SIT AT JAMAKHANDI IN SESSIONS
CASE NO. 31 OF 2016 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498(A) OF IPC AND UNDER SECTION 4 OF D.P. ACT
BY ALLOWING THIS APPEAL, CONSEQUENTLY ACQUIT THE
APPELLANTS / ACCUSED NO. 2 AND 3 OF THE CHARGES
LEVELED AGAINST THEM IN ABOVE MENTIONED CASE IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO. 100028/2018
BETWEEN:
SRI. LAXMAN S/O. KARIYAPPA DHANAGAR
AGE 31 YEARS, OCC: AGRICULTURE, NOW NIL,
R/O: BOMMANA BUDNI,
TAL: MUDHOL, DIST: BAGALKOTE.
...APPELLANT
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH PSI LOKAPUR POLICE STATION,
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR,
SPP OFFICE, HIGH COURT OF KARNATAKA, DAHRWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED
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CRL.A No. 100367 of 2017
C/W CRL.A No. 100028 of 2018
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
07.11.2017 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, BAGALKOT TO SIT AT JAMAKHANDI IN SESSIONS
CASE NO. 31 OF 2016 BY ALLOWING THIS APPEAL,
CONSEQUENTLY ACQUIT THE APPELLANTS/ ACCUSED OF THE
CHARGES LEVELED AGAINST THEM IN ABOVE MENTIONED
CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and also the
learned Additional State Public Prosecutor, appearing on behalf
of State.
These two appeals are filed separately by the accused
persons. Crl.A.No.100367/2017 is filed by accused nos.2 and 3
and Crl.A.100028/18 is filed by accused no.1 challenging the
judgment of conviction and order of sentence passed in SC
31/2016 dated 7.11.2017 and prayed this Court to acquit the
respective appellants-accused.
2. The factual matrix of the case of the prosecution is
that, the complainant in the complaint has alleged that he is
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residing in Chirlakoppa village in Badami Taluk along with his
family members i.e. his wife and four children. Shilpa, the
daughter of complainant, was given in marriage to accused
No.1. The marriage was solemnized in Shirol in Naragund Taluk
in "Samuhika Marriage' occasion. After the marriage, his
daughter went to her husband's house to lead marital life. It is
also allegation and charge against these appellants that, the
appellants subjected his daughter for dowry harassment on the
ground that at the time of marriage, Rs.25,000/- and 2 ½ tola
of gold was agreed to be given to the appellants but in terms of
the assurance, the complainant has not given the same. The
said Shilpa was abused in filthy language by her in-laws and
her husband used to assault her by hands and used to ask why
she is not bringing dowry. Her in-laws abetted for such assault
on the ground that she has not brought dowry from her
parental house.
3. The complainant requested the in-laws not to
harass his daughter but they did not heed to the request. One
month prior to the incident, he along with his wife, elders met
them in Lokapur APMC and advised them not to give
harassment and he will give dowry as promised. It is further
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stated in the complaint that, on 3.11.2018, one innocent
person informed that one dead body is lying in the land of one
Yallappa Dhanagar of Bommna Budni. Immediately he along
with his wife and elders went to the spot at 8.00 p.m., saw the
dead body and noticed that there was a mark of blood injury on
the head of Shilpa and the same was informed to the police.
4. On the basis of the complaint, the Police registered
a case against the accused. Accused no.1 was arrested on
4.11.2015 and accused 2 and 3 were also arrested. Police filed
charge sheet against the accused under Sections 498A, 302,
304B and 109 read with Section 34 of IPC and Section 4 of
Dowry Prohibition Act.
5. The trial Court took cognizance of the offences and
secured the accused persons and prosecution also lead the
evidence in order to prove the charges leveled against the
appellants.
6. The prosecution mainly relied upon PWs. 1 to 20
and documentary evidence of Ex.P1 to P29. Defence have not
lead any evidence and no documentary evidence is marked
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before the trial Court. The prosecution has also relied upon MOs
1 to 13.
7. The trial Court, having appreciated both oral and
documentary evidence, convicted the accused persons for the
charges leveled against them except the offence punishable
under Section 304-B IPC. Accused No.1 was sentenced for the
offences punishable under Section 302 and 498A and Section 4
of D.P.Act. Accused nos. 2 and 3 are convicted and sentenced
for the offences punishable under Sections 498A and Section 4
of D.P.Act.
8. Being aggrieved by the judgment of conviction and
order of sentence, these two appeals are filed separately by
accused no.1 and accused nos. 2 and 3, respectively.
9. The main grounds urged in Crl. Appeal
No.100028/17 i.e. filed by accused no.1 is that, the trial Court
has committed an error in convicting the accused for the
offences punishable under Sections 302, 498A IPC believing the
evidence of prosecution witnesses. The prosecution mainly
relied upon the evidence of PWs. 1, 4, 5 and 6 who spoke
regarding the demand of dowry contending that dowry demand
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was made at the time of marriage talks of deceased Shilpa and
it is a fact that an amount of Rs.1,50,000/- is kept in FD in the
name of deceased and her mother PW.4 by the accused No.1.
If such being the case, there cannot be further demand of
dowry after some days from the date of marriage. This basic
unusual conduct of the appellants prior to the marriage clearly
establishes their innocence which is overlooked by the Court
below while passing the impugned judgment and order of
sentence.
10. Counsel also vehemently contends that witnesses 1,
2, 4, 5 and 6 are interested witnesses and their testimony is
accepted and they are none other than the parents and close
relatives of deceased. There is no independent witness who
spoke regarding the kind of cruelty meted out to the deceased.
In the absence of reliable evidence, it is incorrect to hold that
the appellants were responsible for the charges levelled against
them.
11. The counsel vehemently contended that it could be
seen from the medical report especially the post mortem report
of deceased Shilpa that, deceased Shilpa has sustained injuries
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on her head, parietal region and the same is caused with stone
according to the case of the prosecution. But, the said stone
has not been seized/recovered by the Investigating Officer and
it does not find any place in the material objects that are
marked to prove the case.
12. Further he vehemently contends that the case rests
upon circumstantial evidence. In order to prove the
circumstantial evidence, there must be objective of causing of
death and also the recovery. The counsel would submit that
though motive is alleged with regard to non-payment of dowry,
the cause of death is also doubtful. Stone is not seized and the
same is not made as MO. Thus, the cause of death has not
been proved.
13. Counsel would submit insofar as recovery is
concerned, stone is not marked as MO. Towel was also seized
and the same is not sent to FSL and no report with regard to
seizing of towel. It is stated that the said towel alleged to have
been used for committing the murder and the same goes to the
very root of the prosecution. When the motive, cause of death
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and recovery are not proved, the question of convicting the
accused for the offence under Section 302 IPC does not arise.
14. The counsel would vehemently contend that even
the FIR does not disclose that with the help of towel, the
deceased Shilpa had been strangulated. That was subjected to
analysis and no report is placed before the Court. The counsel
vehemently contended that even the demand of dowry is not
based on credible evidence. Therefore, the very case of the
prosecution is doubtful and inspite of it, the trial Court believed
the evidence of prosecution witnesses. Thus, an error is
committed by the trial Court in convicting the accused-
appellants.
15. The counsel in support of his argument relied upon
the judgment of Hon'ble Apex Court reported in 2010 AIR
SCW 3289 in the case of Niranjan Panja vs.State of West
Bengal and brought to the notice of this Court Section 27 of
the Evidence Act with regard to discovery on disclosure by
accused and the weapon of offence said to have been
discovered and not produced, the evidence of discovery cannot
be relied upon. The principles laid down in the said judgment
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are, when the witness of discovery not stating recovery of
weapon of offence was made to show to the accused, when not
identified by the witness, such evidence of witnesses is
unreliable. Discovery not produced before the Court and the
same is disbelieved and not explained, under such
circumstances, the discovery was not proved. In case on hand
also, counsel brought to notice of this Court at para.8 of the
said judgment wherein in the Hon'ble Apex Court discussed
with regard to accepting of evidence and recovery of weapon.
He has also brought to the notice of this Court the observations
made at paragraph 13 of the said judgment and contends that
when the prosecution has not proved its case beyond
reasonable doubt, the trial Court ought not to have considered
the evidence of prosecution witnesses.
16. The learned counsel also relied upon the Judgment
of Hon'ble Apex Court reported in (2021) 13 SCC 716 in the
case of Jaikam Khan vs. state of Uttar Pradesh wherein the
Hon'ble Apex Court has held that, all statements made in the
memo with regard to the confession of committing the crime
would not be admissible in evidence and only such information,
which distinctly relates to the discovery of facts would be
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admissible under Section 27 of the Evidence Act, hence alleged
recovery of weapon held not believable. Therefore, the learned
counsel submits that the trial Court ought not to have convicted
the accused persons.
17. Counsel vehemently contended that, on
examination of accused, in the absence of explanation, the
burden to prove the guilt of the accused beyond reasonable
doubt is on the prosecution and it is only when this burden is
discharged that the accused could prove any fact within his
special knowledge under Section 106 of the Evidence Act to
establish that he was not guilty. If the prosecution proves
beyond reasonable doubt, giving explanation also does not
arise. He brought to the notice of this Court paragraphs 58, 69
and 73 insofar as it relates to explanation under Section 313 of
Cr.PC. The counsel would submit that when the prosecution has
failed to prove its case beyond reasonable doubt, conviction of
accused does not arise.
18. In support of his argument, the learned counsel for
the appellants has brought to our notice the judgment of
Hon'ble Apex Court reported in AIRONLINE 2022 SC 483 in
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the case of Satye Singh vs.State of Uttarakhand and relied
upon the observations made at paragraphs 10, 11, 15 and 16
wherein the Hon'ble Apex Court has made an observation that
when prosecution having failed to prove the basic facts as
alleged against the accused, the burden could not be shifted on
the accused under Section 106 of the Evidence Act and
question of any explanation does not arise.
19. Per contra, Sri M.B.Gundawade, the learned
Add.SPP appearing for respondent-State submits that the trial
Court having considered the material available on record has
rightly come to the conclusion that prosecution has proved the
case against all the accused persons. The marriage was
performed on 26.01.2015. The death has occurred on
3.11.2015 i.e. within nine months of the marriage. He would
submit that PWs 1, 4, 5 and 6 have categorically deposed that
parents of deceased had assured that they would give
Rs.25,000/- and two and half tola of gold. Inspite of PW.1 and
other elders and family members in the village have assured
that they are going to meet the demand, but the accused did
not heed to their advise and committed the murder of the
deceased.
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20. He vehemently contends that PW.9 clearly deposed
with regard to cruelty meted out to the deceased. Counsel also
relies on the evidence of the Doctor examined as PW.16, who
categorically deposed with regard to external injuries/marks
inflicted on the deceased and the death and as well as PW.10
has spoken with regard to he seeing the accused no.1 with the
victim proceeding to the land.
21. PW.10 is last seen witness. He has not disputed
about he seeing the accused and deceased in his examination-
in-chief but, this last seen witness has turned hostile during his
cross-examination. Even PW.1 had seen his daughter lying in
the sugarcane crop in the land of Yellappa Dhanagar.
22. The learned Addl.SPP would vehemently contend
that when accused No.1 and the deceased both were going
together to the lands on the same day, he ought to have
explained but the same has not been explained. He also
contends, the articles which have been seized i.e. cloths of the
accused No.1 also sent to FSL and the report is positive. He
further submits with regard to recovery of the stone is
concerned. He has relied upon the photographs and contends
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that the stone which found at the spot is heavy stone and the
same cannot be seized and allegation against the accused No.1
is that he dashed it against the head of the victim and on the
stone. The blood stains were taken in a cotton cloth and the
same is seized and marked as MO.3 and the same is spoken to
by the Investigating Officer. The counsel also brought to the
notice of this Court that Ex.P4 photographs which depict the
size of the stone. The other contention of the appellants'
counsel that, towel was not sent to FSL and FSL report and
articles which have been sent to FSL, the towel does not find a
place and no report with regard to the towel is concerned,
PW.19 evidence is also clear with regard to the seizure of the
same and it was subjected to Mahazar and the spot inspection
is also done in the presence of the accused.
23. The learned Addl.Public Prosecutor also submits
that even with regard to accused nos. 2 and 3 in-laws of
deceased, at their instance only, accused no.1 has committed
the offence and hence they are guilty of the offence charged
against them. There is material evidence and the same has also
been considered and the trial Court passed judgment of
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conviction and order of sentence for the charges leveled against
them.
24. Having heard the appellants' counsel and also the
Addl.SPP for the State and also the grounds which have been
urged in both the appeals as well as during the course of
admission, the following points would arise for our
consideration:
(1) Whether the trial Court has
committed an error in convicting
accused Nos. 2 and 3 for the
offences invoked against them under
Section 498A of Indian Penal Code
and 4 of Dowry Prohibition Act and
whether the same requires
interference by this Court?
(2) Whether the trial Court has
committed an error in convicting
accused no.1 for the offence
punishable under Section 302 and
Section 498A of Indian Penal Code
and Section 4 of Dowry Prohibition
Act and whether the same requires
interference?
(3) What order?
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Regarding Point No.1:
25. The appellant nos. 2 and 3 in their appeal have
urged that the trial Court has committed an error in relying
upon the evidence of PWs.1, 4, 5, 6 and 8 who have supported
the case of the prosecution as they are interested witnesses
and all are relatives. It is also important to note that PW.1 is
the father of the victim and he relies upon his own evidence
Ex.P1 the complaint averments. PW.4 is the mother of the
victim and PW.5 is uncle of the victim. PW.6 is the elder
member of the village and he also supported the case of the
prosecution. PW.8 is Mediator to the Marriage and also
supported the case of the prosecution. PW.7 is an elder of the
village, though he spoke about the family of accused and the
deceased, he did not support the case of the prosecution. PW.9
is neighbour of accused but, he turned hostile. PW.10 is also an
elder and spoke about accused but, he also turned hostile and
not supported the case of the prosecution. PW.11 the scribe of
the complaint has stated that he wrote the complaint on the
instructions of PW.1 and supported the case of the prosecution
but turned hostile.
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26. PW.12 is the brother of accused no.3 he spoke
about the relationship of accused to him and he has turned
hostile. PW.13 is the Police Constable working in Lokapur Police
Station. He has taken the FIR copy to the Court. PW.14 is also
a Police Constable who arrested accused nos.2 and 3 and
produced before the Investigating Officer. PW.15 is the
Engineer, who prepared sketch of scene of occurrence. PW.16
is the Doctor working in Lokapura Primary Health Centre as
Medical Officer. He has conducted postmortem of deceased.
The other witness PW.17 is the Investigating Officer who has
conducted partial investigation. PW.18 is PSI who was on duty
in Lokapura Police Station and received the complaint and
registered the FIR. PW.19 is ASP who has conducted further
investigation. He has conducted inquest panchanama along
with the Tahsildar who was examined as PW.20 before the
Court.
27. Having perused the material available on record,
particularly, evidence of PW.1 who spoke about the marriage
talks held between the family of accused with complainant's
family and speaks with regard to non-payment of agreed
amount of Rs.25,000/- and also 2½ tola of gold. In the cross-
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examination of PW.1, it is elicited that an amount of
Rs.1,50,000/- was kept in deposit in SBI, Kulageri Cross Branch
and not disputes the same. The suggestion was made that his
daughter accidentally fell and sustained injuries, he has denied
the same. He also admits in the complaint that he did not give
any complaint prior to the incident complaining about the
quarrel between his daughter and accused No.1. The other
witnesses i.e. PW.4, mother of the deceased reiterated the
evidence of PW.1 and PW.2 and not disputed the fact of
keeping the amount in deposit in the joint name of accused and
his daughter. PW.5 is also uncle of the deceased and he also
speaks stating that he went to the spot on receiving the
information. Though he speaks about accused nos. 2 and 3
instigating accused no.1 and when a suggestion was made that
no such instigation was made, the same is denied.
28. PW.6 is the elder of the village who, in his evidence,
says that he is the elder member and also participated in
marriage talks and also he participated in Panchayat and
advised accused persons. In the cross-examination, he admits
that he cannot tell when the marriage was performed. He also
says no document is prepared in connection with marriage i.e.
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`Yadi'. He also deposed about the Fixed Deposit kept in the
bank in the joint names. He says Panchayath was held 15 to 20
days prior to the death of Shilpa.
29. The other witnesses i.e. PW.8 the Mediator for the
marriage also reiterates that there was assurance to pay the
sum of Rs.25,000/- and 2½ tolas of gold and also says that
Panchayath was held and thereafter, she was sent to
matrimonial home. But, in the cross-examination, she admits
that the family of complainant is not well of and the accused
family are well of. All these witnesses say that Panchayath was
held one month prior to the incident and they went to the spot
directly. The PW.8 also admits that near the place of the body
there was a stone and this witness also admits about the
money kept in FD.
30. Having considered the version of these material
witnesses i.e. PWs. 1, 4, 5, 6 and 8 and though these witnesses
speak about the assurance given regarding payment of
Rs.25,000/- and 2½ tola of gold, material available before the
Court is very clear that the same was not given and hence,
they were insisting to give the same and also submits that
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Panchayath was held and having considered these materials,
same does not inspire confidence in the mind of the Court. With
regard to payment of Rs.25,000/- and 2½ tola of gold, which is
elicited in the evidence of the prosecution that all the witnesses
have categorically deposed that prior to the marriage, an
amount of Rs.1,50,000/- was kept in SBI in the name of
deceased and her mother by accused No.1. If really they had
kept the amount in FD to the tune of Rs.1,50,000/- what was
the necessity for them to demanded dowry of Rs.25,000/- and
2½ tola of gold is not explained. Nothing is before this Court
except the prosecution witnesses speaking about the same and
admitting the fact of amount kept in FD. Under the
circumstances, the very case of the prosecution that
complainant had agreed to pay an amount of Rs.25,000/- and
also to give 2½ tola of gold cannot be believed. Thus, there is a
force in the contention of the appellants' counsel that if there
was any demand of dowry and no explanation on the part of
the prosecution with regard to deposit of amount that too in the
name of deceased and her mother-PW4.
31. The Investigating Officer who has conducted the
investigation has been examined as PW.19. He categorically
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says that this marriage is a second marriage and hence, an
amount of Rs.1,50,000/- was kept in FD prior to the marriage
and the statement of this witness clearly discloses that this is
second marriage and earlier marriage was dissolved and later
contracted to this marriage. When such being the case,
witnesses have not spoken anything in specific about the dowry
demand at the instigation of accused nos.2 and 3 and
consequent assurance given on the side of the deceased family
except the omnibus allegation made against the accused No. 2
and 3 that accused no.1 used to assault the deceased at the
instigation of accused nos. 1 and 2.
32. We have given our anxious consideration to the
material available on record to find out whether the trial Court
committed an error in convicting accused nos.2 and 3 who are
the appellants in Crl.Appeal No.100367/2017. In view of our
above discussion, we do not find any material before the Court
with regard to demand of dowry and also subjecting the
deceased to cruelty by accused nos.2 and 3 and hence, this
Court comes to the conclusion that judgment of conviction and
order of sentence passed by the trial Court against accused No.
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2 and 3 requires interference by this Court and also the
sentence imposed upon them requires to be set aside.
Hence, we answered Point No.1 in the affirmative.
Reg.Point No.2:
33. The case of the prosecution against accused no.1 is
that, he had committed the murder. On perusal of material
available on record and the reasons given by the trial Court,
the trial Court has convicted the accused for the offences
punishable under Section 302. Having perused the material
witness evidence that dead body was found in the property of
PW.12 and no doubt PW12 has not supported the case of the
prosecution but, the fact is that, the body was in his property is
not disputed. Mahazar was drawn in the very said property and
Mahazar witnesses who have been examined as PWs. 2 and 3
also supports the case of the prosecution. PW.2 categorically
says he went to the spot and he was present at the time of
drawing of the Mahazar in terms of Ex.P5 the Inquest
Panchanama and he also speaks that he has seen injuries on
the head and also over the neck and there were no bangles in
her hand. No doubt this witness, who says that he does not
know what has been written in the Mahazar, but he also
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deposes that he has signed the document when the Police and
Tahsildar told him to make the signature but he admits that
photo was taken at the time of conducting Mahazar. In the
cross-examination, there is no denial of taking of photographs.
34. The other witness PW.3 who is also the witness to
Ex.P2 and 3 and also photographs which were taken also
reiterates the nature of injuries found on the dead body. PW.1
showed the stone and Police have drawn the Mahazar and he
also identifies the seizure of objects at the spot marked at MOs.
1, 2 and MO.3. This witness is subjected to cross-examination.
Except making suggestion with regard to drawing of Mahazar,
nothing is elicited from the mouth of PW.3. No doubt, PWs. 1
and 4 are the father and mother of the victim but they speak
about the marriage talks held prior to the marriage and also
PW.1 says that his daughter used to inform them about
accused subjecting her to cruelty. PW.5 has also uncle of PW.6
& 8 are the witnesses who have participated in the marriage
talks and negotiations.
35. It is important to note that the prosecution mainly
relied upon the evidence of PW.10 in order to prove the
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circumstances and the last seen witness. PW.10, who is an
Archak, categorically says that when he was in Kariyamma
Temple in the village, he saw the deceased along with accused
No.1 going to the land and on the same day, he came to know
that victim was murdered and he also learnt that accused No.1
had committed her murder. This witness is treated as hostile in
part and the accused counsel even not disputes the last seen
theory of the prosecution by this witness. By cross-examining
this witness, the evidence of PW.10 remains unchallenged, who
is last seen witness and no suggestion is made that he had not
seen both victim and accused No.1.
36. It is noticed that the Doctor, who is examined as
PW.16, has conducted the postmortem on the deceased. In his
evidence, he listed out total fifteen injuries. Out of the said
injuries, injuries found on the left cheek and also right thigh
both of them are crush injuries and also the injury in the right
ribs is also a crush injury. He also found injuries on the right
ear, on the head and also there were ligature marks
surrounding the neck and crush injuries on the left shoulder.
Apart from that, it is important to note that hyoid bone was
fractured and there were injuries on the right hand and also all
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over the body. The doctor has opined that these injuries are
ante-mortem in nature. It is also noticed by the Doctor that
there was uncontrolled urine pass and toilet was also noticed
when the postmortem was conducted. He has given the report
as per Ex.P18. He has opined that the death is on account of
severe head injury on the back side and also due to
strangulation and asphyxia. The ligature marks were found and
the same may be caused by use of MO.4-jeans pant. No doubt,
in the cross-examination of this witness, it is elicited that if a
person falls on the stone, there are chances of sustaining such
kind of injuries. He has denied the suggestion that when a
woman falls, such injuries may cause due to Mangalasutra in
her neck. He also says if a person falls from 4 ft. height on the
stone, such injuries may cause.
37. Having perused the medical evidence, it is clear
that it is a case of homicidal death and not a death on account
of accidental fall, considering the injuries found on the dead
body. If it is a case of an accidental fall on a stone, one or two
injuries could have been sustained and not injuries almost over
the face, including thigh, chest, shoulder and also the head.
There was also a fracture of the hyoid bone. Hence, it is clear
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that it is a case of homicidal death. When PW10 states that
both the accused and deceased were together in the early
morning and were proceeding to their land, it is important to
note that the dead body was found on the land of PW12, which
is outside the house. It is also important to note here that the
eyeglasses of the accused were seized, and the baniyan and
jeans pant of the accused were also stained with blood. The
FSL report is also positive that the said clothes were
bloodstained. The counsel appearing for the appellants brought
to the notice of this Court that in the FSL report, which is
marked at Ex.P29, there is no doubt Article No.4 is missing in
the said report. Having perused the opinion at Ex.P29, it is
clear that there is an opinion with regard to Article No.4, and it
is not a technical error to disbelieve the case of the
prosecution, since in the description of the articles, pant is
mentioned as article No.4, though not in the list but in the
method of analysis list, the opinion is very clear about the
presence of bloodstains detected in articles No.1, 2, 3, 4, 5, 6,
7 & 8 and it was opined that the stained blood is human blood
of 'A' blood group. No doubt there is force in the contention of
the appellant's counsel that stone was not seized. We have
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already pointed out that the stone available at the spot of the
incident was a bigger stone, and it is clear evidence of the
investigating officer, who has been examined as PW19, that he
collected the bloodstains found on the stone and same was
seized, which is marked at M.O.1 to 3. When such being the
case, it is also not practicable to seize such a big stone depicted
in the photograph marked at Ex.P4.
38. The contention of the counsel for the appellant is
that stone was not seized and hence, the case of prosecution
cannot be believed and the said submission cannot be
accepted. The other contention of the accused is that though a
towel kept under the stone was seized, the same was not sent
to FSL, and the report is also silent with regard to sending the
same to the FSL, which would go to the very root of the case of
the prosecution.
39. Having perused the evidence of PW10, who speaks
about the deceased and accused No.1 being together on the
date of the alleged incident, and the evidence of PW16-doctor,
it is very clear that the time since death was 16 to 20 hours,
and the same matches the timings spoken to by PW10 in his
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evidence. The accused No.1 has to explain with regard to what
happened to his wife when she was with him on the alleged
date of the incident in the morning. On the said day, both of
them were moving together and no explanation has been given
by the accused No.1. It is also important to note that the
clothes of the accused No.1, which were bloodstained, were
seized and he was taken to custody on the very same night. No
explanation is given by accused No.1 in his statement recorded
under 313 of Cr.P.C., and it is the bounden duty of accused
No.1 to explain with regard to incriminating evidence available
on record. The material available on record makes it very clear
that the marriage of the deceased with accused No.1 was
solemnized just nine months prior to death of the deceased.
The prosecution has established the chain of events with regard
to the PW10 witnessing both the accused No.1 and the
deceased on the very same day and the time since death
opined by the doctor (PW16) also links with the case of the
prosecution. It is also important to note that the marriage was
solemnized on 26.01.2015 and the death of the deceased took
place on 03.11.2015. The witnesses in their examination-in-
chief have also deposed about the panchayath held and in their
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cross-examination, they have not denied the same. It is also
important to note that during the course of cross-examination
of prosecution witnesses, a defence was taken that the
deceased had accidentally fallen down and sustained injuries,
but how the deceased sustained nearly 15 injuries on her
person is also not explained by accused No.1 if it is accidental
fall. The photographs that have been produced before the Court
clearly depict the seizure of the bloodstained clothes of accused
No.1 and the witnesses also speak about the seizure of the
same, particularly the material objects that have been marked
before the Trial Court. The Trial Court has considered the
evidence of PW1, PW4, PW5, PW6 and PW8. Though their
evidence does not inspire confidence with regard to the
demand for dowry and the panchayath that was held, the fact
remains that the deceased was along with accused No.1 on the
very same day of the incident. The evidence of PW10 was not
disputed during the course of cross-examination and it
remained unchallenged. Apart from that, the evidence of PW16-
doctor also supports the case of the prosecution and how the
deceased sustained injuries, found on her dead body, has also
not been properly explained by accused No.1. The
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circumstances unerringly point towards accused No.1 for
commission of the murder of his wife. It is also not the defence
of accused No.1 that some miscreants have committed the
murder of his wife and his defence is that, she accidentally fell
down and sustained injuries, which cannot be believed. The
Trial Court has also taken note of all these materials available
on record and has come to the conclusion that accused No.1 is
guilty of committing the murder of his wife. The Trial Court has
also taken note of the very suggestion made by the learned
counsel for the accused during the course of cross-examination
of PW8 with regard to holding panchayath. The said witness
deposed regarding holding panchayath in connection with
quarrel between accused No.1-husband and deceased-wife.
There was a suggestion made to PW8 in his cross-examination
and he deposed that a panchayath was held and both accused
No.1-husband and deceased-wife were advised to be cordial,
which also supports the case of the prosecution with regard to
differences between husband and wife and the said
circumstance also establishes the link between the motive of
accused No.1 for committing murder of his wife since both of
them were not in cordial terms.
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40. The FSL report also establishes links with regard to
the seizure of bloodstained clothes belonging to accused No.1,
but there is no explanation by him. The prosecution has
established the chain link between the circumstances. This
Court would like to refer to the decision of the Hon'ble Apex
Court in State of Himachal Pradesh v. Rajkumar1 wherein
the Hon'ble Apex Court has categorically held that when a chain
of circumstances establishes and unerringly points to the guilt
of the accused, under such circumstances, the Court can even
draw an inference that the accused has only committed the
offence. It also emerges from the evidence of the witnesses
that the victim is the second wife of accused No.1 and prior to
marriage, amount of Rs.1,50,000/- was kept in F.D. It also
clearly shows that with condition of depositing money in F.D.,
the marriage was solemnized, and all these factors are taken
note by the Trial Court. The Trial Court has not committed any
error in convicting the accused No.1 for the offence punishable
under Section 302 of the IPC since it is deposed by the
witnesses that the accused was advised in the panchayath to
be cordial with his wife. This also attracts the offence under
(2018) 2 SCC 69
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Section 498-A of the IPC. But in order to prove the ingredients
of offence under Section 4 of the Dowry Prohibition Act, we do
not find any material, and hence, convicting the accused No.1
for the offence punishable under Section 4 of the Dowry
Prohibition Act requires to be set aside.
41. In regard to the commission of offence under
Section 302 and 498-A of the IPC, the Trial Court has not erred
in appreciating the evidence available on record. The Trial Court
has particularly taken note of the evidence of PW10-
eyewitness, the medical evidence of PW16, the evidence of
PW1, PW4, PW5, PW6, PW8, and also the evidence of panch
witnesses PW2 and PW3, which all cumulatively establish the
very role of accused No.1 in committing the murder of the
deceased, and no explanation is given by accused No.1 with
regard to when she was along with him and when she sustained
injuries. He pretended and informed the relatives that the
deceased accidentally fell down and sustained injuries. The
nature of injuries found in postmortem report Ex.P18 and also
the evidence of the PW16-doctor corroborate the case of the
prosecution. No doubt the counsel appearing for the appellant
brought to the notice of this Court the judgments that have
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been referred to above, and the same is in respect of recovery
and discovery. The said judgments will not come to the aid of
the appellants-accused and the question of invoking Section 27
of the Indian Evidence Act does not arise. The prosecution has
not discovered any incriminating article at the instance of the
accused No.1 and the same is not applicable to the facts of the
case on hand. In the case of State of Himachal Pradesh v.
Rajakumar referred to supra the Hon'ble Apex Court has
categorically held that, in a case based on circumstantial
evidence, the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established
and though circumstances must be conclusive in nature, they
unerringly point towards the guilt of the accused. Moreover, all
circumstances, taken cumulatively, should form a complete
chain, and there should be no gap left in the chain of evidence.
It is also further observed that, while appreciating the evidence
of the witnesses, the approach must be to determine whether
the evidence of the witnesses read as a whole appears to be
truthful in the given circumstances of the case. Once that
impression is formed, it is necessary for the Court to scrutinize
the evidence, particularly keeping in view the drawbacks and
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infirmities pointed out in the evidence and evaluating them to
find out whether it is against the general tenure of the
prosecution's case.
42. Having analyzed the principles laid down in the
judgment referred supra, the same is aptly applicable to the
case on hand. Each chain link has been established by the
prosecution and inference can be drawn when the cogent
evidence is available before the Court. The same firmly
established since there were differences between husband and
wife. The marriage was taken place just nine months prior to
the death of the deceased-wife. Apart from that, last seen
witness evidence is also conclusive and the same is
unchallenged. Several injuries i.e. 15 injuries were found on the
dead body of the deceased and there is also no explanation by
the accused No.1. When the bloodstained clothes of the
accused No.1 were also recovered and the FSL report is also
positive, non-placing of report given by the FSL will not take
away the case of the prosecution and it goes to the root of the
case. All other chain links are established and point towards the
accused No.1 only. It is accused No.1, who committed the
murder of his wife and pretended that she died on account of
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injuries sustained by her due to an accidental fall on a stone. If
she could have accidentally fallen and sustained injuries, the
accused No.1 ought to have taken her to the hospital, but such
an attempt was not made by him. PW10 also deposed in his
evidence that both accused No.1 and the deceased were
together on the date of the incident. The time since death also
corroborates with the timings mentioned by PW10 and also the
evidence of the PW16-Doctor that death occurred 16 to 20
hours prior to PW10 last seen the accused No.1 along with the
deceased. No explanation is offered by accused No.1. If the
accused No.1 has not committed murder of the deceased, being
a husband and prudent person, he could have taken her to the
hospital instead of informing relatives that she accidentally fell
down and sustained injuries. Throughout the cross-examination
of prosecution witnesses, the very same defence is taken, and
such a theory of defence cannot be accepted. The materials
available on record unerringly point out the guilt of accused
No.1 in committing the murder of his wife. We have given our
anxious consideration to the materials available on record with
regard to chain of events and confirm the judgment of the Trial
Court in convicting accused No.1 for the offence punishable
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under Section 302 and 498-A of the IPC, and we answer point
No.2 in the negative. In view of the above discussions, we pass
the following:
ORDER
i) The appeal filed by appellants-accused No.2 and
3 is allowed and the judgment of conviction
passed by the Trial Court convicting accused
No.2 and 3 for the offence punishable under
Section 498A and 4 of the D.P. Act is hereby set
aside and they are set at liberty.
ii) The deposit of fine amount, if any, by accused
No.2 and 3 is ordered to be refunded digitally to
their accounts on proper identification.
iii) The bail bonds executed by accused No.2 and 3
are hereby cancelled.
iv) The appeal filed by appellant-accused No.1 is
hereby allowed in-part.
v) The judgment of conviction passed by the Trial
Court convicting accused No.1 for the offence
punishable under Section 4 of the D.P. Act is
hereby set aside and the deposit of fine amount,
if any, made by accused No.1 is ordered to be
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refunded digitally to his account on proper
identification.
vi) However, the judgment of conviction and order
on sentence passed by the Trial Court against
accused No.1 for the offence under sections 302
and 498-A of the IPC is confirmed and the fine
imposed for commission of the said offence is
also maintained.
Sd/-
JUDGE
Sd/-
JUDGE
SK, YAN
