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9. The learned Sessions Judge after hearing the
arguments of both sides, convicted accused No.1 to 8 and
sentenced them as under:
1. Accused No.1 to 8 each are sentenced to undergo
simple imprisonment for a period of three months
for the offence punishable under Section 143 of
IPC.
2. Accused No.1 to 8 each are sentenced to undergo
simple imprisonment for a period of six months for
the offence punishable under Section 323 of IPC.
3. Accused No.1, 2, 7 and 8 each are sentenced to
undergo simple imprisonment for a period of one
year and to pay fine of Rs.5,000/- each and in
default of payment of fine, to further undergo
simple imprisonment for a period of 30 days, for
the offence punishable under Section 307 of IPC.
4. Accused No.3 to 6 each are sentenced to undergo
simple imprisonment for a period of one year and
to pay fine of Rs.5,000/- each and in default of
payment of fine, to further undergo simple
imprisonment for a period of 30 days, for the
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offence punishable under Section 307 read with
Section 109 of IPC.
5. Accused Nos.1 to 8 each are sentenced to undergo
simple imprisonment for a period of six months for
the offence punishable under Section 504 of IPC.
6. Accused No.1 is sentenced to undergo simple
imprisonment for a period of one year and to pay
fine of Rs.5,000/-, and in default of payment of
fine, to further undergo simple imprisonment for a
period of 30 days, for the offence punishable
under Section 498-A of IPC.
7. Accused No.1 is sentenced to undergo simple
imprisonment for a period of five years and to pay
fine of Rs.70,000/- and in default of payment of
fine, to further undergo simple imprisonment for a
period of 30 days, for the offence punishable
under Section 3 of D.P.Act.
8. Accused No.1 is sentenced to undergo simple
imprisonment for a period of six months and to
pay fine of Rs.5,000/- and in default of payment
of fine, to further undergo simple imprisonment
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for a period of 30 days, for the offence punishable
under Section 4 of D.P.Act.
It is ordered that all the sentences shall run
concurrently.
That is challenged in these appeals.
10. We have heard the arguments of the learned
counsel for the accused and learned Addl.State Public
Prosecutor for the State.
11. The following points emerge for our
determination :
(1) Whether the learned trial Judge erred in
convicting the accused Nos.1 to 8 for the offences
punishable under Sections 143, 323, 307, 504,
109, 498A of IPC and Sections 3 and 4 of Dowry
Prohibition Act and whether interference is
required?
(2) Whether the sentences imposed by the
trial court are inadequate?
(3) What order?
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12. Our findings on the above points are as under:
In this case, the relationship between the parties and
marriage of PW-1 with accused No.1 and giving and taking
of the properties as mentioned in Ex.P-2 are not in
dispute. Accused Nos.2 to 8 are the relatives of accused
No.1 is also not in dispute. It is the defence of the
accused that the articles were given and taken as
mentioned in Ex.P-2 as per the customs prevailing in their
community; PW-1 had extra marital relationship with one
Parashuram Tarasingh Rathod of Bannur village; Accused
No.1 and members of his family have objected for the
same. Panchayaths were held twice in this regard and
members of the panchayath directed said Parashuram to
pay compensation of Rs.1,50,000/- to PW-1 for having
illicit relationship with her after her marriage with accused
No.1. Due to the same, PW-1 and members of her family
filed false case on them. Few days prior to the alleged
date of incident, PW-1 left the house of accused No.1 and
started residing in her parents' house; No such incident
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had taken place. Just to harass the accused, a false
complaint was filed against them by PW-1.
13. The material witness in this case is PW-1. She is
the victim. It is the evidence of PW-1 that six months prior
to her marriage with accused, engagement ceremony was
performed and during engagement, as per the demand of
the accused, cash of Rs.65,000/-, golden ornaments and
household articles were given to the accused as per the
list prepared in Ex.P-1. She went to the house of accused
No.1 after marriage to lead marital life. For a year, the
accused looked after her properly. After delivery of the
child, accused No.1 along with his parents started ill-
treating her and forced her to bring dowry in terms of cash
and gold from her parents; A panchayath was held in this
regard by the elders of the village; In spite of that,
accused continued to ill-treat her for the sake of dowry;
14. She further stated that, about four years prior to
her evidence, i.e., on 26.09.2015, at about 6.45 p.m., the
accused started quarrelling with her in the house of
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accused Nos.1 and 2; accused No.1 abused her in filthy
language, accused No.2 Vittal Rathod threatened and tried
to assault her with axe and he also tried to molest her; At
that time, the other accused namely Sumitra, Sushilavva,
Sonavva and Rukmavva were present at the spot; accused
No.1 abetted accused No.2 to murder her; and accused
Nos.7 and 8 tried to molest her. Due to assault by all the
accused, she sustained injuries on her back and chest.
During the quarrel, her grandfather PW-2 and PW-3 came
to the spot and rescued her. On the next day, her
grandfather took her to Hulikere village, where she took
treatment in a private hospital. She discussed with the
members of her family and after two to three days of the
incident, she went to Katkol Police Station and lodged the
complaint as per Ex.P-1. Thereafter, police took her to a
private hospital and provided her treatment. She further
stated that on the next day of lodging of the complaint,
around 1.00 p.m., along with the police, she went to the
house of accused situated at Bannur village and drew
mahazar as per Ex.P-3.
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15. In her cross-examination by the accused, she has
stated that according to the customs prevailing in their
community, elders of the family of both the parties, i.e.,
bride and bridegroom will discuss about the articles to be
given and taken as per the status of both family and
determine the articles to be given by both the parties.
Normally they call it as a "presentation"; And accordingly
bridegroom as well as bride will give and take the said
articles. She also admits that as per said customs at the
time of her marriage also articles were given and taken
and they were considered as "presentations".
From the answers given by PW-1 in her cross-
examination, one can infer that articles given and taken as
mentioned in Ex.P-2 are not dowry, but customary articles
which are permitted under Section 3 of D.P.Act.
16. PW-1 is the author of Ex.P-1 and it is a written
complaint. In the said complaint no where it is stated by
her that, at the time of her marriage with accused No.1,
as per their demand, her parents gave dowry as
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mentioned in Ex.P-2. Her allegations in Ex.P-1 are that
after one and half years of her marriage or after the birth
of her son Manoj, accused started ill-treating her for the
sake of dowry and they were forced her to bring cash and
gold from her parents. PWs.4 and 5 (parents of PW-1)
also in the cross-examination admitted that articles
mentioned in Ex.P-2 were given and taken as per customs
prevailing in their community. They are the best
witnesses to prove the fact of demand of dowry and giving
of dowry to accused No.1. Hence, their evidence also does
not help the case of prosecution.
The other witnesses, who are relatives of PW-1, have
stated in their evidence that, at the time of marriage of
PW-1 with accused as demanded by the accused, articles
mentioned in Ex.P-2 were given to accused. In view of
admission of PWs.1, 4 and 5, their evidence is not reliable.
17. Ex.P-1 is a typed complaint or computerised
complaint dated 29.06.2015 lodged three days after the
incident. It appears that PW-1 is an illiterate. The
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contents of Ex.P-1 also show that copy of the said
complaint was sent to Superintendent of Police, Belagavi,
Deputy Superintendent of Police, Bailhongal and Police
Inspector, Ramadurg. PW-1 in her examination-in-chief
has not disclosed as to where the said complaint was
prepared, who prepared and who has given instructions to
the scribe to type the contents.
18. PW-18 Ravikumar Lakkappa Dharmatti, the then
Police Sub-Inspector of Katkol Police Station, in his
evidence has stated that on 29.09.2015, PW-1 handed
over a computerized complaint to him in Katkol Police
Station and on that basis, he registered a case in Crime
No.205/2015 and submitted the FIR through PW-20 to the
Court.
19. PW-1 in her cross-examination has stated that
she does not know Kannada language to read and write.
She does not know who wrote Ex.P-1 and where it was
typed. She got it typed in the police station. She does not
know whether it was typed by the police. She pleads
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ignorance about sending of copies of Ex.P-1 to superior
officers of the police. It shows that she has not given
instructions to draft Ex.P-1 and she is not the author of
the same. The case was investigated by police on the
basis of Ex.P-1 which is written complaint filed three days
after the incident. The author of the said document did
not support the case of prosecution. When base itself is
not proved by the prosecution, that creates serious doubt
in the case of prosecution.
20. PW-1 is the wife of accused No.1 and lived with
him for a period of about two years prior to the incident.
In her cross-examination, she pleads ignorance that her
husband was serving as a Teacher in a private school at
Davanagere. She denied staying with him at Davanagere.
She also denied the status of other accused and their
place of residence. PW-5- mother of PW-1 admits the said
suggestions in her cross-examination. Hence, the answers
given by PW-1 indicate that she was not deposing true
facts in the Court.
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21. PW-1 in her further cross-examination has stated
that on 26.09.2015, she went to a private hospital situated
at Katkol and her father as well as her uncle by name
Chandru were accompanying her to the hospital and she
went to the said hospital around 7.00 p.m. She further
stated that on the day of incident, she took treatment and
she told the said doctor about the incident, but she did not
give the names of persons who assaulted on her. She
further stated that as on the date of filing of the complaint
to the police, police did not take her to hospital for
treatment and she again said that police also took her to
hospital for treatment. As per prosecution case, she took
treatment for first time on 29.06.2015 at Government
Hospital at Katkol. The evidence of PW.1 to 5 and
Investigating Officer in this regard are inconsistent.
22. The Investigating Officer has not collected
medical certificate from the private hospital wherein PW-1
had taken treatment for the first time on the date of
incident. PW-1 has not at all stated about visiting
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government Hospital for taking treatment. Even PW.2 to
5, have also not stated about taking treatment at
Government Hospital. But the certificate produced is
given by Government Hospital. Looking to these facts, it
is very difficult to believe the evidence of PW-1 and case of
prosecution.
23. PW-2 is said to be an eye witness to the incident
dated 26.09.2015. He is also an elder of the family of
PW-1 participated in the engagement ceremony of PW-1.
In his evidence, he has stated that as per the demand of
the accused dowry in the form of cash, golden ornaments
and household articles were given to accused No.1. He
further stated that PW-1 went to the house of accused to
lead marital life with accused No.1. After giving birth to a
child by PW-1, accused started assaulting her, but he was
unaware about the reason for the ill-treatment to PW-1.
He further states that, three years prior to his evidence at
about 6.00 p.m., accused were assaulting
PW-1 in their house by closing the door. Hearing the
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commotion from their house, villagers gathered in front of
the house of accused. He along with PW-3 went to the
house of accused and opened the door. He found that all
the accused were assaulting PW-1 with hands as well as
club. He rescued PW-1. He further states that had he not
rescued PW-1 on that day, then the accused would have
killed her. He further stated that on the next day of the
incident, he sent PW-1 to her parents' house at Hulikere.
24. He has not supported the case of the prosecution
as per his previous statement recorded by the
Investigating Officer. Therefore, prosecution treated him
as hostile and cross-examined him. In his cross-
examination, he admitted all the suggestions of the
learned Public Prosecutor. In his cross-examination by the
Public Prosecutor, he did not explain as to why he was
unable to say said facts in his examination-in-chief. It is
also pertinent to note that PW-2 in his evidence has not at
all stated that his house is situated nearby the house of
the accused. According to his case, the accused have
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closed the door of their house and assaulted PW-1. If that
was the case, then how could PW-2 entered the house is
not explained. Moreover PW-1 in her evidence has not all
stated that she raised hue and cry while the accused were
assaulting on her. But PW-2 says that there were
commotion and hue and cry by PW-1, therefore, people of
the said village gathered in front of house of the accused.
PW-1 says that she never disclosed the ill-treatment of
accused to PW-2 and PW-2 in the cross-examination by
learned Public Prosecutor denied the suggestion of the
prosecution that PW-1 used to inform him about the
ill-treatment of accused on her on demand of dowry.
Hence his evidence that accused demanded dowry after
the birth of a child is not believable.
25. It is worth to note that PW-2 is none other than
the maternal grandfather of PW-1 who resides in the very
same village wherein she was residing with her husband.
If really she was subjected to cruelty by the accused, then
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it is difficult to believe that she would not inform the same
to PW-2 It also create doubt in the evidence of PW-2.
26. As already stated above, PW-2 did not explain in
his evidence as to how he came to know that there were
commotion in the house of the accused. If his house is
situated nearby the house of the accused, then there
might be chances of hearing such commotion from the
house of the accused. In the map prepared by the
Investigating Officer, as well as in the spot mahazar, there
is no reference about situation of house of PWs.2 and 3
nearby the house of the accused. Hence PW-2 is not
probable eye witness to the incident and appears to be a
planted witness.
27. PW-2 in his cross-examination admits that
according to the customs and traditions in their
community, elders of the family of both bride and
bridegroom sit together and discuss regarding the articles
to be given and taken during the marriage. The said
evidence of PW-2 also probabalises the defence of the
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accused that Ex.P-2 was prepared by elders of both the
family before the marriage as per their customs and
tradition of the community. Evidence of PW-2 also is not
helpful to prove the case of prosecution.
28. PW-3 is the maternal aunt of PW-1. She has
narrated the facts of the case regarding marriage of PW-1
with accused No.1 and demand of dowry by the accused at
the time of marriage and thereafter harassment and
ill-treatment to PW-1 by the accused for the sake of
dowry. She also claims to be an eye witness to the
incident dated 26.09.2015. In her further evidence, she
has stated about the incident. According to her, on
26.9.2015, the incident had taken place inside the house
of the accused and all the accused assaulted on PW-1.
She came to know this fact from someone and she went to
the house of the accused around 9.30 p.m., and brought
PW-1 to their house. She has also stated that when she
went to the house of accused, accused No.1 was
assaulting PW-1 with hands, accused No.2 was trying to
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strangulate PW-1 and accused Nos.3 to 6 were abetting
accused No.2 to murder PW-1, so that accused No.1 could
marry for the second time. She further stated that at the
time of the incident, accused No.7 was not at the spot of
the incident. Accused No.8 was present in the place of
incident but he did not participate in the incident. All the
accused were abusing PW-1 in filthy language. She
further stated that after the incident, she brought PW-1 to
their house and took her to private hospital and provider
her treatment. Three days after the incident she sent
PW-1 to her parents' house.
PW-3 also did not fully support the case of the
prosecution. Therefore, learned Public Prosecutor treated
her as a hostile witness and cross-examined her and in the
said cross-examination, she admitted whatever
suggestions made by the Public Prosecutor.
29. Looking to the examination-in-chief of PW-3, it
appears that she has not seen the incident. According to
the case of the prosecution, as well as evidence of PWs.1
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and 2, the incident had taken place around 6.30 p.m. in
the house of accused. But according to PW-3, the incident
had taken place at about 9.00 p.m. She also stated that at
that time she along with PW-2 went to the house of
accused around 9.30 p.m. From her evidence it is difficult
to believe that PWs.2 and 3 are eye witnesses to the
incident. She has also stated that her house was situated
close to the house of accused. Under such circumstances,
after hearing the information from others, going to the
house of the accused and witnessing the incident is not
probable.
It is worth to note that both PW.2 and 3 in their
respective examination-in-chief have not stated the case
of the prosecution. They have admitted the suggestion of
prosecution in their cross examination. Hence, evidence of
PWs.2 and 3 is not reliable.
30. PW-3 in her cross-examination by the accused,
has stated that as per the customs and traditions in their
community, during marriage talks, elders of both
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bridegroom and bride decide the articles to be taken and
given to both the side and a list will be prepared. The said
evidence also supports the defence of the accused that the
articles given and taken as mentioned in Ex.P-2 are not as
per the demand by the accused, but as per the customs
and traditions prevailing in their community.
From the above discussions, evidence of PW-3 also
do not help the case of the prosecution to prove the guilt
of the accused beyond reasonable doubt.
31. PW-4 is the father of PW-1. In his evidence also,
he has reiterated the case of the prosecution and has
stated that, as per the demand of accused No.1, they gave
dowry, which are mentioned in Ex.P-2 and for additional
dowry, the accused were harassing and ill-treating PW-1.
For about four years prior to his evidence, all the accused
assaulted on PW-1 with an intention to murder her.
Accused No.2 abetted other accused to kill PW-1. He had
an axe and handle of the axe with him and he brought
them with an intention to assault on PW-1. Accused No.2
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also tried to strangulate PW-1. These facts were informed
to him by PW-1. Admittedly he is not an eye witness.
In his cross-examination, he also admits that as per
customs and traditions of their community during marriage
talks, elders of both the family decide the articles to be
given and taken during marriage. He also admits that the
same customs were followed during marriage of PW-1.
32. PW-4 in his cross-examination has further stated
that, two days after the incident, PW-1 came to his house
and informed about the incident and on the same day, he
and PW-1 went to the hospital at Katkol. While taking
treatment, his daughter told about the history of injury to
the Medical Officer and told that accused caused hurt to
her and the Medical Officer has noted down the said facts.
To corroborate the same prosecution has not placed any
records. Accused were said to have demanded additional
dowry from him. He did not state the quantum of money
and gold demanded by the accused.
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33. To prove the very same fact, PW-5 - mother of
PW-1 was examined. She has also narrated the facts as
stated by PW-4. She stated that PW-1 informed her about
the ill-treatment of the accused for the sake of dowry and
also narrated the dated 26.09.2015.
In her cross-examination, she has also stated that as
per the customs in their community, during marriage talks
elders of both family will discuss and prepare list of articles
to be given and taken at the time of marriage.
34. In her further cross-examination, she has stated
that, at the time of marriage, accused No.1 was serving as
a teacher in a private school at Davanagere and after the
marriage, PW-1 went to Davanagere to lead her martial
life. When PW-1 became pregnant, she came to Hulikere
for delivery and after delivery; she again went to the
house of accused No.1 at Davangere. During Ganesha
festival in the year 2015, accused No.1 brought PW-1 to
her house and left in her house and went to Davanagere.
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She also stated that accused Nos.6 and 8 are running a
hotel at Davangere.
35. Contrary to the above evidence of her mother,
PW-1 has denied that she went to Davangere and stayed
with accused No.1 when he was serving as a teacher in
Davangere. Even she pleads ignorance that accused No.1
was serving as a teacher at Davangere. She pleaded
ignorance about occupation of accused Nos.6 and 8 and
denied the suggestion that both of them are running a
hotel at Davangere and residing at Davangere.
36. Though it is not a material fact in the present
case, but, it indicates that PW-1 was not deposing the true
facts before the Court and for the reasons best known to
her, even she tried to suppress the fact that her husband
was working as a teacher in a private school at Davangere
and she stayed with him till she was sent back home. It
also indicates that evidence of PW-1 is not believable.
37. PWs.6 and 8 were examined by the prosecution
to prove demand and giving of dowry at the time of
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marriage of PW-1. The prosecution unnecessarily
examined several witnesses to prove some facts. They
are hearsay witnesses to the incident dated 26.09.2015.
For the reasons discussed above, there is no need to
discuss the evidence of PWs.6 and 8. PWs.1 to 5
themselves admit that as per the customs and traditions of
their community, Ex.P-2 was prepared and articles were
exchanged.
38. All the above said witnesses, including the
complainant relied on Ex.P-2 to prove the demand and
giving of dowry. On perusal of Ex.P-2, as admitted by
PWs.1, 2, 3, 4, 6 and 8 that as per the customs and
traditions prevailing in their community, elders of both the
family will discuss and decide the articles to be given and
taken at the time of marriage and a list will be prepared
in this regard. On perusal of Ex.P-2, it indicates that
elders of the family decided the articles to be given by
family of the bridegroom to the bride and vice versa. It is
not one sided. Ex.P-2 also shows that the family of the
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bridegroom has to give half tola of gold, golden ear-stud,
five sarees with blouse pieces, nose-stud and toe-rings.
Ex.P-2 does not bear the signature of the accused. On the
contrary, it appears to be having the signatures of elders
of PW-1. The contents of Ex.P-2 clearly shows that by
mutual consent, elders of both the family prepared the list
of articles given and taken at the time of marriage. It
appears, for lodging the complaint, PW-1 has misused it
and lodged the complaint. It appears that even
Investigating Officer did not read it. Contents of Ex.P-2
are contrary to the case of prosecution.
39. PWs.1, 4 and 5 are material witnesses to prove
subsequent demand of dowry. Allegation of demand of
additional dowry is vague. PWs.1, 4 and 5 no where stated
what was the amount of cash as well as quantity of gold
demanded by the accused as an additional dowry and
whether any attempts were made by PWs.4 and 5 to give
the said dowry. There are no reliable evidence in this
regard.
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40. PW-1 is victim of the incident dated 26.09.2015.
While discussing her evidence, it is stated about the acts
alleged to be committed by the accused on that date. Most
of her allegations are against accused No.2. According to
her accused Nos.3 to 6 were present at the spot, but, they
did not involve in the incident. She is doubtful about the
presence of accused No.7 at the spot. She has not stated
that all the accused assaulted on her with hands and
clubs. She contends that accused No.1 brought club and
axe to assault on her. It is pertinent to note that the
Investigating Officer did not seize either of such weapons
to prove the case of the prosecution or to prove that
accused No.2 brought axe and club at the time of the
incident. PWs.1 to 3 have stated that all the accused
brought clubs and with that assaulted PW-1. The said
clubs also are not seized and produced before the trial
Court without any explanation. Therefore, using of the
above said instruments for committing the crime is not
proved by the prosecution.
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41. The evidence of PWs.1 to 5 regarding taking
treatment by PW-1 is not consistent. PW-1 has stated
that due to assault, she sustained swelling on her chest
and back. On the next day her grandfather took her to
Hulikere village and she took treatment in a private
hospital at Hulikere village. Two to three days after the
incident, after lodging the complaint, police took her to
hospital at Katkol and again she took treatment. PW-2 in
his evidence has stated that on the next day, he dropped
her at her parents' house. Thereafter, PW-1 took
treatment at Hulikere. PW-3 has stated that on the date
of the incident, PW-1 was taken to private hospital at
Bannur tanda, thereafter PW-1 was sent to her parents'
house. PW-4 in his evidence has stated that PW-1 was
taken to private hospital at Hulikere tanda and thereafter,
she was treated at Government Hospital, Katkol. PW-5
has stated that after lodging the complaint, police took
PW-1 to the hospital for treatment.
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42. The Investigating Officer has not examined the
doctors who gave treatment to PW-1 at different hospitals.
According to the evidence of PW-1, she had sustained
swelling injuries on her back and chest, but, that is not
reflected in the wound certificate.
43. The prosecution examined PW-16 Dr.Raosaheb
Bunti who has treated PW-1. He has stated that on
29.09.2015, at 7.00 p.m., PW-1 was brought by a Police
Constable of Katkol Police Station with the history of
assault. On examination of the patient, he noticed that she
had no external injuries, but, she had internal pain all over
the body. The age of the injuries at the time of
examination was 0-2 days. The injuries were simple in
nature and might have caused due to hard and blunt
object. He gave the wound certificate as per Ex.P-14.
PW-16 also has stated that, if any person is assaulted by
hands, then, reddish mark appearing in the body would
disappear within 24 hours.
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44. It is pertinent to note that on the date of
evidence, PW-16 did not bring MLC register to the Court to
give the evidence. In his cross-examination, he says that
he has noted the history of injury and treatment given to
PW-1 in the MLC register. He has not mentioned MLC
Register serial number in Ex.P-14. He also stated that, in
case of history of assault, he would enquire the patient
and enter their statement about date, time and place of
assault in the MLC register and same fact would be
mentioned in the wound certificate; however, Ex.P-14
does not have all these particulars. PWs.1 to 5 not at all
stated that PW-1 was taken to Government Hospital
(P.H.C.), Katkol. They consistently stated that PW-1 took
treatment at a private hospital. The said hospital is also
situated at different place. Hence, medical evidence also
create doubt about case of prosecution.
45. The Investigating Officer did not seize the alleged
weapons of offence as stated by PWs.1 to 3. In Ex.P-14
also, the weapon of offence said to be used by the accused
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is not mentioned; Date, time and place of the incident is
also not mentioned in Ex.P-14. PW-16 says that he had
given treatment to PW-1. During evidence, PW-16 did not
produce the MLC register, wherein details of the history of
injuries and treatment given to the victim are said to be
mentioned. PW-16 has no explanation for not bringing
MLC register while deposing before the Court. Ex.P-14 is
silent regarding all these facts. All these inconsistent
evidences create serious doubt about the case of
prosecution.
46. PWs.1 to 3 are said to be victim and eye
witnesses to the alleged assault. Their evidence regarding
assault on PW-1 is not consistent. PW-1 in her evidence
has stated that accused No.1 abused her and assaulter her
with hands, accused No.2 attempted to assault on her with
axe and she has not stated that other accused have also
assaulted on her. She has stated a stray sentence that all
the accused assaulted on her, due to which, she sustained
injuries.
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47. PW-2 has stated that hearing the commotion, he
went inside the house of the accused and found that all
the accused were assaulting PW-1 with hands and club.
That is not the evidence of PW-1. PW-3 in her evidence
has stated that on 26.09.2015, around 9.30 p.m., incident
had taken place and when she entered the house of the
accused, she saw that accused No.1 was assaulting on
PW-1 with hands and accused No.2 was attempting to
strangulate her. She does not say that other accused also
assaulted PW-1 with hands and club. Therefore, the
evidence of PWs.1 to 3 is inconsistent with regard to the
incident said to have taken place on 26.09.2015.
48. It is worth to note that, as per the spot mahazar,
as well as the map prepared by the Investigating Officer,
the house of PWs.2 and 3 was not at all situated nearby
the house of the accused. In the evidence of PWs.2 and 3,
they have not stated as to the distance between their
house and the house of the accused. PW-2 says that, on
hearing the commotion, he came to the house of the
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accused and PW-3 says that, as per the information
received by her, she came to the house of the accused.
Both says that they came together to the house of
accused. Both says that they come together to the house
of accused. Looking to the evidence of PW-1, the incident
must have taken place within a period of 5 to 10 minutes
and the door of the house was said to be closed. PWs.2
and 3 have not stated as to who opened the door of the
house of accused. PW-1 also not stated that during
incident, PWs.2 and 3 came inside the house of accused.
All these evidence creates serious doubt regarding the
occurring of the incident on 26.09.2015.
49. PWs.6 and 13 were examined by the prosecution
to prove demand and giving of the dowry at the time of
marriage. As discussed in the above paras, from the
contents of Ex.P-2 and evidence of PWs.1 to 5, it is clear
that the said articles were given and taken as per the
custom prevailing in their community and not at the
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instance of the accused. Therefore, it will not come under
the definition of Section 3 of D.P.Act.
50. The other witnesses i.e., PWs.7 to 12, 14 and 15
are not material witnesses to this case. They are
neighbours of accused; They were examined to prove
demand of dowry and incident dated 26.09.2015. They
have turned hostile to the case of the prosecution. Since,
they are not material witnesses, no need of discussion of
their evidence.
51. PWs.17, 18 and 20 are official witnesses. They
have deposed about their role in the investigation. There
is no need to discuss their evidence.
52. PW-19 - the Investigating Officer in his evidence
has not given explanation regarding non-seizure of the
club and axe or handle of the axe said to be used by the
accused to assault PW-1. He has not clarified regarding
the clinic wherein PW-1 had taken treatment, when there
are inconsistencies in the evidence of material witnesses.
He did not examine Parashuram with whom PW-1 was said
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to be having extra-marital relationship. He was root cause
of litigation this incident, it would have helped prosecution
to ascertain truth. PW-19 failed to look into the contents
of Ex.P-2 before proceeding with investigation. He also
did not ascertain location of house of PWs.2 and 3 in spot
mahazar and map. PW-16 has stated the injury sustained
by PW-1 was with blunt object. PW-19 has not seized
alleged blunt object and taken opinion of PW-16 in that
regard. PW-19 did not examined members of panchayat
held to settle the dispute, to ascertain the dispute. PW-19
also not enquired with witness as to whether there was
any custom of giving and taking of articles at the time of
marriage in the community of accused and PW-1.
53. The learned trial Judge has not considered
following facts while appreciating the evidence of
witnesses :
(a) PW-1 had no knowledge of contents of
Ex.P-1 and also who wrote it. Possibility of
witnessing incident by PW-2 and 3 was less.
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Moreover, they have not fully supported the
case of prosecution.
(b) There are lot of inconsistencies in the
evidence of material witnesses regarding
incident, time of incident and treatment given to
PW-1.
(c) Except PW-16 and 19 no witnesses
have stated that PW-1 took treatment with PW-
16. PW-16 has not produced MLC register
during his evidence.
(d) Contents of Ex.P-2 disclose exchange
of articles between bride and groom and
accused were not the author of said document.
The learned trial Judge has not properly appreciated
Ex.P-2 and evidence of witnesses in that regard. Ex.P-2
reveals that the articles to be given and taken at the time
of marriage were decided by the elders of village as per
the customs. It does not amounts to dowry as per
Section 3 of D.P.Act. Therefore, the learned trial Judge
without appreciating the evidence in the right perspective,
accepted the evidence of the prosecution witnesses,
because of which, it came to a wrong conclusion.
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54. The evidence of DW-1 and DW-2 do not help the
accused to prove their defence. For the sake of
discussion, if PW-1 had extra-marital relationship with one
Parashuram and a panchayath was convened in this
regard and the panchayathdars directed the said
Parashuram to pay Rs.1,50,000/- as a compensation to
PW-1, then how far it provoke PW-1 to lodge a false
complaint against the accused, is not explained. It is not
the case of the accused that since PW-1 had
extra-marital relationship with Parashuram, they sent
PW-1 to her parents' house and in view of the said
reasons, she registered a false case against them to
harass them. Moreover, accused have not examined any
senior member of the panchayath to prove the said facts
and on the contrary, accused No.1 got himself examined
as DW-1 and he also got examined one witness as DW-2,
who was unconnected with the panchayath.
55. It is settled law that burden to prove the guilt of
the accused is on the prosecution. Accused failed to prove
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his defence is not a reason to convict him. Therefore, the
accused have not proved their defence is not a ground to
convict them. In the instant case, the learned trial Judge
has not properly appreciated the evidence of the
prosecution witnesses and hence came to a wrong
conclusion. Therefore, it needs interference by this Court.
The accused are entitled for acquittal of the charges
leveled against them.
56. State preferred appeal for enhancement of
sentence imposed by trial Court. In above paras, it is held
that trial Court erred in convicting the accused and appeal
filed by accused needs intervention by this Court. Hence
appeal filed by the State for enhancement of sentence will
not survive for consideration.
For the aforesaid discussions, we are of the view that
the prosecution has failed to prove the guilt of the accused
beyond reasonable doubt and giving the benefit of doubt,
accused are entitled for acquittal. Accordingly, we proceed
to pass the following :
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ORDER
(i) The Criminal Appeal No.100281/2021
filed by the accused is allowed.
(ii) The Criminal Appeal No.100377/2022
filed by the State is dismissed.
(iii) The judgment of conviction dated
30.09.2021 and order on sentence dated
01.10.2021, passed by the learned VI
Addl.District and Sessions Judge, Belagavi, in
Sessions Case No.18/2018, is set aside and
accused Nos.1 to 6 i.e., Manjunath, Vittal,
Smt.Sonavva, Smt.Rukmavva, Smt.
Sushilavva, Smt.Sumitra, Shrinath, and
Devaraj, all are residents of Bannur Tanda,
Ramadurg Taluk, Belagavi District, are
acquitted of the charges punishable under
Sections 143, 323, 307, 504, 109, 498A, read
with Section 149 of IPC and Sections 3 and 4
of Dowry Prohibition Act.
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Their bail bonds stands cancelled.
If the accused have already deposited the fine
amount in the Court, same shall be refunded to them, in
accordance with law.
Registry to transmit copy of this judgment along with
records to the concerned trial Court without any delay.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
bk
