Karnataka High Court

Narasimharaju vs T S Ramesh on 28 November, 2023

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                               -1-
                                      CRL.A. No.2003 of 2016




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

BETWEEN:


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

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

AND:


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

2.   JAYAMMA
     W/O.SIDDAPPA
     AGED 59 YEARS

     BOTH ARE RESIDENTS OF
     TUMBADI VILLAGE
     KORATAGERE TALUK
     TUMKUR DISTRICT-572 129
                              -2-
                                      CRL.A. No.2003 of 2016




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


                                           ...RESPONDENTS

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


                            ------


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF

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

IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI

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

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

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


      THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH

PHYSICAL HEARING/VIDEO CONFERENCING FOR HEARING AND

RESERVED ON 17.08.2023, COMING ON FOR PRONOUNCEMENT

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

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




                        JUDGMENT

Appellant/complainant feeling aggrieved by

judgment of Trial Court on the file of IV Additional

District and Sessions Judge, Madhugiri in S.C.

No.5014/2013, dated 22.08.2016 preferred this

appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the Trial Court for the sake of

convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that,

marriage of complainant's sister, Sumalatha, was

performed with accused No.1 on 18.06.2010 and

accused No.2 is mother of accused No.1. At the time

of marriage, one gold finger ring, neck chain were

given and after marriage accused No.1 and Sumalatha

lived happily for one-and-half years. Out of the said

wed lock, they have got a son of one-and-half year old

named as Jeevan. It is thereafter accused started ill

treating and harassing Sumalatha to bring `50,000/-

from her parents to purchase autorikshaw and

subjected her to mental and physical cruelty. The

deceased Sumalatha has informed of such

ill-treatment to her parents and neighbors. However,

in spite of their advice accused continue to ill-treat

and harass deceased Sumalatha to get cash of

Rs.50,000/- to purchase autorikshaw.

On 23.09.2012 at 6.00 P.M. in the house of

accused, they poured kerosene and lit fire to her, due

to which she suffered burn injuries and was shifted to

Koratagere and Tumakuru Government Hospitals and

did not respond to the treatment, as such she

succumbed to the burn injuries on 24.09.2012 at

01.00 A.M. in the midnight. On these allegations made

in the complaint filed by Narasimharaju, brother of

deceased Sumalatha, criminal law was set into motion

by registering the case in Koratagere P.S. in crime

No.265/2012. The Investigating Officer after

completion of investigation filed charge sheet for the

offence punishable under Section 498A, 302, 304B

R/w Section 34 of Indian Penal Code, 1860

(hereinafter referred to as "the IPC" for brevity) and

Section 3 and 4 of Dowry Prohibition Act (hereinafter

referred as "D.P.Act" for brevity).

appeared through their counsel. The Trial Court on

being Prima facie satisfied of charge sheet materials

framed charges against accused for the offences

alleged against them. Accused Nos.1 and 2 pleaded

not guilty and claimed to be tried. Prosecution in order

to prove the allegations made against the accused

relied on the evidence of PWs.1 to 17 and documents

Exs.P.1 to P.19, so also got identified MOs.1 to 5. The

documents at Exs.D.1 to D.3 came to be marked

through the evidence of prosecution witnesses.

5. On closure of the prosecution evidence, the

statement of accused under Section 313 of Cr.P.C.

came to be recorded. Accused Nos.1 and 2 have

denied all the incriminating material evidence

appearing against them and claimed that false case is

filed. The Trial Court after appreciating the evidence

on record acquitted both the accused for the offences

alleged against them.

6. Appellant/State (complainant) challenging the

contended that Trial Court has not properly

appreciated the evidence of PWs.4 to 8 and committed

serious error in recording finding that prosecution has

failed to prove any of the charges leveled against the

accused. The sister of complainant, Sumalatha, was

given in marriage to accused No.1 and their marriage

was performed on 18.06.2010 Ex.P.6, the date of

incident is 23.09.2012 at 6.00 P.M. and she died on

24.09.2012 due to burn injuries in the incident that

occurred in the house of accused, further the death of

Sumalatha within seven years of her marriage, under

such circumstances the Trial Court should have drawn

presumption in terms of Section 113B of Indian

Evidence Act. Accused Nos.1 and 2 have offered no

any explanation as to how Sumalatha was caught with

fire in their house leading to her death due to burn

injuries. In the absence of there being no any

evidence of accused, there was no reason for the Trial

Court to discard oral testimony of PWs.4 to 8. The

deceased Sumalatha while she was in the hospital

made oral dying declaration before her brother,

Narasimharaju and parents, the Trial Court should

have appreciated the said fact with other evidence

placed on record by the prosecution and the Trial

Court has ignored the material evidence favoring the

case of prosecution, as a result recorded erroneous

finding in acquitting the accused from the charges

leveled against them. Therefore, prayed for allowing

the appeal and to set aside judgment of Trial Court,

consequently to convict both the accused for the

offences alleged against them.

7. In response to the notice of appeal, respondents

appeared through counsel. The Trial Court records

have been secured.

8. Heard the arguments of both sides.

9. After hearing both sides and on perusal of the Trial

Court records, including the judgment, the following

points arise for consideration:

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

2) Whether the prosecution further proved beyond all reasonable doubt that the accused on 23.9.2012 at 6.00 p.m. in the house of accused, poured kerosene and lit fire to Sumalatha with an intention and knowledge to commit her murder and she succumbed to burn injuries while she was under treatment in the Tumkur Government hospital, thereby committed an

offence under Section 302 R/w 34 of Indian Penal Code?

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

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

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

10. On careful perusal of the oral and documentary

evidence placed on record, it would go to show that

deceased Sumalatha sister of complainant PW.4-

Narasimharaju, was given in marriage to accused No.1

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and their marriage was performed on 18.6.2010,

Ex.P.6-marriage invitation card. Accused No.2 is the

mother of accused No.1. Out of the wedlock they have

got a son aged about one-and-half years, is now in

custody of accused, further the incident of Sumalatha

caught with fire and suffered burn injuries on

23.9.2012 at 06.00 p.m. she was immediately shifted

to Koratagere and District hospital Tumakuru where

she succumbed to burn injuries on 24.9.2012 at 1.00

a.m. and the deceased Sumalatha died within 7 years

of her marriage are the facts not in dispute and the

same also can be borne out from the material placed

on record by the prosecution.

11. The prosecution to establish the charges leveled

against the accused mainly relied on the evidence of

PWs.4 to 8 on the issue of alleged ill-treatment and

harassment meted out to deceased Sumalatha on

demand of dowry of `50,000/- to purchase

Autorickshaw, further to prove the incident that

occurred in the house of accused and the death of

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Sumalatha is a dowry death, so also accused have

committed the murder of Sumalatha by pouring

kerosene and lit fire to her, due to burn injuries she

succumbed to such injuries while she was under

treatment in District Government Hospital, Tumkur.

The prosecution to prove the place of incident relies on

the evidence of PW.9-Lakshmamma and PW.10-T M

Venkatesh and the spot panchanama Ex.P.8. The

evidence of PW.11-Manjunatha and PW.12-Raju are

relied to prove the inquest panchanama Ex.P.13. The

said evidence is sought to be corroborated by the

evidence of PW.13 Dr. S Rudramurthy who conducted

the autopsy of deceased Sumalatha and issued PM

report Ex.P.16. The prosecution also seeks to rely on

the evidence of Investigating Officers PW.16-K R

Chandrashekar and PW.17- L.Jagadeesh.

12. Learned Amicus Curiae for the appellant has

argued that there is enough material evidence in the

form of oral testimony of PWs 4 to 8 to prove that

deceased Sumalatha was subjected to mental and

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physical cruelty on demand of dowry of `50,000/- to

purchase the Autorickshaw for accused No.1. The

place of incident where deceased Sumalatha suffered

burn injuries in the house of accused and her death is

within 7 years of marriage, the Trial Court should have

drawn necessary presumption in terms of Section 113B

of the Indian Evidence Act. The deceased Sumalatha

has made oral dying declaration before her brother

PW.4 Narasimharaju and her parents with other

villagers who had come to the hospital to see her and

there was no any valid reason for the Trial Court to

discard the oral testimony of PWs. 4 to 8 in this regard.

Accused have offered no any explanation as to how

Sumalatha was caught with fire in the house of

accused leading to her death due to burn injuries.

13. Per contra, learned Amicus Curiae for

respondents No.1 and 2 has argued that the evidence

of PW.4-Narasimharaju and complaint allegations on

alleged oral dying declaration are contrary to each

other version. PW.5 Seetharamaiah has deposed to the

- 13 -

effect that deceased Sumalatha did not talk to CW.1

(PW.4 Narasimharaju) while she was in the hospital,

further more PW.16 K R Chandrashekar, who on

receipt of the complaint Ex.P.4, registered the case

Ex.P.17, has deposed to the effect that complainant

informed to him that deceased Sumalatha was not in a

position to talk. The first treating doctor at Koratagere

Government hospital has not been examined and no

any MLC intimation is received in this case. Therefore,

there is reasonable doubt in the case as set up by the

prosecution and the Trial Court has rightly appreciated

the evidence on record.

14. Learned High Court Government Pleader

representing respondent No.3 supports the above

referred arguments advanced by the learned Amicus

Curiae for appellant.

15. Before proceeding further in analysing the

evidence laid in the matter, it is to be borne in mind

that it is an appeal against the judgment of acquittal

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of accused from the alleged offences punishable under

Sections 498A, 302, 304B r/w. Section 34 of IPC and

Section 3 and 4 of the D.P.Act. Therefore, accused

have primarily the double benefit. Firstly, the

presumption under law that, unless their guilt is

proved, the accused have to be treated as innocent in

the alleged crime. Secondly, the accused are already

enjoying the benefit of judgment of acquittal passed

under the impugned judgment. As such, bearing the

same in mind, the evidence placed by the prosecution

in the matter is required to be analysed. The Hon'ble

Apex Court in catena of judgments has laid down the

general principles regarding powers of the Appellate

Court while dealing in an appeal against an order of an

acquittal. It would be appropriate to refer to the latest

two judgments of Hon'ble Apex Court in Jafarudheen

Vs. State of Kerala reported in (2022) 8 SCC 440

at para 25 of the judgment, the Hon'ble Apex Court

was pleased to observe as below:

- 15 -

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

The Hon'ble Apex Court in another latest

judgment in Roopwanti vs. State of Haryana and

Others reported in 2023 SCC Online 179 wherein it

has been observed and held in paragraph No.7 that :

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

- 16 -

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

It is keeping in mind the above principles laid down by

the Hon'ble Apex Court, we proceed to analyse the

evidence placed on record by the prosecution.

16. The prosecution to prove the place of incident

relied on the spot panchanama Ex.P.8 drawn on

25.9.2012 as shown by PW.9-Lakshmamma and her

oral testimony, co-pancha PW.10 T M Venkatesh and

seizure of MO Nos.1 to 5 under the said panchanama.

PWs. 9 and 10 though have not supported the case of

the prosecution, but admitted that they have put their

signature on the panchanama Ex.P.8 and identified

their signatures. Much less the place of incident

- 17 -

where deceased Sumalatha suffered burn injuries in

the house of accused is not disputed by the defence.

Therefore, the prosecution has proved place of

incident where deceased Sumalatha suffered burn

injuries is the place of residence of accused.

17. The prosecution has relied on the evidence of

PW.11-Manjunatha and PW.12- Raju and they have

deposed to the effect that in the mortuary of Tumkur

Government Hospital inquest panchanama Ex.P.13

was drawn by the Tahsildar, Tumkuru and they have

signed on the inquest panchanama Ex.P.13 as per

Exs.P.13(a) and (b). The defence has not challenged

their evidence and therefore, their evidence has to be

accepted regarding drawing of inquest panchanama in

their presence in the mortuary of Tumkuru Govt.

hospital Ex.P.13.

18. The evidence of PW.13 Dr. S Rudramurthy would

go to show that on 25.9.2012 he received requisition

from Tahsildar, Tumkuru for conducting PM

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examination of deceased Sumalatha. On receipt of

such information, he conducted PM examination from

10.15 a.m. to 11.15 a.m. On examination, found

following external injuries :

II and III degree burns present all over the body except soles. The skin over the burnt area blackened and peeled off at most places exposing areas of redness and smells of kerosene

Scalp hairs over top, facial hairs, axillary hairs and pubic hairs partially burnt. The deceased has suffered 90% to 95% ante mortem and fresh burns.

PW.13 Dr. S Rudramurty has recorded finding that

death of deceased Sumalatha was due to shock as a

result of burn injuries sustained. The prosecution by

virtue of above referred evidence has proved that

deceased Sumalatha died due to burn injuries.

19. The prosecution alleges that death of Sumalatha,

wife of accused No.1, is homicidal and accused have

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contended that death of Sumalatha is accidental. The

prosecution to prove the charge under Section 498A

and Section 304B of IPC must necessarily prove that

deceased Sumalatha was subjected to mental and

physical cruelty which is of such nature to drive her to

commit suicide and it is an unnatural death within a

period of 7 years of her marriage, so as to draw

presumption in terms of Section 113B of the Indian

Evidence Act that death of Sumalatha was a dowry

death. The prosecution also alleges that accused

Nos.1 and 2 have poured kerosene on Sumalatha in

their house and lit fire with an intention or knowledge

to commit her murder.

20. The complaint allegations Ex.P.4 filed by

complainant PW.4 Narasimharaju would go to show

that the marriage of his sister Sumalatha was

performed with accused No.1 on 18.6.2010 and as per

demand of his parents, cash of `50,000/-, 15 gms of

gold neck chain and 8 gms ring was given to accused

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No.1, so also a pair of 10 gms gold ear stud and 10

gms gold hangings and 8 gms ring was given to

Sumalatha, further performed the marriage by

spending `3,00,000/-.

Upto one year of marriage, they lived happily and

they got a son by name Jeevan. Thereafter, all the

family members of accused started picking up quarrel

with his sister Sumalatha, abusing her in filthy

language and used to assault her and were demanding

to get `1,00,000/- to them for purchasing Auto

rickshaw, otherwise threatened to kill her by pouring

kerosene. In this regard, police complaint was filed

and the police have advised accused No.1 and his

family members to lead happy marital life with

Sumalatha.

On 18.9.2012 himself and PW.5 Seetharamaiah

went to the house of the accused to give bagina to

Sumalatha. However, the family members of accused

No.1 confined Sumalatha in a room. When the same

was questioned by the complainant, all the family

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members alleged to have stated that if they wish will

kill Sumalatha and who was he to question the same

and did not allow him to talk with Sumalatha.

Complainant wished to file complaint before Police,

however, at the instance of PW.5 Seetharamaiah on

his advise that things will be set right in future, came

back to house.

On 23.9.2012 at 6.00 P.M. the villager of

Thumbadi over phone informed to Suresh about

accused assaulting and by pouring kerosene litting fire

to Sumalatha, as a result she suffered burn injuries

and she was shifted to Koratagere hospital. On receipt

of such information from Suresh, complainant with his

parents and 10 to 15 members of the village went to

Koratagere hospital, where they were informed that

Sumalatha was taken to Tumkuru Government

hospital for higher treatment. Therefore, all of them

went to Government hospital, Tumkuru at 11.30 P.M.

and found that sister of complainant was suffering due

to burn injuries. On seeing them, Sumalatha stated

- 22 -

before them that accused No.1 and all his family

members are not good and without there being any

mistake of her, poured kerosene and lit fire to her.

The doctors in the hospital did not attend to

Sumalatha and on the same day, she succumbed to

the burn injuries at 01.00 A.M. Complainant alleging

all the family members of accused No.1 being

responsible for the death of his sister Sumalatha filed

the complaint. The said allegations made in the

complaint has to be tested in the light of oral

testimony of PWs.4 to 8 relied by the prosecution.

21. PW.4-Narasimharaju, the elder brother of

deceased Sumalatha, has deposed to the effect that at

the time of marriage, dowry of `50,000/- cash, one

gold chain and 8 gms. gold ring was given and by

spending `3,00,000/-, marriage was performed with

accused No.1. Out of the wedlock they have got a son

by name Jeevan.

Thereafter, accused started ill-treating and

harassing his sister Sumalatha by insisting to get

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dowry of `50,000/- to purchase Autorickshaw. In

order to press their such demand, Sumalatha was

being tortured and in this regard, complaint was also

filed before Koratagere police. However, police advised

accused No.1 and family members to lead happy

marital life with his sister.

After one-and-half months, himself and PW.5 went

to the house of accused to give bagina to her sister,

but they were not allowed and sent out of house by

assaulting.

On 23.9.2012 at about 7.00 A.M. one Suresh

informed over phone to the complainant that his sister

was set to fire and asked him to go to Koratagere.

Complainant with 10 to 15 persons went to Koratagere

where they were informed that Sumalatha was taken

to Government hospital, Tumkur. On seeing them and

after enquiry she stated that accused Nos.1 and 2

poured kerosene and lit fire to her. On the same day

at about 1.00 A.M. she succumbed to the burn injuries

and he has filed the complaint Ex.P4 on 24.9.2012.

- 24 -

22. PW.5-Seetharamaiah has deposed about the

death of Sumalatha due to burn injuries and CW.1

Narasimharaju informing him about husband and wife

quarrelling. About two years back on the same day of

giving bagina, Sumalatha died. This witness was

declared partly as hostile witness.

23. PW.6- T B Ramachandraiah has deposed to the

effect that there was no giving and taking at the time

of marriage. The deceased Sumalatha and accused

No.1 have got a child and he is residing with the

accused. He came to know from the neighbours that

Sumalatha while crossing the boiled oil vessel kept for

preparing bonda, accidentally caught with fire and he

has signed on the panchanama Ex.P.8, he was

declared as partly hostile witness.

24. PW.8, Narasaraju has deposed to the effect that

about four years back, CW.1 Narasimharaju informed

him that he had gone to the house of Sumalatha to

invite her to Gowri festival and they did not send her

- 25 -

with him. He has further deposed to the effect that

husband and wife quarreled, accused No.2 abused

Sumalatha and accused have lit fire to her. On

23.9.2012 he visited Tumkuru hospital and Sumalatha

was talking. When she was questioned, she told that

accused have lit fire to her. He has also been declared

as hostile witness.

25. The specific allegation in the complaint Ex.P.4

with respect to demand of dowry is to the effect that

at the time of marriage on demand of parents of

accused No.1, cash of `50,000/-, 15 gms. gold neck

chain, 8 gms finger ring was given to accused No.1.

The deceased Sumalatha was given with 10 gms, pair

of ear stud, 10 gms. ear hanging and 8 gms ring. The

marriage was performed by spending `3,00,000/-.

The defence of accused is that neck chain and finger

ring were given to accused No.1 out of love and

affection and he has given back the same to PW.4

Narasimharaju and asked him to get changed into

- 26 -

Mangallya chain. However, he did not get Mangallya

chain for Sumalatha and due to which there was

quarrel between them. The deceased Sumalatha

though died accidentally, by misusing the situation

PW.4 Narasimharaju filed false complaint.

26. PW.1- R Srinivas, PW.2 - Lalithamma and PW.3 -

Venkateshappa, who were said to have advised

accused No.1 for leading happy marital life with

Sumalatha have not supported the case of the

prosecution.

PW.4 - Narasimharaju only deposed about giving

of `50,000/- cash, gold neck chain and 8 gms. gold

ring, but his evidence is totally silent about accused or

any of their family members having demanded dowry

before or at the time of marriage.

PW.5 - Seetharamaiah in his entire examination-

in-chief never speaks about any demand of dowry or

giving articles as stated in the complaint Ex.P.4.

PW.4- Narasimharaju in his evidence refers to

- 27 -

another incident of himself and PW.5 Seetharamaiah

having gone to the house of Sumalatha for giving

bagina, at that time they were physically assaulted

and sent out of the house. However, PW.5-

Seetharamaiah does not speak any of such thing

happened in the matrimonial house of Sumalatha.

PW.6 - T.B. Ramachandraiah has deposed to the

effect that there was no giving and taking at the time

of marriage.

PW.7 - Dattatreya only speaks about having

given pair of ear stud, neck chain and one pair of

gundu. His evidence is totally silent about accused

having demanded dowry as referred in the complaint

Ex.P.4.

PW.8 - Narasaraju in his evidence never speaks

anything about demand and giving of gold articles as

referred in the complaint.

The above referred evidence of PWs.4 to 8, does

not speak anything about accused or their family

members having demanded cash and gold articles

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before or at the time of marriage. There is also no

any evidence on record to show that marriage talks

took place prior to fixing the marriage of Sumalatha

with accused No.1 and wherein accused have

demanded cash and gold as referred in the complaint

Ex.P.4. The giving of neck chain and finger ring has

not been denied by the accused. However, it is the

contention of the accused that he has given the same

back to PW.4 Narasimharaju for changing the same

into Mangallya chain and he has not returned the

same. Therefore, there used to be quarrel between

Sumalatha and PW.4.

27. In the light of above, the defence has got

marked the portion of further statement of

complainant PW.4 as Ex.D.1 and also the statement of

PWs.7 and 8 as Exs.D.2 and D.3. The said statement

of PWs.4, 7 and 8 at Exs.D.1 to D.3 relates to accused

No.1 having given his gold chain and ring to PW.4

Narasimha for preparing Mangalya chain. However,

- 29 -

they have denied having given such statement before

the Investigating Officer. The Investigating Officer

PW.17 L.Jagadeesh has maintained that PW.4

complainant has given further statement Ex.D.1 and

other witnesses having not stated as per the

statement recorded by him. It means that PWs.4, 7

and 8 have given statement before the Investigating

Officer PW.17 L.Jagadeesh Exs.D.1 to D.3

respectively. Therefore, it can be inferred that accused

No.1 has given gold neck chain and ring to

complainant PW.4 Narasimharaju for preparing

Mangalya chain. The above referred inference has to

be drawn in the absence of other evidence or any

explanation from the prosecution side. It is true that

there is no evidence to the effect that due to non

return of Mangalya chain and ring there used to be

quarrel between deceased Sumalatha and PW.4

Narasimharaju, but the fact remains that accused No.1

has given gold neck chain and ring to PW.4

Narasimharaju for preparing Mangalya chain.

- 30 -

28. In so far as the incident of ill-treatment and

harassment that took place when PW.4 Narasimharaju

and PW.5 Seetharamaiah had gone to the house of

Sumalatha for giving bagina, it is alleged in the

complaint Ex.P.4 that when PW.4 Narasimharaju and

PW.5 Seetharamaiah had gone to the house of

Sumalatha for giving bagina, accused and their family

members confined Sumalatha in a room and when

PW.4 questioned about the same, all the family

members objected for such questioning. Further both

of them were sent out of the house. The evidence of

PW.4 Narasimharaju is totally contrary to the one

alleged in the complaint Ex.P.4 and the evidence of

PW.5 Seetharamaih is silent on this incident.

Therefore, the evidence of PW.4- Narasimhaiah and

PW.5 - Seetharamiah cannot be relied to prove the

incident that alleged to have occurred at the time of

giving bagina in the house of Sumalatha, as claimed in

the complaint Ex.P.4.

- 31 -

29. It is also alleged in the complaint Ex.P.4 that

accused were quarrelling with deceased Sumalatha

and threatened to lit fire to her by pouring kerosene

and in this regard, he has filed complaint in

Koratagere police station. On the basis of said

complaint, Koratagere police have advised accused to

lead happy marital life with Sumalatha. The evidence

of PW.5 Seetharamaiah is totally silent on this aspect.

The prosecution has also not proved the said

allegation by producing documents to show that any

complaint was filed by PW.4 Narasimharaju on the

assault incident over PW.4 - Narasimharaju and PW.5

Seetharamaiah said to have taken place in the house

of Sumalatha. Therefore, it will have to be held that

prosecution has failed to prove the incident of ill-

treatment as alleged in the complaint- Ex.P.4 in this

regard.

30. The deceased Sumalatha with burn injuries was

admitted to Koratagere and Tumkuru hospitals on

23.09.2012 and she succumbed to burn injuries on

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24.09.2012 at about 01.00 A.M. The complaint Ex.P.4

was filed on 24.09.2012 at 05.30 P.M. There is

considerable delay in filing the complaint. PW.4

Narasimharaju with regard to filing of complaint has

deposed to the effect that complaint was got

computerized by his brother Hanumanthegowda at

Bengaluru. The evidence of PWs.4 to 8 is silent as to

the brother of complainant, Hanumanthegowda,

having come to the hospital at Koratagere or in

Tumkuru. It means that the allegations made in the

complaint are based on the information said to have

been given by PW.4 Narasimharaju. The brother of

complainant Hanumanthegowda has not been

examined to speak about the contents of the

complaint Ex.P.4. Therefore, the contention that

allegation of ill-treatment and harassment of deceased

Sumalatha on alleged demand of dowry is an after

thought cannot be ruled out. It is also pertinent to

note that since from the date of marriage till the death

of Sumalatha, there were no quarrel between

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husband and wife regarding the demand of dowry and

corresponding ill-treatment, further the said

allegations in the complaint Ex.P.4 appears to have

been made only after the death of Sumalatha.

31. It is alleged in the complaint Ex.P.4 that after

marriage, accused No.1 started ill-treating and

harassing Sumalatha to get `1,00,000/- from her

parents, since he wanted to purchase Autorickshaw.

In order to press such demand, accused No.1 was

abusing in filthy language and threatened to kill her by

pouring kerosene. In this regard, PW.4-

Narasimharaju claims to have filed complaint before

Koratagere Police Station and have advised accused

No.1 to lead happy marital life with Sumalatha.

However, no documents for having filed such

complaint on alleged ill-treatment have been produced

by the prosecution. PW.4-Narasimharaju in his

evidence deposed to the effect that accused were

demanding to get `50,000/- for purchase of

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Autorickshaw. However, other than the oral testimony

of PW.4 Narasimharaju and the allegation made in the

complaint Ex.P.4, there is virtually no any evidence

placed on record by the prosecution in this regard.

The evidence of PWs.5 to 8 is totally silent about

accused No.1 having demanded either cash of

`1,00,000/- as stated in the complaint Ex.P.4 or cash

of `50,000/- as deposed by PW.4-Narasimharaju.

Therefore, the prosecution out of the material

evidence placed on record as referred above, has

failed to prove that accused were ill-treating and

harassing deceased Sumalatha on demand of dowry.

32. The prosecution to prove the death of Sumalatha

as homicidal and accused Nos.1 and 2 poured

kerosene on Sumalatha and lit fire to her, so also the

death Sumalatha is a dowry death, relies on the oral

evidence of PWs 4 to 8. The prosecution further

claims that deceased Sumalatha made oral dying

declaration and relies on the evidence of PWs. 4, 7

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and 8. The fact that, deceased Sumalatha was given

in marriage to accused No.1 and their marriage was

performed on 18.06.2010, further the incident took

place in the house of accused on 23.09.2012 wherein

Sumalatha succumbed to burn injuries on 24.09.2012

at about 01.00 A.M. while she was under treatment in

the District Government hospital, Tumakuru and the

deceased Sumalatha left with one-and-half year old

son by name Jeevan is now in the custody of accused

are the facts not in dispute.

33. PWs. 4 to 8 came to Koratagere hospital and

District Government hospital, Tumakuru only after

they came to know about the incident through one

Suresh who informed that Sumalatha sustained burn

injuries and shifted to hospital. The prosecution relies

on the alleged oral dying declaration of deceased

Sumalatha before PW.4 Narasimharaju, PW.7

Dattatreya and PW.8 Narasaraju.

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PW.4 Narasimharaju with reference to the oral

dying declaration of his sister Sumalatha deposed to

the effect that on enquiring her in the District hospital

Tumakuru, she told that accused Nos.1 and 2 poured

kerosene and lit fire to her. This fact has not been

alleged in the complaint filed by him Ex.P.4.

PW.4-Narasimharaju during the cross-

examination claims that oral dying declaration was

made in presence of 15 persons/villagers of the

village, including his parents. The parents of deceased

Sumalatha i.e. CW.15-Lakshmaiah and CW.16-

Vijayalakshmamma have not been examined by the

prosecution, though their statements have been

recorded by the Tahsildar, Tumakuru while drawing

inquest panchanama Ex.P.13.

PW.4 Narasimharaju alleges that after admitting

his sister Sumalatha with burn injuries, doctors in the

Government hospital in Tumakuru did not attend to

her. Whereas it is the evidence of PW.13-Dr. S

Rudramurthy that injured was treated in the hospital

- 37 -

and it is recorded in Ex.P.16. However, in spite of the

said fact, no MLC was sent to the outpost police

station situated in the premises of District Government

hospital, Tumkuru. The evidence of PW.7 and PW.13

would go to show that they have admitted about the

existence of outpost police station in the premises of

District Government hospital, Tumkuru. The

Investigating Officer PW.17 - L Jagadish claims that

he received the information from the hospital on

24.9.2012 at 5.30 p.m. It means that even according

to Investigating Officer, PW.17- L Jagadish, intimation

was received from hospital much after the time of

death of Sumalatha in District Government Hospital,

Tumakuru.

34. PW.7 - Dattatreya claims that deceased Sumalatha

told that accused lit fire to her. However, PW.4

Narasimharaju does not speak about the presence of

PW.7 - Dattatreya when his sister deceased Sumalatha

made oral dying declaration. PW.7- Dattatreya admits

- 38 -

that PW.4 - Narasimharaju brought him to the Court

to give evidence.

PW.8 - Narasaraju is another witness before

whom deceased Sumalatha alleged to have been made

oral dying declaration. He has deposed to the effect

that on enquiry deceased Sumalatha told that accused

by pouring kerosene lit fire to her. The presence of

PWs. 7 and 8 at the time of alleged oral dying

declaration of deceased Sumalatha has not been

certified by the evidence of PW.4-Narasimharaju. In

view of the inconsistencies in their evidence and

absence of evidence about fitness condition of

deceased Sumalatha for making oral dying

declaration, further non-presence of any doctor at the

time of alleged dying declaration creates serious doubt

in believing that deceased Sumalatha had made oral

dying declaration in the presence of PWs.4, 7 and 8.

35. The basis on which the prosecution claims that

accused Nos.1 and 2 have committed the murder of

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deceased Sumalatha by pouring Kerosene and litting

fire to her is based upon the alleged oral dying

declaration said to have been made by deceased

Sumalatha before Pws.4, 7 and 8. In view of the

analysis made above about the evidence of PWs.4, 7

and 8, there is reasonable doubt about deceased

Sumalatha having made oral dying declaration before

them. Other than the alleged oral dying declaration of

deceased Sumalatha, there is virtually no other

evidence placed on record by the prosecution to prove

that accused have poured Kerosene and lit fire to her.

PW.8 Narasaraju has admitted in the cross-

examination that accused No.1 and deceased

Sumalatha were married in 2008 and leading happy

marital life and they were residing separately, the

parents of accused No.1 were residing separately,

further the sisters of accused No.1 are residing in their

matrimonial home. Accused No.1 is doing the work of

sheep herding and used to leave the house in the

morning and return only in the evening. This witness

- 40 -

is not in anyway concerned to the accused, his

evidence would go to show that he is from the side of

complainant. If the above referred admission of PW.8

Narasaraju are taken into consideration in the absence

of other material evidence on record, it will have to be

held that prosecution has failed to prove that accused

have poured Kerosene on deceased Sumalatha and lit

fire to her with an intention to commit her murder.

36. In view of the reasons recorded as above, it is to

be observed and held that prosecution has failed to

prove that deceased Sumalatha was subjected to

physical and mental cruelty on demand of dowry

either before or at the time of marriage or thereafter.

The allegation of accused No.1 having ill-treated

deceased Sumalatha and on demanding of `50,000/-

has also not been proved by the prosecution.

Therefore, no presumption can be drawn in terms of

Section 113B of Indian Evidence Act that the death of

- 41 -

Sumalatha is dowry death which attract penal action in

terms of Section 304B of IPC.

37. Lastly, the conduct of the accused right from the

incident occurred in the house till the death of

Sumalatha also will have to be taken into

consideration. PW.4 Narasimharaju admits that

accused No.1 has shifted Sumalatha to the hospital

and he was very much present with the injured

Sumalatha in Tumakuru hospital. The son born to

accused No.1 and Sumalatha by name Jeevan is now

under the care and custody of accused No.1. If at all

the accused have poured kerosene and lit fire to her,

then the accused would not have shifted injured

Sumalatha to the hospital and the guilty mind of

accused No.1 would not have permitted him to stay

with injured Sumalatha till her death. Further, accused

never made any attempt to escape from the scene of

offence. The one-and-half year old son Jeevan is under

care and custody of accused No.1 are the factors

- 42 -

leaning in favour of accused in the absence of any

connecting evidence to hold that it is accused who

have poured kerosene on Sumalatha and lit fire to her.

In view of the reasons recorded as above, it is

observed and held that the prosecution has failed to

prove the allegation of deceased Sumalatha being

subjected to mental and physical cruelty, therefore, no

any presumption can be drawn in terms of 113B of the

Indian Evidence Act that death of Sumalatha is dowry

death.

Learned Amicus Curiae for respondent Nos.1 and

2 has relied on the judgment of the Hon'ble Apex

Court in Jayamma and Others vs. State of

Karnataka reported in (2021) 6 SCC 213 wherein it

has been observed and held that :

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

- 43 -

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

In the present case also, appellant/complainant has

failed to demonstrate that judgment of Trial Court

suffers from perversity or the conclusions drawn by it

were improbable, if there was a correct reading and

analysis on record. The Trial Court has rightly

appreciated the evidence on record and is justified in

holding that the prosecution has failed to bring home

the guilt of accused beyond all reasonable doubt. As

such, no interference is called for in this case.

Consequently, we proceed to pass the following :

ORDER

The appeal filed by appellant/complainant is

hereby dismissed.

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The assistance rendered by the learned Amicus

Curiae for Appellant and learned Amicus Curiae for

respondents No.1 and 2 is appreciated in assisting the

Court for disposal of the appeal.

The honorarium of the learned Amicus Curiae for

Appellant and respondents No.1 and 2 is fixed as

Rs.5,000/- each respectively payable by the registry.